author: TAMILIA, Judge:

text:
    520 A.2d 1195
    Josephine M. FRATANGELO, Appellant, v. Anthony FRATANGELO.
    Superior Court of Pennsylvania.
    Argued June 5, 1986.
    Filed Feb. 4, 1987.

      John M. Kish, Pittsburgh, for appellant.
    James Beck, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This appeal is taken from a decree of equitable distribution of marital property, alimony and counsel fees. The action was commenced in 1981 by the wife, Josephine Fratangelo, against the husband, Anthony Fratangelo; a decree in divorce between the parties was entered by the court July 1, 1983. Subsequent thereto, after trial on claims for equitable distribution, alimony and counsel fees, a decree nisi was entered ordering equitable distribution and denying wife’s claim for alimony and counsel fees. Thereafter, following post-trial motions, the wife filed this appeal to the Order dated September 27, 1985, which made the decree nisi, dated June 25, 1985, a final Order.

The husband and wife were married on May 2, 1964, this being the second marriage of the wife and the first marriage of the husband. At the time of trial, the wife was fifty-three (53) and the husband, fifty (50); no children were born of their marriage. After four and one-half years of living together, the parties separated, the husband leaving the marital residence in December, 1968. Prior to the marriage, the husband lived with his mother and was employed by JAF, Inc., a family business, of which he and his brother were the sole shareholders. At the time of incorporation, in January 1964, JAF, Inc. was thinly capitalized and had little or no assets. Prior to the marriage, the wife lived in her deceased mother’s residence with her daughter from a previous marriage, and she had accumulated savings totalling approximately $13,000, most of which was advancéd to the husband for his business, JAF, Inc., for liquidating certain outstanding debts of the husband and to establish joint accounts for the husband and wife. Prior to marriage, the husband had virtually no assets other than his interest in JAF, Inc. and two undeveloped building lots in Port Charlotte, Florida, for which he was paying on an installment basis the sum of $20 per month. In 1965, the husband transferred two shares of his stock in JAF, Inc. to his sister, Nina Noonan. Those two shares, at the time of trial, represented all of the issued and outstanding shares in the corporation.

During the marriage and prior to separation, the parties purchased a residential building lot in Bethel Park, Pennsylvania from the wife’s sister for the sum of $4,000. Two thousand-five hundred dollars of the purchase price came from the wife’s inheritance from her. mother’s estate and the balance was provided from a loan against the wife’s passbook savings. A construction loan in the amount of $22,500 was obtained from Mt. Washington German Savings and Loan Association and a dwelling was built on the lot. An additional $3,700 was expended from the wife’s savings for construction to pay for block, the plumbing and heating system and carpeting. The parties took up residence in the dwelling when it was completed in October, 1967.

The parties separated in 1968 and shortly after separation, in January, 1969, the husband filed a complaint in divorce to which the wife filed an answer and counterclaim, claiming alimony pendente lite from the husband. In 1970, the wife obtained employment as a teller at First Federal Savings and Loan Association. From the inception of the marriage until 1970, the wife remained in the home as a homemaker and housewife. From 1969, when the divorce action was commenced by the husband, the parties went through numerous hearings on enforcement and contempt, including two separate appeals by the husband to this Court as a result of husband’s failure to pay alimony pendente lite. During this time, the husband resigned from his position of President of JAF, Inc. and transferred the remainder of his stock to the corporation for the sum of $1,400. While the husband was before the court for contempt for failure to pay sums to the wife as ordered, his accountant testified as to how poorly JAF, Inc. was doing, that it lost in excess of $15,000 for the first three quarters of the year and that its outlook for survival was dim. However, the corporate income tax returns for the same year reflect a profit of $2,372.04, representing at least a $17,372.04 profit swing. The corporation acquired new business quarters in November, 1971, which also became the rentfree residence of the husband, who was, after his resignation as President, employed by the firm as an “outside salesman”.

In 1972, Mt. Washington German Savings and Loan Association, the mortgage holder on the Bethel Park residence, commenced foreclosure proceedings. Even though the husband was aware of these proceedings, which resulted in part from the husband’s failure to comply with Orders requiring monthly payments to the wife, he refused to take any action to stop the foreclosure. The wife, therefore, was forced to borrow $2,000 from her brother, the funds being used to cure the delinquency on the mortgage and stop the foreclosure. The divorce action was discontinued in 1974 by agreement and the husband was ordered to pay all past due real estate taxes and future real estate taxes on the Bethel Park residence in lieu of alimony pendente lite. Since that time, the wife has continued to make all of the mortgage payments, has paid all utility bills, maintains insurance on the dwelling and has paid for all repairs and maintenance. In addition to normal maintenance and upkeep, the wife replaced the roof for $6,000, with money partially borrowed from a sister and partially in the form of a Home Improvement Loan. She also expended at least $1,200 for landscaping the lot. The husband has made no contribution to the upkeep and maintenance of the dwelling despite requests for his assistance on several occasions.

The wife’s gross income for 1982 from her employment as a head teller, which she held for three years prior to the trial date, was $12,843.88.

The husband resides rent-free in the premises owned by JAF, Inc. He continues to hold the position of “outside salesman”. During 1979 he earned wages and bonuses of $25,000, in 1980, $33,333, and in 1981 his wages and bonuses were $21,500, all from his position of “outside salesman”. During 1980, JAF, Inc. loaned the husband sums in excess of $100,000, interest free, from which he earned interest of $18,855 in 1980 and $11,535 in 1981. JAF, Inc. also loaned the husband $25,000 to buy a computer which he leases to JAF, Inc. Additionally, the husband receives the benefit of the unrestricted use of two of the four company cars, available to the husband and his sister, as they are the only employees of JAF, Inc. The husband testified he has paid back the interest-free loans and that he now receives a salary from JAF, Inc. of $1,500 per month.

The husband, his sister and the accountant for JAF, Inc. testified that JAF, Inc. had lost its only product line and that the company was on the verge of being dissolved due to a lack of sales. The husband testified he continues to draw his $1,500 per month salary, but the prospects look dim for the entity, JAF, Inc. He also testified that irrespective of the loss of its only product line and no sales and its dim prospect for survival, he had not contemplated or sought other employment.

At the time of trial, the husband had certificates of deposit valued at approximately $25,000 and an Individual Retirement Account of approximately $11,000.

On June 25, 1985, Judge Lawrence Kaplan of the Court of Common Pleas of Allegheny County filed an Opinion and Decree Nisi, wherein he placed a value of approximately $111,000 on the Bethel Park residence. The residence was awarded to the wife provided she pay $40,000 to the husband within sixty (60) days, $100,000 being the equity after considering the first mortgage of $11,000. The Order further provided that upon the failure of the wife to pay $40,000 to the husband within sixty (60) days, the house should be sold and the net proceeds divided sixty percent to the wife and forty percent to the husband. Further, pending sale, the wife was to pay husband $333.33 per month representing ten percent interest on his $40,000. The Order further provided that all other claims would be dismissed.

The wife filed post-trial motions and raised therein the issues raised here on appeal. Those exceptions, as well as exceptions filed by the husband, were dismissed by the lower court, following which this appeal was filed by the wife.

The issues presented to this Court on appeal are as follows:

1) The trial court erred by establishing a fifty-fifty starting point for making an award of equitable distribution of marital property;

2) The trial court erred in concluding that the only marital asset to be dealt with was the residence at 987 Clifton Road;

3) The trial court erred in requiring payment of the husband’s distributive share, by the wife, within sixty (60) days and imposing interest payments of $333.33 per month thereafter for failure to make the payment;

4) The trial court erred in failing to award alimony and counsel fees summarily, without setting forth reasons as mandated by 23 P.S. 501(d).

We will deal with each of the issues seriatim, the most involved being the first.

The opinion and reasoning of the trial court in this case illustrates the fallacy of using as a starting point a fifty-fifty division of the marital property, which in this case is the marital residence. In a rather summary fashion, the trial court disregarded, as irrelevant and diversionary, most of the testimony having to do with the factors required to be considered by the Divorce Code, 23 P.S. 401(d). If the court had followed the mandate of the Code and considered, reviewed and applied those factors prior to determining whom to favor and equitable distribution of the marital property, it is inconceivable that the division of the marital home would have been sixty-forty. By applying a presumption that marital property is to be divided fifty-fifty (stated as a starting point), with whatever adjustments to that division which might be occasioned by considering 401(d) factors, the court felt no compulsion to evaluate and apply those factors to the total value of the property but could conveniently discuss some of them in generalities and make a division without serious application, which is patently unfair. In particular, the court’s failure to take into full account the husband’s dereliction and the wife’s contribution pursuant to section 401(d)(7) is a glaring departure from the mandate of the Code.

