author: MONTEMURO, Judge:

text:
    534 A.2d 825
    Alice SCHARNITZKI v. Henry BIENENFELD and Harry Ganzman, Additional Defendant, Hartford Accident & Indemnity Company, Intervening Party Defendant. Appeal of HARTFORD ACCIDENT & INDEMNITY COMPANY.
    Superior Court of Pennsylvania.
    Argued June 15, 1987.
    Filed Dec. 10, 1987.

      John M. DeFeo, Philadelphia, for appellant.
    David M. Barry, Philadelphia, for Ganzman, appellees.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge:

Hartford Accident & Indemnity Company (“Hartford”) challenges the October 1, 1986 order of the Philadelphia Court of Common Pleas denying its petition to intervene. Because Hartford appeals from an interlocutory order, we quash this appeal.

The Pennsylvania Supreme Court has stated that as a rule, an appeal will not lie from an order refusing leave to intervene, because such an order is not a final one[. However], cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner.

Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912) (citations omitted). Accord Maginley v. Robert J. Elliot, Inc., 345 Pa.Super. 582, 584, 498 A.2d 977, 979 (1985); M. London, Inc. v. Fedders Corp., 306 Pa.Super. 103, 106, 452 A.2d 236, 237 (1982); Inryco Inc. v. Helmark Steel, Inc., 305 Pa.Super. 239, 243-44, 451 A.2d 511, 512-13 (1982) (quoting Frey’s Estate); Boise Cascade Corporation v. East Stroudsburg Savings Assn., 300 Pa.Super. 279, 281, 446 A.2d 614, 615 (1982) (quoting Frey’s Estate); Marion Power Shovel Co. v. Fort Pitt Steel Casting Co., 285 Pa.Super. 45, 48 n. 2, 426 A.2d 696, 696-97 n. 2 (1981) (quoting Frey’s Estate).' Therefore, before deciding whether we may entertain this appeal as a challenge from a final order, we must determine whether Hartford has, in all practicality, been denied the relief to which it is entitled.

Hartford’s petition to intervene arose as a result of the following events. On October 3,1985, a fire occurred at the Benton Court Apartments. As a result of the fire, Alice Scharnitzki, a resident of the apartment building, filed a civil action for personal injuries against Henry Bienenfeld, the owner of the apartment building. Ms. Scharnitzki’s complaint stated that “Defendant negligently, carelessly and/ or willfully and wantonly created the condition ... which caused the injury to Plaintiff ...” Complaint, para. 5. Mr. Bienenfeld then filed a complaint against additional defendant, Harry Ganzman, also a resident of the Benton Court Apartments. In the complaint, Mr. Bienenfeld alleged that, if Ms. Scharnitzki had suffered any injury, “said injuries were caused by and/or contributed to by the negligence and careless[ness] of additional defendant.” Complaint para. 7.

Mr. Ganzman had insurance under a homeowner’s policy provided by Hartford. The policy was in effect at the time of the fire and obligated Hartford to indemnify Mr. Ganzman for any loss he might sustain, up to the policy’s limit of $25,000, because of judgments entered against him “for damages because of bodily injury or property damage to which ... coverage applies.” Homeowner’s Policy, Section II, Liability Coverages, Coverage E, p. 9. Hartford does not dispute that the claims now brought against Mr. Ganzman fall within the policy’s coverage.

Based on its belief that there would be numerous claims for personal injury and property damage in.addition to Ms. Scharnitzki’s claim and that those claims would far exceed the policy’s limits, Hartford petitioned the trial court for intervention. In its petition, Hartford asserted that if permitted to intervene it would petition for interpleader of the various claimants against Mr. Ganzman and would deposit the $25,000 in court. By intervening and then interpleading, Hartford wished to effect “a fair and equitable distribution of the policy limit to all claimants.” Hartford’s Memorandum of Law in Support of its Petition to Intervene at 2. Hartford appended to its Petition to Intervene a Petition for Interpleader. In support of this latter petition Hartford stated that it wished to deposit the policy limit into court to “avoid the multiplicity of lawsuits and the potential claim of bad faith.” Hartford’s Memorandum of Law in Support of its Petition for Interpleader at 2.

The trial court denied the petition for intervention and reasoned that if Hartford were permitted to intervene, Hartford’s “obligation to defend [Mr. Ganzman], pursuant to the policy entered into by the parties, would be vitiated.” Trial Court Opinion at 2. In so reasoning, the trial court adopted implicitly Mr. Ganzman’s objections to the petition to intervene. Mr. Ganzman had argued that he believed that it was Hartford’s “intention ... to refuse to defend him in any claims arising out of the occurrence in suit if Hartford [were] permitted to tender ... its stated policy limit of $25,000 into Court.” para. 14, additional defendant Harry Ganzman’s Answer to Petition for Intervention of Hartford Accident & Indemnity Company. Mr. Ganzman based his allegation on language in the homeowner’s policy which states that Hartford’s “obligation to defend any claim or suit ends when the amount [paid] for damages resulting from the occurrence equals [the] limit of liability.” Homeowners Policy, Section II, Liability Coverages, Coverage E, p. 9.

On appeal, Mr. Ganzman argues that this Court should quash Hartford’s appeal because it is taken from an interlocutory order. He contends that Hartford has not been denied the “ultimate relief sought” because the trial court’s denial of the petition to intervene does not preclude the company from “paying [the] policy limits.” Appellee’s Brief at 11. Mr. Ganzman states further that if Hartford believes it has a right to disclaim its duty to defend, that issue may be decided in a declaratory judgment action. Id.

Hartford argues that the trial court’s order is final because it precludes the insurance company from obtaining the relief requested. Hartford states that it “has attempted to interplead all Claimants and tender its policy with the Court to avoid any adverse judgment which would require [it] to distribute a portion of its policy, if not the entire policy, to one Claimant.” Appellant’s Brief at 2-3. The company argues that the denial of its petition to intervene “can only be viewed as a final determination of [its] rights” because it “effectively preclude[s] recovery from the policy by Additional Claimants, [and] would further effectively preclude [it] from withholding the payment of any portion of its policy to satisfy a judgment.” Id. at 3. We disagree.

The relief which Hartford seeks is (1) to “adequately and safely secure its policy limits for all future Claimants,” and (2) to avoid “criticism, at the very least, and claims of bad faith, at the very worst, from the various Claimants that Hartford intended to interplead.” Id. at 5. Without addressing the argument raised by Mr. Ganzman concerning Hartford’s alleged intent to disclaim its duty to defend, we find that Hartford has not, in all practicality, been denied the relief to which it is entitled.

We question whether Hartford need fear a risk of exposure to liability for claims of bad faith if it exhausts the limits of Mr. Ganzman’s policy without in some way attempting to compensate all known claimants. We have been unable to find any Pennsylvania case that addresses squarely Hartford’s concerns nor has Hartford cited any law to support its argument that it may be liable for bad faith claims if it exhausts the policy’s proceeds without attempting to compensate all claimants. However, the majority rule holds that where several claims arise from a single insured event but where judgments for those claims were or are to be obtained against an insured in different actions, the insurance company may distribute the proceeds on a first-come-first-served basis according to priority of judgment, even if the insurer’s maximum liability under the policy is inadequate to compensate all claimants. See 70 A.L.R.2d 416 § 4[b]; Castoreno v. The Western Indemnity Company, 213 Kan. 103, 515 P.2d 789 (1973) (insurer neither acted negligently nor in bad faith when it settled two claims and paid one judgment arising out of one accident resulting in depletion of the insurance policy proceeds prior to recovery by two additional judgment creditors). Cf. Harmon v. State Farm Mutual Automobile Insurance Co., Fla., 232 So.2d 206, 207-208 (1970) (liability insurer may in good faith settle part of multiple claims arising from the negligence of its insured even though such settlements deplete or exhaust the policy limits of liability so that the remaining claimants have little or no recourse against the insurer). Accord Hartford Casualty Insurance Co. v. Dodd, 416 F.Supp. 1216 (D.Md.1976); State Farm Mutual Automobile Insurance Co. v. Hamilton, 326 F.Supp. 931 (D.S.C.1971); Haas v. Mid America Fire & Marine Insurance Co., 35 Ill.App.3d 993, 343 N.E.2d 36 (1976). See also Liguori v. Allstate Insurance Co., 76 N.J.Super. 204, 214, 184 A.2d 12, 17 (1962) (“[wjhether multiple claims are to be treated one at a time or collected and evaluated together, is a choice solely within the discretion of the insurer”).

