author: BECK, Judge:

text:
    632 A.2d 1342
    Megan FLATLEY, A Minor, By Kevin FLATLEY and Kathleen Flatley, His Wife, As Guardians and In Their Own Right, Appellants, v. David PENMAN, D/B/A Odyssey Builders, Individually and Jointly, v. Edward KERN, R.A. and Mark Randolph, I/A/T/D/B/A Mark Randolph Masonry.
    Superior Court of Pennsylvania.
    Argued July 21, 1993.
    Filed Oct. 26, 1993.

      Kevin W. Barron, Erie, for appellants.
    Mark E. Mioduszewski, Erie, for Penman, appellee.
    James R. Fryling, Erie, for Randolph, appellee.
    Before CAVANAUGH, BECK and CERCONE, JJ.
   BECK, Judge:

In this appeal we address the scope of a release on nonsettling tortfeasors where one of three tortfeasors settles with the plaintiff.

Appellants Kevin and Kathleen Flatley appeal on behalf of their minor daughter Megan (the Flatleys) from Judgment on the Pleadings, in favor of appellees, David Penman, d/b/a Odyssey Builders, and Mark Randolph, i/a/t/d/b/a Mark Randolph Masonry. The case arises from injuries sustained by Megan when a privacy wall in a bathroom at her high school collapsed. Megan suffered a fractured leg and a crushed thumb. We reverse and remand.

On October 16, 1991, the Flatleys filed suit against the builder David Penman (Penman), who then joined the architect Edward Kern (Kern) and the masonry contractor Mark Randolph (Randolph) as additional defendants. On October 28, 1991, twelve days after initiating the suit, the Flatleys released Kern, the wall’s designer, in return for $12,500.00 based on negotiations solely between the Flatleys and Kern. The settlement was approved by the Orphan’s Court Division of the Court of Common Pleas of Erie County on December 12, 1991, as a partial settlement.

The Flatleys then filed an amended complaint against the remaining defendants, Penman and Randolph, who had not taken part in the settlement and tendered no consideration to receive its benefits. In their new matter appellees contended that the release negotiated between the Flatleys and Kern, by virtue of its inclusive language, inured to the benefit of all potential tortfeasors. Pursuant to Pa.R.C.P. 1034, 42 Pa. Cons.Stat.Ann., appellees filed motions for Judgment on the Pleadings, which were granted.

A trial court may grant a motion for Judgment on the Pleadings only in those cases which are so free from doubt that a trial would be a fruitless waste of resources. Kams v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969); Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). This may often be the case when the dispute will turn on the construction of a written agreement. DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). Upon review, the appellate court must affirm only in those cases which are clear and free from doubt. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981). We must reverse if the action was based on a clear error of law or if there were facts disclosed by the pleadings which should be resolved by the jury. DiAndrea, 310 Pa.Super. 537, 456 A.2d 1066.

“A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it -will discharge them.” Restatement (Second) of Torts § 885(1). 42 Pa.Cons.Stat.Ann. § 8326 (1982) goes on to state:

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of consideration paid for the release or in any amount or proportion by which the release provides the total claim shall be reduced if greater than the consideration paid.

As the Restatement and the statute contemplate, when construing the effect and scope of a release, the court, as it does with all other contracts, must try to give effect to the intentions of the parties. Sparler v. Fireman’s Insurance Company of Newark, New Jersey, 360 Pa.Super. 597, 521 A.2d 433 (1987) (en banc); Hower v. Whitmak Associates, 371 Pa.Super. 443, 538 A.2d 524 (1988). Yet, the primary source of the court’s understanding of the parties’ intent must be the document itself. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). Thus, what a party now claims to have intended is not as important as the intent that we glean from a reading of the document itself. The parties’ intent at the time of signing as embodied in the ordinary meaning of the words of the document is our primary concern. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982).

This case does not involve a dispute over the law of this state regarding the effect of releases or the general rules of contract construction. Instead, the parties disagree as to how the document in question, or at least a few clauses in the document, should be read in light of the generally accepted rules of contract interpretation. The dispute revolves primarily around the following clause:

“[I In full satisfaction and payment of all such sum or sums of money owing, payable and belonging to Megan Flatley by any means whatsoever, for or on account of [her injuries from the accident].” (paragraph 1)

Appellees claim that this language demonstrates that the release inured to their benefit as well as the benefit of Kern. We disagree.

Appellees contention that the language quoted above was meant to include them completely ignores other clauses in the same document. In the very next paragraph the release states that appellants, “by these presents remise, release, quit-claim and forever discharge the said Edward A. Kern, his heirs, executors and administrators ...” (paragraph 2). Appellees can not reasonably argue that this clause contemplates a general release of all possible defendants. There is only one reasonable construction of the clause in paragraph two and it is consistent with a narrow reading of the preceding clause, whereas a broad interpretation of the preceding clause would give the document an inconsistency which is contrary to basic rules of contract interpretation.

Clauses in a contract should not be read as independent agreements thrown together without any consideration of their combined effect. Indeed, the document is best read as a whole, wherein clauses seemingly in conflict are construed, if possible, as consistent with one another. In re Binenstock’s Trust, 410 Pa. 425, 190 A.2d 288 (1963). Terms in one section of the contract should not be interpreted in a manner which nullifies other terms. If we were to agree with appellees’ interpretation of the clause in paragraph one, then it would have been illogical for appellants, when drafting the subsequent clause, to have only discharged Kern.

This conclusion does not give us a result contrary to the rule stated in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), because the terms of the release in that case contain important differences. In Buttermore, the disputed clause read as follows:

“[Plaintiffs] hereby remise, release, acquit and forever discharge Frances Moser, et al ... and any and all other persons, associations, and/or corporations, whether known or unknown, suspected or unsuspected, past, present and future claims, demands, actions, third party actions, causes of action, or suits at law or in equity, indemnity of whatever nature, for or because of any matter or thing done, omitted or suffered to be done, on or account of or arising from damage to property, bodily injury or death resulting from [the accident].”

Id. at 327-328, 561 A.2d at 734 (emphasis added). This clause from Buttermore unquestionably is the functional equivalent to the clause in paragraph two which discharges Kern. They are both meant to identify all parties who might be affected by the contract. In the present case Kern is the only party named, whereas the injured party in Buttermore added “and all other persons,” etc. The language in Buttermore is markedly different from the language in the present case. Appellees are correct in stating that Buttermore allows parties not specifically mentioned to benefit from the release. However, there must be a clear showing that other parties were somehow contemplated. Appellees’ reading of the release is much too expansive. Such a reading would render the discharging clause in paragraph two either superfluous or inexplicably inconsistent. Neither can be reconciled with basic rules on contract interpretation, which seek to give meaning to all terms while maintaining an internally consistent document.

However, disputes may sometimes arise over form contracts which include typed or handwritten terms. Often, parties negotiate and -write or type terms onto the form contract which are in direct conflict with the preprinted terms. When a contract contains either hand or typewritten terms which are in conflict with the preprinted terms, the preprinted terms must always yield to the other terms because the hand or typewritten term presumably evinces the deliberate expression of the parties’ true intent. Goldstein v. Blumenfeld, 293 Pa.Super. 263, 574 A.2d 109 (1990).

This sound interpretive policy is meant to protect parties from being bound by terms which were not a basis of the bargain. Thus, were we to conclude that the preprinted clause, “by any means whatsoever,” was in direct conflict with the typed clause solely discharging Kern, appellees would still find no relief. The clause in paragraph one is a preprinted term in direct conflict with a typewritten term in paragraph two.

Thus, we can not agree with the trial court that the contract released the appellees as well as appellant.

Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.

      . Emphasis added to preprinted words from a form contract with the heading “General Release.” Words not emphasized were typewritten onto the form contract.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    632 A.2d 1345
    GUTTMAN OIL COMPANY, a Corporation, Mon River Towing Inc., a Corporation and Guttman Realty Company, a Corporation, v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 27, 1993.

      John W. Jordan, IV, Pittsburgh, for appellant.
    Mark D. Shepard, Pittsburgh, for appellees.

      Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment entered by the Court of Common Pleas of Washington County denying appellant Pennsylvania Insurance Guaranty Association’s (PIGA) motion for post-trial relief. We affirm in part and reverse in part.

This case was before the trial court on a Stipulation of Facts between appellant PIGA and appellees Guttman Oil Company (Guttman Oil), Mon River Towing, Inc. (Mon River), and Guttman Realty Company (Guttman Realty). On November 5, 1985, extensive flooding occurred along the Monongahela River causing damages to the personal and real property owned by Guttman Oil, Mon River, Guttman Welding Supply Company and Guttman Realty. At the time of the flooding, Guttman Oil, Mon River and Guttman Realty were among the fifteen named insureds under an all-risk' property damage policy issued by Mission National Insurance Company (Mission Insurance). The policy was effective from December 31, 1984 through December 31, 1985 and limited liability to $7,500,000.00.

After the flooding, the California Department of Insurance placed Mission Insurance into liquidation. Guttman Oil, Mon River, Guttman Welding and Guttman Realty filed claims with Mission’s liquidator in the amounts of $291,987.00, $184,651.00, $46,500.00, and $89,958.00, respectively. Since the damaged properties were located within the Commonwealth of Pennsylvania, the California Department of Insurance forwarded each claim to PIGA. 40 Pa.S.A. § 1701.101 et seq.

PIGA treated the claims as “one covered claim” under the Act and the policy. As a result, the insureds filed a joint complaint for declaratory relief against PIGA seeking a declaration that each claim constituted a separate covered claim under the policy and Act. The trial court ruled in favor of the insureds and this court affirmed on appeal.