This is the first instance where this Court has taken the opportunity to review what has quickly become the widespread practice of using a fifty-fifty distribution of marital property as the starting point in marital distribution. By utilizing a semantic inversion, “starting point” without consideration of its defacto nature and effect, the legislative provisions have been subverted.

Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983) correctly stated the law that there may be no guidelines established beyond those of the Divorce Code of 1980 in equitable distribution of marital property. There the court said:

[A]t oral argument in this case, a suggestion was made by counsel for the parties that this Court adopt “guidelines” or establish “presumptions” to be applied in deciding issues involving property rights under the Code. In view of the legislative guidelines which are set out forthwith, we see no need for this Court to enumerate additional criteria. Rather, we will carefully scrutinize each of the guidelines in determining whether or not the lower court has abused its discretion. This will assure that our review of proceedings under the New Divorce Code be appropriately assiduous.

Id., 316 Pa.Superior Ct. at 287, 462 A.2d at 1353.

In LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), the court held that using a fifty-fifty starting point in that case was not improper in equitable distribution but then went on to say “We believe that the master gave more than adequate regard to these factors, (23 P.S. § 401(d)), in finding that, ‘[i]n order to attempt to recognize the health insurance and social security factors and effectuate economic justice’ he recommended a 55/45 division of the property.” Id., 349 Pa.Superior Ct. at 539, 503 A.2d at 979. (Citations omitted) Thus the LaBuda Court distinguished Ruth in allowing for a consideration of a fifty-fifty starting point but only after finding that all of the 401(d) factors had fully and properly been considered, and affirming Ruth in that no presumptions apply other than the guidelines set forth in the Divorce Code, specifically stating “In any event, we are not establishing any presumptions or guidelines.” Id., 349 Pa.Superior Ct. at 530, 503 A.2d at 975. In light of our determination on the issue in LaBuda, and the specific holding in Ruth, we must look carefully at the development of case law and the remarks of some judges and writers concerning the fifty-fifty starting point. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986) held Ruth, sufra, rejected any presumptions or guidelines other than those permitted by the Divorce Code, hence a fifty-fifty starting point may not be applied in a presumptive fashion. Ganong v. Ganong, 353 Pa.Super. 483, 513 A.2d 1024 (1986) recognized that a fifty-fifty starting point may not be used as a presumption (is not an end in itself) but that 401(d) factors must be applied. To the extent that the fifty-fifty starting point, without more, or with nominal consideration of the 401(d) factors is applied, it is for evidentiary purposes an unacceptable presumption. The far better procedure is to avoid any reference to the fifty-fifty starting point and to go directly to the factors contained in the legislative guidelines pursuant to section 401(d). The reasons for avoiding such a starting point is already evident in that the fifty-fifty starting point is acquiring the weight of a presumption as demonstrated by the position taken by some lawyers, judges and writers.

The judicial butterfly, no matter how carefully it flutters down upon the flowers represented by the starting point of fifty-fifty distribution, comes away with the pollen of judicial precedent. This, through time and/or repetition, will become established as a rule, which is but another way of saying presumption. The basic position in Pennsylvania law as to presumption is stated by our Supreme Court in Watkins v. Prudential Ins. Co., 315 Pa. 497, 504, 173 A. 644 (1934):

Presumptions arise as follows: they are either (1) a procedural expedient, or (2) a rule of proof production based upon the comparative availability of material evidence to the respective parties, or (3) a conclusion firmly based upon the generally known results of the wide human experience, or (4) a combination of (1) and (3).

See Pennsylvania Trial Evidence Handbook, Jenkins, Presumptions, Inferences and Related Doctrines § 2.1.

The fifty-fifty starting point clearly fits (1), or (3) of the definition as it becomes systematically applied, and has added strength because it is a combination of both. In Words and Phrases, Permanent Edition 33 A (pp. 57-109), there are fifty-two pages of definitions having to do with presumptions and many of them would describe the analysis provided in Paul W. v. Margaret W., 130 P.L.J. 6 (Ct.C.P. Allegheny County 1981), and other cases for using a fifty-fifty distribution as a starting point. While the court in Paul W. confesses an inability to evaluate the factors of 401(d) before fixing distribution and, therefore, must fall back upon a starting point of fifty-fifty distribution, this simply ignores the legislative mandate and adopts the easiest solution which, in keeping with human nature, will be the only solution. Once the fifty-fifty starting point is universal, lip service will be paid to equitable distribution and we will, in fact, if not in word, be distributing property in the manner of community property regimes and, in most respects, as done in partition, or as was the manner of proceeding prior to the 1980 Divorce Code. The Pennsylvania Supreme Court has declared community property laws unconstitutional; therefore, any distribution that is effected on the basis of similar considerations would be likewise unsupportable. To the extent that there is an automatic bestowal of the separate property of one spouse upon the other, as is the law in community property states, it is unconstitutional as a deprivation of property in violation of due process. See Willcox v. Penn Mutual Life Insurance Co., 357 Pa. 581, 55 A.2d 521 (1947); Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981); Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982). In Perlberger, Pennsylvania Divorce Code, 1980, § 5.2 The Concept of Equitable Distribution, it is stated: “[WJhile many factors go into the formula for post-divorce division, it is important to note that record ownership of assets remains significant and the court must find that equity requires a transfer of ownership from one party to the other____” (emphasis added) For this reason, to validly implement that section of the Divorce Code, that all property coining into the marriage is presumed to be matrimonial property (section 401(f)), it is necessary to first consider, before determining each share, all factors enumerated in section 401(d) as well as other relevant factors, and thus equitably determine how much or how well each property became vested in each partner. Marital property is not property that is thrown into the pot to be divided equally as in community property states, but property impressed with equitable consideration which must be evaluated before apportionment is considered. Only in this manner can we avoid the constitutionality issue raised in Willcox. We cannot, therefore, approve a starting point of fifty-fifty without consideration of section 401(d) factors. This would presume a vesting of a fifty percent share in each partner, which would constitute an improper transfer of separate property, without due process. When a fifty-fifty starting point is utilized, this Court will scrutinize that process very carefully to determine whether the lower court proceeded in a presumptive fashion or properly and fully considered all 401(d) factors before making distribution. The presumption that all property coming into the marriage is matrimonial property is not equivalent to the creation of entireties property, which requires that the property be acquired in joint names of husband and wife. Matrimonial property, by definition, applies only for purposes of chapter IV of the Divorce Code, when equitable distribution is claimed. A subsequent redivision would be a further transfer of property from one to the other thus requiring two property adjustments, both presenting constitutional problems. If, after due consideration, there is an equal distribution, it is because of the application of those and other relevant factors and not because section 401(d) factors did not apply as indicated by the lower court. The analysis prescribed by section 401(d) supplies the due process required by Willcox.

In a recent Supreme Court decision, Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (1986), in reversing the Superior Court and holding that an additional tax assessment on a tax liability should be considered a joint liability of the marital estate, the Court, in a footnote and speaking through McDermott, J., stated:

We remand this case in order to allow the trial court to re-evaluate the equitable distribution of the Rorer stock, taking into consideration the joint liability of the tax assessment, penalties and interest, and the circumstances surrounding the accrual of such assessment, penalties and interest. We make no recommendation as to how this division should be made.

Id., 510 Pa. at 254, n. 4, 507 A.2d at 373, n. 4. This is a strong indication of how critical the need is for the trial court to undertake such a nonpresumptive approach in ascertaining equitable distribution. The legislature clearly intended an equitable distribution and, aside from the issue of constitutionality, the bias, which is created by using a fifty-fifty distribution as a starting point, places too heavy a burden on the party, who deserves better, to work away from that fixed point, to establish what is equitable as compared to what is equal. While the judge must make that determination, the parties must establish the factual basis to do so. The effect of any presumption is to cast the burden of going forward with the proof on the opposing party. It also eliminates to some degree the desire of the trial judge to use his discretion to make an equitable distribution when the decision is a hard one. This is apparent as the fifty-fifty starting point in distribution is becoming increasingly common and with the misapplication of LaBuda getting widespread circulation, equal distribution will be the rule and equitable distribution, the exception. Indicative of this are the statements of the trial court quoted in Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986):

Based upon these factors, the Court would be hard pressed to find any reason to deviate from the standard which is generally followed, which is that an equal distribution will generally be equitable. And we would make such a finding in this particular case, (emphasis added)

Id., 351 Pa.Superior Ct. at 598, 506 A.2d at 934, quoting R.R. 233-234. .