Even assuming that Hartford’s fears of potential liability are well-founded, we do not find that Hartford has been denied all practical relief. We first note that Mr. Ganzman has not been found liable for the fire, and, therefore, Hartford seeks relief prematurely. Because Hartford’s petition was not denied with prejudice, it has the option to reapply to the court for intervention when an actual claim is made against the policy proceeds. We reasoned similarly in Inryco Inc. v. Helmark Steel Inc., 305 Pa.Super. 239, 244, 451 A.2d 511, 513 (1982) to find that an order denying a petition to intervene was interlocutory. There, several suits arose out of a construction project. The suits were filed in both federal and state courts and involved different parties. A settlement was reached in one of the state court actions. As part of the judicially-supervised settlement agreement in the action, the entire record of the case, including deposition transcripts, was placed under seal. A defendant in one of the related federal court actions who was not involved in the state court action, petitioned for intervention in the state court action. The petitioner alleged that placing the record of the state court action under seal denied it the opportunity to review the court of common pleas’ record and to discover documents obtained therein. We found that the denial of the petition to intervene was not final because it did not constitute a “practical denial of relief” to which petitioner was entitled. Id. Petitioner had other remedies available to it. It could conduct discovery in the federal court action and could reapply to the state court if certain documents or depositions would be otherwise unavailable. The case before us presents a situation analogous to that in Inryco. The denial of Hartford’s petition to intervene does not expose it to claims of bad faith. According to Hartford, only if it makes payments to some but not all claimants will it face liability. Since under the terms of the policy Hartford has no obligation to make those payments until either it signs an agreement or final judgment is rendered against its insured, Homeowner’s Policy, Section II, Conditions, para. 6, p. 11, neither of which has occurred, Hartford has no obligation to pay claims arising from the fire and is therefore not subject to any liability for bad faith payments. At this point in the litigation, Hartford’s fears of liability are based on mere conjecture and speculation.

Moreover, although Hartford is not allowed to intervene, it is not precluded from protecting its interests. Under the homeowner’s policy, Hartford has a duty to defend Mr. Ganzman in actions arising out of the fire until the amount the insurance company pays for damages equals the $25,-000 limit of liability. Since no claims can be made against the policy proceeds at this point because there has been no final judgment against Mr. Ganzman, nor has Hartford signed any agreement, the insurance company will have a duty to defend Mr. Ganzman. Although not named as a party, Hartford will be able to control the defense of this suit. See id. (insurer agrees to provide a defense by counsel of its choice, and it has the right to “make any investigation and settle any claim or suit” that it decides is appropriate). If Hartford is concerned about possible exposure to liability resulting from charges of bad faith leveled against it by various claimants who may not recover for their injuries if the proceeds are expended, the counsel it appoints to defend Mr. Ganzman can move to consolidate all the actions brought against Mr. Ganzman. See Pa.R.C.P. 213(a) (“[w]hen actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all the matters in issue in the actions, may order all the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay”). The consolidation of the actions would ensure that all judgments would be entered at the same time. Hartford can thereby avoid making piecemeal payment of claims arising from the accident. If consolidation is allowed, Mr. Ganzman, with Hartford providing the defense, could attempt to stay proceedings until after the statute of limitations has run. Hartford would then have notice of all potential claims competing for the policy proceeds. If the trial court denies these motions, and Hartford is then forced to make piecemeal payment of claims, the insurance company would be insulated from bad faith claims by unsatisfied judgment creditors. First, according to the majority rule, it would not be improper for Hartford to pay or settle claims on a first-come-first-served basis. Second, even if the majority rule were inapplicable to this situation, Hartford would have taken every step to protect the rights of the claimants and to avoid charges of bad faith.

Because the trial court’s denial of the petition to intervene does not operate as a “practical denial of relief” to which Hartford is entitled and could “obtain in no other way,” Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912), we conclude that the trial court’s order is interlocutory. Accordingly, we quash this appeal.

Appeal quashed.

      . The Hartford insurance policy in question contains a provision that states "no action with respect to Coverage E shall be brought against us until the obligation of the insured has been determined by final judgment or agreement signed by us.” Homeowners Policy, Section II, Conditions, 6, p. 11. Coverage E pertains to the insurance’s company’s duty ‘‘[i]f a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which ... coverage applies.” Homeowners Policy, Section II, Liability Coverages, Coverage E, p. 9.

      . See 42 Pa.C.S.A. 5524 (two year statute of limitations). The fore occurred on October 3, 1985.

      . The trial court might deny these motions, finding that to do otherwise would contravene the policy favoring compromises and speedy settlements. See, e.g., Harmon v. State Farm Mutual Automobile Insurance Co., Fla., 232 So.2d 206, 208 (1970) (citing Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L.Rev. 27, 46-51)).


source: Caselaw Access Project

author: WIEAND, Judge: OLSZEWSKI, Judge, HOFFMAN, Judge,

license: Public Domain

text:
    534 A.2d 829
    COMMONWEALTH of Pennsylvania v. Conley BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1987.
    Filed Dec. 10, 1987.

      Douglas M. Johnson, Assistant Public Defender, College-ville, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

Conley B. Bailey was tried nonjury and was found guilty of possession of an instrument of crime, possession of an offensive weapon and criminal conspiracy. On January 10, 1983, he was sentenced to probation for a period of three years. On August 22, 1985, during a hearing held on a charge of probation violation, Bailey stipulated that he had violated the conditions of his probation by committing new offenses. The hearing court revoked the prior sentence of probation and sentenced Bailey to a new probationary period of five years upon condition that he complete an alcohol treatment program. On July 29, 1986, Bailey was again arrested and charged with burglary and related offenses. Another charge of probation violation was leveled against Bailey, and this time the trial court, after hearing, revoked probation and imposed a sentence of imprisonment for not less than two years nor more than five years. A motion to modify this sentence was denied, and Bailey appealed. The only argument which he makes on appeal is that the sentence of imprisonment was excessive.

With respect to appeals challenging the discretionary aspects of sentencing, the legislature has provided at 42 Pa.C.S. § 9781 as follows:

(a) Right to appeal. — The defendant or the Commonwealth may appeal as of right the legality of the sentence.
(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. (Emphasis added).

Pursuant to its authority to prescribe rules governing practice and procedure in the courts, the Supreme Court has promulgated rules to implement this statutory provision. By a note accompanying Pa.R.App.P. 902, the proper procedure to be followed in cases brought under Section 9781(b) has been explained as follows:

Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a “petition for allowance of appeal” of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see Rule 904 (content of the notice of appeal)) operates as the “petition for allowance of appeal” under the Sentencing Code. It automatically raises all possible questions under 42 Pa. C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside of the range of discretion vested by law in the sentencing court) is presented. No additional wording is required or appropriate in the notice of appeal.
In effect, the filing of the “petition for allowance of appeal” contemplated by the statute is deferred by these rules until the briefing stage, where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner.

The proper procedure for filing the “petition for allowance of appeal” at the briefing stage is set forth in Pa.R.App.P. 2119(f) as follows:

[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the defendant, who had been convicted of various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-113(a)(16), (30), was sentenced to pay a fine of $1,000 and to serve a five year term of probation. The Commonwealth appealed. This Court vacated the judgment of sentence and remanded for resentencing on the ground that the sentence was outside the sentencing guidelines and unreasonable. The Supreme Court reversed, holding that it had been error for this Court to consider the merits of the Commonwealth’s appeal where the Commonwealth had failed to comply with the mandates of Rule 2119(f). The Court said:

It must first be observed that our rules make a careful distinction between “questions relating to the discretionary aspects of the sentence” and “the issue whether the appellate court should exercise its discretion to reach such question.” Pa.R.A.P. 2116. Recognizing this distinction, the language from the Note to Pa.R.A.P. 902 ... speaks only to the fact that the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal. It does not and cannot obviate the need for such a statement.
The procedure outlined in the Note accompanying Rule 902 was published in the interest of maintaining consistency between practice under this section of the Sentencing Code and typical appellate practice in Superior Court, which does not ordinarily have discretion as to the exer- ° cise of its jurisdiction____
So long as the Commonwealth is required at some point to demonstrate a “substantial question” in accordance with the statute ... this procedure is sound. Superior Court may not, however, be permitted to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists. If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the Commonwealth has in effect obtained an appeal as of right from the discretionary aspects of a sentence. It is elementary that such an enlargement of the appeal rights of a party cannot be accomplished by rule of court. For this reason it is essential that the rules of procedure governing appeals such as this be followed precisely.
Our insistence on separate presentation of these issues is more than mere formalism; important concerns of substance guide this decision. In addition to preserving the respective rights of both parties according to the jurisdictional scheme provided by the legislature, it furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.