Thereafter, PIGA paid each of the four covered claims but deducted $25,000.00 from each payment as deductibles. The insureds objected to PIGA’s interpretation of the deductible provision asserting that PIGA was entitled to deduct only a single deductible amount of $25,000.00. Thus, the insureds filed for declaratory judgment and for the recovery of money still owed under the policy. The Honorable Thomas J. Terputac rendered judgment in favor of insureds in the amount of $75,000.00 plus six percent (6%) interest from September 1, 1987, to the date of entry of judgment or whenever paid.

PIGA presents three issues for our consideration:
(1) Does a one year limitation of suit provision in an insurance policy bar a breach of contract action filed more than one year after the plaintiff knows of the occurrence giving rise to the claim, the dollar amount thereof and the identity of the entity against which the claim should be asserted;
(2) Is the award of interest from September 1, 1987, inconsistent with the determination that this action is not time barred; and
(3) Does the Missions National Policy, when interpreted in accordance with the prior decisions concerning the same policy, provide a separate $25,000.00 deductible for each of the four insured companies.

The role of an appellate court reviewing the trial court’s final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. The findings of the trial judge in a non-jury case' must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. Stahli v. Wittman, 412 Pa.Super. 281, 283, 603 A.2d 583, 584 (1992); see also Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991); Porter v. Kalas, 409 Pa.Super. 159, 597 A.2d 709 (1991). When this court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all the evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Short v. Metropolitan Life Ins. Co., 339 Pa.Super. 124, 129, 488 A.2d 341, 343 (1985).

This court has held that the proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991). In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. Id. However, while reasonable expectations of thé insured are the focal points in interpreting the contract language of insurance policies, see Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978) and Winters v. Erie Insurance Group, 367 Pa.Super. 253, 532 A.2d 885 (1987), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991); Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 549 A.2d 1304 (1988). However, where a provision of an insurance policy is ambiguous, the provision is construed in favor of the insured and against the insurer. Bateman, 527 Pa. at 245, 590 A.2d at 283.

Pursuant to the laws of this Commonwealth, PIGA is deemed to replace an insolvent insurer, with all of that insurer’s rights, duties and obligations. 40 Pa.S.A. § 1701.-201(b)(1)(h); see Donegal Mut. Ins. Co. v. Long, 528 Pa. 295, 597 A.2d 1124 (1991). Additionally, PIGA’s own limitations on liability apply, rather than those of the insolvent insurer. Id. at 301, 597 A.2d at 1127; 40 Pa.S.A. § 1701.201(b)(l)(i) (such obligation shall include only that amount of each covered claim which is in excess of one hundred dollars ($100), and is less than three hundred thousand dollars ($300,000)). In this case, PIGA assumed Mission Insurance’s rights, duties and obligations under the Mission policy issued to the insureds.

I. “Suit” Provision
The “Suit” provision in the policy provides, in part:
No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the Insured of the occurrence which gives rise to the claim.

(emphasis added). PIGA contends that the insureds’ present claims for the payment of improperly withheld deductibles are barred by the above-quoted “suit” provision since the insureds could have, or should have, included this claim in their 1988 declaratory judgment action. Although clauses setting time limits on the commencement of suits are generally valid and enforceable, General State Authority v. Planet Ins. Co., 464 Pa. 162, 346 A.2d 265 (1975), we disagree with PIGA’s interpretation of the suit provision in the instant case.

Under the suit provision, the twelve month limitation does not begin to run until “after discovery by the Insured of the occurrence which gives rise to the claim.” PIGA paid the claims, minus $25,000.00 in deductibles for each, after this court affirmed the trial court’s determination that each claim was a separate covered claim under the policy. Therefore, as the trial court correctly found, the occurrence which gave rise to the insureds’ claim in this action was PIGA’s deduction of approximately $100,000.00 from payment in 1990. There is no evidence in the record to indicate that the insureds could have been aware, or could have anticipated, any breach until such time. In addition, any ambiguity in the suit provision must be construed against PIGA, as drafter. Bateman, supra. We hold, therefore, that the suit was filed within the twelve month limitation in the policy.

II. Propriety of A Single Deductible

The trial court held that “one $25,000[.00] deductible applies to all flood claims within the 72-hour period.” Conversely, PIGA now contends that it is entitled to subtract a $25,000.00 deductible from the amount due to each claimant. After reviewing the policy and policy endorsements, we find that the trial court misinterpreted the plain language of the policy.

The trial court looked to the following policy provisions in rendering its decision:

3. DEDUCTIBLE
As respects real and personal property, all claims for loss, damage or expense arising out of any one occurrence shall be adjusted as one claim, and from the amount of each adjusted claim there shall be deducted the sum of $2,500[.00] except that a $25,000.00 per occurrence applies to claims arising out of claims from earthquake and/or flood, (emphasis added).
11. C. Flood Clause
With respect to the peril of flood, any and all losses from this cause within a seventy-two (72) hour period shall be deemed to be one loss insofar as the limit of liability and deductible provisions of this policy are concerned.
ENDORSEMENT DATED JANUARY 9, 1985
[I]t is hereby understood and agreed .that from each adjusted loss per catastrophe, the sum of $2,500[.00] shall be deducted ... except the perils of flood and earthquake where a $25,000[.00] deductible shall apply, (emphasis added).

The trial court’s decision to permit a single deductible runs contrary to its earlier determination that each of the insureds’ claims are separate covered claims under the policy. It seems untenable to argue, on the one hand, that each insured may recover separately under the policy and then, on the other, that all four claims are subject to a single $25,000.00 deductible.

This interpretation also contradicts the plain meaning of the policy language. While it is unclear whether the policy’s $7,500,000.00 limit of liability applies to each claim or to claims in the aggregate, the deductible provision is clear in that there is a deductible of $25,000.00 “per occurrence” for damages resulting from earthquake or flood. For claims resulting from flooding, “per occurrence” is defined in section 11(C) as “any and all losses from this cause [flooding] within a seventy-two (72) hour period shall be deemed one loss.... ” (emphasis added). This provision defines the limits of liability for each loss or occurrence and the applicable deductible as to each claimant. We find, therefore, that the reasonable expectations of the parties and the plain meaning of the terms require a $25,000.00 deductible as to each and every claim for flood relief. Bateman, supra.

III. Interest

We affirm the trial court’s determination that the insureds were not barred from filing suit pursuant to the policy’s twelve month service of suit limitation. However, because we find that PIGA properly withheld a $25,000.00 deductible as to each claimant, the propriety of the interest awarded to the insureds is moot. We, therefore, reverse the judgment in favor appellees/insureds and against PIGA in the amount of $75,000.00 plus interest.

Judgment affirmed in part and reversed in part. Jurisdiction relinquished.

      . Appellant PIGA is an entity created by the legislature of this Commonwealth pursuant to the Pennsylvania Insurance Guaranty Association Act (the Act). 40 Pa.S.A. § 1701.101 et seq.

      . The flooding also caused damage to property owned by Guttman Welding Supply Company. Thereafter, Guttman Welding sold its stock to another welding company and assigned all of its damage claims to Guttman Realty.

      . The trial judge dismissed the action for declaratory judgment since the insureds were seeking monetary relief.


author: HUDOCK, Judge:

text:
    632 A.2d 1349
    Debra THOMPSON, Individually and as Guardian and Natural Mother of Jonathan Caulder and Jonathan Caulder in His own Right, Appellants, v. Barbara Willene ANDERSON and Walter Caulder and Joseph Albano, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1993.
    Filed Nov. 9, 1993.

      Michael Casey, Media, for appellants.
    Lawrence S. Sarowitz, Philadelphia, for appellees.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This appeal arises from the trial court’s grant of summary judgment in favor of Appellees. Before we can state the issues on appeal, we must set forth the rather complex factual and procedural history of this case.

First, Appellants filed a complaint against Appellees alleging negligent conduct which resulted in injuries to both Appellants. The complaint claims that Appellees negligently caused injury to Appellant Debra Thompson when she slid off the hood of the vehicle driven by Appellee Barbara Willene Anderson. Subsequent to filing this complaint, Appellee Joseph Albano’s insurance carrier (EDS) filed an appearance and reservation of rights to disclaim coverage based on an exclusion in his policy for “intentional acts.” Appellants’ counsel then notified their uninsured motorist carrier (General Accident) of the possible intentional nature of the events, thus putting them on notice of a potential uninsured motorist claim.

As a result of EDS’ reservation of rights, Appellants filed a motion with the court requesting appointment of a defense arbitrator. The two arbitrators then chose a third, and a preliminary hearing was held to determine whether the panel had jurisdiction over an uninsured motorist claim because of the uncertain position of EDS. The record indicates that the panel determined that an intentional act was involved, thereby leaving Appellants without an insurance claim against EDS. The arbitration panel then deferred the hearing on damages to a later date. Subsequent to that decision, General Accident (Appellants’ uninsured carrier) offered a settlement of $190,-000.00 which Appellant Debra Thompson accepted. The arbitration was never concluded as a result of this settlement.

Appellants then continued to pursue the initial negligence claim against Appellees. Appellees filed a motion for summary judgment claiming that Appellants were estopped from arguing a negligence theory of recovery because of their settlement with their uninsured motorist carrier on an intentional. tort theory. Appellees asserted that Appellant had been fully compensated by the settlement. This appeal arose. We affirm.

Appellants raise three issues in their appeal. First they claim that there were genuine issues of material fact unresolved, and therefore it was error for the trial court to grant summary judgment. Next, they claim that the doctrine of judicial estoppel is not applicable to them because their claim was not successfully maintained, but rather settled. And finally, they claim that the subrogation rights of General Accident have been extinguished improperly by the grant of summary judgment.

Our standard of review in this case is as follows:
The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party. The court’s responsibility is to determine whether a genuine issue of material fact exists; the court may not. resolve such an issue. Moreover, the court should not enter summary judgment unless the case is free from doubt.

Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983) (citations omitted).

In reviewing the entry of summary judgment by the trial court, however, we will not overturn that decision unless there has been an error of law or a clear abuse of discretion. Tonkovic v. State Farm Mutual Automobile Insurance Co., 407 Pa.Super. 522, 595 A.2d 1269 (1991).

It is well-settled that although plaintiffs recover from their own uninsured motorist coverage carrier, they may nonetheless maintain an action against the third party tortfeasor. Bethea v. Forbes, 519 Pa. 422, 548 A.2d 1215 (1988). What is at the heart of Appellants’ claim in our case is the interaction between this well-settled principle and another well-settled principle: that “a party to an action is estopped from assuming a position inconsistent with his assertion in a previous action, if his contention was successfully maintained.” Associated Hospital Service v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981) (quoting Geisey v. Cogan, 118 Pa.Super. 464, 466, 179 A. 865, 866 (1935)). The interaction of these two principles becomes important in our case because Appellants’ established at the preliminary arbitration hearing that their injuries were the result of “intentional” conduct on the part of Appellees. Thereafter, in continuing with their suit against Appellees, they claimed the conduct was “negligent.” Therefore, we must determine whether the finding by the arbitrators of intentional conduct bars the later trial of the claim for negligent conduct.

Although the disposition by the arbitrators is phrased by the parties as “preliminary” because the arbitrators deferred decision on damages for another date, the decision whether the conduct was intentional or not was a final determination giving the panel jurisdiction to hear the underlying claim. Therefore, Appellants did successfully maintain their contention of intentional conduct and are therefore estopped from now claiming the conduct was negligent, because these two theories are inconsistent with one another. We therefore agree with the trial court that, as a matter of law, Appellants are barred from pursuing their claim for negligence. There is no dispute that the arbitrators found that intentional conduct was involved. Therefore, after reviewing the record in this matter, we agree with the trial court that summary judgment was proper. See Pa.R.C.P. 1035, 42 Pa.C.S. Because of our disposition of this issue, we need not address the remaining issues raised by Appellants.

Judgment affirmed.

      . Appellant, Jonathan Caulder, was claimed to have been injured in this incident as a result of his being "abducted” by his father and aunt (Barbara Willene Caulder) and as a passenger in the vehicle from which Debra Thompson slid.

      . The record shows that Appellants attempted to have Appellees appoint their own arbitrator pursuant to the procedure in Appellants' uninsured motorist policy. After failing to appoint an arbitrator on its own, Appellants made the motion compelling the court to appoint a defense arbitrator. This was granted and then subsequently withdrawn when Appellees agreed to appoint their own arbitrator.

      . As stated in Torts, Prosser and Keeton (5th ed. 1984):
      The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. The line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainly.

        Id. at p. 36.

      . Although Appellants claim that General Accident's subrogation rights were cut off as a result of the summary judgment, we note that General Accident merely stands in the shoes of Appellants to the extent of any recovery they may be entitled to as a result of their third party action. Because Appellants have no right to recover from Appellees under the facts of this case, there is no available recovery for General Accident. Had Appellants filed their original complaint alleging, in the alternative, a cause of action for negligence and one for intentional tort, the outcome of this matter might have been different. We decline to speculate on such a case.


author: WIEAND, Judge:

text:
    632 A.2d 1352
    Paul GORDON, Appellee, v. SANATOGA INN, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Nov. 4, 1993.
    Lawrence Sager, Pottstown, for appellant.
    Mark C. Clemm, Plymouth Meeting, for appellee.
    Before WIEAND, CIRILLO and HESTER, JJ.
   WIEAND, Judge:

On November 12, 1976, Perma Bond Company made a loan of twenty thousand ($20,000.00) dollars to Sanatoga Inn, Inc., the terms of the loan to be reduced to a written instrument at a Mure date. On November 15, 1977, Sanatoga Inn, Inc., in consideration of value received and for its lender’s forbearance in demanding repayment of the loan, executed and delivered to Perma Bond Company a promissory note in the face amount of twenty thousand ($20,000.00) dollars. The note was under seal and was payable “on demand.” It called for the payment of interest at the rate of seven (7%) percent per annum from November 12, 1976 until the note was paid. The note was subsequently assigned to Paul Gordon, who made a written demand for payment on February 25,1988. When the demand was refused, Gordon entered judgment by confession against the payee. The judgment, however, was subsequently opened, and the liability of Sanatoga Inn, Inc., was tried non-jury before the Honorable Richard S. Lowe. Upon completion of the trial, the trial court entered a verdict in favor of Gordon and against Sanatoga Inn, Inc. in the amount of $42,530.41. Post-trial motions were denied, and judgment was entered on the verdict. This appeal followed by Sanatoga Inn, Inc.

Appellant’s principal argument is that appellee’s action to recover the amount of the note is barred by the statute of limitations. We have examined this contention carefully but find it devoid of merit.

Prior to enactment of the Judicial Code, which became effective on June 27, 1978, there was no statute of limitations applicable to an instrument under seal. See: Parsons Trading Co. v. Dohan, 312 Pa. 464,167 A. 310 (1933); Miners Sav. Bank v. Duryea Borough, 331 Pa. 458, 200 A. 846 (1938); Klein v. Reid, 282 Pa.Super. 332, 422 A.2d 1143 (1980). There was only a presumption of payment after twenty (20) years. See: City of Philadelphia v. Lieberman, 112 F.2d 424 (3rd Cir.), cert. denied, 311 U.S. 679, 61 S.Ct. 48, 85 L.Ed. 438 (1940); Zimmermann v. Zimmermann, 395 F.Supp. 719 (E.D.Pa.1975); Commercial Credit Co. v. County of Northumberland, 23 F.Supp. 747 (M.D.Pa.1938). The Judicial Code, however, provided that “an action upon an instrument in writing under seal must be commenced within 20 years.” 42 Pa.C.S. § 5529(b)(1). This statute of limitations, it is clear, did not bar the present action, which was commenced on March 28, 1988.

Appellant argues, however, that the trial court erred when it received the original note which was under seal. This was error, appellant suggests, because the complaint for confession of judgment contained a copy of the note on which the corporate seal did not appear. There is no merit in this argument. The discrepancy was explained by the learned trial judge as follows:

Pursuant to Pennsyvlania [sic] Rule of Civil Procedure No. 2951(b), a plaintiff in a complaint to confess judgment has the choice of either filing the original promissory note or attaching a copy of the promissory note to the complaint as an exhibit.
The record reveals that plaintiff had indeed availed himself of the option under Pennsylvania Rule of Civil Procedure No. 2951(b) and submitted a photocopy instead of the original note. When plaintiff attempted to produce the original at trial, defendant objected on grounds that the photocopy attached to the complaint does not contain the corporate seal whereas a corporate seal appeared on the original____ Upon viewing the original, this Court found that the seal on the corporate note was colorless. Further, this Court took judicial notice of the fact that a colorless seal could not be reduplicated on a photocopy which explains the lack of a seal on the photocopy of the promissory note. Horem, [Horen] vs. Davis, 274 Pa. 244, 118 A. 22 (1922). The effect of judicial notice by this Court is to dispense with the necessity of proof. Commonwealth ex rel. Duff vs. Keenan, 347 Pa. 574, 33 A. [A.2d] 244 (1943). Consequently, the copy of the original promissory note was properly admitted and defendant’s assertion to the contrary lacks merit.

Even if the instrument had not been under seal, however, appellant’s statute of limitations defense would have failed. A four year limitation upon actions based on a negotiable or nonnegotiable note has been imposed by 42 Pa.C.S. § 5525(7). However, “[w]here such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.” 42 Pa.C.S. § 5525(7). See also: Lazzarotti v. Juliano, 322 Pa.Super. 129, 136, 137, 469 A.2d 216, 219-220 (1983). In the instant case, the first demand was made on February 25,1988, and appellee’s complaint for the entry of judgment by confession was filed on March 28, 1988. It is eminently clear, therefore, that the present action is not time barred under any circumstances.

Appellant’s remaining contentions are so lacking in merit as to require no discussion. Suffice it to say that the trial court’s finding that the note had been assigned by Perma Bond Company, the payee, to Paul Gordon, the plaintiff-appellee, is fully supported by competent evidence and that the note itself provides for the payment of interest from November 12, 1976.

Judgment affirmed.


author: OLSZEWSKI, Judge.

text:
    633 A.2d 155
    Laura A. CRAWFORD, Appellee, v. Ernest M. CRAWFORD, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed Oct. 14, 1993.

      Louise A. Geer, New Castle, for appellant.
    Frank G. Verterano, New Castle, for appellee.
    Before McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge.

Ernest Crawford [“husband”] appeals the propriety of a support order entered September 12, 1991, and an order modifying support entered October 13, 1992. We affirm in part and reverse and remand in part.

On May 17, 1988, Laura A. Crawford [“wife”] filed for spousal support and support for the parties’ dependent adult child, Patricia Crawford [“Patty”]. Because the parties waived proceeding pursuant to Pa.R.C.P. 1910.11, the complaint was heard on August 30 and 31, 1988, without first being considered by a hearing officer of the Domestic Relations Section of the Court of Common Pleas of Lawrence County. The evidence presented at the hearing revealed that the parties were married on December 4, 1952, and separated on February 29, 1988. Of the four children born of this marriage, only Patty was still residing with wife. Husband is a retired police officer and currently employed as a District Justice for the Commonwealth. At the time of the hearing, he was 58 years old and was earning net wages of $1,894.04, a net pension of $988.96, and a gross rental income of $100.00 per month. Wife worked at a library approximately 30 hours weekly and earned $6.85 per hour. Her monthly income was approximately $1,235.00, which included $314.00 in monthly Supplemental Security Income [“SSI”] benefits for Patty. Patty was 35 years old at the time and worked at a sheltered workshop, earning approximately $60.00 per month.

