author: DEL SOLE, Judge: WIEAND, Judge,

text:
    511 A.2d 858
    ELDERKIN, MARTIN, KELLY, MESSINA & ZAMBOLDI v. Gerald J. SEDNEY and Mark C. Polinek, jointly t/d/b/a Bayshore Marine, Appellants.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1985.
    Filed June 23, 1986.

      M. Richard Mellon, Erie, for appellants.
    James H. Richardson, Jr., Erie, for appellee.
    Before WIEAND, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

We are asked to decide whether the trial court erred in entering an order imposing sanctions, authorized by a local rule, against the defendant who failed to appear for the pre-trial conference. We find that the appeal is premature and that it must be quashed.

The facts are that several times during 1981, Appellants, defendants below, consulted with attorneys from United Financial Services, plaintiff, regarding expansion of their marine business. Appellants were presented with a bill for legal services, and a dispute arose over payment. Appellants claimed that they were never informed that the consultations were not part of the lending institution’s services. The dispute continued, and the plaintiff filed suit in arbitration in the Erie County Court of Common Pleas. When the case was called into arbitration, Gerald Sedney did not appear. He had apparently recently suffered a heart attack and had left the Erie area in order to recuperate. A verdict for the plaintiff was granted, and a timely appeal was taken. A de novo trial was scheduled. Counsel for defendant was to be in Pittsburgh during the time for the pre-trial conference and requested to be permitted to phone the court in order to appear for the conference. Although the court claimed it never had the opportunity to approve of this procedure, it awaited the call from defendants. The call was to take place at 10:00 a.m. At 10:20 a.m., the trial court granted plaintiffs motions for sanctions, which precluded the defendants from entering any evidence in their own defense or from opposing the claims of the plaintiff. Appellants assert that counsel’s father became ill suddenly and that he finally contacted the court at 10:30 and was informed of the court’s order.

Before this Court can address the merits of an appeal, our jurisdiction to decide those claims must be established. In order to avoid piecemeal litigation, no appeal will be permitted from an interlocutory order, unless specifically provided for by statute. See: Pa.R.App.P. 311, Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968). Otherwise, an appeal must be taken from a final order. Pa.R.App.P. 702(a); Sechler v. Ensign-Beckford Co., 322 Pa.Super. 162, 469 A.2d 233 (1983).

The Supreme Court of Pennsylvania in Commonwealth v. Wheeling Pittsburgh Steel, 473 Pa. 432, 375 A.2d 320, (1977), considered whether an order precluding Appellant from presenting its affirmative defenses was final and appealable. The court stated: “The refusal to allow evidence of a possibly meritorious defense effectively puts Wheeling out of court and, therefore, the order is ‘final’ for appeal purposes”. Id. 473 Pa. at 40, 375 A.2d at 323.

More recently, however, the Supreme Court has addressed the question of the appealability of an order and the test to be applied in making such a determination. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). The order at issue in Fried related to alimony pendete lite, counsel fees, and expenses. In concluding that the order was interlocutory and not reviewable until final disposition of the case, the Court utilized the test announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Court in -Fried noted that it was “persuaded by the wisdom of the approach” of the Cohen decision and therefore adopted it as part of the law of Pennsylvania in Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734, 735 (1975). Fried v. Fried, supra., 509 Pa. at 94, 501 A.2d at 214. In Fried the Supreme Court “affirmed the adoption of Cohen” and stated:

Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Fried v. Fried, supra., 509 Pa. at 94, 501 A.2d at 214, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978).

' In view of the Supreme Court’s action in Fried, we find the appropriate test to be applied in determining finality is the three prong Cohen test. While the first two prongs of this test will be met in many instances, to qualify as an appealable order, each of the three factors must be met. Fried v. Fried, supra. Accordingly, when analyzing an order to determine finality the last prong of the Cohen test is critical. A party seeking to determine if an immediate appeal should be taken from a particular order must ask whether an appeal from that order is permitted by statute or rule, and if not whether determination of the issue will be irreparably lost when review is postponed until final judgment in the case.

In light of the above, we have examined the instant order and we conclude the propriety of the trial court’s sanction order may arguably be considered separable from and collateral to the main cause of action. The issue may also be viewed as too important to be denied review. Nevertheless, this claimed right would not be irreparably lost if review were postponed until final judgment in the case. At that time all preserved issues could be raised at once and heard by the appellate courts. Thus, review is not denied, it is merely postponed until a more appropriate time. Sutliff v. Sutliff, 326 Pa.Super. 496, 506-507, 474 A.2d 599, 604 (1984) (Beck, J. dissenting).

The sanction imposed herein precluded defendants from opposing plaintiffs claims or from entering their own defense. This would not prohibit defendants from cross-examining and impeaching plaintiffs witnesses and objecting to the admission of evidence. In this case, it is still entirely possible that the jury may disregard the plaintiffs evidence and find for defendants. If the parties remain in the trial court until final judgment, there also exists the possibility that the litigation will be amicably resolved or that the parties will be satisfied with the result. In each of these instances, the defendants claim of error would not be lost by postponing review until final judgment and the unnecessary delay which accompanies interim appeals would be avoided.

If our goal to do justice is to be achieved, we must keep in mind that justice delayed is justice denied. As stated by the Supreme Court in Fried: “Our decision today reflects that policy of law which abhors ‘piecemeal’ determinations and the consequent protraction of litigation”. Fried v. Fried, supra., 509 Pa. at 97, 501 A.2d at 215.

In recent years, the Supreme Court of Pennsylvania has adopted changes in the Appellate Rules to foster the goal of eliminating “piecemeal” determinations. In 1983, Pennsylvania Rule of Appellate Procedure 1701(b) was amended to include subsections (6) which grants the trial court the authority to proceed with matters at the trial level when an appeal has been filed from a nonappealable order. Also, in 1985, Appellate Rule 311(a)(1) was amended to provide where a party seeks to open, vacate and/or strike off a judgment, “no appeal may be filed until the court has disposed of each claim for relief.” Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A. These rule changes were designed to prevent “piecemeal” determinations of issues, and to prevent the filing of an appeal notice in a nonappealable case from frustrating the orderly progression of the case to its final conclusion.

This same policy was evident in recent decisions of this Court involving immediate appeals from sanction orders. In the case of a default judgment entered for failure to comply with a discovery order, the defendant’s appeal subsequent to a judgment on liability but prior to the assessment of damages was found to be interlocutory. Sims v. Feingold, 329 Pa.Super. 437, 478 A.2d 869 (1984). See also: Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985), where this Court expressly declined to follow a Commonwealth Court case, Marshall v. Southeastern Pennsylvania Transit Authority, 76 Pa.Com. 205, 463 A.2d 1215 (1983), which would have permitted separate review of a default judgment entered as to liability and a second review following a subsequent determination of damages. Further, this Court in McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985) announced the policy that: “In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judgment in the main action”. Id., 342 Pa.Super. at 410, 493 A.2d at 87.

(B)y refusing an interim review of the sanction order, the main action can proceed uninterrupted to a final judgment, and thereafter, the final judgment, as well as interlocutory orders entered by the court, can be reviewed in one appeal.

Id., 342 Pa.Superior Ct. at 409, 493 A.2d at 87.

While some may view the conclusion reached today as potentially unjust given a different or “unusual circumstance”, we hasten to point out that the Appellate Rules provide a means for taking appeals by permission. See: Pa.R.A.P., Rule 311, 42 Pa.C.S.A. This procedure, when accompanied by a certification from the trial court of controlling question of law, or of a refusal for such a certification acts as a safety valve. It allows the Appellate Courts of the Commonwealth to address intermediate questions in cases pending in the trial court upon showing that the matter deserves to be addressed.

To the extent we can possibly reduce delay prior to final judgment at the trial level, we should foster that goal. This goal would best be fostered by not permitting appeals until the litigation at the trial level has concluded between parties. Intermediate appeals do nothing but delay the ultimate resolution of the litigation, clog the Appellate Courts, remove the matter from the hands of the trial court’s, and cause our citizens to be frustrated with the pace of the judicial system.

We find the logic applied by Judge Wickersham and the Court in Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981), (where the Court disallowed an appeal from a sanction of counsel fees and costs for failure to comply with Pa.R.A.P. 4019(g)), equally applicable to the instant case:

(I)f this order were to be found to be presently appeal-able, it would tend to discourage the (trial) court’s use of the disciplinary tool, and it would merely become another weapon in the arsenal of dilatory practice for the attorney who wished to delay the judicial proceedings.

Id., 285 Pa.Superior Ct. at 548, 428 A.2d at 181.

For these reasons we find that the instant appeal is interlocutory. If we were to permit parties to appeal orders such as the one found herein, it would stifle the expedition of litigation. In addition, parties such as Appellant are free to take an appeal once final judgment has been entered in the ease, at which time both sanction orders and the litigation of liability and damages may be reviewed.

Appeal quashed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

When counsel for the defendant-appellants failed to appear for a pre-trial conference, the trial court, pursuant to authority contained in a local rule of court, entered a sanction order which precluded the defendant-appellants from presenting evidence in defense of the claims being asserted against them. A majority of this court holds, not without some merit, that the order of the trial court is interlocutory and not subject to appeal until after a final judgment has been entered in a monetary amount. However, in Commonwealth v. Wheeling-Pittsburgh Steel Corp., 473 Pa. 432, 375 A.2d 320 (1977), the Supreme Court of Pennsylvania specifically held that such an order is appealable. “The refusal to allow evidence of a possibly meritorious defense,” the Court held, “effectively puts [appellant] out of court and, therefore, the order is ‘final’ for appeal purposes.” Id., 473 Pa. at 440, 375 A.2d at 323.