Id., 513 Pa. at 513, 522 A.2d at 19-20.

In Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), this Court concluded that the requirements of Pa.R.App.P. 2119(f), as interpreted in Commonwealth v. Tuladziecki, supra, were procedural and not jurisdictional. As such, a failure to comply with the rule could be and was waived by an appellee who failed to challenge the procedural defect in the appellant’s brief. Where such a waiver had occurred, we held, the Superior Court would determine for itself, without benefit of a Rule 2119(f) statement in appellant’s brief, whether there was a “substantial question” that the sentence imposed was inappropriate. Id.

Imposition of a proper sentence is vested in the sound discretion of the trial court, whose exercise thereof will not be disturbed unless the sentence imposed exceeds statutory limits or is manifestly excessive. See: Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982); Commonwealth v. Townsend, 497 Pa. 604, 606, 443 A.2d 1139, 1140 (1982); Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983). However, a sentencing court is required to adhere to duly enacted legislative mandates and must place on the record the reasons for the sentence which it has imposed. See: Commonwealth v. Riggins, 474 Pa. 115, 122, 377 A.2d 140, 143 (1977); Commonwealth v. Yacoubian, 339 Pa.Super. 413, 426, 489 A.2d 228, 234 (1985); Commonwealth v. Kane, 315 Pa.Super. 212, 221, 461 A.2d 1246, 1250-1251 (1983).

In the instant case the sentencing court considered appellant’s personal history, his employment as a cook, his prior criminal records in Delaware and Montgomery Counties, his alcoholism, his refusal to cooperate in the treatment of his addiction, and the fact that probation had not served its rehabilitative purpose. Our examination of the record, contrary to appellant’s contention, does not disclose that there is a “substantial question that the sentence [was] not appropriate.” Therefore, we decline to review further the discretionary aspects of the sentence imposed by the trial court.

Appeal disallowed.

OLSZEWSKI and HOFFMAN, JJ., file a concurring opinion.

OLSZEWSKI, Judge,

concurring:

Given the decision by this Court in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), I am duty bound to join in the Opinion by Judge Wieand. I write separately merely to restate my position on the procedural issue raised by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

It is my belief that where an appellant fails to comply with Pa.R.Civ.P. 2119(f), we may, as an exercise of our discretionary power, decline to excuse the procedural violation. Where, as here, the waiver of a procedural violation results in a prohibited post hoc determination of the merits of a discretionary aspect of sentencing, see Commonwealth v. Tuladziecki, 513 Pa. at 511, 522 A.2d at 19, we should not take it upon ourselves to determine whether there exists a substantial question regarding a discretionary aspect of sentencing. See Commonwealth v. Rivera, 365 Pa.Super. 361, 363 n. 1, 529 A.2d 1099, 1100 n. 1 (1987) (Opinion by Olszewski, J.). Nonetheless, because this position has not been accepted by the Court, I agree with Judge Wieand that we must disallow this appeal.

HOFFMAN, Judge,

concurring:

In light of the recent decision by this Court, sitting en banc, in Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987), I am constrained to join in Judge Wieand’s Opinion.

For the reasons I have set forth in Commonwealth v. Zeitlen, 366 Pa.Superior Ct. 78, 530 A.2d 900 (1987) and Commonwealth v. Rivera, 365 Pa.Superior Ct. 361, 364, 529 A.2d 1099, 1100 (1987) (HOFFMAN, J., Concurring), it remains my opinion that the better course in these cases is to allow appellants to supplement their briefs to provide a concise statement of the reasons relied upon for allowance of appeal as required by Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Commonwealth v. Krum, however, this Court, sitting en banc, held that an appellant’s failure to comply with the requirements of Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Commonwealth v. Krum, supra 367 Pa.Superior Ct. at 518, 533 A.2d at 138.

Despite my reservations, I am bound by the majority view in Krum, which has been echoed so forcefully by Judge Wieand in the instant case. Moreover, my primary concern at this point is in ensuring that similarly situated appellants in these cases be afforded the same treatment. I hope that the decision in Krum will put an end to the disparate treatment that appellants have received in this Court since the Supreme Court’s decision in Tuladziecki. Accordingly, I join in Judge Wieand’s determination that, in the instant case, the Commonwealth’s failure to object to the defect in appellant’s brief operates as a waiver of the defect. Moreover, turning to the specific claim raised by appellant, I also join in Judge Wieand’s determination that, upon examination of the record, appellant has failed to raise a substantial question regarding the appropriateness of his sentence. I therefore agree that we must disallow the appeal.

      . The validity of the sentencing guidelines is not an issue in this appeal; and, therefore, the decision of the Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is not implicated.


author: TAMILIA, Judge:

text:
    534 A.2d 833
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas JANIAK.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed Dec. 11, 1987.

      Kenneth Osokow, Assistant District Attorney, Williams-port, for Com., appellant.
    Nancy Butts, Williamsport, for appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This is a timely appeal by the Commonwealth of a trial court Order granting appellee’s motion to suppress evidence, in the form of the results of a blood test, obtained by police as the result of the police stopping appellee’s automobile on September 12, 1986. Appellee is charged with driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(4).

The pertinent factual circumstances leading to appellee’s arrest as found by the suppression court are as follows:

On September 12,1986 two officers of the Williamsport Bureau of Police were in a police cruiser on duty in Williamsport at approximately 2:59 a.m. when they received a radio communication from County Communication facility that an individual had been reported in an intoxicated condition near gas pumps at a convenience store which was located one long block to the south and a long block to the west of the officers’ location. That first dispatch indicated that the individual was about to drive away. The officers immediately turned in a southerly direction and as they approached the intersection with the east-west street they received a second telecommunication that the individual was now driving in an easterly direction on West Third Street. That would mean, according to the report, the vehicle would be proceeding from right to left on the intersecting street. The officers had seen no traffic going in any direction on the street that they had been on originally, no traffic going in either direction on the north-south street that they were presently on, and there was only one vehicle on the east-west intersecting street. That vehicle was somewhat to the east of the convenience market proceeding in an easterly direction toward the officers. The officers waited until the vehicle passed their location and then they made a left turn so as to follow the vehicle. They immediately activated their lights and stopped the vehicle at the next intersection. The only observation that they made with respect to the manner of operation of the vehicle was that it was proceeding at 15 to 20 miles per hour. Both officers stated that the sole reasons for their stop were (a) the report that an intoxicated individual was operating the vehicle, and (b) their belief under all of the circumstances that the vehicle could only be the one in question.

(Slip Op., Raup, P.J., 2/4/87, pp. 1-2.)

We have before us the sole issue of whether the arresting officers had a legal basis to stop appellee’s vehicle and investigate his condition.

The standard for appellate review of an Order suppressing evidence was well stated by our Court in Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212-13 (1986):

Our scope of review is limited primarily to questions of law. See Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978); Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977). We are bound by the suppression court’s findings of fact, if those findings are supported by the record. Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985); Commonwealth v. Brown, 341 Pa.Super. 138, 491 A.2d 189 (1985). In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellees and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984).
However, we are ‘not bound by findings wholly lacking in evidence.’ Hamlin, 469 A.2d at 139, citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). Nor are we bound by the suppression court’s conclusions of law. Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. Scatena, 332 Pa.Super. 415, 481 A.2d 855 (1984).

See Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Our courts have articulated guiding principles to protect the rights of the individual when confronted with a search and seizure of an automobile:

An individual has a reasonable expectation of privacy in an automobile and when a vehicle is stopped by a police officer, a seizure within the meaning of the Fourth Amendment has occurred. Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985).
[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.
Id., 348 Pa.Superior Ct. at 312, 502 A.2d at 224 (emphasis added), quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979); see also, Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973).

Commonwealth v. Edwards, 355 Pa.Super. 311, 314, 513 A.2d 445, 446-47 (1986). “[I]t must be emphasized that any stop involves a balancing on the one hand, of the interest of private citizens in being free from unreasonable searches and seizures with, on the other hand, the societal interests in providing for the enforcement of the law for the protection of the community.” Commonwealth v. Palm, 315 Pa.Super. 377, 382, 462 A.2d 243, 246 (1983). “To justify an investigative stop, a police officer must rely on ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion’.” Commonwealth v. Mayo, 344 Pa.Super. 336, 341, 496 A.2d 824, 826 (1985) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)).