More than three years elapsed from the time of the hearings until the trial court finally entered a support order dated September 12,1991. In the interim, husband continued to pay the monthly mortgage on the marital residence and provided health care coverage for wife and Patty. Purporting to account for these payments, the order provided in part as follows:

2. [Husband] shall pay [wife] as spousal and child support the sum of $950.00 per month, unallocated, effective the date of the filing of the complaint, May 17, 1988. If [husband], however, continues to timely pay the outstanding mortgage loan on the marital residence, [husband] shall pay the sum of $405.00 as spousal and child support, unallocated, effective May 17, 1988.
3. If [husband] is obligated to pay spousal and child support in the amount of $950.00 per month as provided in paragraph 2 above, which depends upon whether [“wife”] or [“husband”] pays the mortgage loan on the marital residence, then [husband] shall also pay the sum of $500.00 per month for all outstanding support arrearages, effective immediately.
If [husband] is obligated to pay spousal and child support in the amount of $405.00 per month as provided in paragraph 2 above, then [husband] shall also pay the sum of $250.00 per month for all outstanding support arrearages, effective immediately.

The effective date of the order was May 17, 1988, the date the complaint was filed. Husband was therefore three years in arrears.

Husband lodged his first appeal from the above support order on October 1, 1991. In his brief, husband claimed that: (1) the trial court abused its discretion in failing to issue the order of support for more than three years after the hearings; (2) it was an abuse of discretion to award retroactive support; (3) the trial court should have held additional hearings to ensure that the support order was based upon the parties’ needs and provide credit for voluntary support payments; (4) the trial court abused its discretion in entering an order which exceeded the guideline ranges without providing adequate reasons on the record for doing so; (5) wife is not entitled to support; and (6) husband is not required to provide support for his adult child. These issues were never resolved, however, since the appeal languished for almost a year while the trial court prepared an opinion in response to husband’s concise statement of matters complained of on appeal. The opinion was finally issued on August 19,1992, and transmitted to this Court.

While the first appeal was pending, a number of events occurred. Wife filed a motion for attachment of wages, salary, and commissions and husband filed a motion to modify support. Husband also filed a motion for supersedeas of arrearages and for removal of the wage attachment relating to arrearages on the basis that the trial court had failed to offset amounts contributed to support in the interim between the filing of the complaint and the entry of the order. The motion for supersedeas was granted on January 15, 1992. On January 21, 1992, wife filed a petition for contempt and reconsideration of supersedeas. The contempt charge was withdrawn and the reconsideration of supersedeas was continued generally upon agreement by the parties. Finally, on March 2,1992, the Honorable Judge Ralph D. Pratt recused himself from the case.

Following Judge Pratt’s recusal, on June 12, 1992, wife filed a petition to modify support on the basis that Patty’s SSI benefits had been terminated. The Honorable James B. Dwyer entered a new order on June 23, 1992, which reduced, inter alia, husband’s unallocated support obligation to $310.00 per month and set arrearage payments at $250.00 per month. The order also directed wife to request a review of Patty’s SSI benefits. Husband and wife filed demands for a hearing de novo on July 15 and 16, 1992, respectively. Counsel for Patty filed a motion for modification of Patty’s support on July 27, 1992, and a motion to intervene as counsel on October 5, 1992.

Judge Dwyer held a hearing de novo on October 13,1992, at which time the parties stipulated to the following facts: wife earns $950.00 per month, Patty receives $314.00 per month in SSI benefits and $56.00 per month at Lark Workshop for a total of $1,254.00 per month for wife and Patty, and husband’s net income is $3,000.00. N.T. 10/13/92 at 3-5. As a result, Judge Dwyer entered a new order, replacing the June 23, 1992, order, which directed husband to pay wife “the sum of $834 a month, less the montly [sic] mortgage payment on the house, in addition the $250.00 a month arrearages shall continue.” It is clear from the record that the substance of the order was reached by agreement of the parties. While the parties’ incomes remained approximately the same, the net result of these proceedings was a downward modification of husband’s support obligation.

Husband lodged the second appeal from the October 13, 1992, order. In his brief, husband incorporates by reference all of the arguments previously raised in the first appeal which remained unresolved. We will initially address the issues raised in the first appeal. Insofar as the first order has been replaced by the second, our discussion of these claims shall relate to arrearages.

In support proceedings, the role of this Court is limited to a determination of whether an abuse of discretion, as shown by clear and convincing evidence, has occurred. McAuliffe v. McAuliffe, 418 Pa.Super. 39, 613 A.2d 20 (1992); Zullo v. Zullo, 531 Pa. 377, 613 A.2d 544 (1992). In applying this standard we acknowledge that an abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Spitzer v. Tucker, 404 Pa.Super. 539, 541, 591 A.2d 723, 724 (1991).

I.

Our evaluation most logically begins with husband’s contention that wife and Patty are not entitled to support. A dependent spouse is entitled to support until it is proven that the conduct of the dependent spouse constitutes grounds for a fault divorce. Roach v. Roach, 337 Pa.Super. 440, 487 A.2d 27 (1985). The party seeking to nullify the obligation bears the burden of proving the conduct claimed by clear and convincing evidence. Id.

Here, the trial court found as a fact that wife did not engage in marital misconduct of the type which would bar her claim for support. As the court explained:

The divorce grounds relied upon by [husband] to bar the support claim by [wife] presumably are indignities and adultery. As evidence of the grounds for these defenses, [husband] testified as to various unpleasant episodes that had taken place between himself and [wife], and several associations between [wife] and other men.
For indignities to lie, the proponent must not only prove a course of conduct by the other side which made the proponent’s life intolerable and his condition burdensome, but also that the proponent was an injured and innocent spouse. Beaver v. Beaver, 313 Pa.Super. 512, 460 A.2d 305 (1983); Regan v. Regan, 227 Pa.Super. 552, 322 A.2d 711 (1974). What we have sub judice are, at the very most, escalating incidents resulting from the disintegration of a relationship and in which the parties mutually participated. In addition to the denials of instigation, this is the plain credible import of [wife’s] testimony. [N.T. 8/31/88 at 113-145]. What amounts to at least mutual participation by [husband] is even somewhat implicit throughout the defendant’s own testimony.

Trial court opinion at 4. Regarding husband’s allegations of adultery, the court stated:

Even if this Court had seen [husband’s] attack as well made and [wife’s] denials as weak, the attack’s effects would have been thwarted by [husband’s] parry of condonation. Acts of sexual intercourse after knowledge of said transgressions bars divorce on grounds of adultery (and hence a defense of entitlement). [Boyles v. Boyles, 170 [179] Pa.Super. 184, 116 A.2d 248 (1955) ]. Here again [wife’s] supporting testimony was ample and satisfying. See [N.T. 8/31/88 at 103 and 113].

Id. at 5.

Husband concedes that questions of credibility are solely for the trial court as factfinder to decide. See Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991), alloc. denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, — U.S. -, 113 S.Ct. 196,121 L.Ed.2d 139 (1992). Nevertheless, he claims the trial judge abused his discretion in crediting wife’s testimony because he was biased, partial, and should have recused himself. Husband suggests that the trial judge’s assessment of credibility was “wholly unwarranted” in light of the fact that wife’s testimony was “impeached, rebutted and factually disproved.” Appellant’s brief at 31. This issue is waived.

“[A] party seeking recusal or disqualification must raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.” Ware v. U.S. Fidelity & Guaranty Co., 395 Pa.Super. 501, 505, 577 A.2d 902, 904 (1990).

When circumstances arise during the course of a trial raising questions of a trial judge’s bias or impartiality, it is still the duty of the party, who asserts that a judge should be disqualified, to allege by petition the bias, prejudice or unfairness necessitating recusal. A failure to produce a sufficient plea will result in a denial of the recusal motion.

Id. (quoting Reilly by Reilly v. SEPTA, 507 Pa. 204, 220, 489 A.2d 1291, 1299 (1985)). Failure to request recusal before the trial judge has ruled on the substantive matter before him or her precludes the right to have a judge disqualified. Id. Judicial bias may not be raised for the first time during post-trial proceedings. Id. Here, husband failed to seek recusal before Judge Pratt ruled on the entitlement issue. He cannot now be heard to complain that the judgment in this regard was biased or prejudiced. Thus, given wife’s credited testimony, we find there was sufficient evidence to support the trial court’s finding that wife is entitled to support.

Husband challenges Patty’s entitlement to support on the basis that he cannot be forced to support an adult daughter who is otherwise entitled to federal benefits. Husband also claims the trial court failed to consider whether providing continuous support for an adult child would be an undue burden on him. This is not the test in determining support for an adult child who is unemancipated because of a physical or mental condition.

It is true that a parent’s child support obligation generally ceases when the child reaches 18 or graduates from high school, whichever comes later. DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); Hanson v. Hanson, 425 Pa.Super. 508, 625 A.2d 1212 (1993). Observing a long-recognized exception to this rule, however, a panel of this Court recently acknowledged that parental support is required where a child has a physical or mental condition which exists at the time the child reaches majority and prevents the child from being self-supporting or emancipated. Hanson, supra; see also 23 Pa.C.S.A. § 4323.

Undoubtedly, the presumption is when a child reaches majority, the duty of the parent to support that child ends. Once the presumption arises, it is then incumbent upon the child to rebut the presumption. The duty to support the adult child continues where the child is physically or mentally feeble or otherwise unemployable. The adult child, however, has the burden of proving the conditions that make it impossible for her or him to be employed.

Verna v. Verna, 288 Pa.Super. 511, 515-516, 432 A.2d 630, 632 (1981) (citations omitted); see also Com. ex rel. Cann v. Cann, 274 Pa.Super. 274, 418 A.2d 403 (1980).