. I share the majority’s abhorence of a rule which permits piecemeal appeals. See: Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985). Therefore, I agree with the majority that, in general, the entry of a judgment for plaintiff on the issue of liability should not become appealable until damages have been determined and a final judgment has been entered. See: Sims v. Feingold, 329 Pa.Super. 437, 478 A.2d 868 (1984).

However, I must dissent vigorously from the majority’s conclusions (1) that Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra, has been overruled by implication by the opinion of the Supreme Court in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); and (2) that the appealability of the sanction order in the instant case is to be determined by application of the “collateral order” test announced by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949), and adopted by the Supreme Court of Pennsylvania in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), and Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). This rule “has applicability only to orders which are collateral to the main cause of action.” Praisner v. Stocker, 313 Pa.Super. 332, 342, 459 A.2d 1255, 1260-1261 (1983) (emphasis added). See also: Bell v. Beneficial Consumer Discount Co., supra; Pugar v. Greco, supra.

In Fried v. Fried, supra, the Supreme Court considered the appealability of an order pertaining to alimony, counsel fees and expenses in a divorce action. Such an order, the Court observed, was separable from and collateral to the main action of divorce. As such, the Supreme Court appropriately applied the “collateral order” test for appealability articulated in Cohen v. Beneficial Industrial Loan Corp., supra, and determined that appellate review of the order could be delayed, without prejudice to the parties, “until final disposition of the case.” Fried v. Fried, supra 509 Pa. at 97, 501 A.2d at 215.

The sanction order in the instant case is not separable from and collateral to the main action. It precludes the defendant-appellant from defending against liability in the main cause of action alleged by the plaintiff-appellees. Therefore, the appealability of the sanction order cannot be determined by applying the “collateral order” test.

The general rule applicable to sanction orders was articulated by this Court in McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985). We there said:

“As a general rule, this Court will not provide interim supervision of [pretrial] proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judg-ment____”

Id., 342 Pa.Superior Ct. at 410, 493 A.2d at 87.

The Supreme Court, in Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra, held that an order precluding a defendant from presenting a defense, because it effectively put the defendant out of court, was so unusual that it should be immediately appealable. Because this holding encourages piecemeal appeals — it permits two appeals in the same action even though one would clearly suffice — it would be my hope that the Supreme Court might reconsider the appealability of such an order. In the meantime, the holding thereof should not be expanded beyond the precise factual posture of that case. Because the Supreme Court’s holding in Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra, is precisely on all fours with the instant case, however, I believe we are bound by it. Therefore, I- would not quash the appeal in this case ,but would proceed to a consideration of the merits of the order from which the appeal was taken.

That order, in my judgment, was an abuse of discretion. The trial court overreacted to the rudeness of defense counsel and visited retribution on the client. I would reverse the sanction order and remand for trial on all disputed issues.

      . See also, Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) (where the Supreme Court ruled an appeal from the denial of a motion to dismiss on double jeopardy grounds was interlocutory and should be quashed when the hearing court has considered the motion and made written findings that it is frivolous. The Court speaking through Chief Justice Nix noted, "The needless delays engendered by frivolous appeals hinder the administration of justice as well as the public interest." Id., 510 Pa. at 346, 508 A.2d at 291).

      . The system’s “safety valve” was recognized by Justice Larsen in his Concurring and Dissenting Opinion in Commonwealth v. Brady, supra.: “A defendant who believes that the trial court erred in dismissing his double jeopardy claim as frivolous may seek interlocutory appeal by permission under 42 Pa.C.S.A. § 702(b) and Chapter 13 of the Rules of Appellate Procedure, and may seek a stay of the retrial, pending determination of the petition for permission to appeal an interlocutory order, from the lower court or an appellate court.... With this mechanism in existence, it is extremely unlikely that a legitimate double jeopardy claim will somehow ‘slip through the cracks’ ...” Id., 510 Pa. at 347, 508 A.2d at 292 (Larsen, J. Concurring and Dissenting).

      . Under this test, an order is considered appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review, and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Cohen v. Beneficial Industrial Loan Corp., supra 337 U.S. at 546, 59 S.Ct. at 1226, 93 L.Ed.2d at 1536.

      . It is interesting to note that the "collateral order” test of Cohen v. Beneficial Industrial Loan Corp., supra, had been adopted by the Pennsylvania Supreme Court before it decided Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    511 A.2d 863
    Theodore TRIESCHOCK, Jr., and Helen Mae Trieschock, His Wife, Appellants, v. OWENS CORNING FIBERGLAS COMPANY, INC., Louisiana Pacific Corp., Forty-Eight Insulations, Inc., Eagle-Picher Industries, Inc., Owens-Illinois, Inc., George V. Hamilton, Inc., Keene Building Products Corp., the Celotex Corp., Successor In Interest To Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and Panacon Corp., Atlas Asbestos Co., Ltd., Pabco Insulation Division of Louisiana-Pacific Corp., Pittsburgh Corning Corp., Combustion Engineering, Inc., Armstrong World Industries, Inc., Johns-Manville Corp. and Garlock Gasket Corp. v. ANCHOR PACKING COMPANY, Argo Packing, Inc., John-Crane Houdaille, Inc., Flexitallic Gasket Co., Inc., GAF Corporation, Raymark Industries, Inc., Durabla Manufacturing Company, and Tannetics, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1986.
    Filed June 24, 1986.

      William R. Caroselli, Pittsburgh, for appellants.
    Kathy K. Condo-Caritis, Pittsburgh, for Pittsburgh Corning, appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   BROSKY, Judge:

This appeal is from summary judgment. In dispute here is the trial court’s decision that the statute of limitations had run in this “creeping disease” case. The disposition of this issue entails consideration of two questions novel in this jurisdiction. First, with what degree of certainty must a plaintiff be aware of a medical condition in order to start the statute of limitations period running? Second, does a tentative, preliminary diagnosis — insufficient to start the statute running — activate a duty to make, with due diligence, further enquiries into the cause of his condition? Our answers to these questions, as applied to the facts of this case, require the reversal of the summary judgment.

Facts

Appellant, Theodore Trieschock, Jr., was employed as a pipefitter and service operator from 1945 to 1982. during this period he was exposed to asbestos.

In March of 1982, after reviewing employee medical screening results, a physician paid by appellant’s employer contacted appellant by telephone and told him that he suspected that appellant had asbestosis and that he was scheduled to visit a pulmonary specialist. Appellant went for that examination, and on April 8, 1982 was told by the specialist that he had asbestosis. The instant action was initiated on April 6, 1984.

A two-year statute of limitations applies, 42 Pa.C.S. § 5524. Thus, if that period started to run from the contact with the first physician in March of 1982, the action is not timely. If the statute of limitations period began only with the notification by the specialist, the case was clearly initiated in time.

As a general principle, the statute of limitations begins to run in a tort case when the cause of action accrues. When the cause of action accrues is, of course, quite apparent when a collision forms the grounds for the suit. But when the injury is, as here, due to a “creeping disease,” developing for years without symptoms after the exposure to the causative agents, that date is simply not ascertainable. Accordingly, this Court has fashioned a distinct rule for such cases: “We find that the statute of limitations begins to run in ‘creeping disease’ cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Cathcart v. Keene, 324 Pa.Super. 123, 136, 471 A.2d 493, 500 (1984).

The question before us then is whether the fact that appellant was told that asbestosis was suspected would establish, as a matter of law, that appellant knew, or should have known, that he had asbestosis, an “injury.” The case law in this Commonwealth has not treated a situation with these facts, but two .other jurisdictions have done so. A case out of Arizona, Mead v. American Smelting Refining Co., 1 Ariz.App. 73, 399 P.2d 694 (1965), concerned the timeliness of a Workmen’s Compensation claim. The statute of limitations provision in force provided that “the timé starts to run when the injury becomes manifest or when the claimant knows or in the exercise of reasonable diligence should háve known that he had sustained a compensable injury....” Id. 399 P.2d at 697. This test is sufficiently similar to the Cathcart test to justify consideration of the legal effect of a preliminary diagnosis in that state.

In Mead the worker had been informed by physicians of certain breathing disorders, but those physicians did not consider them to be serious. Holding that such a situation did not activate the worker’s duty to file a claim, the court wrote:

In our opinion, the Arizona Workmen’s Compensation Law does not place upon the employee the duty of knowing the nature of his disability and its relation to his employment before these things are reasonably ascertainable by the medical profession.

Mead, supra, 399 P.2d at 698.

Thirteen years later Arizona’s Supreme Court had this issue before it and approved of the intermediate appellate court’s rule in Mead.

In the case before us, the facts upon which the hearing officer based his award indicate that the deceased developed a disability related to shortness of breath shortly prior to his death. His treating physicians were unable to diagnose his condition as asbestosis prior to exploratory surgery and biopsy of fibrous tissues; in fact, a tentative diagnosis of carcinoma had been made. A claimant under such conditions cannot be held to a higher standard of diligence than the physicians treating him in discovering the relationship of his condition to his employment.

Nelson v. Industrial Commission of Arizona, 120 Ariz. 278, 585 P.2d 887, 891 (App.1978).