The United States Supreme Court has been careful to point out:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary Terry [supra] recognizes that it may be the essence of good police work to adopt on intermediate response____ A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time____

Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972) (citations omitted).

We held in Commonwealth v. Benson, 239 Pa.Super. 100, 107, 361 A.2d 695, 698 (1976), aff'd per curiam, 482 Pa. 1, 393 A.2d 348 (1978), that the “intermediate response” outlined in Adams permitted the police in the early stage of their investigative work to rely on radio information to make a stop of individuals suspected of criminal activity. Likewise, in Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981), we found that information supplied to a police officer over a police radio that a burglary had been committed at a specific location, that the perpetrator would be driving a truck matching a particular description, and that the truck would be filled with certain stolen items allowed the officer to make an investigatory stop of a vehicle matching the description even though the officer had not “personally observed ‘unusual conduct’ ” or criminal conduct from the vehicle. Id., 293 Pa.Superior Ct. at 69, 437 A.2d at 994 (emphasis in original). Additionally, the officer in Prengle upon receiving the radio broadcast proceeded to and positioned his vehicle near an exit ramp of an expressway near the reported location of the burglary in an effort to cut-off the reported vehicle. Just some fifteen minutes from receiving the radio broadcast and only five minutes from reaching the exit ramp the officer in Prengle spotted the truck and made the stop.

As in Prengle, the officers here were informed by two radio communications that a crime, i.e. driving while under the influence, was being committed and, within minutes of the reports, while acting in response to the reports, the officers saw a vehicle driving on the exact roadway and coming from the exact direction the vehicle was reported to be proceeding from. The trial judge found that based on its findings of fact “the police officers had reasonable grounds to believe that the individual who was the subject of the telephone calls in question was driving the vehicle which they in fact stopped.” (Slip Op., Raup, P.J., 3/16/87, p. 1). We find no abuse of discretion on the trial court’s part in its determination that appellant’s vehicle was in fact the vehicle in the police radio broadcast. Consequently, we find the police officers acted with reasonable suspicion and possessed specific and articulable facts which warranted the stop of appellant’s automobile. Therefore, we reverse the trial court’s suppression Order and find the evidence obtained as a result of the investigatory stop performed by the officers is admissible.

We find Commonwealth v. Lagana, 356 Pa.Super. 132, 514 A.2d 179 (1986), relied upon by the trial court, to be distinguishable from the present circumstances. Although the investigating officer in Lagaña acted on a radio broadcast, we found that because the description given in the broadcast was lacking in specifics and because there was no information linking the individual described with any crime, “the quantum of reasonable suspicion necessary even for a temporary stop was absent.” Id., 356 Pa.Superior Ct. at 137, 514 A.2d at 182. In Lagana, the only information broadcasted was that a white male, aged twenty to twenty-five, wearing a yellow raincoat and carrying a gun was present in the vicinity of a certain street intersection; when the officer arrived he testified it was raining and that there were between twenty to thirty people in the immediate area. The fact that the officer in Lagana was not acting on the investigation of a particular crime alone makes Lagana wholly distinguishable from the present situation, and coupled with the unspecific description which led to uncertainty in the identity of the individual stopped as being the one described and the conditions at the scene of the stop, we find Lagana is not controlling in this case.

Order reversed; case remanded for trial.

Jurisdiction relinquished.

      . We specifically stated in Prengle, supra, 293 Pa.Superior Ct. at 70, 437 A.2d at 995, that: "[t]he facts of this case are illustrative of a proper investigatory stop and an incident frisk.”


text:
    534 A.2d 836
    COMMONWEALTH of Pennsylvania v. Robert SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1987.
    Filed Dec. 16, 1987.

      John P. Hendrzak, Assistant Public Defender, Doylestown, for appellant.
    Lawrence M. Cherba, Assistant District Attorney, Doylestown, for Com., appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

Appellant Robert Smith appeals from the judgment of sentence of the Court of Common Pleas of Bucks County entered on November 21, 1986. Appellant was convicted by a jury of homicide by vehicle, involuntary manslaughter, and driving under the influence of alcohol. He was sentenced to a period of incarceration of 29V2 to 59 Vz months on the homicide by vehicle charge and a consecutive two year period of probation on the driving under the influence charge.

Appellant was the operator of a motor vehicle involved in a two vehicle accident on August 13, 1985. The evidence presented at trial established that appellant’s vehicle had crossed the center line of the highway and struck a vehicle operated by Mrs. Margery Dewar head on. The impact of the crash sent Mrs. Dewar’s vehicle over an embankment, killing her. Blood tests taken two hours after the accident revealed that appellant’s blood alcohol content was 0.09%.

Appellant was convicted by a jury of homicide by vehicle, involuntary manslaughter, and driving under the influence of alcohol. A sentencing hearing was held, at which the victim’s husband testified. A presentence investigation was also submitted. The trial judge sentenced appellant to a term of 29Va to 59V2 months imprisonment on the homicide by vehicle conviction and a consecutive 2 year period of probation on the driving under the influence conviction. In addition, the trial judge ordered one hundred hours of community service to be performed during the probationary period and two hundred hours during the parole period. The court granted a reconsideration of sentence hearing but made no changes in appellant’s sentence. This timely appeal seeking remand for resentencing followed.

Appellant claims that the trial court abused its discretion because it failed to consider the sentencing guidelines in imposing sentence. He also contends that the reasons set forth for deviating from the sentencing guidelines and imposing a sentence of 29V2 months to 59V2 months, one half month less than the five year statutory maximum sentence, were wholly insufficient.

Appellant appeals from a discretionary aspect of sentence. We as an appellate court may allow such an appeal “where it appears that there is a substantial question that the sentence imposed is not appropriate____” 42 Pa.C.S.A. § 9781(b). The proper procedure to be followed in cases brought under Section 9781(b) is set forth in Pa.R.A.P. 2119(f), which states, in part, that “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence.” See Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 20-21 (1987). Because the failure to conform to the appellate rules when challenging a discretionary aspect of sentencing is a procedural defect, such a defect is waived if it is not objected to by appellee. In that event, the failure to comply with Pa.R.A.P. 2119(f) may be overlooked. Commonwealth v. Krum, 367 Pa.Super. 511, 517-518, 533 A.2d 134, 137 (1987) (en banc)) Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 391, 529 A.2d 1112, 1114 (1987).

Because appellant’s brief in the case before us does not contain a “concise statement of the reasons relied upon for the allowance of appeal,” it does not conform to the requirements of Pa.R.A.P. 2119(f). However, the Commonwealth’s failure to object to this procedural defect effects a waiver of the defect. Therefore, this Court will decide whether this appeal will be allowed by determining whether there exists a “substantial question” that the sentence involved in the instant case is not appropriate. See 42 Pa.C.S.A. § 9781(b); Krum, supra.

We find that appellant’s assertion that the trial court abused its discretion in deviating from the guidelines does not present us with a substantial question with respect to the appropriateness of his sentence. In Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144, we stated:

while the sentencing court is required to ‘consider’ the applicable guidelines, and while the reasons for any deviation from the applicable standard range of the guidelines must be in writing, the determination of whether the sentence is ‘not appropriate,’ ‘clearly unreasonable,’ or ‘unreasonable’ must be made with reference to the sentencing code as a whole, not solely with reference to the provisions of the sentencing guidelines, Commonwealth v. Tuladziecki, supra, [513 Pa.] at 514, 522 A.2d at 20; see also 42 Pa.C.S.A. 9781(b) and (c).

Id., 366 Pa.Superior Ct. at 608, 531 A.2d at 1150. (Slip opinion at 10-11). The trial courts of this Commonwealth are afforded substantial deference in sentencing. Generally, the trial court’s determination of an appropriate sentence will be upheld, so long as the sentence is within the statutory maximum, they place their reasons for the sentence on the record, and they adhere to the general standard “... that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant — ” 42 Pa.C.S.A. § 9721(b). See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). There is no requirement that the sentence imposed be within the recommended guidelines. However, if the sentencing court deviates from the guidelines it must provide a contemporaneous written statement of its reasons for deviating from the guidelines. The requirement of a contemporaneous written statement is satisfied when the judge states his reasons for the sentence on the record and in the defendant’s presence. See Commonwealth v. Chesson, 533 Pa.Super. 255, 509 A.2d 875 (1986); Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984).