In the instant case, the trial court found that Patty was incapable of self-support due to her mental and physical condition. Contrary to husband’s contention, we find that the record substantiates the trial court’s findings. The court as factfinder has the benefit of viewing the witnesses and hearing the evidence first hand. Hanson, supra. Here, the trial court credited wife’s testimony that Patty suffers from a genetic mental disorder and cerebral palsy. She has the mental and emotional capacity of a young child. The court also conducted an in camera meeting with Patty. This provided sufficient evidence to support the trial court’s conclusion that Patty is entitled to support. Absent indication that the trial court abused its discretion, we will not reverse the child support order. DeWalt v. DeWalt, supra.

Moreover, we reject husband’s suggestion that our Supreme Court’s recent decision which abolished the support requirement for adult college children, Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), may be read so broadly as to excise our laws regarding support of dependent adult children. Initially, we note that the Pennsylvania General Assembly enacted 23 Pa.C.S.A. § 4327 on June 23,1993, effectively overruling Blue and providing that the government “has a rational and legitimate interest in requiring parental assistance for a higher education for children of parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation.” Moreover, husband’s interpretation of Blue is completely incongruous with our historically divergent consideration of a child’s need for college tuition and the absolute duty of a parent to support a child who is incapable of self-care. Prior to Blue, we held that “a parent must sacrifice to support and maintain minor dependent children while he is not required to sacrifice to send his older children to college or post-high school training.” Horst v. Horst, 406 Pa.Super. 188, 191, 593 A.2d 1299, 1300 (1991). Pursuant to Blue, parents were not required to provide college support for their adult children; the decision, however, did not provide even the slenderest reed to support an inference that parents should not be required to support dependent adult children.

Finally, husband urges that a parent’s economic responsibility must be terminated either through the child’s own emancipation and ability to care for herself or by the assumption of those financial responsibilities through state entitlement programs. Here, husband calls upon us to delineate a termination point at which a parent is no longer economically responsible for an adult child. “Surely the law does not expect parents to be responsible for the bills of all their children for their lives,” he implores. Squarely addressing this point, we have stated that “[s]ociety will not step in and care for the [adult dependent] child if the parent is capable of providing support.” DeWalt, 365 Pa.Super. at 286-287, 529 A.2d at 512 (“parent’s legal obligation arises from his moral responsibility to care for the child whom he brought into the world”). We note that a parent is only called upon to support an adult child to the extent the child cannot aid him or herself. Thus, “the ‘reasonable needs’ of an adult child are those needs which he is unable to meet through his own efforts.” Id. at 286, 529 A.2d at 511.

Pennsylvania law makes it abundantly clear that husband must contribute to Patty’s support to the extent she is unable to support herself. Husband’s claim that Patty is not entitled to support therefore fails.

II.

Husband’s next claim is that the trial court abused its discretion in failing to issue the support order for more than three years after the support hearings. Husband provides no basis in law or fact upon which this Court may grant him relief. While we do not condone the significant delay generated by the trial court in this case and acknowledge the difficulties it caused, we fail to see how husband has been prejudiced. As wife notes, husband is not required to pay interest on the outstanding arrearages. Nor was he required to pay support pursuant to a temporary order. Finally, at all times throughout the proceedings, husband was represented by counsel. He is charged with the knowledge that the effective date of the order is presumed to be the date the complaint was filed, Pa.R.C.P., Rule 1910.17(a), 42 Pa.C.S.A., absent articulated reasons for a non-retroactive order.

Husband’s assertion that the trial court was required to enter a final order within 45 days of the hearing pursuant to Pa.R.C.P. Rule 1910.11, 42 Pa.C.S.A. is unfounded. Rule 1910.11 sets forth the procedure to be followed during and after an office conference is conducted by a hearing officer. The rule only applies where no agreement has been reached by the parties at the conference and the court enters a temporary order from which a request for a hearing de novo has been filed or may be filed within ten days. Neither situation is applicable here since the parties did not proceed before a hearing officer and no temporary support order was entered. Rule 1910.11 does not support husband’s contention that he is entitled to relief based on the trial court’s delay.

Next, husband argues that the court erred in making the support order retroactive to the date the complaint was filed. Specifically, husband claims that the trial court should have held additional hearings to determine the extent of direct payments contributed to wife’s support during the three years between the hearings and the order. He maintains that wife’s and Patty’s needs were being met through direct payments. In a protection from abuse case between the parties, wife never requested emergency support which he argues indicated that her needs were being met. Wife also petitioned at No. 15 of 1988 for payment of some medical bills and summer camp which was apparently settled by the parties without a hearing. This, he urges, raises a presumption that retroactive support was inappropriate.

Rule 1910.17 of the Pennsylvania Rules of Civil Procedure provides, in relevant part, “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” Pa.R.C.P., Rule 1910.17(a), 42 Pa.C.S.A. “There is a sound policy favoring retroactivity in most cases.” Sutliff v. Sutliff, 339 Fa.Super. 523, 526, 489 A.2d 764, 781 (1985), aff'd 515 Pa. 393, 528 A.2d 1318 (1987). Consequently, an order denying retroactive support will only be upheld where the trial court articulates specific and appropriate reasons to justify a nonretroactive order. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983); Hainaut v. Hainaut, 410 Pa.Super. 316, 599 A.2d 1009, 1011 (1991); Young v. Muthersbaugh, 415 Pa.Super. 591, 609 A.2d 1381 (1992).

Here, no reasons were advanced by husband at the hearings held in 1988 to justify nonretroactivity. The record only establishes that husband paid the mortgage on the marital residence. It is worth noting that husband was unwilling to provide further support because it was his position that wife and Patty were not entitled. Moreover, husband did not request additional hearings. If husband altered his position and provided voluntary support, we believe it was his burden to advise the court of any circumstances which would have rebutted the presumption of retroactivity. Only where such circumstances are indicated will an abuse of discretion be found in awarding retroactive support. See Commonwealth ex. rel. Kinsey v. Kinsey, 277 Pa.Super. 156, 419 A.2d 708 (1980) (where record failed to disclose when parties ceased living together and where there was no evidence of what support was provided informally, the only effective date could be the date the order was issued).

Our decision in Hainaut v. Hainaut, supra, does not support husband’s assertion that the trial court was obligated to hold additional hearings. In Hainaut, we held that the trial court did not abuse its discretion in denying retroactivity because it found sufficient evidence that husband had made substantial direct payments to wife. The court determined that these payments sufficiently satisfied wife’s support needs during the nine-month period between the complaint and the order. Here, the record established only that husband paid the mortgage on the marital residence and provided health care coverage for wife and Patty through his employment. No other facts were established for the record indicating that husband was entitled to further credits.

Finally, we reject husband’s reliance on 23 Pa.C.S.A. § 4352(a) to support his claim that the court was required to hold additional hearings. This section provides:

... a method shall be developed for the automatic review of each order of support at least once every three years from the date of establishment or the most recent review, for the purpose of making any appropriate increase, decrease, modification or recision of the order. If, however, it is determined that such a review would not be in the best interests of the child and neither parent has requested a review in the interim, no review shall be required.

Id. An order of support will not be modified in the absence of a change of circumstances. Soncini v. Soncini, 417 Pa.Super. 393, 612 A.2d 998 (1992). Husband could have filed a petition for modification prior to the entry of the support order. Any change in circumstances would relate back to the time the petition was filed and entitle husband to a credit towards arrearages outstanding.

Our case law provides that retroactive support is intended to “alleviate hardship on a party who is entitled to support but who is required to proceed through the often slow moving judicial process. Further it creates disincentive for the party liable for support to use dilatory tactics.” Commonwealth ex. rel. Bishop v. Bishop, 234 Pa.Super. 600, 341 A.2d 153, 155 (1975); Commonwealth ex. rel. Kinsey v. Kinsey, 277 Fa.Super. 156, 419 A.2d 708 (1980). It follows that the longer the delay, the more apropos retroactivity becomes. See Shovlin, supra (retroactivity particularly appropriate where nineteen-month delay between date of filing of complaint; court abused discretion in failing to provide reasons for nonretroactivity). We reject the notion that wife’s failure to seek interim support or emergency relief alters the presumption that she is entitled to retroactive support. Our research has failed to uncover a situation where the delay of the trial court resulted in waiver of support, nor are we inclined to judicially impose such a requirement for wife to preserve her right to a retroactive award. Accordingly, we find no abuse of discretion in awarding retroactive support.

III.

Husband also argues that the trial court abused its discretion in entering an order above the guideline ranges without providing adequate reasons on the record for doing so. Specifically, he notes that the support award deviated from the guidelines by more than ten per cent and that no findings were included in the record indicating how the support award was computed. It is well settled that a court has discretion to enter a support award that is outside the guidelines after considering the unique needs of the parties. The court must, however, place reasons on the record for doing so. Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990). In his opinion, Judge Pratt stated that the parties’ incomes were considered along with the reasonable needs and the special needs of Patty without indicating what these special needs were. He refused to specify how the support award was computed because he believed the issue was moot on account of Judge Dwyer’s modified order.

We first note that we cannot find the issue technically moot. There are outstanding arrearages to the original award, and husband properly appealed from that order. We are constrained, nonetheless, to agree with wife that the issue is waived.

Husband argues that the court failed to consider, through an on-the-record calculation, wife’s and Patty’s income in fashioning the award. While it is clear that the trial court’s original failure to calculate its arrearage award might ordinarily give rise to a remand for such calculation on the record, Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990), husband, not the trial court, mooted the issue by agreeing to a subsequent order which adopted the original arrearage figure. See our discussion, p. 163, infra.