The trial judge’s Opinion is also quoted as follows:

Prior to distributing the marital property, the trial court indicated ‘that an equal distribution would be used as a starting point, and thereafter the factors provided under Section 401 D (sic) of the divorce code would be applied to determine if there should be any deviation from the recommended initial distribution of 50-50.’ (R.R. 232). (emphasis added)

Id., 351 Pa.Superior Ct. at 597, 506 A.2d at 933.

Finally,

Suppose at separation in 1975, Husband and Wife own both Blackacre and Whiteacre, each worth $100,000.00. At the date of trial in 1982, Whiteacre is worth $50,000.00 but Blackacre has increased in valued to $300,000.00. If date of separation values were used, I could award Blackacre to one party and Whiteacre to the other on a 50-50 split. Yet Blackacre is today worth six times what Whiteacre is worth, (footnote omitted)

Id., 351 Pa.Superior Ct. at 593, 506 A.2d at 931.

Without question, the lower court, in Sergi, approves a presumption of equal distribution which is not permitted by the Divorce Code. No more convincing evidence of the ascendency of the presumptive nature of that consideration is the statement in the 1985 Supplement to Perlberger’s Pennsylvania Divorce Code, § 5.2 The Concept of Equitable Distribution: “Most lower courts have followed the lead of the Court of Common Pleas of Allegheny County which first held that the most convenient starting point for equitable distribution is an equal division of marital property.” If we needed any further evidence that this policy has reached the point of presumption, this Court has now received a petition for reargument which alleges error by the panel in failing to use as a starting point fifty-fifty division of property in its consideration, Dinello v. Dinello, No. 1582 Pittsburgh, 1985. Similarly, in Morschhauser, supra, petitioner claimed error by the panel in failing to apply the “presumption” of a fifty-fifty starting point in equitable distribution. It would appear that despite LaBuda’s statement to the contrary, that there is no presumption by applying a fifty-fifty starting point, legal writers, judges and lawyers throughout the Commonwealth say there is. If LaBuda is not in conflict with Ruth, then LaBuda is being misinterpreted; if it is in conflict with Ruth and has established a presumption, when Ruth correctly held that no presumption is permissible, it cannot stand, as a later panel, under the Internal Operating Procedures of the Superior Court, cannot overrule the published finding of an earlier panel. We hold LaBuda not to be in conflict with Ruth and that a fifty-fifty starting point may not be applied in a presumptive fashion, and when applied, will be closely scrutinized to determine if equitable distribution can be justified under the section 401(d) guidelines.

In keeping with the above discussion, the proper rationale to be applied is clearly detailed in the Divorce Code (23 P.S. § 101 et seq.). Looking first to section 102, Legislative findings and intent, subsection (a)(6) provides:

(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

Section 103, Construction, provides:

The provisions of this Act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments, (emphasis added)

Since a specific provision, infra, requires that distribution be equitable and not equal, and prior law required partition and equal division of jointly owned property, with retention of separate property, it is absolutely certain that we are not to construe this section as a continuation of prior law (as is the case if equitable distribution was not requested pursuant to section 401(d)) and, therefore, not being a continuation of existing laws, there is no legal basis to use as a starting point “equal” distribution. A starting point of fifty-fifty distribution is superfluous to this process.

Turning to section 401(d), the clear statement of the law is that the court will equitably distribute or assign marital property (which is determined pursuant to section 401(e)) “[A]fter considering all relevant factors including____” (emphasis added), and then lists ten factors. The starting point is unequivocally the consideration of all relevant factors. This requires compilation, computation, weighing and balancing considerations, and then applying the sound discretion of the court to achieve economic justice. See Duff, supra. This is more difficult than beginning (and likely ending with minor variation) at a fifty-fifty starting point. It is, however, no more difficult than in other areas of domestic relations where the legislature and our courts have rejected presumptions such as shared custody, the tender years doctrine or arbitrary support levels for wife or children. If we have indeed created a presumption by the process discussed above, then every case must begin with that consideration and those which do not are in error (see Petitions for reargument as filed in Dinello and Morschhauser, supra). If no presumption exists, (of fifty-fifty distribution) starting at that point is unnecessary and probably undesirable as it triggers an immediate and intense inquiry as to whether such a presumption was in fact applied.

Bearing these considerations in mind, among the relevant factors that must first be considered in this case are the length of marriage (four and one-half years before separation — nineteen years defacto); prior marriage of wife; age, husband, fifty years and wife, fifty-three years; good health for both; source of income, husband, salesman— family business, average income above $18,000 per year, wife, $12,000 per year; employability (continuing as is) liabilities; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property; the value of the property set aside to each party; economic circumstances of each party at the time the division of property is to become effective.

In addition, the court was required to consider the effect of the property division on the need for alimony under section 501.

We have no quarrel with the assessment of the court of those factors it did consider, but we do believe he committed reversible error in not applying those factors at the outset and in considering others “diversionary.”

Applying the frequently pronounced standard for the scope of appellate review, the abuse of discretion standard, we are not to usurp the trial court’s duty as finder of fact. Rather, we will carefully scrutinize each of the guidelines in determining whether or not the lower court has abused its discretion. Ruth, supra; Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983).

Returning to the guidelines, the court found that the wife, at time of marriage (she was 34, he was 31), brought assets into the marriage of $2,500; husband, none. A lot was purchased on which the marital home was built, using wife’s inheritance and acquiring a loan borrowed against the wife’s passbook savings ($1,500). Between 1965 and 1966, the house was built using a construction loan of $22,500, the husband testifying that an additional $10,000 of marital funds were used for this purpose. The husband also provided in-kind work toward its construction and through his contacts, much of the construction occurred at below market cost. Subsequent to the separation in 1968, the husband’s contributions to maintaining the house, paying off the mortgage and preserving its equity, were nil, and in order to avoid foreclosures in 1972, the wife was required to borrow money from her family to pay the delinquency (Slip Op. pp. 2-3). In addition, Orders for support and alimony pendente lite had been obtained by her against the husband, which went unpaid, and only after an agreement was made to apply those payments to taxes on the property in 1974, did he comply with the order (Slip Op. p. 8). The sum and substance of these facts leads to the conclusion that but for the in-kind contribution estimated at $9,000 by the husband, the purchase of the lot, payment of the mortgage, property maintenance and protection from foreclosure, were primarily through the efforts and sacrifice of the wife with the assistance of her family. The court concluded as much (Slip Op. pp. 2 and 8) in its analysis of the acquisition and preservation of the property. If without more, the court considered the above factors in relation to section 401(d)(7), the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, it would be hard pressed, in equity, to find the husband was entitled to any but a token share of the marital home which is the only significant property.

The payment of the taxes in lieu of alimony cannot be an offset to the major contribution of the wife in preserving the property. Had he not paid the alimony, the wife would have had the right to reduce the arrears to judgment and thereafter apply the judgment as a lien against the husband’s share of the real estate, thereby absorbing his share, if any. See 48 P.S. § 132-§ 136.

In addition to application of section 401(d)(7) to this computation, consideration must be given to the relative standard of living of the parties throughout the intervening years during which the property was acquired. The record and the lower court Opinion establish that the husband was doing very well whereas the wife was struggling. The wife may have had better housing, but she was paying for it, as well as maintaining a daughter, on what was at best a borderline salary. On the other hand, the husband, as a member of a closely held corporation, had a salary exceeding $18,000, other income from interest-free loans which generated $11,000 + income yearly, free housing, use of company vehicles and other perquisites. His perquisites greatly increased his standard of living over his salary. He was also able to accumulate investments and IRA retirement benefits which provide additional security for him. This must be balanced against the wife’s struggle to maintain herself and the house. To award the husband a substantial share of that property, to which he did not contribute in any major way, while he had substantial means to do so, is inequitable. By considering these matters “diversionary”, the trial court ignored the mandate of the statute, and having in the forefront the fifty-fifty starting point, was lulled into remaining with that basis for distribution. It is this factor that clearly delineates equitable distribution from the common law distribution of marital property; the discretion to deviate from common law distribution must be exercised in the proper case, if it is to be equitable. We, therefore, hold the lower court was in error in awarding any share in the residence to the husband.

The second issue raised by appellant has to do with marital assets, aside from the residence at 987 Clifton Road, which may or may not have been acquired during the marriage. While the husband testified during the hearing that he had virtually no assets at the inception of the marriage and that at the time of the hearing the firm was on the verge of liquidation, and the trial court acknowledged that “games” and “business shenanigans” (Slip Op. at 6) took place with the husband’s corporation, the court failed to look closely at the evidence presented concerning that operation and to evaluate its effect on the total award. Perhaps lulled by the presumptive application of a fifty-fifty starting point, the trial court saw no need to do more than look to the gross marital asset available and proceed from that point in making an award. Our review of the record indicates there were substantial assets acquired during the marriage but primarily after the date of separation in 1969. The 1980 Divorce Code provides:

§ 401(e)(4)
(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce, (emphasis added)

While we acknowledge that the wife’s savings, totalling $13,000, was in some measure advanced to the husband for his business, we take this into consideration in balancing out the contribution in purchasing the residence and paying taxes on the residence in later years. Additionally, we cannot trace this asset as there is the presumption of a gift between spouses when one or the other contributes money to a joint account or to the business of the other. Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975).