In the case at bar, the trial court clearly complied with the aforementioned requirements. Our review of the trial judge’s colloquy delivered at sentencing proceeding reveals that, while he was influenced by the seriousness of the offense, he also considered the sentencing guidelines; the impact of the crime on the victim and the community; the rehabilitative needs of appellant; and a presentence report in imposing a sentence which is within the statutory limits. As a result, there is not a substantial question regarding the appropriateness of appellant’s sentence.

Accordingly, judgment of sentence is affirmed.

      . 75 Pa.C.S.A. § 3732.

      . 18 Pa.C.S.A. § 2504.

      . 75 Pa.C.S.A. § 3731.

      . The trial court initially imposed the 2 year probation on the involuntary manslaughter conviction; however, after recognizing that the homicide by vehicle and the involuntary manslaughter convictions merged for sentencing purposes, the trial court re-imposed the probationary period on the driving under the influence conviction. See Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981).

      . According to the Sentencing Guidelines, the mitigated range for homicide by vehicle in this case is non-confinement; the standard range 0-12 months; the aggravated range 12-18 months. See 42 Pa.C.S.A. § 9721. The maximum permissible sentence permitted for homicide by vehicle, a misdemeanor of the first degree, is five years. See 18 Pa.C.S.A. § 1104.

      . We note that our supreme court’s recent decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775, which invalidated the Pennsylvania Sentencing Guidelines, is inapplicable to the present case. In Sessoms the court limited the applicability of its decision by instructing that it be retroactively applied only to those cases where a challenge to the constitutionality of the sentencing guidelines has been properly preserved throughout all stages of adjudication, up to and including any direct appeal. Id., 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2, citing Commonwealth v. Cabeza, 503 Pa. 224, 233, 469 A.2d 146, 148 (1983). See also Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404, (challenge to constitutionality of the guidelines must be preserved in order for Sessoms to apply retroactively). Because appellant has not preserved a challenge to the constitutionality of the guidelines, Sessoms is inapplicable and judgment of sentence may be reversed only if the trial court abused its discretion in deviating from the guidelines.


author: CIRILLO, President Judge:

text:
    534 A.2d 839
    Gregory ALLEN, Appellant, v. ERIE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1987.
    Filed Dec. 21, 1987.

      Stephen J. Greenfield, Philadelphia, for appellant.
    T. Kevin Fitzpatrick, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and JOHNSON, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Honorable Charles A. Lord of the Court of Common Pleas of Philadelphia County awarding a verdict in favor of appellee Erie Insurance Company (Erie) in appellant Gregory Allen’s suit to recover first-party benefits under the Motor Vehicle Financial Responsibility Law (the Act), 75 Pa.C.S. §§ 1701-1798, following an automobile accident.

Allen was operating a vehicle owned by Linda Walker when it was involved in an accident. The Walker vehicle was insured by Erie, and the policy in effect at the time of the accident provided for first-party benefits in the form of payment of medical bills and lost wages pursuant to the Act. Erie denied Allen’s claim on the grounds, contained in section 1714 of the Act , that at the time of the accident Allen was the owner of an uninsured, registered vehicle. Allen was the owner of a 1968 Pontiac Firebird which had been inoperable for some six or seven months before the accident. Allen had maintained the registration on the Firebird because he hoped to return the car to running order. He had, however, allowed the insurance on the vehicle to lapse.

Allen brought suit to recover first-party benefits from Erie alleging his eligibility for such payment from Ms. Walker’s insurance company under section 1713(a)(3) of the Act. The matter went to trial and resulted in a verdict for Erie. Allen appeals that verdict to this court.

This case presents an issue of law of first impression for this court. There is, however, an excellent court of common pleas opinion addressing the constitutionality of section 1714 on equal protection grounds which we find helpful in the disposition of this appeal. In Mowrey v. Prudential Property & Casualty Ins. Co., 37 Cumb.L.J. 180 (Pa.C.P., Jan. 13, 1987), the Honorable Edgar J. Bayley ruled that application of section 1714 to deny first-party benefits was not unconstitutional where the plaintiff, injured as a passenger in a vehicle insured by Prudential, was the owner of a registered but uninsured vehicle. The plaintiff in that case argued that section 1714 did not set forth a rational basis for her exclusion from first-party benefits because she still would have been entitled to recovery under section 1713(a)(3) if her vehicle were uninsured as long as it was unregistered. Judge Bayley concluded “that the Legislature could properly determine that the potential risk to the financial stability of the insurance system of an operator actually driving an uninsured registered vehicle, was far greater than the potential risk of an operator driving an uninsured unregistered vehicle.” 37 Cumb.L.J. at 186-87. He reasoned that “[a] system of mandatory financial responsibility in reference to rights of recovery under section 1714, related only to the use of a vehicle, would be virtually impossible to enforce.” Id. at 187.

We believe Judge Bayley’s opinion to be a sound and well-reasoned discussion of the section of the Motor Vehicle Financial Responsibility Law at issue in the instant appeal. Like the plaintiff in Mowrey, Allen argues that he should be allowed to recover under section 1713(a)(3) regardless of the registration of a vehicle he owns which was not involved in the accident giving rise to the claim.

Allen offers several bases for his argument. He first points to the legislative intent underlying the enactment of the Motor Vehicle Financial Responsibility Law in 1984. Allen maintains that the principal purpose of the Act is to prevent uninsured motor vehicles from being operated on the highways and that there is no real reason to have an inoperable motor vehicle insured. While this is true, as the trial court pointed out, it may not be the exclusive reason for enactment.

In passing the Act, the Legislature was primarily concerned with the rising consumer cost of automobile insurance, created in part by the substantial number of uninsured motorists who contributed nothing to the pool of insurance funds from which claims were paid. See J. Ronca, L. Sloane & J. Mundy, Pennsylvania Motor Vehicle Insurance, §§ 1.2(b), 3.2(a); Senate Legislative Journal 1142-54 (Oct. 4, 1983); House Legislative Journal 2138-91 (Dec. 13, 1983). The Act has the effect of requiring all owners of registered vehicles to share in the burden of insurance before they can obtain the benefits. By denying benefits to a certain class of people — those not insuring their registered vehicles — the Act encourages the purchase of insurance by all owners who register vehicles which can be legally operated on the highways. It is logical and reasonable to conclude that any vehicle potentially operable, as evidenced by an owner’s registration of such a vehicle, was meant to be included. As our Supreme Court has stated, “[t]he state has a legitimate object in seeing that all motorists are covered by adequate insurance.” Singer v. Sheppard, 464 Pa. 387, 404, 346 A.2d 897, 906 (1975).

Allen next argues that, because his vehicle was not being “maintained or used”, he does not fall within the definition of “financial responsibility” in section 1702 of the Act and is therefore excused from the need for financial responsibility as comtemplated by section 1714. We find this argument unpersuasive as it misconstrues the wording of the definition. Financial responsibility refers to the ability to respond in damages in specified situations, namely motor vehicle accidents. Such accidents are not limited to those in which a particular individual’s vehicle is involved but, rather, include any motor vehicle. The definition reaches well beyond the specific vehicle registered to the person whose financial responsibility may be at issue as the result of any given accident.

The trial court’s opinion found that Erie was correct in its denial of benefits and that, although the undisputed testimony showed that by the date of the accident Allen’s vehicle had long been inoperable, that in no way entitled him to collect first-party benefits from Erie. The trial court reasoned that section 1714, which makes no distinction between operable and inoperable registered vehicles, was clear and unambiguous and declined to judicially create an “inoperable vehicle” exception to the statute’s prohibition on the eligibility for first-party benefits of owners of uninsured registered vehicles. We agree.

When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b); Zimmerman v. O’Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982); see also Chester v. Government Employees Ins. Co., 302 Pa.Super. 356, 361, 448 A.2d. 1080, 1082 (1982), rev’d on other grounds, 503 Pa. 292, 469 A.2d 560, amended on other grounds, 504 Pa. 427, 475 A.2d 102 (1984). Section 1714 clearly applies to “currently registered motor vehicle[s].” Further, since the legislature did not provide for any exceptions when enacting section 1714, their non-inclusion of exceptions must be construed as intentional where there is no other meaning fairly implied from the legislative intent. Hochgertel v. Canada Dry Corp., 409 Pa. 610, 614, 187 A.2d 575, 577 (1963).