Alternatively, wife argues that the guidelines are not applicable in considering support of an adult child. The authority cited by wife in support of this proposition, Horst v. Horst, 406 Pa.Super. 188, 593 A.2d 1299 (1991) and Pa.R.C.P. 1910.16-5, only applies to adult children enrolled in post-high school programs who otherwise would be emancipated. Regarding adult children who are unemancipated by virtue of a physical or mental condition, we hold that the guidelines are applicable and may be utilized in future support proceedings relating to this case.

IV.

Husband’s appeal from the modified order raises no issues relating to its inadequacy based upon change in circumstances. Rather, he asserts all of the issues previously raised in the first appeal. Because the first appeal was pending at the time of the hearing on the petition to modify, the trial court was without jurisdiction to consider any of the issues raised in the first appeal. Pa.R.A.P. 1701, 42 Pa.C.S.A.; Sutliffv. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987). A petition to modify an order of support cannot be a substitute for an appeal and a party may not attempt to relitigate matters adjudicated in the existing order. Koller v. Koller, 333 Pa.Super. 54, 481 A.2d 1218 (1984); Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). Thus, the issues were properly not considered by Judge Dwyer at the hearing on the modification. Since husband does not challenge any further matters adjudicated during the modification, we need not review his appeal. Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A.

Nevertheless, we have concerns relating to the modified order which we are compelled to address. In substance there was no change in circumstances since the parties’ needs and income did not change and the evidence at the hearing indicated that Patty’s SSI benefits would be restored. As we noted above, however, Judge Dwyer’s order reduced husband’s support obligation. In essence, Judge Dwyer conducted a de novo review of the entire record. A court may only examine the entire situation de novo, however, where the support order is made without testimony; otherwise, it is limited to considering changed circumstances. Bradley v. Bradley, 387 Pa.Super. 503, 564 A.2d 504 (1989). Ordinarily, we would find the downward revision of the support award in this instance to be an abuse of discretion.

“A Court may only modify an existing support award when the party requesting the modification shows a material and substantial change in circumstances since the Order was entered.” Soncini v. Soncini, 417 Pa.Super. at 399, 612 A.2d at 1000. In order to modify a support order, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified order. Soncini, supra. The change in circumstances must be “permanent,” meaning it is irreversible and indefinite in duration. Leasure v. Leasure, 378 Pa.Super. 613, 618, 549 A.2d 225, 226 (1988). We have refused to disturb a support award unless the trial court in determining the amount of support, has abused its discretion in determining the amount of the award and where the moving party’s burden of proof has not been met. Id. 417 Pa.Super. at 399, 612 A.2d at 1000 (relating to child support orders); Steenland-Parker v. Parker, 375 Pa.Super. 457, 544 A.2d 1010 (1988).

Nevertheless, we cannot find under the novel factual scenario presented in this case, that Judge Dwyer abused his discretion. The first order failed to set a certain amount for arrearages and did not account for the fact that the mortgage fluctuates. Additionally, we cannot overlook the fact that the support order was outside the guidelines and the calculations were not included in the record. In contrast, the modified order was entered upon agreement of the parties and was calculated pursuant to the guidelines. In this limited circumstance, we would find it highly imprudent to revert back to the original order at this stage of the proceedings.

As a final matter, we remand for a determination of whether Patty’s SSI benefits were inappropriately included in calculating Judge Dwyer’s support award. Rule 1910.16-5, governing operation of the support guidelines, was amended on January 27, 1993, to include the following provision:

(q) Treatment of AFDC and SSI Benefits. Where the obligee receives Aid to Families with Dependant Children (AFDC) or Supplemental Security Income (SSI) benefits, those benefits will not be counted as part of obligee’s income for purposes of determining support.

Pa.R.C.P., Rule 1910.16-5, 42 Pa.C.S.A. Social Security Benefits are considered income pursuant to Rule 1910.16-5(b). Because the parties appear to use the terms Supplemental Security Income and Social Security Income interchangeably, we remand for a determination of whether the benefits received by Patty should be included as income in calculating husband’s support obligation in accordance with Rule 1910.16-5(q). Also, we note that Judge Dwyer’s order should indicate that the award includes child support. We otherwise find no error in Judge Dwyer’s modified order.

The order dated September 12, 1991, is affirmed. The order dated October 13, 1992, is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Husband also claims to have contributed to other expenses such as automobile insurance for wife, although it is not apparent from the record whether these amounts were established.

      . Husband also raises in his brief a claim that the court improperly garnished more than fifty per cent of his wages. This issue is not properly presented here since the garnishment occurred subsequent to the filing of the notice of appeal and should have been taken from the order of garnishment. The issue is nevertheless moot because the initial order has been reduced to an amount which can clearly be garnished. See 23 Pa.C.S.A. § 3703.

      . Husband alleged in the petition for modification that a substantial change in circumstances had occurred because: (1) Patty received an increase in her SSI benefits, (2) husband had not been credited for payment of automobile insurance for wife, (3) wile had claimed to Domestic Relations that her medical bills were not being paid when, in fact, they had not been properly submitted to the insurance company for reimbursement, (4) wife was earning unreported additional income and had received a substantial inheritance, and (5) he had experienced a decrease in income.

      . The reason for the continuance was that husband had not yet posted bond pursuant to Pa.R.A.P. 1731, 42 Pa.C.S.A. Wife's objection was preserved until such time as bond would be posted.

      . The simple fact that the trial court chose to interview Patty in chambers without the presence of the parties or a court reporter does not, as husband argues, suggest that the support award was entered on an inadequate basis. We find the trial court’s decision to interview Patty in this manner was well within the court’s discretion, given the nature of her disability.

      . Husband did not raise this issue in his statement of matters complained of an appeal, and we note that this defect could be considered a waiver of the claim. Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. As our ability to meaningfully review the claim is not hampered by the omission, however, we will review it. See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982).

      . We acknowledge that the legislature amended Rule 1910.11 to provide for the forty-five-day time limitation in an effort to underscore "the necessity of a prompt judicial determination.” Explanatory Comment — 1988. “Forty-five days is believed to be a reasonable limitation which each county should be able to meet.” Id. While perhaps instrumental in prompting a court to enter a support order, the legislature’s pronouncement in this regard does not comport with husband’s suggestion that the present order should be vacated and the parties begin anew because the order was not entered within forty-five days.

      . It should be noted that Rule 1910.16-4 was amended January 27, 1993, nullifying the requirement that a court place reasons on the record where the support award is not within ten per cent above or below the guidelines. As amended, the court need only consider the factors outlined in the rule when providing reasons for deviating from the guidelines. Pa.R.C.P., Rule 1910.16-4, 42 Pa.C.S.A. The ten per cent general rule is no longer applicable.

      . As we explain at p. 164, the procedure in this case was highly irregular, and our affirmance of the trial court in this case is based in large part on husband’s consent to the trial court’s second, modified order. For this Court to now remand for a calculation in a stale order would unduly promote form over substance, even if husband can successfully argue that he is entitled to the calculation. Husband agreed to the arrearage figure established by the modified order, did not object to an absence of calculation at that time, and we must consider him bound by that decision.

      . Although the trial court did not file an opinion, all of the calculations were discussed on the record at the hearing and may therefore be reviewed by this Court.

      . We note that the presumption established by the guidelines is still subject to judicial discretion based upon evidence that permits application of the support formula established in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Ball v. Minnick, 414 Pa.Super. 242, 606 A.2d 1181 (1992) (plurality opinion). As we noted in Ball, a trial court is not compelled to apply the guidelines amount when that amount is unreasonable under the facts of the case. “[T]he guidelines are not mandatory, but a starting point and by implication they cannot and do not supersede Melzer or deny the trial judge or hearing officer of the discretion to mould support orders to meet the specific conditions of the parties.” Id. at 256, 606 A.2d at 1188; see also 23 Pa.C.S.A. § 4322(a) (finding that application of guidelines “would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, provided that the finding is based upon criteria established by the Supreme Court by the general rule”). Thus, although Supplemental Security Income may not be considered in calculating support under the guidelines, we believe that the trial court in its discretion may consider such income as a basis for deviating from the guidelines through application of the Melzer formula where application of the guidelines would render an unjust result.


author: POPOVICH, Judge: BECK, Judge,

text:
    633 A.2d 165
    KEYSTONE SAVINGS ASSOCIATION, Appellant, v. Dennis A. KITSOCK, Appellee.
    Superior Court of Pennsylvania.
    Argued May 13, 1993.
    Filed Oct. 18, 1993.

      William F. Brodt, Jr., Bethlehem, for appellant.
    Ronald R. Pellish, Pottsville, for appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Sehuykill County by which the court granted Donna M. Freeman’s petition to set aside the sheriffs sale and permanently stayed any further proceedings in relation to the property in question. We affirm.

The record reveals the following facts: On July 19, 1976, Donna M. Freeman (formerly Donna M. Kitsock) and Dennis A. Kitsock acquired the property in question, their marital residence, as tenants by the entirety. On December 4, 1985, Donna commenced an action for divorce and equitable distribution in Sehuykill County. On March 14, 1988, Keystone loaned $60,000 to Dennis. The case was bifurcated and on December 16,1988, a decree in divorce was entered. On April 17, 1989, Keystone filed suit against Dennis to recover the $60,000 plus interest, averring that Dennis had not made any payments as set forth in the promissory note he executed on March 14, 1988.

On October 5, 1989, the master’s recommendation was filed and awarded, inter alia, the marital residence to Donna. Dennis then filed exceptions to the master’s report. On March 12, 1990, the prothonotary entered a default judgment against Dennis for his failure to answer Keystone’s complaint. On May 23,1990, the court dismissed Dennis’ exception to the master’s report. The following day, the court distributed the marital property and directed Dennis to execute the deed to transfer the marital residence to Donna solely.