Issue three, concerning a requirement that the appellant pay the husband’s share of the value of the marital residence, with interest should husband’s share not be paid in sixty (60) days, is rendered moot by our finding as to the proper distribution of marital property.

The final issue pertains to the failure of the court to specify its reasons for failing to award alimony and counsel fees.

The Divorce Code of 1980, 23 P.S. § 501(d), provides:

(d) In an order made under this section the court shall set forth the reason or reasons for its denial or award of alimony and the amount thereof.

Appellant is correct in alleging the trial court failed to comply with the requirement of this section.

As a result, we are unable to determine the basis for the lower court’s decision and thus are deprived of the ability to conduct an appropriate review as required by the rules of appellate procedure.

Pa.R.A.P. 1926 states in part:

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemen tal record be certified and transmitted, (emphasis added)

“Where it is impossible for the appellate court to decide a case because the record is incomplete, the case should be remanded to the lower court for clarification and completion of the record.” Johnson v. Keystone Insurance Company, 299 Pa.Super. 187, 193, 445 A.2d 517, 520 (1982) (remand necessary when record contains neither a transcript of a master’s hearing nor a master’s report and parties disagree as to what evidence was actually presented at the hearing, and trial court’s Opinion has no findings of fact which documents not properly before us can be considered by the lower court). 42 Pa.C.S.A. § 706 provides:

§ 706. Disposition of appeals
An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.

For the above reason, on the issue of alimony and counsel fees, the case must be remanded. We would note, however, that post-divorce alimony is primarily rehabilitative and based on need. Considering the length of the time the parties lived together and the wife’s present employment status, and our findings on the distribution of the residence, her claim for alimony, when tested against the factors linked in section 501 Alimony | will be hard to justify. The request for counsel fees and costs, however, have much greater merit.

It is, therefore, ordered that the decree be vacated as to the distribution of the residential property and that property in its entirety be awarded to the wife; the award as to distribution of all other alleged marital property is affirmed; the case is remanded for findings as to alimony and counsel fees.

Jurisdiction relinquished.

      . 23 P.S. § 401(d)
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.

      . Pennsylvania has not adopted the Uniform Marital Property Act, approved during 1983 by the National Conference of Commissioners on Uniform State Laws. The Act would confirm ownership of the marital property at the time of divorce, requiring reallocation of the property derived from the efforts of both spouses during the marriage, starting from a basis of equal undivided ownership that the spouses share in their marital property. Distribution would be according to the appropriate procedures for dividing property in the several states. See Wadlington, Domestic Relations Cases and Materials, Second Edition, Foundation Press, 1984, pp. 243-246. Without legislative consideration and passage of the Uniform Act, we are unable to adopt this approach. Equal undivided share is community property in nature whereas Pennsylvania adheres to common law principles which hold that property held by husband and wife is not by moieties but each having an entirety of interest.

      . 68 P.S. § 501. Divorced tenants by entireties hold, as tenants in common; suit for sale and division of proceeds.

      . To assume fair and just is "equal”, flys in the face of the heavy debate in creating this section of the Code, as the prior approach was "equal” and not "equitable”, as to division of jointly held property.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    520 A.2d 1206
    Stanley DARLARK and Doris Darlark, his wife v. HENRY S. LEHR, INC. and Harleysville Insurance Co. Appeal of HENRY S. LEHR, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1986.
    Filed Feb. 13, 1987.

      Joseph J. Heston, Wilkes-Barre, for appellant.
    Frank T. Blasi, Scranton, for appellees.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   BECK, Judge:

This is an appeal from the lower court’s order denying appellant’s petition to vacate a default judgment that had been entered for failure to file an answer or enter an appearance in a declaratory judgment action. Appellant Henry S. Lehr, Inc. (“Lehr”) contends that the lower court erred in denying its petition to vacate because it offered (1) a satisfactory explanation for its failure to answer the complaint, and (2) a meritorious defense to the action. For the reasons that follow, we quash the appeal.

Appellees, the owners of the Dori-Tan Motor Inn Bar and Lounge, were sued by a third party in a personal injury action. Appellees sought a defense through Lehr, the insurance agent, and Harleysville Insurance Company (“Harleysville”), which wrote the insurance covering appellees’ lounge. Harleysville notified appellees that they would not provide a defense because their policy did not cover the alleged incident. On September 16, 1985, appellees filed a complaint against Harleysville and Lehr seeking a declaratory judgment to determine Harleysville’s and Lehr’s duties with respect to the defense of the tort action against appellees. Lehr failed to answer the complaint. On December 5, 1985, appellees sent Lehr notice of their intent to enter a default judgment, and on January 8, 1986, a default judgment was entered by the prothonotary against Lehr. On January 28, 1986, Lehr filed a petition to vacate the default judgment, which the lower court denied. This appeal followed.

The rules that now govern practice and procedure in declaratory judgment actions are the rules for actions in equity. Pa.R.C.P. 1601(a). Prior to the enactment of the present Declaratory Judgments Act, 42 Pa.Cons.Stat.Ann. §§ 7531-41 (1982), declaratory judgments in Pennsylvania were governed by the Uniform Declaratory Judgments Act, 12 P.S. §§ 831-46 (1923) (repealed 1978), and the specific procedures were governed by a supplemental procedure Act, 12 P.S. §§ 847-53 (1935) (repealed 1978). In construing these Acts, our courts had held that certain kinds of summary disposition, including summary judgment or judgment on the pleadings, could not be had in declaratory judgment actions because the Acts themselves made no provision therefor. Greenberg v. Blumberg, 416 Pa. 226, 206 A.2d 16 (1965); Laspino v. Rizzo, 40 Pa.Commw. 625, 398 A.2d 1069 (1979).

Under the supplemental procedural Act it was not clear whether default judgment was available. Although the Act did not provide specifically for the entry of a default judgment, it provided that in any declaratory judgment action where the defendant failed to answer, the court had discretion either to enter the declaratory judgment or decree, dismiss the petition or enter other appropriate order. 12 P.S. § 849.

Under the present Declaratory Judgments Act, however, equity governs the procedure. Pa.R.C.P. 1601(a); Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa.Commw. 88, 434 A.2d 1327 (1981), aff'd per curiam, 498 Pa. 589, 450 A.2d 613 (1982). Because the equity rules apply to declaratory judgment actions, the Commonwealth Court has concluded, for example, that summary judgment can now be had in such an action. Id. Applying the same reasoning, we conclude that a default judgment is also available in a declaratory judgment action.

The rule pertaining to a default judgment in an equity (or declaratory judgment) action is Rule 1511 of the Pennsylvania Rules of Civil Procedure. See Miernicki v. Seltzer, 312 Pa.Super. 166, 170, 458 A.2d 566, 568 (1983), aff'd 505 Pa. 323, 479 A.2d 483 (1984). Rule 1511 provides in relevant part:

(a) The prothonotary, on praecipe of the plaintiff shall enter a judgment by default against the defendant for failure to plead within the required time to a complaint which contains a notice to defend. In all other cases of default or of admission the judgment shall be entered by the court.
(b) In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its adjudication and in framing the decree.

Pa.R.Civ.P. 1511(a), (b). Thus, the rule requires that after the prothonotary enters a default judgment, the court must enter an appropriate final decree. See e.g., Texas & Block House Fish & Game Club v. Bonnell Run Hunting & Fishing Corp., 388 Pa. 198, 199-200, 130 A.2d 508, 509 (1957) (after entry of default judgment by prothonotary for failure to answer complaint, lower court entered final decree and defendant then petitioned to open judgment); Alderfer v. Pendergraft, 302 Pa.Super. 210, 213, 448 A.2d 601, 603 (1982) (plaintiff caused default judgment to be entered against defendant for failure to answer complaint and then petitioned trial court to enter final decree); Commonwealth, Dept. of Envtl. Resources v. Allias, 20 Pa.Commw. 222, 224, 341 A.2d 226, 227 (1975) (after defendant failed to answer complaint, plaintiff filed praecipe for entry of default judgment and subsequently requested court to enter appropriate final decree).