Another case, this one from Virginia, is also of interest: Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 122 S.E.2d 666 (1961). Like Mead and Nelson, Blue Diamond treated the timeliness of a Workmen’s Compensation claim. The standard for activating the statute of limitations was:

The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial Commission within one year after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, or a diagnosis of such disease is first communicated to him, which ever shall first occur ...”

Blue Diamond, supra, 122 S.E.2d at 668.

While that standard is considerably more cumbersome than the briefer Cathcart test, Blue Diamond is still instructive.

The preliminary diagnosis in Blue Diamond, parallel to the “suspicion” in the case sub judice, was reported by the examining physician as follows:

[In] November or December, 1957, I voiced an opinion to Hubert Pannell, after giving him a percussary chest examination, that he may have pneumoconiosis and should therefore be x-rayed. I was not able to make a confirming diagnosis of pneumoconiosis without the benefit (52) of x-rays and strongly urged him to have them taken____

Blue Diamond, supra, 122 S.E.2d at 668. The high court of Virginia concluded that these facts did noto constitute a sufficiently definite diagnosis to commence the running of the statute of limitations.

We find Mead, Nelson and Blue Diamond persuasive. A plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition. If those physicians are not reasonably certain as to his diagnosis, then he certainly cannot be bound to have the knowledge necessary to start the statute of limitations running. The information conveyed to appellant in March was insufficiently certain to start the period.

Another matter remains to be resolved. While the tentative diagnosis of suspected asbestosis was not sufficient to start the running of the statute of limitations, we believe it should be considered to have activated a duty on appellant’s part to determine, with due diligence, whether he did, in fact, have that disease. The absence of such a duty would mean that a potential plaintiff with a tentative diagnosis could wait indefinitely before acting to confirm it. That would not be consonant with the purposes served by the statute of limitations.

In Blue Diamond, the Supreme Court of Virginia approved of such a duty in the face of a tentative diagnosis.

The Commission found ‘that the oral opinion expressed by Dr. Gabriel to the decedent constituted the communication of a tentative diagnosis of occupational disease, which charged the claimant with the duty of obtaining x-rays, as directed, within a reasonable period of time in order that a definite diagnosis could be made.’

Blue Diamond, supra, 122 S.E.2d at 669.

In the instant case, it is apparent that appellant did act with due diligence in following up on the suspicion of asbestosis diagnosis. He saw a specialist and was definitely diagnosed the month after the first tentative diagnosis. What is more, appellant did perfect his claim within the two-year statute of limitations.

Order reversed. The case is remanded for further proceedings. Jurisdiction relinquished.

POPOVICH, J., notes his dissent.

      . This term refers to those medical conditions which develop slowly and progressively after exposure to the causal agent.

      . While we recognize that there are two appellants, husband and wife, the term appellant will refer to the husband.

      . A parallel duty was imposed in Cathcart vis-a-vis the second part of the test: “the burden is on the injured party, once he discovers the cause of his injuries .. to determine ... the party or parties whose negligence or breach of duty was responsible for the event or the condition.” Cathcart, supra, 324 Pa.Super. at 139, 471 A.2d 501.


author: WIEAND, Judge:

text:
    511 A.2d 866
    Charles BENJAMIN, Appellee, v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 10, 1986.
    Filed July 2, 1986.

      Anthony J. Frayne, Jr., Philadelphia, for appellant.

      Arnold H. Winicov, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

Charles Benjamin was injured in a motor vehicle accident on May 22, 1979. He was insured by Allstate Insurance Company pursuant to a policy which provided coverage for two vehicles owned by Benjamin. Allstate paid work loss benefits in the amount of $15,000.00. Benjamin, being of the opinion that he could “stack” coverages, made a claim for an additional work loss benefit of $15,000.00. Allstate denied the claim, and Benjamin sued. When the suit was initially submitted to compulsory arbitration, the board of arbitrators allowed work loss benefits to be stacked and entered an award in favor of Benjamin for an additional $16,800.00. Allstate filed an appeal to the Court of Common Pleas of Philadelphia County.

Trial was thereafter delayed until the Supreme Court had rendered its decision in Antanovich v. Allstate Insurance Co., 507 Pa. 68, 488 A.2d 571 (1985). On March 25, 1985, the instant action came on for trial before the court without a jury. At trial, Benjamin’s counsel relied upon Allstate’s admission of the first seven paragraphs of the complaint. These admissions established the facts already recited in this opinion. Paragraph 8 of the complaint, which alleged that Benjamin was entitled to payment of an additional work loss benefit because of insurance provided for the second vehicle, was specifically denied. Without introducing any further evidence, the plaintiff rested. When it was thereafter ascertained that the Benjamin policy was not present in the courtroom and/or available for examination, the trial court directed Allstate’s counsel to obtain an authenticated policy and continued the trial to permit him to do so. When trial reconvened four days later, Allstate’s counsel produced a copy of Allstate’s standard policy, but he was unable to show that it was an authenticated, exact copy of the policy which had been issued to Benjamin. The trial court, therefore, found in favor of Benjamin in the amount of $24,900.00. A motion for post-trial relief was denied, and judgment was entered on the verdict of the trial court. Allstate appealed. We reverse.

In Antanovich v. Allstate Insurance Co., supra, the Supreme Court held that where a policy of automobile insurance contained unambiguous language precluding the stacking of work loss benefits, the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., did not prevent the enforcement thereof. In the face of such plain and unambiguous language, the Court said, an insured could have no reasonable expectation of obtaining stacked benefits. Id., 507 Pa. at 76-77, 488 A.2d at 575.

The trial court in the instant case interpreted Antanovich as shifting the burden of proof in an action on an insurance policy to the defendant insurer.- The court held that appellant was required to disprove the plaintiff-appellee’s claim for double work loss benefits. This was error. The law is to the contrary.

“As in other civil actions, the burden is on the plaintiff, in an action on an insurance policy, to prove every fact in issue which is essential to his cause of action or right of recovery.” 19 P.L.E. Insurance § 461. See: Marlowe v. Travelers Insurance Co., 320 Pa. 385, 181 A. 592 (1935); Allen v. Insurance Co. of North America, 175 Pa.Super. 281, 104 A.2d 191 (1954). Thus, it is the plaintiff who is required to establish that his claim is within the coverage provided by the policy. See: Appleman, Insurance Law and Practice § 12094. In the instant case, the burden was on the plaintiff to show that the terms of the policy required the insurance company to pay a maximum work loss benefit in excess of the $15,000,00 which it had agreed to pay on account of the vehicle involved in the accident.

The trial court suggested that the plaintiff-appellee had met his burden and had made out a prima facie case for stacking benefits. We disagree. The only evidence offered by the plaintiff-appellee at trial consisted of the facts ah leged in the first seven paragraphs of the complaint and admitted by the appellant-insurer. These admissions were that the plaintiff-appellee had been injured in an automobile, accident; that the vehicle being driven by the plaintiff-ap-pellee and one other car owned by him had been insured under a policy of automobile insurance issued by the appellant insurance company; that the insurer had already paitl work loss benefits of $15,000.00, this being the maximum amount recoverable under the policy for one vehicle; and that the plaintiff-appellee had made a claim for an additional work loss benefit of $15,000.00 which had been denied by the insurer. The plaintiff-appellee did not offer a copy of the policy of insurance and did not prove by formal admission or by evidence that the insurer was obligated by the terms thereof to pay a benefit in excess of the maximum amount recoverable pursuant to coverage provided for the vehicle which appellee had been driving at the time of the accident.

The eighth paragraph of the complaint which alleged that the insurer was required by the terms of its policy to pay an additional work loss benefit of $15,000.00 was specifically denied in an answer filed by the appellant-insurer; and the trial court concluded that the averments of paragraph eight had not been admitted.

Under these circumstances, the plaintiff-appellee failed to prove a cause of action entitling him to a double work loss benefit under the terms of the policy. In the absence of a prima facie case, the appellant-insurer was not required to produce evidence disproving the claim. The failure of the plaintiff-appellee’s proof was not remedied by the appellant-insurer’s inability to produce an authenticated policy at trial. When the trial court imposed liability upon the insurer merely because it had failed to produce a copy of the policy, the court fell into error.

We have examined carefully the entire record. That examination is conclusive that the plaintiff-appellee failed to prove a cause of action entitling it to recover work loss benefits in addition to those previously paid. Under these circumstances, the judgment will be reversed and entered in favor of the appellant-insurer.

Judgment reversed and entered in favor of appellant.


author: POPOVICH, Judge:

text:
    511 A.2d 869
    In re ESTATE of Dorothy GORDON, Deceased. Appeal of SECURITY BANK & TRUST COMPANY, Now by Merger, United Penn Bank, Executor.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed July 7, 1986.

      Kirby G. Upright, Stroudsburg, for appellant.

      Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from a decree of the Court of Common Pleas denying exceptions to an adjudication and adopting the decree nisi as a final decree. We affirm.

Appellant, Security Bank and Trust Company, as executor of the estate of Dorothy Gordon, filed a first and final account. Appellees, Vivian Jane Gordon and Dorothy Jane Gordon, filed objections to the account, and an auditor was appointed. Following hearings, the auditor entered a report recommending, inter alia, that appellant be surcharged $85,300 for selling real estate at less than fair market value. Appellant filed exceptions which were denied, and an adjudication and decree nisi were entered. Appellant again filed exceptions which were subsequently denied, and a final decree was entered.