On June 1, 1990, Keystone filed a praecipe for writ of execution against Dennis’ “undivided one-half interest” in the marital residence, executed on that writ and gave notice of the sheriff’s sale. On June 15, 1990, Donna filed a petition to set aside the sheriff’s sale, and a rule was issued to Keystone to show why the petition should not be granted. Following briefing and argument by counsel for Keystone and Donna, the lower court set aside the sheriff’s sale and permanently stayed any further attempts by Keystone' to execute on the former marital residence. This appeal followed.

Herein, Keystone submits that the lower court erred in permanently staying the sheriff’s sale of the property in question. Keystone contends first that the divorce court’s power to distribute the marital estate violated its due process rights. Second, Keystone argues that charging it with constructive notice of the divorce proceedings violates its due process rights. And third, Keystone suggests that the doctrine of “custodia legis” should not usurp the basic property rights of creditors. A court in which execution proceedings are pending has an inherent right to stay the proceedings where it is necessary to protect the rights of the parties. Pa.R.C.P. 3121. “The grant of a stay of execution is within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion.” Kronz v. Kronz, 393 Pa.Super. 227, 233, 574 A.2d 91, 94 (1990), quoting In re Upset Sale, Tax Claim Bureau of Berks, 505 Pa. 327, 339, 479 A.2d 940, 946 (1984). Upon review, we find that the lower court acted properly and did not abuse its discretion in staying the proceedings.

Keystone cites Kronz, supra, for the proposition that its due process rights were violated because the court’s stay of the sheriffs sale impaired Keystone’s substantive rights as a judgment creditor without providing for adequate security. However, the facts of Kronz, supra, represent a vastly different situation than the one before us. In Kronz, supra, the husband and wife had mortgaged the commercial property in question and agreed to be held jointly and severally liable for the debt. After the parties separated and filed for divorce, the mortgage went into default, and foreclosure proceedings were initiated. The premises had been scheduled for sheriffs sale when the wife petitioned the divorce court to enjoin the sale because the property’s value of $650,000 was far in excess of the judgment of $230,000. Eventually, the mortgagee was indefinitely enjoined from further executing on its judgment. Upon review, we stated:

... As a general rule, a court cannot properly impair the contractual rights of a secured creditor or impose upon it duties and obligations which it did not contract to assume. A court abuses its discretion if, by its order, it impairs the collateral security which a creditor has contracted for in a loan transaction. ...
The evidence is that the mortgaged premises have a market value of between $650,000.00 and $750,000.00. The bank’s judgment is for only $230,000.00. There is, therefore, a substantial equity in the property on which the bank has issued execution. This equity is deserving of protection if the court can do so without impairing the substantive rights which have accrued to the secured creditor. Sinking Fund Commissioners of Philadelphia v. Philadelphia, [324 Pa. 129, 188 A. 314 (1936) ], supra. However, a court may not deprive the judgment holder of substantive rights, for to do so is a violation of due process. Id. 324 Pa. [129,] at 133-1334, 188 A. [314,] at 317 [ (1936) ].

Kronz, 574 A.2d at 95.

We determined then that the lower court in Kronz, supra, failed to insure the substantive rights of the mortgagee/judgment holder were adequately protected when it indefinitely enjoined the sheriffs sale, thus, violating the lender’s right to due process. We stated:

To summarize, the court set no time limit for its order enjoining the mortgagee from enforcing its contractual rights. There is no guarantee that the real estate will be sold in the near future at a price satisfactory to husband and wife. Although there are other marital assets available to pay or secure the mortgagee’s judgment, the court did not require either payment or security. The effect of the court’s order is to alter the substantive rights of the mortgagee and to impose upon the mortgagee the risk of delay inherent in a divorce action whose movement the mortgagee is powerless to control.

Kronz, 574 A.2d at 95.

Clearly, the error committed by the lower court in Kronz, supra, was not the act of enjoining the sheriffs sale. Rather, the court’s error was indefinitely enjoining the sale without adequately protecting the substantive rights of the secured creditorljudgment holder in the property which was the subject of the mortgage. Instantly, however, Keystone cannot claim the same substantive rights in the subject property as the creditor in Kronz, supra. Keystone is not a secured creditor, has not obtained a judgment against both of the divorcing parties, and did not attempt to execute on that judgment until after the marital residence was awarded to Donna.

Keystone counters that, by operation of law, after the parties were divorced on December 16, 1988, the marital residence was held as tenants in common of equal one-half shares in value, and, therefore, it had a right to execute on Dennis’ one-half share of the marital residence. This argument fails for two reasons. First, Keystone did not praecipe for a writ of execution until June 1,1990, which was eight days after the lower court had awarded the marital residence to Donna. Therefore, Dennis had no interest in the marital residence at the time the writ was issued.

Second, notwithstanding the timing set forth above, the marital residence was in custodia legis, or under the wardship of the court pending the outcome of the equitable distribution proceedings, and, thus, not subject to judicial liens. Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 211, 565 A.2d 448, 452 (1989) allocatur granted, 527 Pa. 647, 593 A.2d 420 (1990); Fidelity Bank v. Carroll, 416 Pa.Super. 9, 13, 610 A.2d 481, 483 (1992). It is true that 68 Pa.S.A. § 501, provides that:

Whenever any husband and wife, hereafter acquiring property as tenants by the entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit against the other to have the property sold and the proceeds divided between them.

See also 23 Pa.C.S.A. § 3507(a).

However, while 68 Pa.S.A. § 501 operates to sever a tenancy by the entireties upon entry of a divorce decree in a bifurcated divorce action, it does not alter the “marital” character of that property. Jawork v. Jawork, 378 Pa.Super. 89, 94-95, 548 A.2d 290, 292 (1988); Klebach, 565 A.2d at 451. Under the Divorce Code, 23 Pa.C.S.A. § 3101 et seq., it is presumed that all real and person property acquired by the parties during the marriage is marital property, regardless of whether it is held individually or in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entireties. 23 Pa.C.S.A. § 3501(b). Further, all such property is subject to equitable distribution upon request by either party. 23 Pa.C.S.A. § 3502(a).

Instantly, the property in question was subject to equitable distribution proceedings in the lower court several years prior to Keystone’s unsecured loan to Dennis. As such, the property was in custodia legis and not subject to attachment by Keystone’s judicial lien. See, Fidelity Bank, supra (bank judgment against former husband did not attach to marital home where judgment was entered after wife filed for divorce as property was in custodia legis); Klebach, supra (entireties property subject to judicial order of divorce court is in custodia legis). Since the property in question was subject to the jurisdiction of the divorce court at all times relevant to Keystone’s loan transaction, Keystone was on constructive notice that Dennis’ interest in the property was involved in divorce litigation and subject to distribution by the court. Accordingly, Keystone could acquire no greater interest in the marital property than that of Dennis, and Keystone only succeeded to whatever interest Dennis acquired in the marital property at the time of equitable distribution. Fidelity Bank, 610 A.2d at 483; Weaver v. Weaver, 413 Pa.Super. 382, 385, 605 A.2d 410, 412 (1992).

Since Dennis was not awarded a share of the marital residence in the equitable distribution proceeding, Keystone had no enforceable interest in the property despite its judgment against Dennis. We find that there was no violation of due process herein since Keystone had no substantive rights in the property sub judice. Accordingly, we find that the trial court acted properly in staying indefinitely any further attempts on the part of Keystone to execute on the former marital residence.

Order affirmed.

BECK, J., files a Concurring Statement.

BECK, Judge,

concurring.

I concur in the result of the majority opinion whereby the trial court order permanently staying the sheriffs sale is affirmed. I agree that appellant-bank (Keystone) has no right to execute on the marital residence because it does not have a perfected lien against it, nor did it file a praecipe for writ of execution until after the court had awarded the property to appellee-wife. The bank, as judgment creditor of appellee’s husband, could only execute against that which debtor-husband had. Despite Keystone’s assertions to the contrary, at the time that the writ of execution was filed, husband no longer possessed an “undivided one-half interest” in the property.

I depart from my colleagues’ analysis at the point where they hold that the trial court’s order is affirmed based on the doctrine of custodia legis. The majority expressly states that its holding is not dependent upon the fact that Keystone failed to file its writ until after the trial court awarded the property to appellee. Instead, the majority explains, “notwithstanding the timing set forth above, the marital residence was in custodia legis, or under the wardship of the court pending the outcome of the equitable distribution proceedings, and, thus, not subject to judicial liens.” (Maj. at 168).

I am concerned that the majority opinion has expanded the doctrine to unprecedented proportions so that it encompasses all of a couple’s property prior to equitable distribution proceedings in a bifurcated divorce. Whether the doctrine should be at all applicable to marital property in a divorce action is questionable. See Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 565 A.2d 448 (1989) (Johnson, J. dissenting), alloc, granted, 527 Pa. 647, 593 A.2d 420 (1990). Historically, the concept of custodia legis addressed circumstances where a sheriff or other officer of the court was in possession of personal property as a result of an action in replevin. See Weicht v. Automobile Banking Corp., 354 Pa. 433, 47 A.2d 705 (1946). It has also been held to apply to circumstances where law enforcement officers have searched a residence, seized drugs and cash therein and held the cash until time of trial. See Commonwealth v. Myers, 298 Pa.Super. 272, 444 A.2d 1170 (1982).

Notwithstanding the origins of the doctrine, I am cognizant that previous panels of this court have made it applicable in suits relating to marital property. However, in both cases cited by the majority, the marital property which was deemed in custodia legis was the subject of a specific court order. In Fidelity Bank v. Carroll, 416 Pa.Super. 9, 610 A.2d 481 (1992), the court had entered an order permanently enjoining husband from encumbering, alienating, transferring or selling any of the marital property; only after this order did the bank (husband’s judgment creditor) attempt to execute upon the property.