The matter sub judice gives rise to a question of first impression: whether a petition to open or an appeal is proper where the prothonotary has entered a default judgment pursuant to Rule 1511, and the court has not yet entered a final decree. “Final orders are those which make a final determination of the rights of the parties relating to the subject matter of the action, leaving nothing further to be done____” Sims v. Feingold, 329 Pa.Super. 437, 438, 478 A.2d 868, 869 (1984) (quoting Navarro v. Ohio Cas. Ins. Co., 295 Pa.Super. 151, 154, 441 A.2d 394, 395 (1982)). Rule 1511 is drafted as a two-part rule and the second part of the rule is written in mandatory terms. See Pa.R.C.P. 1511(b). Thus, entry of a default judgment by the prothonotary is not final because the rule requires further action by the court. We hold that a default judgment in equity cases is not final until the court enters a final decree.

Here, appellant filed its petition to open the default judgment before the court entered a final decree. Thus, the petition was premature and the appeal from the trial court’s order refusing to open the judgment is improper. Cf. Sims. v. Feingold, supra (where default judgment entered for liability only, reserving question of damages, judgment is interlocutory and not appealable). We note that once a final decree is entered, the judgment will be subject to a petition to open or a direct appeal to this Court.

For the above-stated reasons, we quash the appeal.

Appeal quashed.

      . Harleysville filed an answer to the complaint. Its legal rights are not adjudicated by this appeal and Harleysville is not a party to this appeal.

      . We note that in this case, the trial court may refuse to enter the final decree until the entire case is resolved. One commentator has noted that in a situation where a default judgment has been entered in an equity action against only some of the defendants and the remaining defendants have filed answers denying the averments of the complaint, the court will usually defer entry of the definitive decree until final judgment can be entered as to all defendants. Goodrich-Amram 2d § 1511(b):l (citing Hall v. Hall, 73 Pittsb.Leg.J. 909 (1925); Former Equity Rule 51). Since in this case Harleysville filed an answer, the final decree on the default judgment against appellant may await the disposition of the case as to Harleysville.

      . Even though Rule 311 of the Pennsylvania Rules of Appellate Procedure provides an appeal as of right from an order refusing to open, vacate or strike off a judgment, this appeal is improper because the trial court’s ruling on the petition to vacate was improper as premature, having been made before the entry of a final decree.


author: TAMILIA, Judge: ROWLEY, Judge,

text:
    520 A.2d 1388
    WORLD OF TIRES, INC., and Perma Tread Corporation v. AMERICAN INSURANCE COMPANY, a Fireman’s Fund Insurance Company. Appeal of PERMA TREAD CORPORATION.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1986.
    Filed Feb. 9, 1987.

      Paul D. Shafer, Jr., Meadville, for appellant.
    Louis C. Long, Pittsburgh, for appellee.
    Before WICKERSHAM, ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

In October of 1980, appellant/Perma Tread sold the physical assets of its tire copying plant to World of Tires and to secure the transaction, Perma Tread held a note and chattel mortgage on the equipment. Prior to the sale, in June of 1980, Perma Tread had obtained insurance on the plant from appellee/American Insurance Company (hereinafter American) to be effective for three years beginning June 30, 1980. On November 17, 1980, an endorsement was issued to the policy changing the named insured to World of Tires with an effective date of October 16, 1980. A subsequent endorsement issued January 13, 1981 provided for an increase in personal property coverage of $50,000 raising the limits to $250,000 effective December 23, 1980. A further endorsement dated January 23, 1981 listed Perma Tread as an additional insured, effective December 23,1980.

On December 26, 1980, a fire destroyed the plant. A proof-of-loss statement dated April 11, 1981 was submitted by World of Tires and on the Release and Authorization section of this form, Russell Klasen, the secretary/treasurer of Perma Tread, signed on behalf of Perma Tread.

An investigation was conducted by appellee/American and when the parties where unable to reach a settlement, World of Tires filed a writ of summons, against American on December 23, 1981. The writ was reissued in April of 1982 and a complaint filed May 14, 1982. In its answer and new matter filed May 27, 1982, American raised the issue of concealment and fraud, alleging that all of the items claimed by World of Tires to be on the premises and destroyed by fire were in fact not present or destroyed in the fire.

On July 7, 1983, appellant/Perma Tread filed a petition along with Russell Klasen and Victor Leap, the principal officers of the corporation, seeking to intervene, in which they claimed Perma Tread to be a named loss mortgagee on the policy of insurance issued by appellee, and seeking recovery of the insurance proceeds. In the petition, they also set forth a term of the union mortgage clause of the policy, to the effect that the policy “shall not be invalidated by any act or neglect of the mortgagor____”

American opposed this petition by way of answer and new matter in which it denied that Perma Tread was a named loss mortgagee and asserted that their status was that of an additional insured and, therefore, the mortgagee clause did not apply. In addition, application of the mortgagee clause was denied on the basis that the clause is applicable to buildings only. Under new matter it was alleged first that the individuals have no standing because they were not named as insureds in the policy and second, the limitation of suits clause barred any action since it was not commenced within one year after inception of the loss.

The court granted the petition to intervene as to Perma Tread and denied the petition of the individuals. In the memorandum accompanying the Order, the court held that the contractual limitation issue was not ripe for determination.

On August 18, 1983, Perma Tread filed a complaint claiming that it was a mortgagee under the contract of insurance and entitled to the proceeds. In its answer and new matter, American denied that Perma Tread was a mortgagee, alleged that no proof of loss was filed by Perma Tread as required by the contract and raised the contractual limitations period as a defense.

Motions and cross-motions for summary judgment were filed and the court, by Order entered June 26, 1984, granted World of Tires’ motion and denied American’s motion on the issue of contractual limitations ruling that World of Tires was not barred from the action by the limitation.

American’s motion on the contractual limitation as to Perma Tread was denied without prejudice to American’s right to raise the issue in a motion for nonsuit or directed verdict. At the close of evidence, the court directed a verdict in favor of American and against Perma Tread on the defense of the contractual limitation of action. The claim as between World of Tires and American went to the jury with a verdict returned in favor of American.

Perma Tread has appealed from the directed verdict arguing a variety of reasons why they should be deemed a loss mortgagee and the contractual limitations period not be enforced. They also maintain the court erred in excluding certain exhibits. The status of appellant as mortgagee was never specifically decided by the court. It is apparent however, that it based its ruling on the law as it would apply to one holding such a status. Because we affirm the finding of the lower court and the status attributed to appellant is favorable to its position, which was that of a named loss mortgagee, we find no need to further discuss this question.

Perma Tread, assuming the status of mortgagee, asserts initially that the court erred when it refused to find the contractual limitation period should not apply. It points to the section of the policy, specifically referring to mortgagees, which provides:

Mortgagee interests and obligations. If loss hereunder is made payable, in whole or in part, to a designated mortgagee not named herein as the insured, such interest in this policy may be cancelled by giving to such mortgagee a ten day’s written notice of cancellation.
If the insured fails to render proof of loss such mortgagee, upon notice, shall render proof of loss in the form herein specified within sixty (60) days thereafter and shall be subject to the provisions hereof relating to appraisal and time of payment and of bringing suit.

Pennsylvania Standard form fire Insurance Policy, p. 1, lines 68-78.

Appellant maintains that the filing of a fraudulent proof of loss by World of Tires should be considered a failure to render proof of loss and the contract limitation clause should not begin to run until notice is provided. It also argued that the contract limitation should be tolled between the time the insured gives notice of loss and the time the insurer formerly denies coverage.

We do not think a proper application of Pennsylvania law supports appellant’s argument Our courts have consistently held that the standard mortgage clause, at issue in this case, creates a separate, distinct and independent contract of insurance in favor of the mortgagee. Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa. Super. 287, 361 A.2d 375 (1976); Guarantee Trust and Safe Deposit Co. v. Home Mutual Fire Insurance Co., 180 Pa.Super. 1, 117 A.2d 824 (1955). The limitations clause in the insurance contract has also been deemed equally applicable to both parties. Satchell, supra; Guarantee Trust, supra.

The limitations clause provides;

Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.

Policy, p. 2, lines 157-161.

Appellant would have us construe the mortgagee clause as overriding the clear language of the limitation clause. We think the more appropriate reading merely gives the mortgagee sixty days from the time of notice of the insureds failure to file proof of loss to file the required proof of loss. Thereafter, the clause continues application of the terms of the contract as to time of bringing suit and does not extend it in any manner.