To interpret the statute as Allen urges would unnecessarily invite litigation in an area of the law currently easily enforceable. As Judge Lord said in his opinion in this matter,

To make this exception would obviously create litigation on the question of operability where none was intended. Such questions as: How long is a motor vehicle required to be inoperative before there is coverage? What makes it inoperable — a dead battery? would have to be determined judicially. The legislature obviously did not intend these exceptions to be grafted upon its statute.

Erie correctly notes that the driveability or operability of Allen’s vehicle is not a consideration in determining whether he is entitled to recovery of first-party benefits; the guideline is simply whether the vehicle has been registered with the Commonwealth. If it has been and is uninsured at the time of the accident giving rise to the claim for first-party benefits, section 1714 operates to deny recovery. As Judge Bayley said of the plaintiff in Mowrey, “[the plaintiff] could have avoided ineligibility to recover first-party benefits under section 1714 by either purchasing adequate insurance, or by not registering the vehicle, or by cancelling the registration on [the] vehicle.” 37 Cumb.LJ. at 186. Allen’s offered justification that the Commonwealth never notified him of an obligation to turn in the registration once his insurance lapsed is without merit.

For the foregoing reasons we affirm the trial court’s verdict in favor of appellee Erie Insurance Company.

ORDER AFFIRMED.

      . This section of 75 Pa.C.S.A., the interpretation of which is at issue in the instant appeal, reads:
      An owner of a currently registered motor vehicle who does not have financial responsibility [as defined in section 1702] or an operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle, motorized pedalcycle or like type vehicle required to be registered under this title cannot recover first-party benefits.

      . 75 Pa.C.S. § 1713(a) reads:
      (a) General rule. — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first-party benefits against applicable insurance coverage in the following order of priority:
      (1) For a named insured, the policy on which he is the named insured.
      (2) For an insured, the policy covering the insured.
      (3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.
      (4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident. For the purpose of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury.

      . 75 Pa.C.S. reads, in pertinent part:
      § 1702. Definitions
      The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
      “Financial responsibility.” The ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of §5,000 because of damage to property of others in any one accident. The financial responsibility shall be in a form acceptable to the Department of Transportation.


author: DEL SOLE, Judge:

text:
    534 A.2d 842
    Leroy F. BROWN, Appellant, v. RACQUETBALL CENTERS, INC., t/d/b/a Lehigh Valley Racquet and Fitness Centers, Appellee.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1987.
    Filed Dec. 22, 1987.

      James M. Lillis, Reading, for appellant.
    Jeffrey R. Dimmich, Allentown, for appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

The Plaintiff/Appellant, Leroy Brown, commenced this action by a complaint filed on April 11, 1986, against Defendant/Appellee Racquetball Centers, Inc., t/d/b/a Lehigh Valley Racquet & Fitness Centers. (Racquetball Centers, Inc., owns and operates several facilities, including the Westend Racquetball Club hereinafter designated as the “Club”). When Brown became a member of the Club on September 27, 1984, he was required to complete and sign a two sided application form, which included the following release:

I, LeRoy F. Brown, voluntarily enter the Westend Racquet Club, ... to participate in the athletic, physical and social activities therein. I have inspected the premises and know of the risks and dangers involved in such activities as are conducted therein and that unanticipated and unexpected dangers may arise during such activities. I hereby and do assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities in and about those premises. (Emphasis added).
In consideration of the permission granted to me to enter the premises and participate in the stated activities, I hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators and sponsors of the premises and its activities and equipment and their respective servants, agents, officers, and all other participants m those activities of and from all claims, demands, actions and causes of action of any sort, for injury sustained to my person and/or property during my presence on the premises and my participation in those activities due to negligence or any other fault.

On May 9, 1985, as Appellant was exiting the shower facilities at the Club, he slipped on the wet tile floor and fell, striking his head and suffering numerous injuries. Appellant claims that this accident was a direct and proximate result of the Appellee’s negligent maintenance of the shower room. In its New Matter, the Club contended that the application form signed by Brown, operated to release the Club from liability for Brown’s injuries. The Club filed a motion for Summary Judgment which was granted by Order of May 6, 1987. For the reasons expressed herein we reverse.

Generally, an exculpatory clause is valid if:

(a) it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or state; (b) the contract is between persons relating entirely to their own private affairs; (c) each party is a free bargaining agent and the clause is not in effect a mere contract of adhesion whereby one party simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.

Princeton Sportswear Corp. v. H & M Associates, 510 Pa. 189, 193, 507 A.2d 339, 341 (1986).

In the case sub judice there is no need to address whether the release contravened public policy or satisfied the other criteria, since we find that in no way does this release absolve the releasee of liability for its own acts of negligence.

The law requires that before an exculpatory clause will be interpreted and construed to relieve a person of liability for that party’s own or its servants’ or agents’ acts of negligence it must:

spell out the intention of the parties with the greatest of particularity ... and show the intent to release from liability beyond doubt by express stipulation and no inference from words of general import can establish it.

Id. 510 Pa. at 193, 507 A.2d at 341 (citations omitted).

The release in question does not spell out the intention of the parties with the necessary particularity. The language does not set forth in an unambiguous manner that the releasor, in signing the agreement, intends to absolve the releasee of liability for the releasee’s own negligence. Instead, the language can more clearly be interpreted to relieve the Club of liability as the result of injuries sustained by a member while participating in certain activities of the Club.

Contracts providing for immunity from liability from one’s own negligent acts are disfavored by the law and therefore require strict adherence to the above elaborated standards. Employers Liability Assurance Corporation v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966). The release signed by Appellant Brown does not satisfy these standards. In so holding we reverse the order of the trial court granting summary judgment in the favor of Appellee.


text:
    534 A.2d 1057
    John M. METZGER v. Ana Maria METZGER, Appellant. Ana Maria METZGER, Appellant, v. John Mark METZGER. John M. METZGER, Appellant, v. Ana Maria METZGER. Ana Maria METZGER v. John Mark METZGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Nov. 10, 1987.
    Reargument Denied Jan. 6, 1988.

      B. Ryland Wiggs, III, Bethlehem, for appellant in Nos. 292 and 293 and appellee in Nos. 372 and 373.
    Arthur L. Jenkins, Jr., Norristown, for appellant in Nos. 372 and 373 and appellee in Nos. 292 and 293.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

On September 23, 1980, John Metzger, hereinafter referred to as “Husband”, filed a complaint for divorce seeking equitable distribution. Two days later, Ana Maria Diaz Metzger, hereinafter referred to as “Wife”, also filed a divorce complaint in which she sought equitable distribution, alimony pendente lite, alimony, counsel fees, and expenses. Upon request of Husband, a bifurcated divorce was granted; the decree of divorce pursuant to 23 P.S. § 201(d) of the Divorce Code was entered on December 28, 1984. The remaining disputes associated with the parties’ divorce were referred to a Master. Following several hearings, the Master’s Report and Recommendation was filed on December 23, 1985. Both parties proceeded to file exceptions to the Report. Following argument, the trial court filed an order and opinion on December 30, 1986.

Although raised by neither party, we must determine whether or not Wife has preserved the majority of the issues she now advances on appeal. Pa.R.C.P. 1920.55 sets out the time limits to be followed when filing exceptions to a master’s report:

[wjithin ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report ...

The record reveals that the Master’s Report was filed and mailed to the parties on December 23, 1985. Timely exceptions were filed by Husband on December 31, 1985. However, Wife did not file her exceptions until January 3, 1986. Recently, in Sipowicz v. Sipowicz, 358 Pa.Super. 319, 517 A.2d 960 (1986), we held that a party’s failure to file timely exceptions within ten days as required by Rule 1920.55 resulted in a waiver of those claims of error raised on appeal. Id., 358 Pa.Superior Ct. at 324, 517 A.2d at 963. Instantly, Wife’s exceptions were filed 11 days after the Master’s Report was mailed. Therefore, all of the issues which Wife could have raised in timely exceptions to the Master’s Reports are now considered waived on appeal.

We are mindful, though, that no exceptions need be filed to preserve for appeal issues which claim that the trial court erred when it entered an order which altered the terms of the master’s report and recommendation. This is based on the fact that Rule 1920.55(c) does not permit the filing of motions for post-trial relief after a decree has been entered. Accordingly, the first opportunity to raise certain objections to the trial court’s treatment of a divorce case is through a direct appeal. Such claims are therefore preserved. Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986).

As stated, supra, we shall not address the plethora of issues raised by Wife which challenge the trial court’s adoption of particular portions of the Master’s Report. However, Wife’s issue with respect to the trial court’s determination that she share in the costs associated with the parties’ divorce is preserved insofar as the first time it could have been raised was by direct appeal. We now turn to the issues raised by the parties.