In its appeal to this Court, appellant raises the following issues: 1) are appellees barred from objecting at this time because they failed to restrain the sale of the real estate; 2) did the auditor fail to apply the proper standard of care; and 3) did the auditor err in finding the appraiser negligent and in finding appellant negligent by failing to recognize a deficiency in the appraisal.

Appellant contends appellees cannot now be heard to object to a sale of real property. The decedent had owned a 30% interest in approximately 84 acres of land. Appellant sold the property for $15,600 to one of the co-tenants in a private sale limited to co-tenants and decedent’s relatives. The trial court found that the fair market value of the property was $100,000 at the time of the sale.

Appellant argues that since appellee, Vivian Jane Gordon, took part in the private bidding and made a bid of $11,000, she is estopped from asserting a higher fair market value. The record supports the trial judge’s refusal to accept this argument. The finder of fact found appellee, Vivian Jane Gordon, in no way misled appellant and entered her bid of $11,000 in an attempt to keep appellant from accepting a prior bid of $10,000. The record supports appellee was without the financial means to enter a substantially higher bid; furthermore, we can find nothing in the record to indicate when appellee first learned of the true market value. Under these circumstances mere participation in the bidding process by one appellee does not evoke estoppel.

20 Pa.C.S.A. § 3355 gives one the right to petition the court to restrain a sale under certain circumstances. However, the language of the section does not indicate one must seek to restrain a sale or else waive any right to surcharge; rather, the section addresses when one may petition to restrain.

§ 3355. Restraint of sale

The court, on its own motion or upon application of any party in interest, in its discretion, may restrain a personal representative from making any sale under an authority not given by the governing instrument or from carrying out any contract of sale made by him under an authority not so given. The order may be conditioned upon the applicant giving bond for the protection of parties in interest who may be prejudiced thereby. The order shall be void as against a bona fide grantee of, or holder of a lien on, real estate unless the decree restraining the sale, or a duplicate original or certified copy thereof, is recorded in the deed book in the office of the recorder of deeds in the county in which such real estate lies, before the recording or entering of the instrument or lien under which such grantee or lienholder claims.

We note appellant does not argue, nor do the facts support, a finding that appellees acted in collusion with the co-tenant who successfully procured the property through the private bidding.

Appellant argues Orphans’ Court is a court of equitable jurisdiction and appellees cannot seek a surcharge in a court of equity since they failed to seek out their remedy at law under 20 Pa.C.S.A. § 3355. This issue has been waived by appellant’s failure to include it specifically in its exceptions to the auditor’s report. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Turning now to appellant’s second issue, we find no error in the trial court’s application of a negligence standard to appellant’s conduct. Appellant contends it cannot be surcharged absent a finding of fraud or gross negligence. However, it “is well settled in this Commonwealth that a fiduciary who has negligently caused a loss to an estate may properly be surcharged for the amount of such loss.” In re Estate of Lohm, 440 Pa. 268, 273, 269 A.2d 451, 454 (1970). A fiduciary must use the common skill, prudence, and caution that a prudent man, under similar circumstances, would employ to manage his own estate; if, however, a fiduciary has greater skill than an ordinary man, the standard of care must be judged according to the special skill. Id. Therefore, in this particular case where appellant is a corporate fiduciary, the trial court did not err in refusing to employ a gross negligence standard.

Appellant next contends that even if the appraiser it employed was negligent, appellant itself was not negligent in relying on the appraisal. At the hearing, appellant’s appraiser testified the property in question had a fair market value of $15,800. The finder of fact did not accept this valuation because the expert had insufficient evidence to justify his conclusions. The auditor found appellant negligent in relying on this appraisal because at the time appellant accepted it, the appraisal woefully lacked documentation. Moreover, appellant’s negligence was not based solely on its acceptance of this appraisal but also on its decision to offer the property only through a private sale without any consideration of possible alternatives.

Decree affirmed.

      . Although not listed as part of its "Statement of Questions Involved", appellant’s brief includes in its argument section a discussion of four other meritless issues: a) did the auditor abuse his discretion in accepting appellee’s expert testimony; (b) did the auditor abuse his discretion in issuing a surcharge for interest paid on a loan; c) did the auditor err in reducing the executor’s commission; and, d) did the auditor err in accepting appellee’s valuation of the real estate. We need not discuss these in light of appellant's failure to conform to our rules. Pa.R.A.P. 2116(a); Commonwealth v. Gray, 399 Pa.Super. 385, 489 A.2d 213 (1985).


author: HESTER, Judge:

text:
    511 A.2d 871
    COMMONWEALTH of Pennsylvania v. $15,836.85 — CASH. Appeal of Joseph Lee MATTOX, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1986.
    Filed July 11, 1986.

      Allen H. Smith, York, for appellant.
    Tyann Miller, York, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order forfeiting the sum of $15,836.85 to the Commonwealth pursuant to the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), 35 P.S. § 780-101 et seq., and refusing appellant’s motion for return of the money pursuant to Pa.R.Crim.P. 324. We affirm the order of forfeiture.

Appellant’s residence was searched on December 14, 1983, pursuant to a valid warrant. In addition to approximately two pounds of marijuana and paraphernalia such as balance scales, police officers seized over $15,000 found in three bank bags and a cash register. The Commonwealth applied for forfeiture of the cash, appellant applied for its return and a hearing was held on August 6, 1985.

The Commonwealth presented evidence through William Resh, an informant, that appellant claimed to earn $15,000 from construction work and three times that amount, or $50,000, from illegal drug dealing. N.T., 7/6/85, at 3-4. The state trooper who executed the search warrant and arrested appellant testified that, in his opinion based on the search, there was a marijuana distribution operation in progress. Id., at 26. Appellant testified that the confiscated money belonged to his mother who gave it to him for safekeeping. Id. at 32-35, 37-40. Based on that evidence, the court ordered the forfeiture of the cash, finding it to be proceeds derived from the sale of a controlled substance in violation of the Drug Act and therefore subject to forfeiture. Slip op., 10/16/85, at 6-7.

Appellant argues that the court erred in failing to return his funds (1) by applying the wrong forfeiture statute, and (2) in considering subsequent conduct of appellant.

A year after seizure of appellant’s cash, the Drug Act was amended to add the following subsection, permitting forfeiture of:

(6)(i) Consideration as follows:
(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this act.
(B) Proceeds traceable to such an exchange.
(C) Money, negotiable instruments and securities used or intended to be used to facilitate any violation of this act.
(D) Real property, including things growing on, affixed to and found in the land.
(ii) No property shall be forfeited under this clause, to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner. Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of this act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of this act.

35 P.S. § 780-128(a)(6). It is appellant’s contention that the trial court erroneously applied the amendment to a seizure which occurred prior to its enactment.

We agree that § 780-128(a)(6) cannot apply to a seizure which occurred before the statute was amended. Nevertheless, it is not clear that the court relied on the statute despite the fact that the court quoted the new subsection. Slip op., 10/16/85, at 5. Until § 780-128(a)(6) was added to the Drug Act in 1984, cash proceeds of illegal drug transactions were treated as derivative contraband and were forfeitable under common law principles explicated in cases such as Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976) and Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983). The court cited these cases and correctly applied them in its analysis of the évidence produced at the August 6,1985 hearing. Slip op., 10/16/85, at 5-7.

The 1984 amendment of the Drug Act altered the common law in one important respect: it created a rebut-table presumption that money found in close proximity to illegal drugs is money derived from illegal drug sales. With or without the presumption, however, the Commonwealth must prove by a preponderance of the evidence that the money was derived from illegal drug transactions. Commonwealth v. Landy, supra; Commonwealth v. Myers, 298 Pa.Super. 272, 444 A.2d 1170 (1982). It is this standard that the trial court applied. Slip op., 10/16/85, at 5. We must determine, therefore, whether the record supports the trial court’s finding that the money was forfeita-ble under this standard.

Appellant’s second argument is that the court erred in considering evidence of appellant’s conduct subsequent to the seizure in order to determine that the cash in question was derived from the sale of drugs. The argument rests on the confusion of Commonwealth witness Resh as to dates of various transactions and conversations. See N.T., 7/6/85, at 3-4, 7-8, 16.

On the other hand, the record contains sufficient evidence to support the finding, based on a preponderance of the evidence, that the confiscated money was derived from illicit drug transactions. Nothing in the trial court’s opinion indicates reliance on events which took place after the search and seizure on December 14, 1983. Resh testified to numerous drug sales prior to that date, id. at 10-12; his testimony as to appellant’s admission of making $50,000 from selling marijuana, id. at 3-4, 7, 16, can best be understood as relating back to appellant’s profits in 1983. The trial court did not credit appellant’s testimony that the cash belonged to his mother, and we do not perceive any error in this credibility determination. It is axiomatic that “findings of fact by a trial judge are accorded the same weight as a jury verdict and our scope of review is limited to examining whether the findings are supported by competent evidence.” Jenks v. Avco Corp., 340 Pa.Super. 542, 547, 490 A.2d 912, 915 (1985). After carefully reviewing the entire record, we hold the judge’s findings to be so supported.

Order affirmed.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby and adjudged by this Court that the order of the Court of Common Pleas of York County is affirmed.


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    511 A.2d 874
    William H. REED, Appellee, v. Joan REED, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed July 11, 1986.

      Donald J. Strunk, Pittsburgh, for appellant.
    Mark A. Gregg, Johnstown, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The issue in this appeal from an order entered in a divorce action is primarily procedural. It can be understood only by picking one’s way carefully through the twisted and turning maze created by the many and varied recommendations, motions, orders and exceptions which make up the record in the trial court.