The inception of loss language in the limitations clause was discussed in General State Authority v. Planet Insurance Co., 464 Pa. 162, 346 A.2d 265 (1975) wherein a party to the insurance contract claimed the twelve month time limitation should be computed from the date it became aware of the loss. The court in rejecting this argument adopted the reasoning of the Seventh Circuit Court of Appeals in Sager Glove Corporation v. Aetna Insurance Company, 317 F.2d 439 (7th Cir.1963) which stated: “inception of loss”: “has nothing to do with the state of mind of the insured. It deals with an objective fact ... The loss occurs and has its ‘inception’ whether or not the insured knows of it.” General State Authority, supra, 464 Pa. at 167-68, 346 A.2d at 268.

Appellant next contends the date of filing of the mortgagees action should relate back to the date of filing of the complaint by the insured. We reject this argument in light of the separate contract theory set forth above. As stated in Satchell, supra, “[ejither the owners or the mortgagee could have brought suit to recover for the loss occasioned by the fire. However, in bringing any action on the policy for indemnification of loss, both the owners and the mortgagees were bound by the express contractual limitation contained therein which requires that any suit or action on the policy must be commenced within twelve months next after the fire.” Id., 241 Pa.Superior Ct. at 297, 361 A.2d at 380, citing Guarantee Trust, supra, 180 Pa.Superior Ct. at 5, 117 A.2d at 826.

Perma Tread had a separate right to bring an action on the insurance contract and this was controlled by the limitations clause in the contract. Appellant’s right existed irrespective of World of Tires’ actions and there is no basis to tack on the time of filing of World of Tires’ complaint to the subsequent filing by appellant.

Appellant finally maintains that American should not be able to invoke the limitations clause absent a showing of prejudice. In addition it is argued that American’s actions constituted a waiver of the limitation period. We do not agree.

In support of its assertion that prejudice is a requirement to invoke the limitation clause, appellant cites to Brakeman v. Potamac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977) where the court adopted a requirement that prejudice be shown before a notice provision was enforced. However, the application of the prejudice requirement to limitation of suit provisions was specifically rejected in Schreiber v. Pa. Lumberman’s Mutual Insurance Co., 498 Pa. 21, 444 A.2d 647 (1982). The court, in Schreiber, noted that the limitation of suit provision was legislatively mandated (40 P.S. § 636) and could “hardly be called a ‘contract of adhesion’ imposed unfairly by the stronger party on the weaker.” Id., 498 Pa. at 24, 444 A.2d at 649. Thus the basis for the prejudice requirement in Brakeman was not present when a statutorily mandated limitation clause was at issue.

Although appellant is correct that a limitation of suit provision will not bar a delayed suit if the actions of the insurer leads the insured to believe the provision will not be enforced, Schreiber, supra; General Authority, supra; we do not find this to be such a case. Appellant alleges that American’s offer of settlement made to World of Tires in August of 1981 led it to believe coverage would be provided. Thus appellant claims it was induced to delay entry into the lawsuit. The lower court found otherwise when it was confronted with the contractual limitation question three different times. First, on the petition to intervene and second, on motion for summary judgment when the court refused to enter judgment summarily but rather gave appellant “every opportunity to establish any evidence which would constitute an estoppel or waiver of the defense.” (Slip Op. 4/29/86, p. 2). It was only after the court received evidence that it went on to hold that a directed verdict was appropriate because “there was not a scintilla of evidence that the defendant had done anything to mislead the intervening plaintiff or lull them into any false sense of security that would constitute a waiver of the limitation of actions provision of the policy.” (Slip Op. at 2). In doing so, the court relied on the law established in Miners Savings Bank of Pittston v. Merchants Fire Insurance Co., 131 Pa.Super. 21, 198 A. 495 (1938) and Satchell, supra, holding that, absent evidence which would constitute a waiver by American, the contractual limitation period would apply.

In an appeal from a directed verdict, we must view the evidence and all reasonable inferences in a light most favorable to appellant. If the jury could have reasonably imposed liability on appellee based on that evidence, the decision to direct a verdict was in error. East Texas Motor Freight, Diamond Division v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984); Litwinko v. Gray, 267 Pa.Super. 541, 407 A.2d 42 (1979).

In the present case we agree with the lower court that no evidence was provided which would indicate any action on appellees part that would lead appellant to conclude the limitations period would be waived. The only evidence to which appellant points is correspondence between World of Tires and American. There was no evidence presented of any conduct by appellee in its dealings with appellant which could constitute a waiver and the court properly directed a verdict in favor of appellee.

Appellant also challenges the refusal of the court to admit into evidence two exhibits. One was the letter from American’s counsel to John Pepicelli containing an offer of settlement of World of Tires’ claim. The second was a damage report given by an appraisal company to appellee. “The admission or exclusion of evidence is within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.” McCrery v. Scioli, 336 Pa.Super. 455, 461, 485 A.2d 1170, 1173 (1984); Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983). The court concluded the exhibits constituted inadmissible hearsay, and were irrelevant to the issue of fraud. Finally the letter was viewed as an offer of compromise which provided a further basis of exclusion. Under the above stated standard of review, we find no basis to reverse the decision of the trial court.

Finding no merit to appellant’s claims the judgment is affirmed.

Judgment affirmed.

ROWLEY, J., files a dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent. I would hold that appellant, as an intervenor in this timely filed action, was not barred by the one-year contractual limitation on the initiation of suit. Appellant’s claim was for the loss of the same property, in the same fire, as was the claim of World of Tires, Inc. American’s defense to the merits of the identical claims was the same. Therefore, I would reverse and remand for a new trial as to Perma Tread Corporation.


author: WIEAND, Judge:

text:
    521 A.2d 25
    Andrew WILKERSON v. ALLIED VAN LINES, INC., Fruehauf Trailer, A Division of Fruehauf Corp. Appeal of ALLIED VAN LINES, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1986.
    Filed Feb. 6, 1987.

      John J. O’Brien, Jr., Philadelphia, for appellant.
    Paul R. Anapol, Philadelphia, for Wilkerson, appellee.
    James M. Marsh, Philadelphia, for Fruehauf, appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   WIEAND, Judge:

Andrew Wilkerson was seriously injured when he was ejected from a tractor trailer which collided with an oncoming vehicle in Vernon Township, New Jersey. The tractor trailer was owned and operated by Lyle Jordan. The unit had been leased to Fisher and Brother, Inc., which, in turn, had leased the vehicle to Allied Van Lines, Inc. (Allied). The vehicle was being operated under authority contained in a Certificate of Convenience and Necessity which had been issued to Allied by the Interstate Commerce Commission. Wilkerson commenced an action against Allied and also against Fruehauf Trailer, a division of Fruehauf Corporation, which had been hired by Allied to inspect and repair the vehicle’s braking system but which, it was alleged, had done so in a negligent manner. A jury returned a verdict against Allied alone and awarded damages of $800,000.00. The trial court added delay damages pursuant to Pa.R.C.P. 238 and, after post-trial motions had been denied, judgment was entered in favor of Wilkerson and against Allied in the amount of $1,182,027.36. Allied appealed.

Wilkerson’s claim against Allied was based upon provisions of the Interstate Common Carrier Act which requires that a motor carrier assume direction and control of leased vehicles. This principle was explained by the Court of Appeals for the Fifth Circuit in Price v. Westmoreland, 727 F.2d 494 (5th Cir.1984) as follows:

In order to protect the public from the tortious conduct of judgment-proof operators of interstate motor carrier vehicles, Congress in 1956 amended the Interstate Common Carrier Act to require a motor carrier to assume full direction and control of leased vehicles. 49 U.S.C. §§ 10927(a)(2) and 11107(a)(4) (formerly 49 U.S.C. §§ 315 and 304(e)(2) respectively). Pursuant to these regulations the ICC has promulgated written lease requirements for interstate carriers ... which require the carrier lessee to “assume complete responsibility for the operation of the equipment for the duration of the lease.” 49 C.F.R. § 1057.12(d)(1).

Id. at 496. See: Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 36-38, 96 S.Ct. 229, 233-234, 46 L.Ed.2d 169, 176-177 (1975); Rodriguez v. Ager, 705 F.2d 1229, 1232-1233 (10th Cir.1983); White v. Excalibur Insurance Co., 599 F.2d 50, 52-53 (5th Cir.), cert. denied, 444 U.S. 965, 100 S.Ct. 452, 62 L.Ed.2d 377 (1979); Carolina Casualty Insurance Co. v. Insurance Co. of North America, 595 F.2d 128, 135-137 (3d Cir.1979); Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89, 91-92 (4th Cir.1973); Simmons v. King, 478 F.2d 857, 866-867 (5th Cir.1973); Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473, 477 (3d Cir.1961); Riddle v. Trans-Cold Express, Inc., 530 F.Supp. 186, 188 (S.D.Ill.1982).