Husband’s Navy Pension

Husband argues that the trial court erred in ruling that his Naval pension was marital property subject to equitable distribution. It is Husband’s position that military pensions are not property subject to division in adjudications involving marital property. Husband relies upon the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408 (1986) which states:

[i]f the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.

10 U.S.C. § 1408(d)(2) (1986). Subsection (c) of § 1408 provides:

a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

Husband claims that Wife was not married to him during ten years of his credible service in the military; therefore, she is barred by the Act from receiving any portion of the Naval pension. We disagree.

We note that the specific provisions found in § 1408 refer only to court orders which concern payments made pursuant to a military pension after June 25, 1981. Instantly, the trial court’s decision with respect to the Naval pension did not affect any payments which Husband may receive from the plan. Rather, the trial court’s formula in valuing the Naval pension for equitable distribution purposes — the “immediate offset method” — would determine only that portion of the pension which accrued during the marriage. Clearly, § 1408 of the Act does not speak to the equitable distribution of a military pension and is not applicable to the case at bar.

Having decided that a Naval pension may be subject to equitable distribution, we must address Husband’s claim that the pension was earned prior to the parties’ marriage. “Each spouse has a reasonable expectation of enjoying the monies received from an employee retirement fund.” Braderman v. Braderman, 339 Pa.Super. 185, 194, 488 A.2d 613, 617 (1985). In Flynn v. Flynn, 341 Pa.Super. 76, 83, 491 A.2d 156, 160 (1985), we commented on the reasoning upon which this general rule is grounded:

[sjince a pension benefit is an economic resource acquired with funds that would otherwise have been utilized by the parties during their marriage to purchase other assets, it constitutes marital property. This determination is made without regard to the possibly contingent nature of the pension, whether or not it has vested or matured.

Based on this analysis, the only time span which is relevant for equitable distribution purposes will be the total period of time Husband participated in the pension “from date of marriage until date of separation.” LaBuda v. LaBuda, 349 Pa.Super. 524, 536, n. 9, 503 A.2d 971, 977, n. 9 (1986). See Braderman, supra, 339 Pa.Superior Ct. at 198, 488 A.2d at 619. This is true insofar as all other excluded time represents periods in which the Naval pension was not acquired with funds otherwise available to the parties during marriage. In the case sub judice, Wife will be eligible to receive the extrapolated value of the pension from the parties’ date of marriage on February 25,1972 until Husband’s June 30, 1974 retirement from the Navy.

We note, however, that the trial court directed Husband to submit opinion proof of the pension’s value at the time of separation. This decision was based on the fact that no testimony was admitted into evidence with respect to the value of the pension plan. In fact, the record does not reflect any substantial discussion of Husband’s pension at all. In King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984), a similar situation occurred. In that case, an actuary testified at the Master’s hearing; however, when the witness was asked what was his opinion of the value of the husband’s pension, the wife’s counsel objected. Subsequent to the hearing, the actuary submitted a report to the wife’s counsel which estimated the pension’s value. This report was later used by the court en banc in dividing the pension fund. On appeal, this Court criticized the trial court’s reliance on this report insofar as it was never actually admitted into evidence. Id., 332 Pa.Superior Ct. at 532-533, 481 A.2d at 916.

We are of the opinion that it would be improper for the trial court to rely on the opinion proof submitted by Husband without it first being admitted into evidence and subject to challenge by Wife. For this reason, we must remand the case to the trial court for a hearing on the present value of the Navy pension. •

65/35 Distribution

Husband submits that the trial court erred in concluding that the division of certain marital property would be 65% to Husband and 35% to Wife. Previously, the Master recommended that the division should be 80% and 20%, respectively. We disagree.

We begin with our appellate scope of review. It is well established in this Commonwealth that an order determining equitable distribution of marital property shall not be reversed absent a finding that the trial court abused its discretion. Baraff v. Baraff 338 Pa.Super. 203, 210, 487 A.2d 925, 929 (1985). “Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretions.” Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985).

By his opinion, the trial judge considered the relevant history of the instant case. This review was guided by the relevant factors contained in § 401(d) of the Divorce Code. The trial court duly recognized the health, age, employment, and financial prospects of both parties. Of particular importance, testimony concerning Wife’s ability to work was studied. Wife’s health was found to be fair; she was under the supervision of various physicians for physical and emotional problems. Despite Wife’s testimony that she is unfit to work, no evidence was submitted which would substantiate that claim. The trial court recognized that Wife holds a doctorate degree in education and had taught as an associate professor of language at Muhlenberg College. Further, Husband’s economic expert opined that, based on her education and work experience, Wife was capable of commanding a salary between $12,000 and $15,-000 per year. Wife’s other sources of income were also closely examined.

We have conducted an independent review of the record so that all aspects of this case may be scrutinized. Upon deliberation, we find that the trial court’s adjustment of the Master’s original distribution ratio from 80/20 to 65/35 reflects an insightful understanding of the various circumstances associated with each party’s social and economic conditions. Therefore, we find no abuse of discretion.

Oakhurst Lots

Husband posits that the trial court erred in awarding Wife a 35% share of the increase in value of certain real estate property referred to as the Oakhurst lots. The Master’s Report categorized this property as non-marital since the lots were acquired prior to the parties’ marriage and the proceeds from the sale of the parcels were paid to Husband’s first wife. The trial court disagreed and found that, while the lots were non-marital, any increase in their value during Husband’s second marriage was subject to equitable distribution. Husband does not argue that Wife should not share in the increased value of the property accumulated during their marriage. Rather, it is averred that the trial court failed to consider that Husband only owned one-half of the Oakhurst property. Thus, Wife should be permitted to share in only one-half of the increased value of the property in question.

The record demonstrates that during the Master’s hearing held on May 2, 1984, Husband was permitted to introduce into evidence an Agreement which he entered into with his first wife, Jean. Essentially, the Agreement was a property settlement with reference to the Oakhurst lots. The terms set out in that document provided that the net proceeds from the sale of the Oakhurst property would be divided in the following manner. Husband’s first wife would receive a lump sum payment of $50,000. After Husband’s capital gain taxes were paid, the balance remaining was to be evenly divided between the two parties to the Agreement.

We are unable to determine whether or not the trial court in fact referred to the Agreement in calculating the distribution of the value of this property between Husband and Wife. The trial court opinion merely stated that:

[i]n determining the increase in value to be distributed, an average yearly increase was determined from the number of years the lots were retained. This sum was then divided into the difference between the purchase price and the sale price. This annual average increase was then multiplied by four, being the number of years that the parties were married and living together.
The increase in value of all eight lots totalled $22,417.00. Using the proportion of sixty-five/thrity (sic)-five, wife is to be awarded $7,846.30 while husband retains an interest of $14,571.70.

(Trial Court Opinion, 14).

Pa.R.App.P. 1925(a) mandates that an opinion filed by the trial court must specify “the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.” See Nigrelli v. Cody, 281 Pa.Super. 156, 421 A.2d 1195 (1980). Although the trial court did file a lengthy opinion discussing various aspects of this case, we find that we were not supplied with with sufficient information from which to conclude whether or not the apportionment between the parties was an abuse of discretion. Accordingly, we must remand this aspect of the case so that the trial court may file an opinion in which the valuation and distribution processes utilized with respect to the Oakhurst lots are sufficiently explained.

Costs

The sole issue preserved by Wife on appeal is her argument that Husband should be directed to pay the Master’s fees and other costs incurred in the parties’ litigation. The Master’s Report originally recommended that Wife be accountable for $100, and Husband $2642.30, of the Master’s fees. The remaining stenographic and other costs were to be paid by Husband. The trial court rejected this apportionment and decided that these costs were to be paid in the ratio of 65% to be paid by Husband and 35% to be paid by Wife. Wife maintains that Husband should be responsible for these amounts.

It is axiomatic that it is within the trial court’s discretion to decide matters of alimony, equitable distribution, and assessment of fees. Before these decisions are disturbed by this Court, we must first find that the trial court plainly abused that discretion. Chaney v. Chaney, 343 Pa.Super. 77, 84, 493 A.2d 1382, 1385 (1985). Upon review of the record, we do not find that the trial court abused its discretion in apportioning these costs. Therefore, we shall not disturb that determination.

Order affirmed in part. Case remanded for proceedings and preparation of trial court opinion consistent with this opinion. Jurisdiction of this court retained. Jurisdiction of this panel relinquished.