William H. Reed and Joan Reed were married on April 22, 1953, and separated in June, 1965. William Reed commenced an action in divorce in October, 1982, and a bifurcated decree divorcing the parties was entered on July 11, 1983. A Master appointed to take testimony on the issue of equitable distribution held hearings in May, 1983, and filed a report on June 28, 1983. William Reed filed exceptions to this report. His exceptions were granted on November 17, 1983. A second Master’s hearing was held on April 11, 1984, and an amended Master’s report was filed on June 4, 1984. This time, the Master’s recommendations were unsatisfactory to Joan Reed, and she filed exceptions averring that the Master had erred in finding that no portion of the Husband’s pension with Bethlehem Steel Corp. was marital property. These exceptions were dismissed on November 8, 1984, by court order as follows:

AND NOW, on this 8th day of November, 1984, upon consideration of the record, the briefs and arguments of both parties, it is hereby Ordered that the defendant’s exceptions in the above captioned matter are dismissed.

On January 17, 1985, more than two months later, Joan Reed filed a petition requesting reconsideration of the order dismissing her exceptions. In support thereof she averred once again that the Master had erroneously concluded that William Reed’s pension was not marital property. Now, however, she came armed with the Superior Court’s decision in King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). William Reed then filed preliminary objections in which he alleged that the petition for reconsideration was untimely and, therefore, improper. The order of November 8, 1984, he contended, had become final when no appeal therefrom was taken within thirty (30) days. On February 6, 1985, following oral argument, the trial court dismissed William’s preliminary objections, granted Joan’s petition for reconsideration and returned the action to the Master for further consideration in light of the Superior Court’s decision in King v. King, supra.

William Reed filed exceptions to the February 6th order granting reconsideration. He argued that it was error to grant reconsideration after a determination had become final because not appealed within thirty (30) days. Joan Reed then filed a motion to strike William’s exceptions. These matters were assigned to a different judge, and he, on April 29,1985, entered an order denying Joan’s motion to strike and granting William’s exceptions to the earlier court order granting reconsideration. The trial judge on this occasion observed that “[t]he November 8, 1984 Order entered by the Court was a final Order, [and] Defendant’s failure to pursue her appeal therefrom precluded her from taking further action.” The order of April 29, 1985, is the subject of the present appeal.

Initially, we observe that the trial court’s order of April 29, 1985, has effectively put Joan Reed “out of court” and, therefore, is appealable. The order prevented her from proceeding further with her claim that she was entitled to a distributive share of William Reed’s pension. Because of the final effect of this order, we have jurisdiction to entertain the present appeal.

We are persuaded for at least three reasons that the order appealed from must be reversed. In the first place, neither the appellee nor the trial court has been able to cite to us authority which permits the filing of exceptions to an order which has granted reconsideration of a prior court order dismissing exceptions tó a decree. Similarly, our research discloses neither rule of court nor prior decision which provides for or allows such procedure.

The order of February 6, 1985, which granted reconsideration, was an interlocutory order. It did not purport to determine finally the rights of the parties. As a general rule it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by a judge of the same court in the same case. Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 536-537, 479 A.2d 1027, 1034 (1984); Bersani v. School District of Philadelphia, 310 Pa.Super. 1, 4, 456 A.2d 151, 153 (1982); Marmara v. Rawle, 264 Pa.Super. 229, 238, 399 A.2d 750, 755 (1979). See also: Vitale v. Zoning Hearing Board of Upper Darby, 63 Pa.Cmwlth. 604, 607, 438 A.2d 1016, 1018 (1982); Commonwealth v. Tyson, 57 Pa.Cmwlth. 569, 575, 427 A.2d 283, 286 (1981). Cf. Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986). Here, the order sustaining exceptions to and setting aside the order granting reconsideration was based upon the same argument by William Reed which the first judge had rejected. For the second judge to reverse the first judge’s decision in response to this argument was improper.

Finally, an examination of the entire record in this case reveals that at no time has a final order been entered which directs equitable distribution of the marital assets owned by the parties. The trial court’s order of November 8, 1984, contrary to appellee’s argument that it was a final order of distribution, did not purport to enter a final decree distributing marital property between the parties. It did no more than dismiss the exceptions which had been filed by Joan Reed to the Master’s report and recommendations. Those recommendations, although entitled to careful consideration, were advisory only. McBride v. McBride, 335 Pa.Super. 296, 298, 484 A.2d 141, 142 (1984); Eichmann v. Eichmann, 319 Pa.Super. 100, 101, 465 A.2d 1248, 1249 (1983). A trial court is required to review the Master’s Report, determine if his or her recommendations are appropriate, and, in any event, enter a final decree. See: Pa.R.C.P. 1920.55(b). An order dismissing exceptions to a Master’s Report but not entering a final decree of equitable distribution is not a final order. Cf. Hammond v. Hammond, 301 Pa.Super. 439, 442, 447 A.2d 1047, 1048 (1982); Aloi v. Aloi, 290 Pa.Super. 125, 128, 434 A.2d 161, 163 (1981), appeal after remand, 299 Pa.Super. 400, 445 A.2d 815 (1982). Indeed, until a final decree of distribution has been entered by the trial court, a right of appeal does not ordinarily accrue.

Because a final decree had not been entered, Joan Reed could properly request the court to reconsider its prior, interlocutory order dismissing exceptions and to enter a final decree distributing all marital property, including William Reed’s pension rights. When, on April 29, 1985, the trial court held that reconsideration was improper and could not be allowed, it fell into error.

Reversed and remanded for further proceedings consistent with this opinion.

DEL SOLE, J., files a concurring and dissenting statement.

DEL SOLE, Judge,

concurring and dissenting:

Following the trial court’s order of November 8, 1984, dismissing exceptions to the Master’s recommendations, the only thing left for the court to do was to enter a final decree. Pennsylvania Rule of Civil Procedure 1920.55(c) provides as follows:

If exceptions are filed, the court shall hear argument on the exceptions and enter an appropriate final decree. No Motion for Post-Trial Relief may be filed to the final decree.

The procedural morass in this case was occasioned by the trial court’s failure to enter a decree once it dismissed the exceptions.

I would vacate all of the orders entered from November 6, 1984 and remand the matter to trial court for the purposes of entering a final decree.

Further, a review of the record reveals an order entered on February 6, 1985, which reads as follows:

And now, on this 6th day of February, 1985, the petition for reconsideration filed on behalf of the defendant is hereby granted and the case is remanded to the Master for reconsideration consistent with this discussion and order.
And further, the preliminary objections of the plaintiff are hereby dismissed, however, reserving to the plaintiff the right of immediate appeal to the Superior Court from this order because of the importance of the order to this case, if the plaintiff so desires.

It is pointed out that the trial court can not make an order appealable to the Superior Court. The Superior Court can only hear appeals from final orders or from certain interlocutory orders made appealable by rule of the Supreme Court of Pennsylvania.

A trial court may certify an order containing a controlling question of law then it becomes incumbent upon parties to petition the court for permission to appeal, no appeal exists of right to from such an order.

Therefore, I would vacate all orders entered since November 6, 1984 and remand to the trial court for the purpose of entering a final decree as should have been done when the exceptions were dismissed.

      . The Master’s report suggested that he had declined to consider the pension as marital property for two reasons. First, the law was unclear at that time as to the status to be accorded pension funds. Secondly, the Master determined, inadequate proof as to the value of the pension had been offered.

      . It is well settled that the mere certification of an issue by the lower court under [42 Pa.C.S.A. § 702(b)] will not alone establish jurisdiction with our Court in a given case. Gellar v. Chambers, 292 Pa.Super. 324, 437 A.2d 406 (1981); See Commonwealth v. Pfender 280 Pa.Super. 417, 421 A.2d 791 (1980). A necessary procedural step ... is found under Rule 1311(b) of the Pennsylvania Rules of Appellate Procedure. This rule in pertinent part provides:
      (b) Petition for permission to appeal. Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S.A. Sec. 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after the entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government until and on the government unit or clerk of courts, who shall file the petition or record in such lower court ...

        Vendale Coal Co., Inc. v. Voto Manufacturing Sales Company, 353 Pa.Super. 635, 638, 510 A.2d 1246, 1247 (1986).


author: TAMILIA, Judge:

text:
    511 A.2d 878
    John A. VOGEL and Betty L. Vogel, his wife, Appellants, v. Douglas W. BERKLEY, Fred S. Shaulis and PBS Coals, Inc.
    Superior Court of Pennsylvania.
    Argued April 16, 1986.
    Filed July 11, 1986.

      Robert P. Ging, Jr., Pittsburgh, for appellants.
    John J. Dirienzo, Jr., Somerset, for appellees.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from a pre-trial Order which dismissed with prejudice four of five counts of appellants’ complaint and directed the case to trial only on the remaining count.

The facts indicate that appellants owned one piece of land (the home property) and subsequently purchased another property (the Adams’ property). In 1976, they entered into separate option/lease agreements with appellees concerning the drilling and exploration for coal on both properties.

In 1977, appellees exercised the option acquiring rights to surface mine coal for five years on the Adams’ property. In 1978, appellants, at appellees’ request, executed a consent to entry in favor of Sun Coal Company who was to perform the mining activities. Subsequently, appellees entered into an agreement with Howard Will to mine the coal.

Appellants allege that after the mining operation began, they became aware that Will sold coal without paying them their royalties and also left a quantity of coal unrecoverable because of improper mining techniques.