Because the statute and the regulations adopted pursuant thereto impose upon the carrier “both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier’s responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles.” White v. Excalibur Insurance Co., supra at 53, citing Simmons v. King, supra. The effect of the statutes and regulations is to make the carrier-lessee vicariously liable for injuries caused to the traveling public by virtue of the negligent operation of any vehicle leased to it and operated under its certificate of necessity. See: Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., supra; Price v. Westmoreland, supra; White v. Excalibur Insurance Co., supra; Mellon National Bank & Trust Co. v. Sophie Lines, Inc., supra; Riddle v. Trans-Cold Express, Inc., supra; Matkins v. Zero Refrigerated Lines, Inc., 93 N.Mex. 511, 516, 602 P.2d 195, 200 (1979).

Allied contends in this case that it should not be held vicariously liable for the negligence of Jordan because Wilkerson was not “a member of the traveling public” which the statute and regulations were intended to protect. Wilkerson made a living by helping drivers load and unload their tractor trailers. On the day of the accident, he had been engaged in helping Jordan in the loading and unloading of Jordan’s tractor trailer. After work for the day had been completed, Jordan provided transportation to Wilkerson so that Wilkerson could reach a destination convenient to him. It was then that the accident occurred.

Whether an injured plaintiff is “a member of the traveling public” at the time of the accident and, therefore, eligible to assert the federally created cause of action against the lessee-carrier, has been a source of conflict among the federal courts. In Proctor v. Colonial Refrigerated Transportation, Inc., supra, plaintiff had been injured while riding as a passenger in a truck which had been leased to Colonial, an interstate carrier, by Bales, the owner-operator of the truck. Bales had hired Proctor, the plaintiff, as an assistant driver. Proctor brought an action for personal injuries against Colonial. At trial, the court instructed the jurors that if they found that Bales was an independent contractor at the time of the accident, they should return a verdict in favor of Colonial. On appeal, after the jury had returned a verdict for Colonial, the Court of Appeals reversed. The Court held that federal law operated to eliminate independent contractor concepts and required Colonial to assume responsibility for the negligence of Bales as the driver of the leased vehicle. Id. at 92. With respect to Colonial’s contention that its statutory liability did not extend to plaintiff, who had been injured while acting as an employee of the lessor, Bales, the Court emphasized that plaintiff had not been the owner of the vehicle and had had no contractual relationship with Colonial. The Court concluded that plaintiff “was as much a stranger to Colonial as a shipper or a member of the traveling public____” Id. The Court held, therefore, that a new trial was necessary at which the jury should be instructed that any negligence on the part of the driver, Bales, would impose liability upon Colonial, the lessee.

A contrary result was reached by the Court of Appeals for the Fifth Circuit on similar facts. In White v. Excalibur Insurance Co., supra, the plaintiffs decedent had been hired as a driver by the lessor-owner of a truck which had been leased to the lessee-carrier. As the decedent slept in the cab, his co-driver negligently operated the truck, resulting in a collision which caused the decedent’s death. Plaintiff brought a wrongful death action against the lessee-carrier, contending that federal law made the carrier vicariously liable for the driver’s negligence. The trial court denied plaintiff’s request for relief and, on appeal, the Court of Appeals affirmed. Inasmuch as the decedent had been an employee of the lessor at the time of the accident, the Court held, he had not been a member of the public when he was injured. The Court said that despite the absence of a contractual agreement between the carrier and the lessor’s employees, the employees could not be considered to have been strangers to the lease when engaged in operating a leased vehicle in furtherance of the lessee’s business. Id. at 55-56. Thus, the Court concluded, “[t]hey stood [apart] not merely from other travelers but from all of the rest of the public who [were] not directly engaged in furthering the economic interest of the carrier----” Id. at 56.

Two state courts have had occasion to consider this issue. Both have embraced the reasoning of the Fourth Circuit. In Schindele v. Ulrich, 268 N.W.2d 547 (Minn.), appeal dismissed sub nom., Sammons v. Schindele, 439 U.S. 1059, 99 S.Ct. 739, 58 L.Ed.2d 716 (1978), the plaintiff and another person had been hired by the lessor to drive a truck which had been leased to an interstate carrier. Plaintiff was injured when his co-driver negligently drove the truck at a high rate of speed down a steep hill, causing an accident. In response to a contention by the carrier that it should not be held liable for plaintiff’s injury because plaintiff had been an employee of the lessor at the time of the accident, the Supreme Court of Minnesota, relying upon Proctor v. Colonial Refrigerated Transportation, Inc., supra, decided: “Like the Court in Proctor, we think the lessee’s assumption of ‘full responsibility in respect to the equipment it is operating’ requires it to assume liability to a codriver for injury caused by the driver’s negligence.” Id. at 551.

Similarly in Matkins v. Zero Refrigerated Lines, Inc., supra, the Court of Appeals of New Mexico held that a lessee-carrier was liable for the damages caused when an employee of the lessor was killed while riding in a leased vehicle. There, the injured employee had been hired by the lessor as an assistant driver and was killed when his co-driver negligently operated the vehicle. The Court, referring approvingly to Proctor v. Colonial Refrigerated Transportation Lines, Inc., supra, concluded:

One of the principal goals of the ICC regulation imposing responsibility on the carrier was to provide the public with financially responsible carriers. Indiana Refrigerator Lines, Inc. v. Dalton, 516 F.2d 795 (6th Cir.l975)[, cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975)]. In acknowledgment of that purpose, Proctor reasoned that plaintiff, although an employee of the negligent driver and a passenger in the truck driven by him, was as entitled to the protection intended by the Commission’s regulations as any other member of the traveling public. We feel that plaintiff here, representing the estate of deceased, is entitled to the same protection under the ICC regulations, and to deny him the right to seek recovery from the carrier would undercut one of the primary purposes of the regulatory pattern.

Matkins v. Zero Refrigerated Lines, Inc., supra 93 N.Mex. at 516, 602 P.2d at 200.

We agree with this view. We do so because such a view is consistent with the purposes sought to be achieved by the federal law. To hold that Wilkerson was not entitled to recover from the carrier under whose certificate of necessity the truck was being operated would defeat the salutary purpose of ensuring compensation for innocent persons who have been injured as a consequence of the carrier’s doing business. Although it is true that Jordan, as lessor, could not have recovered from the carrier if he had been injured by his own negligence, or the negligence of one of his employees, Wilkerson had no direct relationship with the carrier and no ownership interest in the leased vehicle. Therefore, he was a member of the public intended to be benefitted by the vicarious liability provisions of federal law. He was a member of the public within the intendment of federal law, and, as such, could recover against Allied for the negligence of Jordan.

Allied also contends that a new trial is necessary because of various alleged errors by the trial court. We will consider these arguments seriatim. The first is that the trial court erred when it permitted a police officer to testify regarding a report which had been prepared by the New Jersey Department of Law and Safety and which the officer had attached to his accident report. The report contained a statement that there had been no apparent defect in the truck’s braking system. This information, Allied contends on appeal, was inadmissible hearsay. The objection, however, was waived. Allied sat silently by and waited until the officer had completed his testimony on direct examination. It was not until much later, after Allied’s counsel had begun to cross-examine the witness, that an objection was made to the testimony which he had given on direct examination. This was too late. The objection was waived. See: Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984). See also: Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 462, 474 A.2d 1181, 1197-1198 (1984).

Allied contends also that the trial court erred when it excluded testimony regarding the police officer’s notation on his written report of a statement attributed to Long that the brakes on his truck had failed prior to the accident. This evidence was hearsay; and the recordation of the statement on the police report was not admissible as a business record exception to the exclusionary rule. See: Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952). See also: McCormick on Evidence §§ 310, 324.3 (3d ed. 1984). Allied argues that even if the evidence were hearsay, the trial court should have allowed it because the police witness had previously been allowed to refer to the report which had been made about the braking system by the New Jersey Department of Law and Safety. We reject this logic. A trial court’s evidentiary rulings, if preserved for appellate review, will be tested according to established rules of evidence and not necessarily by prior rulings, correct or incorrect, made by a trial court in the same action.

The trial court did not err when it refused to allow evidence of the pre-trial settlement agreement between Wilkerson and Fruehauf. The trial court’s ruling was mandated by the provisions of 42 Pa.C.S. § 6141(c), which direct that “[ejxeept in an action in which final settlement and release has been pleaded as a complete defense, any settlement ... shall not be admissible in evidence on the trial of any matter.” See also: Weingrad v. Philadelphia Electric Co., 324 Pa.Super. 16, 471 A.2d 100 (1984) (error for trial court to inform jury of settlement, but error harmless). Appellant contends that the statute should be interpreted to create an exception where a settlement may be relevant to attack the credibility of testimony given by a settling party by showing bias, prejudice or interest. Appellant relies upon dictum appearing in footnote 3 which accompanied the panel opinion in Weingrad v. Philadelphia Electric Co., supra. However, even that panel recognized the inflexibility of the Pennsylvania statutory provision and opined only that “the public policy of promoting settlements would not be frustrated by a law ... which permits the admission of settlements when offered to prove bias or prejudice of a witness." Id., 324 Pa.Superior Ct. at 20-21 n. 3, 471 A.2d at 102-103 n. 3. The trial court did not err when it refused to permit the jury to learn that the claim against Fruehauf had been settled.