Similarly, in Klebach v. Mellon Bank, N.A, supra, the trial court entered the divorce decree and directed the debtor-husband to convey his interest in the family residence to his wife. The conveyance took place five days later. This court held that the creditor’s lien could not have attached during the five day period because under the doctrine of custodia legis, the property was immune from attachment.

A bifurcated divorce unfortunately can take years, sometimes more than a decade, to be fully litigated. I believe it would unjustly bind the parties’ hands if all marital property were automatically deemed custodia legis during the entire divorce action. If this were the case, a spouse who owns a business, for example, would not be able to run the business effectively as she would be endlessly petitioning the court for approval of transactions and business decisions that potentially affect the value of the business.

While I recognize the danger that a party in a divorce might attempt to dissipate his or her assets in order to prevent them from being awarded to the other spouse, there are alternative devices to protect against this result. Where, for example, there is some indication of foul play, intentional waste, or even innocent but unwise business practices, a party can always petition the court for special relief or protection.

Thus, for the reasons set forth above, I concur only in the result of the majority opinion and strenuously dissent from my colleagues’ holding that the marital residence is custodia legis merely because equitable distribution is pending.

      . Keystone originally alleged that the loan of $60,000 was secured by a mortgage on the marital residence. However, Donna maintains that she never signed the mortgage instrument and, if her signature did appear on the document, it was a forgery. Keystone does not dispute Donna's assertion of forgery. Further, Keystone acknowledges that it never recorded the mortgage because it was allegedly lost. Consequently, Keystone has not asserted that it was a secured creditor of Dennis and/or Donna.

      . In the complaint, Keystone did not aver that a mortgage or any other security agreement existed.

      . On August 1, 1990, the court authorized the prothonotary to execute the deed of conveyance to Donna on behalf of Dennis.

      . We chastise counsel for Keystone for quoting West head-note 11 of Kronz, supra, in its brief at p. 22, as if the language of the headnote was actually taken from the body of our opinion. Counsel certainly should understand that the head-notes are not part of our opinion, but rather are prepared by West Publishing Company. In the future, counsel must refrain from misrepresenting language contained in a West head-note to be language from the body of an opinion.

      . Keystone argues that it is a violation of due process to find that it had constructive notice that the property in question was the subject of divorce proceedings since it has to provide actual notice to owner of the property involved in a sheriff's sale. See Pa.R.C.P. 3129.1 and 3129.2. However, in making such an argument, Keystone fails to consider that the owner of a property clearly has substantive rights in the property subject to the judicial sale, while Keystone as an unsecured creditor had no substantive rights in the marital residence other than those it acquired through Dennis. Fidelity Bank, 610 A.2d at 483; Weaver, 605 A.2d at 412. Since the entire value of the marital residence was awarded to Donna, Keystone had no substantive rights in the property for due process to protect. Moreover, Keystone clearly could have easily learned that the marital residence was the subject of divorce proceedings prior to lending the money to Dennis by simply checking the docket in the Schuykill County Court of Common Pleas.

      . We note that Keystone could have protected its rights in the same manner by which the lender in Kronz, supra, did, i.e., Keystone could have insured that a mortgage on the property was validly executed by both Dennis and Donna and properly recorded. See 23 Pa.C.S.A. §§ 3501(a)(7) and 3507.

      . The term custodia legis is defined as follows:
      In the custody of the law. Doctrine of "custodia legis” provides that when personal property is repossessed under writ of replevin, property is considered to be in custody of the court, though actual possession may be in either of the parties to the replevin action, and that property remains in custody of court until judgment in replevin action finally determines whether replevining party or prior holder is entitled to possession.
      Black’s Law Dictionaiy 346 (5th ed. 1979).

      . Tiie creditor's lien could not have attached prior to the divorce decree because at that time the couple owned the property by the entireties; such property is "simply unavailable to satisfy claims of a creditor of only one [spouse].” Klebach, supra, 388 Pa.Super. at 209, 565 A.2d at 450 (citing Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d 784 (1982)).


author: WIEAND, Judge.

text:
    633 A.2d 170
    Gerald BRIDGES, Appellant, v. Michael D. GARY and Leonard M. Jones, Jr. and Constitution State Service Company (as the designated servicing Insurance Carrier for the Pennsylvania Financial Responsibility Assigned Claims Plan).
    Superior Court of Pennsylvania.
    Argued April 27, 1993.
    Filed Nov. 5, 1993.
    Jerry A. Lindheim, Philadelphia, for appellant.

      Mark T. Richter, Philadelphia, for Constitution State Service, appellee. (Submitted)
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge.

On November 7, 1988, Gerald Bridges, a resident of Pennsylvania, was injured when the automobile in which he was riding as a passenger struck a parked vehicle in Philadelphia. The vehicle, which was being operated by Michael Gary, was owned by Leonard Jones, Jr., and registered in the State of Florida. Allegedly, the vehicle was uninsured at the time of the accident, and Gary, the driver, had no other coverage. Moreover, Bridges did not own a vehicle and did not reside with a person who owned a vehicle. Therefore, he made a claim against the Assigned Claims Plan for first party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). The claim was assigned to Constitution State Service Company which, after review, denied liability. Bridges sued. The trial court entered summary judgment in favor of Constitution State Service Company and the Assigned Claims Plan on grounds that Bridges, being an occupant of a vehicle registered in a state other than Pennsylvania, was not eligible for benefits under the Pennsylvania statute. Bridges appealed.

MVFRL, by its provisions, allows “eligible claimants,” who are otherwise unable to recover insurance benefits, to recover statutory benefits from or through the Assigned Claims Plan. See generally: Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 427 Pa.Super. 105, 107 n. 1, 628 A.2d 847, 847 n. 1 (1993). An eligible claimant is defined at 75 Pa.C.S. § 1752 as follows:

(а) General rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:

(1) Is a resident of this Commonwealth.
(2) Is injured as the result of a motor vehicle accident occurring in this Commonwealth.
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).
(4) Is not the operator or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments or authorities.
(5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage.
(б) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.
(7) Is not the operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle or motorized pedalcycle or other like type vehicle required to be registered under this title and involved in the accident.

At issue in this appeal is the language of subsection (a)(5). Although appellant can meet all other requirements for eligibility, the trial court determined that he was an occupant of a motor vehicle owned by an individual who was not required to provide benefits under the MVFRL. Therefore, the court concluded, appellant was not eligible to make a claim against the Assigned Claims Plan. After review, we agree.

At 75 Pa.C.S. § 1711, the legislature required coverage for first party benefits only on vehicles which are “registered and operated in this Commonwealth.” The language of 75 Pa.C.S. § 1752(a)(5) refers directly to persons who occupy a vehicle which is not required to provide first party benefits and renders such persons ineligible to recover benefits from the Assigned Claims Plan. A vehicle registered in Florida is not required to provide first party benefits under the Pennsylvania MVFRL, and an occupant of such a vehicle is not entitled to recover benefits from the Assigned Claims Plan.

In Rosado v. Constitution State Service Co., 425 Pa.Super. 561, 625 A.2d 1239 (1993), the Superior Court held that an occupant of a vehicle registered in New Jersey was not entitled to recover benefits from the Pennsylvania Assigned Claims Plan. There, Rosado, a resident of Pennsylvania, was an occupant of a vehicle which collided with an uninsured vehicle in Philadelphia. At the time of the accident, the vehicle in which Rosado had been riding was registered and insured in New Jersey, although the owner/operator was then a resident of Pennsylvania. In holding that Rosado was not an eligible claimant, the Court said:

We hold that appellant is not entitled to recover benefits from the Plan. Section 1752(a)(5) of the MVFRL mandates that a person is not eligible for Plan benefits if she was the occupant of a motor vehicle that is not required to provide coverage under the MVFRL. Section 1711 of the MVFRL limits the requirement to provide first party benefits coverage to vehicles that are “registered and operated in this Commonwealth [of Pennsylvania].” 75 Pa.C.S.A. § 1711. Likewise, no motor vehicle liability insurance policy may be issued in Pennsylvania for a “motor vehicle registered or principally garaged in” Pennsylvania unless uninsured and underinsured motorist coverages are offered. 75 Pa.C.S.A. § 1731.
Applying § 1711, this court has held that the MVFRL does not require the insurers of motor vehicles that are registered outside Pennsylvania to provide MVFRL first party benefits in Pennsylvania accidents. Boone v. Stonewall Ins. Co., 382 Pa.Super. 104, 554 A.2d 968 (1989) (insurer of vehicle registered in Virginia need not provide medical benefits under Pennsylvania’s MVFRL). See also Jarrett v. Pennsylvania Nat. Mut. Cas. Ins. Co., 400 Pa.Super. 565, 584 A.2d 327 (1990) (insurer of North Carolina vehicle not required to provide MVFRL coverage); Pugh v. Government Employees Ins. Co., 380 Pa.Super. 606, 552 A.2d 708 (1989) (operation of Maryland vehicle in Pennsylvania insufficient to impose requirements of MVFRL on its insurer). Therefore, appellant does not meet prong (5) of the Plan’s eligibility requirements codified in § 1752(a). See also Johnson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 12 Pa.D. & C. 4th 471 (1991).

Id. at 565-66, 625 A.2d at 1241 (emphasis added). We agree. Because the language of 75 Pa.C.S. § 1752(a)(5) clearly provides ineligibility for owners and occupants of motor vehicles which are not required to provide benefits under the MVFRL, appellant is not eligible in this case to receive benefits under the Assigned Claims Plan.

The order entering summary judgment is affirmed.

      . 75 Pa.C.S. §§ 1701, et seq.

      . In separate counts of the same complaint, Bridges made claims for tort damages against Gary and Jones, the driver and owner of the vehicle in which he had been riding. These claims are not involved in the present appeal.