On November 16, 1980, the parties entered into a settlement agreement which stated the circumstances of this dispute and expressed the parties’ desire to reach a full and final compromise and settlement of all matters arising out of the facts.

In June 1984, a complaint in trespass was filed. The five counts alleged were: (1) fraudulent inducement to enter into the lease agreement; (2) fraudulent inducement to enter the land; (3) failure to pay royalties; (4) failure to reclaim the site; and (5) conspiracy to defraud and breach the lease.

In new matter, the appellee raised the settlement agreement as a bar to counts 1, 2, 3 and 5. Following a pre-trial conference, the court ruled as a matter of law the release barred the action as to those counts and issued the Order from which this appeal was taken.

Appellants contend the court erred in dismissing the counts on its own motion and also in determining no genuine issue of material fact existed concerning the meaning of the agreement. They argue that the agreement is ambiguous and should be interpreted to only apply to the specific activities involving Will. They contend that since appellees drafted the agreement, it should be construed against them and finally they maintain it is for the jury to resolve any ambiguities.

The court determined the agreement was not ambiguous and as a matter of law barred four counts of the complaint. The claim regarding reclamation of the land was left because the agreement specifically excluded reclamation from the settlement.

Initially, we address the propriety of the action taken by the court in dismissing four of the five counts in a pre-trial Order. We agree with the court that its action was a proper application of Pa.R.C.P. 212 which provides in pertinent part:

Rule 212. Pre-trial Conference
In any action the court, of its own motion or on motion of any party, may direct the attorney’s for the parties to appear for a conference to consider:
(a) The simplification of the issues;
(f) Such other matters as may aid in the disposition of the action.
The court may make an order reciting the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and limiting the issues for trial to those not disposed of by admissions or agreements of the attorneys. Such order when entered shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.

The purpose of a pre-trial conference is to enable the parties to simplify and expedite the trial. Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979). It is appropriate for the pre-trial conference court to decide issues of law based on admitted or undenied facts appearing of record. See Goodrich-Amram2d § 212:7.2. Here, the court determined that four of the counts in the complaint should be eliminated. In so doing, the court was properly making a ruling of law concerning the settlement agreement, which was part of the record before the court.

Finding that the action was authorized, our next determination must be whether the legal decision made was correct.

Appellant characterizes the action by the court as the equivalent of a summary judgment. We think it more closely parallels a judgment on the pleadings because the decision was based solely on the pleadings and the settlement agreement which was properly attached.

A court, in granting judgment on the pleadings, must confine its consideration to the pleadings and relevant documents. Del Quadro v. City of Philadelphia, 293 Pa. Super. 173, 437 A.2d 1262 (1981). Judgment is proper only when no material facts are in dispute. Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984). Courts have found that judgment on the pleadings is appropriate in cases that turn upon the construction of a written agreement. Gallo v. J.C. Penney Casualty Ins. Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983).

In reviewing the court’s decision, we must determine if the action of the court was based on a clear error of law or whether there were facts disclosed by the pleading which should properly go to the jury. The decision will be affirmed only in cases which are clear and free from doubt. Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985); Zelik v. Daily News Pub. Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981).

It is the rolé of the court to decide whether, as a matter of law, written contract terms are clear or ambigúous. Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1 (1984). In construing a contract, the intention of the parties is the foremost consideration. The court’s interpretation must be one which indicates the most reasonable and natural conduct of the parties based upon the intended result of the contract. Id.

The effect of a release must be determined from its language. The ordinary meaning must be attributed to the language, unless a different meaning was clearly intended. Wengler v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); In re Jones and Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1984).

A contract is not ambiguous if the court can determine its meaning with a knowledge of the facts on which its meaning depends. The fact that the parties do not agree upon the proper interpretation does not necessarily render the contract ambiguous. Metzger, supra.

Viewing the lower court’s action under the guidelines set forth above, we find dismissal of the four counts to be proper.

The settlement agreement provided in pertinent part:

SECTION 1: Purpose of Agreement This Agreement is made as a compromise between the parties for the complete and final settlement of their claims, differences, and causes of action with respect to the dispute described below.
SECTION 2: Statement of Dispute OWNERS entered into an Option/Lease Agreement with Fred S. Shaulis dated November 1, 1976. The Option/Lease Agreement contained rights and duties with regard to the leasing of OWNERS’ tract of minerals in Upper Turkey-foot Township, Somerset County, Pennsylvania, containing approximately 160.0 acres, more or less. Fred S. Shaulis assigned his interest in the Option/Lease Agreement to PBS, which, in turn, entered into an Agreement for the mining of several tracts, including OWNERS’ tract, with Howard D. Will, trading and doing business as Will’s Construction, of P.D. 4, Box 275, Somerset, PA 15501. In said Option/Lease Agreement, LESSEE agreed to pay OWNERS a royalty of One and 25/ioo Dollars ($1.25) per net ton of merchantable coal or six persent (6%) of the coal pit realization on all coal mined by strip surface, or auger mining methods for mining where OWNERS owned both the surface and coal rights. In situations where OWNERS owned only the surface, LESSEE was obligated to pay a royalty rate of sixty cents (60) per net ton of merchantable coal or three percent (3%) of the coal pit realization. Under Paragraph 12 of said Lease Agreement, the Agreement was made assignable to any company, corporation, partnership, or other business entity; but in the event of an assignment, LESSEE was to remain liable for the payment of all royalties required to be paid under the Agreement and for the purpose of all terms, covenants, and conditions undertaken by LESSEE under the Agreement. Under Paragraph 16 of the Agreement, LESSEE agreed to conduct mining operations under the Lease with skill and diligence and in accordance with generally accepted practices and principles of mining. In the course of performance by the Assignee’s contractor, the said Howard D. Will, OWNERS observed what OWNERS determined to be unskillful mining operations not in accordance with generally accepted practices and principles of mining, resulting in the alleged failure of the' said contractor to recover all of the minable and removable coal from said premises. As a result of what OWNERS assert to be operations conducted in violation of the Lease Agreement, OWNERS assert that certain amounts of coal were lost or left in place in the mining operations.
The parties desire to reach a full and final compromise ■and settlement of all matters arising out of the facts and claims as set forth above.
SECTION 3: Terms of Settlement In consideration of the mutual covenants set forth herein, the parties agree as follows:
2. OWNERS agree that all claims, demands, rights, and causes of action that OWNERS have or may have against PBS or the said Fred S. Shaulis with respect to the above-described dispute are satisfied, discharged, and settled. Notwithstanding the foregoing, OWNERS do not release PBS or Shaulis in any way from the requirements of backfilling and reclamation occasioned by the applicable State law governing such operations. The parties intend to make the said Fred S. Shaulis a third-party beneficiary of this Agreement.
SECTION 4: Change of Facts It is understood by OWNERS and PBS that if the facts in respect to which this Agreement is made are hereafter proved to be other than or different from the facts in that connection now known by either of them or believed by either of them to be true, as set out in this Agreement, each of the parties hereto expressly accepts and assumes the risks of the facts proving to be so different; and each of the parties hereto agrees that all the terms of this Agreement shall be in all respects effective and not subject to termination or rescission by any such difference in facts.

We agree with the court that by its terms the agreement is not ambiguous where it states that “all claims, demands, rights and causes of action that appellants’ have or may have ... with respect to the above described dispute are satisfied, discharged and settled”. The sole exception set forth is the claim for reclamation which forms the basis of the count not dismissed by the court.

The court also properly discounted appellants’ contention that because the alleged fraud was discovered after the agreement was entered into, it should not apply. Section four of the agreement prohibits such a claim and was relied on by the court in support of its Opinion.

The interpretation of the contract made by the court was certainly reasonable. The ordinary meaning of the words clearly purport to extend the settlement to the entire series of events involving the parties. The counts dismissed directly related to these events and application of the agreement to those claims is dictated by a normal reading of the words in light of the attendant circumstances at the time of the agreement.

Finding no abuse of discretion or error of law on the part of the lower court, the pre-trial Order is affirmed.

Order affirmed.

      . We agree with appellants that the Order is properly appealable under the criteria set forth in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). See also Dash v. Wilap, 343 Pa.Super. 584, 495 A.2d 950 (1985).


text:
    511 A.2d 882
    Shirley F. MADDEN, v. Raymond L. MADDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 22, 1986.
    Filed July 15, 1986.

      Frederic G. Antoun, Harrisburg, for appellant.
    George A. Vaughn, Lemoyne, for appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This appeal is from an order quashing a supersedeas of an alimony pendente lite obligation. Appellant contends that Pa.R.A.P. 1731 mandates that a supersedeas be allowed on the posting of bond. For the reasons stated in Groner v. Groner, 328 Pa.Super. 191, 476 A.2d 957 (1984), we disagree and, accordingly, affirm.

In Groner, this Court was moved to address, sua sponte, our disfavor with the allowance of a supersedeas, pending appeal, of a support action.

Indeed, it shocks the conscience to contemplate the injustice worked upon the erstwhile recipients of the superseded support order. Is it to be seriously advanced that they can be made whole through the eventual lump sum payment should appellant not prevail on appeal? We think not. These children can hardly postpone their daily needs for food, clothing and shelter for a year or more (pending the outcome of the appeal). The law in its ultimate vitality — its desire to do the right thing — must recognize the crucial distinction to be made between a civil judgment in a tort or contract case and a family support order.

Groner, supra, 328 Pa.Super. at 199, 476 A.2d at 960-61. We continue to be persuaded of the wisdom of this view.