In response to pre-trial interrogatories which had been filed pursuant to Pa.R.C.P. 4003.5(a), Wilkerson stated that he intended to call an expert who had examined the Jordan vehicle and had concluded that Fruehauf s inspection of the braking system prior to the accident was “completely inadequate.” Wilkerson also gave Allied a copy of the expert’s written report. When Wilkerson failed to call the named expert witness at trial, Allied offered the expert’s written report in evidence, The trial court rejected Allied’s offer, holding that the report constituted hearsay and did not fall within any exception to the rule excluding hearsay evidence. Allied contends that this was error. It argues that because the witness was a resident of Georgia and beyond the subpoena powers of the Pennsylvania court, the expert’s written report was admissible pursuant to Pa.R. C.P. 4020.

Pa.R.C.P. 4020 provides as follows:

(a) At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:
(2) The deposition of a party ... may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds
(b) that the witness is at a greater distance than one hundred (100) miles from the place of trial or is outside the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition ____

This rule, however, is not applicable to and does not support appellant’s argument. In the first place, the written report which appellant sought to introduce had not been prepared by a party to the litigation. Secondly, as the trial court correctly observed, the written report was hearsay. It was an extrajudicial statement offered to show the truth of the statement made by the witness. See: Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, 633 (1985). The witness had never been deposed. He had not testified under oath and his opinion had not been tested by cross-examination.

Allied argues that the report was not inadmissible hearsay but an admission, which is an exception to the hearsay exclusion. By referring to it in his answer to interrogatories, it is argued, Wilkerson adopted the written report of its expert witness, which thereupon became admissible at Allied’s instance as an admission by adoption by Wilkerson. In support of this argument, Allied cites In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir.1983), reversed in part on other grounds sub nom., Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There, the Third Circuit Court of Appeals held that where a party answers interrogatories requesting factual information by referring to written documents, the interrogating party is entitled to assume that the contents of the documents have been adopted as the answer to the interrogatory. Moreover, the Court held, the answering party is estopped from denying the adoption. Id. at 301.

We agree that as a general rule, when a party answers an interrogatory requesting factual data by referring to a document, the opposing party is justified in assuming that the answering party has adopted the contents of the document. Under such circumstances, the party who referred to the document may be estopped from denying his admission of the facts recited therein. However, such a rule has no application to the instant case. Here, the only factual information requested was the name of Wilkerson’s expert witness and a copy of his written opinion. Wilkerson supplied the requested information as he was required to do by Pa.R.C.P. 4003.5(a). He did not thereby adopt by admission the opinion of the expert witness whose name he had revealed. If Allied wished to pursue further its inquiry regarding the expert’s opinion, it could have done so in various ways. Its failure to do so did not render the expert’s written report admissible as an admission by the party who had consulted him. That report was hearsay and was properly excluded by the trial court.

Allied also contends (1) that the trial court erred by excluding a portion of Allied’s response to Wilkerson’s request for admissions before permitting the response to be read into evidence; and (2) that Wilkerson committed a fraud upon the court by testifying falsely at trial. Our examination of the record and relevant case law reveals that these issues are lacking in merit and deserve no discussion beyond that appearing in the trial court’s opinion.

Allied’s remaining assignments of error pertain to the trial court’s jury instructions. In reviewing those instructions we are guided by the principle that “when the propriety of the jury instruction of the trial court is at issue, those instructions must be viewed in toto to determine if any error has been committed. Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies.” Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984) (emphasis in original), citing McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Vanic v. Ragni, 435 Pa. 26, 254 A.2d 618 (1969). Moreover, unless a specific exception has been taken to an alleged error in the trial court’s instructions, the alleged error will be deemed waived and will not be considered by a reviewing court. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Orlando v. Herco, Inc., 351 Pa.Super. 144, 505 A.2d 308 (1986); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982); Crosbie v. Westinghouse Elevator Co., 297 Pa.Super. 304, 443 A.2d 849 (1982).

Allied’s first objection to the court’s charge is that the court gave the jury inadequate latitude to determine for itself whether Wilkerson had been a member of the traveling public. Although factual disputes were for the jury to resolve, the ultimate determination of whether Wilkerson was entitled, in view of the facts, to the benefit of the vicarious liability provisions of federal law and ICC regulations was an issue of law for the court. We have reviewed the facts and conclude that Wilkerson, as a matter of law, was a member of the traveling public. When the trial court left it to the jury to determine this issue, Allied received an instruction which was more favorable than it was entitled to receive. Therefore, Allied is not entitled to a new trial because the court left it to the jury, with careful instructions, to determine whether Wilkerson was a member of the traveling public.

The trial court told the jury that “[ejxperts for both [Wilkerson] and Allied agree that the cause of the accident was not a failure of the tractor brakes.” This statement was inaccurate. Allied’s expert had testified that the brakes were defective prior to the accident and also at the time when Fruehauf had made its inspection. A review of the trial transcript reveals, however, that despite opportunity to object, Allied failed to call this error to the attention of the trial court. The issue, therefore, was waived. Moreover, the effect of the court’s jury instructions, when considered in their entirety, was to submit the brake issue to the jury for determination. The court did not remove this issue from the jury’s consideration.

Finally, Allied contends that the trial court (1) improperly withheld from the jury the issues of primary and secondary liability and joint venture status; and (2) improperly slanted its charge in favor of Wilkerson and Fruehauf and against Allied. We have carefully reviewed the court’s charge in light of Allied’s arguments and conclude that no error was committed. Allied’s contention that a new trial is necessary, therefore, is without merit.

The final matter requiring review is the trial court’s order adding delay damages pursuant to Pa.R.C.P. 238. In Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the Supreme Court suspended the mandatory provisions of Rule 238, holding that by assessing delay damages against tortfeasors without providing a forum to assess fault for the delay, “the ends sought [by the Rule] run too tight a gauntlet through Due Process----” Id., 512 Pa. at 65, 515 A.2d at 1353. In place of the suspended provisions of the Rule, the Court directed that claims for delay damages be presented by petition to the trial court for determination after hearing. Although the suspension of Rule 238 is to be given prospective application, where the issue has been preserved, it is to be resolved in a manner consistent with the Supreme Court’s decision. Our review of the record discloses that this issue was preserved by Allied at the time of trial and in post-trial motions. Therefore, we will remand to the trial court to determine appellant’s liability, if any, for delay damages in accordance with Craig v. Magee Memorial Rehabilitation Center, supra.

The portion of the judgment which exceeds $800,000.00 is vacated, and the case is remanded to the trial court to determine the delay damages, if any, which appellee is entitled to recover. As so modified, the judgment is affirmed. Jurisdiction is not retained pending determination of delay damages.

      . Fruehauf settled the claim prior to trial and took in exchange a joint tortfeasor’s release. However, it remained in the action as a party-defendant throughout the trial.

        . See: 49 U.S.C. § 11107; 49 C.F.R. 1057.
      49 U.S.C. § 11107 provides in relevant part:
      [T]he Interstate Commerce Commission may require a motor carrier providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title that uses motor vehicles not owned by it to transport property under an arrangement with another party to—
      (1) make the arrangement in writing signed by the parties specifying its duration and the compensation to be paid by the motor carrier;
      (4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary of Transportation on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.
      The applicable regulation provides:
      Except as provided in the exemptions set forth in Subpart C of this part, the written lease required under § 1057.11(a) shall contain the following provisions. The required lease provisions shall be adhered to and performed by the authorized carrier.
      (c) Exclusive possession and responsibilities — (1) The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.
      49 C.F.R. 1057.12.

      . Several courts, including the Fourth Circuit, have held, however, that the lessor himself cannot be considered to be a member of the traveling public and, therefore, cannot hold the lessee responsible under federal law for injuries sustained by the lessor as a result of the negligence of his own employees. See: War Emergency Co-op Association v. Widenhouse, 169 F.2d 403 (4th Cir.1948); Riddle v. Trans-Cold Express, Inc., supra.

      . In its argument of this issue, Allied also alleges that the trial court improperly emphasized Fruehauf s defenses and evidence over that of Allied. Our review of the court’s charge fails to substantiate this allegation.