The only distinction between Groner and the instant case is that the one sub judice involves an alimony pendente lite order while Groner concerned a support order. For the purposes of the issue before us, this is not a significant difference. As was noted in Groner itself:

While Simpson involved alimony pendente lite and counsel fees, its rationale is totally transferable to the situation before us, a child support order. A mother who is destitute for lack of child support funds will be just as unable to enforce her rights in the courts as one who is destitute for lack of alimony pendente lite.

Groner, supra, 328 Pa.Super. at 197-98, 476 A.2d at 960.

The sentiments expressed in Groner are effected in Pa.R.C.P. 1910.24, which provides the following:

Rule 1910.24. Stay of Proceedings
An action for support or a support order may be stayed only by a special order of court upon a showing of compelling circumstances following notice and hearing or upon agreement of the parties in writing.
Adopted April 23, 1981, effective July 22, 1981.
Explanatory Note — 1981
Rule 1910.24 reflects the policy of eliminating delay and procedural impediments to the receiving of support. The routine granting of a stay of proceedings would defeat this policy and have a disastrous effect upon a destitute wife and child. Thus a stay of an action for support or of a support order may only be granted (1) upon a special order of court following notice and hearing or (2) upon written agreement of the parties.

In light of Groner and Rule 1910.24 we can find no merit in appellant's argument. Accordingly, we will affirm the order of the court below.

Order affirmed.

      . It is, of course, recognized that Groner did not create binding precedent as the other two panel members did not join in the superse-deas issue.

      . Simpson was a Common Pleas Court case in which an alimony pendente lite award was not superseded.


author: WICKERSHAM, Judge:

text:
    511 A.2d 1349
    Sherry PIRCHES and George Pirches v. GENERAL ACCIDENT INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed June 13, 1986.

      Joseph P. Connor, III, Philadelphia, for appellant.
    Elliot B. Platt, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WICKERSHAM, Judge:

General Accident Insurance Company appeals from the order of the Court of Common Pleas of Philadelphia County dismissing its petition to modify and/or vacate the arbitration award entered against it and in favor of appellees, Sherry and George Pirches.

Appellant had issued an automobile insurance policy to appellees, a married couple who reside in Pennsylvania. On October 16, 1981, while a passenger in a car owned and operated by her mother, Mrs. Foy, Sherry Pirches was injured when a taxicab went through a stop sign in Daytona Beach, Florida, and collided with her mother’s car. The taxi driver was cited by the Daytona Beach Police Department for causing the accident. Mrs. Foy was insured by Colonial Penn Insurance Company; the taxi was owned by Economy Cab Company and was coincidentally insured by appellant. Mrs. Foy, the taxi driver, and Economy Cab were all domici-liaries of Daytona Beach.

Sherry Pirches brought a claim against Economy Cab and the driver of the taxi. At the time of the accident, the taxicab had policy limits in the amount of $10,000 per person and $20,000 per occurrence, which were the minimum amounts required by the State of Florida. As a result of the claims made against Economy Cab, appellant paid the entire policy limit of $20,000: $5,000 to Mrs. Pirches, $5,000 to Mrs. Foy, and $10,000 to another party who had been a passenger in the taxicab.

In addition, Sherry Pirches brought a claim under her mother’s underinsured motorist policy, which had limits of $15,000 per person and $30,000 per occurrence. Both she and Mrs. Foy received $10,000 each under that policy.

Subsequently, appellees brought the instant claim against appellant, pursuant to the uninsured motorist provisions of their own Pennsylvania policy of insurance. On November 27, 1984, the lower court ordered the case to proceed to arbitration. Following a hearing on February 20, 1985, the arbitrators awarded Sherry Pirches $37,500, which was reduced by the $15,000 that she had already received from the prior claims, and awarded $2,500 to George Pirches on his loss of consortium claim. On May 31, 1985, appellant's motion to modify or vacate the award of the arbitrators was denied and the award of the arbitrators was confirmed. This appeal timely followed.

Appellant raises three issues before us:

I. Whether the arbitrators and subsequently the lower court failed to exclude from plaintiff, Sherry Pirches’, case medical reports of plaintiff, Sherry Pirches, which failed to pass the standard of certainty required by Pennsylvania courts to prove causation through expert testimony.
II. Whether the arbitrators and the lower court erred in concluding that the claim asserted by Sherry Pirches and the claim asserted by George Pirches were uninsured motorist claims rather than underinsured motorist claims.
III. Whether the arbitrators and lower court erred in granting the loss of consortium claim of George Pirches where he was neither involved in the accident nor injured as a result of the accident nor was there a specific policy provision allowing for such recovery of loss of consortium.

Brief for Appellant at 3.

Before turning to the merits, we note that the trial court utilized the broader scope of review applicable to statutory arbitration under the Act of 1927, while the insurance policy indicates that this was a common law arbitration. Lower ct. op. at 1, R.R. at 12a. Neither appellant nor appellees objected to this scope of review, however. Furthermore, a review of the arbitration itself reveals that it was conducted as an arbitration under the Act of 1927, with the agreement of the parties. R.R. at 80a, 82a. Even appellant’s petition to modify and/or vacate the arbitration award specified that it was pursuant to the Arbitration Act of 1927, a fact which was admitted by appellees in their answer to the petition. R.R. at 176a, 179a, 382a. Therefore, we will employ the same scope of review. See Littlejohn v. Keystone Insurance Co., 353 Pa.Super. 63, 509 A.2d 334 (1986); Gentile v. Weiss, 328 Pa.Super. 475, 477 A.2d 544 (1984); Boyle v. State Farm Mutual Automobile Insurance Co., 310 Pa.Super. 10, 456 A.2d 156 (1983); 5 P.S. §§ 170, 171 (repealed by Act of April 28, 1978, P.L. 202, No. 142, § 501(c)); 42 Pa.C.S. §§ 7314, 7315.

Appellant first argues that the arbitrators and the lower court erred in failing to exclude certain expert medical reports. Specifically, appellant claims that the medical reports submitted by appellees failed to meet the standard set forth in Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979).

It is well-settled that the admission of expert testimony is a matter within the sound discretion of the trial court, whose decision will not be reversed unless the court clearly abused that discretion. Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509 (1984); Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa. Super. 172, 480 A.2d 299 (1984); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981). Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge and experience of the jury. Kubit v. Russ, supra; Lebesco v. Southeastern Pennsylvania Transportation Authority, 251 Pa.Super. 415, 380 A.2d 848 (1977). Such was the case with the medical testimony herein. To prove proximate causation, the medical opinion need only demonstrate with a reasonable degree of medical certainty that the alleged negligence increased the risk of injury actually sustained, and then the jury must decide whether that conduct was a substantial factor in bringing about the injury. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980).

As we stated in Kravinsky v. Glover, supra, however, the expert’s testimony is incompetent if it lacks an adequate basis in fact or if the manner in which it is expressed is deficient.

When a party must prove causation through expert testimony the expert must testify with “reasonable certainty” that “in his ‘professional opinion, the result in question did come from the cause alleged.’ ” McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). See Hamil v. Bashline, [481 Pa. 256, 392 A.2d 1280 (1978)]. An expert fails this standard of certainty if he testifies “ ‘that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.’ Niggel v. Sears, Roebuck & Co., 219 Pa.Super. 353, 354, 355, 281 A.2d 718, 719 (1971); Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965).” Albert v. Alter, 252 Pa.Super. 203, 225, 381 A.2d 459, 470 (1977).
“The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a[n] ... expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that the condition was legally caused by the defendant’s conduct____ [I]t is the intent of our law that if the plaintiff’s ... expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinder] can make a decision with sufficient certainty so as to make a legal judgment.” McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971). However, to make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968); Ritson v. Don Allen Chevrolet, [233 Pa.Super. 112, 336 A.2d 359 (1975)], supra. Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Hussey v. May Department Stores, Inc., supra, 238 Pa.Super. [431] at 437, 357 A.2d [635] at 638 [1976]. The expert need not express his opinion in precisely the same language we use to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). That an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative. Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).

Id. 263 Pa.Super. at 21-22, 396 A.2d at 1355-56 (footnotes omitted). Our court underscored the latter statement by immediately quoting Feldman, Pennsylvania Trial Guide I, § 7.80 (1975 Supplement): “Nor is the expert’s testimony destroyed by the fact that in one part of his testimony he used language weaker than the requisite shiboleth, provided that at some point he states his opinion with sufficient definiteness." Id., 263 Pa.Superior Ct. at 22 n. 11, 396 A.2d at 1356 n. 11.

We have closely reviewed the instant expert testimony in its entirety to determine whether it expresses the reasonable medical certainty required by Kravinsky v. Glover and its progeny. See, e.g., In re Dobrowsky, 735 F.2d 90 (3d Cir.1984); Jones v. Montefiore Hospital, supra; Gradel v. Inouye, supra; Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984); McCann v. Amy Joy Donut Shops, A Division of American Snacks, Inc., 325 Pa.Super. 340, 472 A.2d 1149 (1984); Walsh v. Snyder, 295 Pa.Super. 94, 441 A.2d 365 (1981); Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 434 A.2d 1253 (1981). Sherry Pirches did not contend that the accident caused her osteochondroma, only that the accident aggravated it and caused the symptoms that required its surgical removal. We agree with the lower court that Dr. Bocher’s report, taken in its entirety, expressed the reasonable medical certainty necessary to meet the Kravinsky standard. At one point, Dr. Bocher clearly linked the aggravation of the osteochondroma with the accident:

It would appear to me that since all of these symptoms occurred at the time of her accident although the exosto-sis could have pre-existed this injury, by her history she was not aware of any symptoms; and, therefore, the trauma of the injury could have been sufficient to stimulate this lesion to grow sufficiently to produce the symptoms that she is presently having. Unless it could be documented that she had these symptoms prior to the accident, I don’t see how one could avoid the conclusion that there is a cause and effect relationship between the accident and the present problems she is having.

R.R. at 341a (emphasis added). That he may have used less definite language in other parts of his testimony did not render his opinion inadmissibly speculative, as long as he stated his opinion with sufficient definiteness at some point. See Kravinsky, supra. Therefore, we cannot conclude that the panel erred in admitting the expert medical reports.

Second, appellant argues that the arbitrators and the lower court erred in concluding that the claims asserted by appellees were uninsured rather than underinsured motorist claims. We must disagree, based on the clear language of the policy, which defined “uninsured motor vehicle” in the following manner:

“Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
1. ...
2. To which a bodily injury liability bond or policy applies at the time of the accident. In this case its limit for bodily injury liability must be less than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged.
3. ...
4. ...

R.R. at 203a. Appellant admits that appellees’ covered autos were garaged in Pennsylvania, which had minimum coverage requirements of $15,000 per person, $30,000 per occurrence. 40 P.S. § 1009.104(a) (now repealed). Appellant also admits that the Florida tortfeasor who caused the accident was only covered for liability in the amount of $10,000 per person, $20,000 per occurrence, which was the minimum requirement under the financial responsibility law of the State of Florida. The fact that Economy Cab’s policy provided for increased coverage if its vehicle was in an accident outside the State of Florida is irrelevant. The accident occurred in Florida, and the tortfeasor’s insurer (also appellant) paid out the $20,000 policy limit, with $5,000 going to Sherry Pirches.

Therefore, Obdyke v. Harleysville Mutual Insurance Co., 299 Pa.Super. 298, 445 A.2d 763 (1982), aff'd, 500 Pa. 107, 454 A.2d 984 (1982), cited to us by appellant, is not on point. The fact that Sherry Pirches also received $10,000 from her mother’s underinsurance policy is also irrelevant to the issue of whether Economy Cab was “uninsured” under appellant’s policy. See Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968). Since the Florida (Economy Cab) bodily injury policy provided for less coverage than the minimum limit for bodily injury liability specified by Pennsylvania law, appellees’ claims, under the express terms of their own policy with appellant, involved an uninsured motorist matter.

Finally, appellant argues that the arbitration panel and the lower court erred in awarding George Pirches $2,500 for loss of consortium. Appellant’s argument is not with the amount of the award, but that there was an award at all, because such an award, according to appellant, is not cognizable under the Uninsured Motorist Act, 40 P.S. § 2000 et seq. Both appellant and appellees agree that this is a question of first impression in Pennsylvania.

The provisions of the Uninsured Motorist Act must be liberally construed, so that innocent victims will be protected from irresponsible drivers. Harleysville Mutual Casualty Co. v. Blumling, supra; Walls v. City of Pitts burgh, 292 Pa.Super. 18, 436 A.2d 698 (1981). Liberal construction of the Act requires our court to find coverage unless strong legal or equitable considerations to the contrary are present. State Farm Insurance Co. v. Bullock, 316 Pa.Super. 475, 463 A.2d 463 (1983); Boyle v. State Farm Mutual Automobile Insurance Co., supra.

Both George and Sherry Pirches were named insureds in their policy with appellant. The relevant policy provision states:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.

R.R. at 203a (emphasis in original). A “covered person” is defined as:

“Covered person” as used in this Part means:
1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

Id. (emphasis in original).

Thus, as a named insured, George Pirches is a “covered person.” The policy provides damages that “a” covered person may be legally entitled to recover from the uninsured driver if “a” covered person suffers bodily injury. There is no question that Sherry Pirches, “a covered person,” suffered bodily injury. The policy does not limit payments to damages that the injured covered person may collect. If it did, it would state that it would pay damages for injuries that a covered person may collect for injuries to that covered person. It is not so limited.

Certainly, George Pirches could collect, or attempt to collect, for loss of consortium from the tortfeasor/uninsured driver. See Reuter v. United States, 534 F.Supp. 731 (W.D.Pa.1982); Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974). And it is the policy of uninsured motorist coverage to protect an injured insured’s right to recover when the injuries are caused by an uninsured driver. Harleysville Mutual Casualty Co. v. Blumling, supra; Estate of Rosato v. Harleysville Mutual Insurance Co., 328 Pa.Super. 278, 476 A.2d 1328 (1984). The policy provides for payment of damages that George Pirches is “legally entitled to recover.” This court has held that phrase, “legally entitled to recover,” to be ambiguous, requiring it to be construed in a manner most favorable to the insured. Boyle v. State Farm Mutual Automobile Insurance Co., supra. George Pirches is legally entitled to recover for his loss of consortium. His claim is covered by the policy.

Nothing in the Uninsured Motorist Act or in Pennsylvania law prohibits George Pirches’ recovery. The Act requires coverage for “... persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom____” Remembering that the Act is to be liberally construed in favor of coverage, we hold that this language encompasses a consortium claim.

We note that while there do not appear to be any Pennsylvania cases on point, we have held that a cause of action for loss of consortium can be maintained under the No-fault Act, 40 P.S. § 1009.101 et seq. (now repealed). Although there exists no specific provision in the No-fault Act either abolishing or retaining a cause of action for consortium, our court held in Zagari v. Gralka, 264 Pa.Super. 239, 399 A.2d 755 (1979) that such an action is encompassed by “non-economic detriment” recoverable under section 1009.301(a)(5). As we stated in Zagari:

Defendant contends that because loss of consortium is not specifically enumerated as an exception to abolition of tort liability, it is no longer a recoverable item. But statutes are not presumed to make changes in rules and principles of common law or prior existing law beyond what is expressly declared in their provisions: Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976). And where the words of a statute are not explicit, rules of statutory construction dictate that the court (1) seek to ascertain the intent of the General Assembly, using among other indicia the former law, and (2) liberally construe the provisions of a statute so as to effect its object and promote justice, (footnote omitted)
Applying these principles, we find that section 1009.301 provides for relief to a spouse for loss of consortium where a victim’s injuries meet the criteria set forth in subsection 301(a)(5).

Id. 264 Pa.Super. at 248, 399 A.2d at 760, (quoting Tchimayan v. Toscano, 4 Pa. D. & C.3d 534, 537 (1977)).

We reject appellant’s similar argument that absent language in the Uninsured Motorist Act, damages for loss of consortium should not be allowed. Because the policy seems to permit such a recovery, and because no persuasive authority exists to deny the claim, we can find no basis upon which to conclude that the arbitrator’s award to George Pirches was contrary to law.

Order affirmed.

      . This was the maximum amount available that' they could receive under Mrs. Foy’s policy, because, as previously noted, both Mrs. Pirches and Mrs. Foy had already received $5,000 each from the taxicab company.

      . This is a matter of some practical importance, because appellees had two automobiles insured by appellant, each with $30,000 worth of coverage for both uninsurance and underinsurance. While our courts have held that uninsured motorist benefits may be stacked, see, e.g., Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968); Caputo v. Allstate Ins. Co., 344 Pa.Super. 1, 495 A.2d 959 (1985); Estate of Rosato v. Harleysville Mut. Ins. Co., 328 Pa.Super. 278, 476 A.2d 1328 (1984), they have held at the same time that underinsurance motorist benefits cannot be stacked. See, e.g., Vogel v. National Grange Mut. Ins. Co., 332 Pa.Super. 384, 481 A.2d 668 (1984); Votedian v. General Accident Fire and Life Assurance Corp., 330 Pa.Super. 13, 478 A.2d 1324 (1984).

      . At the arbitration hearing, George Pirches testified that as a result of the accident, lack of funds and his wife’s pain prevented him from going out with his wife. The accident caused him to assume additional responsibilities for keeping the house. Sherry Pirches’ pain interfered with their sexual relationship. Problems with creditors caused him embarrassment, particularly because he deals with credit problems for his employer, Philadelphia Electric Company.

      . Act of August 14, 1963, P.L. 909, § 1, 40 P.S. § 2000, as amended by Act of December 19, 1968, P.L. 1254, No. 397, § 1.

      . While there seem to be no Pennsylvania cases on point, an award for loss of consortium under uninsured motorist coverage has been considered in other jurisdictions, with varying results. See, e.g., United States Auto. Ass'n v. Warner, 64 Cal.App.3d 957, 135 Cal.Rptr. 34 (1976); Arguello v. State Farm Mut. Auto. Ins. Co., 42 Colo.App. 372, 599 P.2d 266 (1979); Mobley v. Allstate Ins. Co., 276 So.2d 495 (Fla.Dist.Ct.App.1973); Weemhoff v. The Cincinnati Ins. Co., 37 Ohio Misc. 14, 66 Ohio Ops.2d 41, 306 N.E.2d 194 (1973), aff'd in part and rev’d in part, 41 Ohio St.2d 231, 70 Ohio Ops.2d 428, 325 N.E.2d 239 (1975); Sheffield v. American Indem. Co., 245 S.C. 389, 140 S.E.2d 787 (1965); Thompson v. Grange Ins. Ass’n., 34 Wash.App. 151, 660 P.2d 307 (1983).

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.