      . The trial court states in its opinion that Wife received written notice of the filing of the Master’s Report on December 26, 1985 and that Wife’s exceptions were filed on January 3, 1986. From these dates, the trial court concluded that Wife's exceptions were timely. However, we must point out that the ten day period begins on the date notice is mailed to the parties, not when notice is received. Wife's tardiness is further underscored by the fact that the "Notice of Filing Report by the Master” provided specific instructions for filing exceptions:
      [e]xceptions to the Master's Report and Recommendation must be filed within ten days from the date of service of this notice is upon you ...

      These directions are compliance with Pa.R.C.P. 440(b) which provides:
      [s]ervice by mail of legal papers other than original process is complete upon mailing.

      Accordingly, the trial court's observations with respect to this issue are erroneous.

      . The relevant factors are as follows:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.
      23 P.S. § 401(d).

      . The Oakhurst lots consisted of 11.67 acres of real estate on which was situated a house and other structures. The record shows that, subsequent to its purchase in 1963, the property was subdivided and portions thereof were sold.


author: CAVANAUGH, Judge:

text:
    534 A.2d 1062
    LARA, INC., Appellant, v. DORNEY PARK COASTER CO., INC. and South Whitehall Township, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1987.
    Filed Nov. 12, 1987.
    Reargument Denied Jan. 13, 1988.

      Thomas R. Elliott, Jr., Easton, for appellant.
    Howard A. Wiener, Philadelphia, for Dorney Park, appellee.
    Thomas H. Dinkelacker, Wilkes-Barre, for South Whitehall Tp., appellee.

      Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   CAVANAUGH, Judge:

This is an appeal from a decree denying the petition of Lara, Inc. for injunctive relief and transferring the case from equity to the law side of the court. The first issue raised by appellant is that the court below erred in refusing to admit for purposes of the equity proceeding evidence relevant to the plaintiffs claim that South Whitehall Township interfered with the contract between Dorney Park and Lara, Inc. and that the Township abused its governmental power.

Dorney Park, an amusement park located near Allentown in Lehigh County, Pennsylvania, maintained a racetrack facility for stockcar races. The appellant, Lara, Inc., conducted races at the track under a licensing agreement with Dorney Park. Lara, Inc., or its predecessor corporation, has been promoting car racing at Dorney Park for over twenty years, when a licensing agreement was first entered with Dorney Park. On April 16, 1979 Lara, Inc. and Dorney Park entered the agreement which is involved in the dispute now before the court. Under the agreement Dorney Park, as licensor, granted licensee, Lara, Inc., the option of renewing the license under certain circumstances. In September, 1986, Lara, Inc. notified Dorney Park by a letter that it exercised its option to renew the license for racing during the 1987 summer season. In October, 1986, the president of Lara, Inc. was notified that its license to operate automobile racing during the 1987 and any subsequent season was being rescinded. The apparent reason for the rescission of the license was an agreement which had been entered into between Dorney Park and South Whitehall Township under which Dorney Park agreed that all racing at its track would be ended as of November 1, 1986.

The appellant filed a complaint in equity against Dorney Park Coaster Co., Inc. and South Whitehall Township. In its complaint, the appellant sought to have the defendant, Dorney Park, enjoined from prohibiting the plaintiff from operating races during the 1987 season at the racetrack and interfering with the plaintiffs having races performed on the track. As far as South Whitehall Township was concerned, the plaintiff sought to restrain the Township from interfering with the agreement dated April 16, 1979, between Dorney Park and Lara, Inc.

The appellant also filed a petition for injunctive relief in which it sought a preliminary injunction directing Dorney Park to specifically perform its agreement with Lara, Inc. by allowing Lara to conduct stockcar races at Dorney Park for the 1987 racing season and for subsequent seasons. The court below, through Young, J., following a pre-trial conference, proceeded immediately to a final hearing on the merits. The court then entered its order of March 27, 1987, as a final order.

The first issue raised by the appellant is whether “The lower court [erred] in refusing to admit for purposes of the equity proceeding evidence relevant to plaintiff’s claims of interference with contract and abuse of governmental power.” In connection with this issue, the appellant argues in support of its claim for equitable relief that: “In this case the availability of any remedy at law against the Township’s unlawful conduct is in question in view of the Pennsylvania Political Subdivision Tort Claims Act, granting to governmental entities extensive immunity from damage claims.” Indeed, South Whitehall Township had filed preliminary objections in the nature of a demurrer to the complaint claiming governmental immunity under 42 Pa. C.S. § 8541 et seq.

Considering the nature of the complaint in equity and the preliminary objections of South Whitehall Township, our initial inquiry is whether this court has jurisdiction over this appeal and we may raise the issue sua sponte. Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986). If we determine that jurisdiction is vested in the Commonwealth Court, we may transfer the case to that court. Brady Contracting Co. v. West Manchester Township Sewer Authority, 338 Pa.Super. 144, 487 A.2d 894 (1985); 42 Pa.C.S. § 705. The Commonwealth Court has exclusive jurisdiction as set forth in 42 Pa.C.S. § 762 as follows:

§ 762. Appeals from courts of common pleas
(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the court of common pleas in the following cases:
(4) Local government civil and criminal matters.
(i) All actions or proceedings arising from any municipality, institution district, public school, planning or zoning code or under which a municipality or other political subdivision or municipality authority may be formed or incorporated or where is drawn in question the application, interpretation or enforcement of any:
(A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof, acting in their official capacity. (Emphasis added)

In its complaint in equity, Count 2, the appellant alleged that the Township maliciously interfered in the contractual relationship between the appellant and Dorney Park and that the Township deprived the appellant of its property without due process of law. The court below denied the petition for a preliminary injunction and proceeded to a hearing on the merits. According to the appellant’s brief at page 10: “It did so at the insistence of counsel for the Township, which sought to preserve the wall of secrecy and silence surrounding its termination of racing at the Park. It thus precluded any inquiry into the heart of plaintiffs claim: that the Township’s conduct constituted an unlawful abuse of governmental power.” (Emphasis added)

Although the court below did not rule on South Whitehall Township’s preliminary objections, claiming governmental immunity, the question is an integral part of the proceedings. The appellant recognizes this as it noted in its’

appellate brief that it may have no remedy at law because of the extensive immunity granted to governmental entities. The determination of the issue of the Township’s immunity for tortious interference with contract is within the exclusive jurisdiction of the Commonwealth Court under 42 Pa. C.S. § 762 as this case clearly draws into question the application of a statute regulating the affairs of a political subdivision. There is a sound reason for vesting jurisdiction of an appeal of this type in the Commonwealth Court. We stated in Brady Contracting Co. v. West Manchester Township Sewer Authority, supra, 338 Pa.Super. 148, 487 A.2d at 897:

The obvious legislative intent in granting such exclusive appellate jurisdiction to the Commonwealth Court is to ensure a uniform interpretation and application of the provisions of the Political Subdivision Tort Claims Act. This jurisdiction also extends to all parties and appears in a case as long as at least one party is a local agency and the case is governed at least in part by Political Subdivision Tort Claims Act.

The immunity granted to political subdivisions may be waived under certain circumstances enumerated in 42 Pa. C.S. §§ 8542 and 8550, and the Commonwealth Court has thoroughly reviewed this question in Steiner v. City of Pittsburgh, 97 Pa.Comwlth. Court 440, 509 A.2d 1368 (1986). With respect to the extent of governmental immunity, see also Morris v. Musser, 84 Pa.Comwlth. 170, 478 A.2d 937 (1984); Auerbach v. Council Rock School District, 74 Pa.Comwlth. 507, 459 A.2d 1376 (1983). The Commonwealth Court has special expertise in dealing with the issues raised in this case and transfer to that court is appropriate. Filler v. Commonwealth Federal Savings and Loan Asso elation, 347 Pa.Super. 211, 500 A.2d 482 (1985); Donaldson v. Ritenour, 354 Pa.Super. 568, 512 A.2d 686 (1986).

Although 42 Pa.C.S. § 762 refers to the “exclusive jurisdiction” of the Commonwealth Court in certain cases, 42 Pa.C.S. § 704 provides for an exception if the appellee does not object to the exercise of jurisdiction by the Superior Court. Where, as in this case, the appellee has raised no objection to our exercise of jurisdiction, it is within our discretion to transfer the matter to the Commonwealth Court or retain jurisdiction. In exercising this discretion, we must examine the question on a case by case basis. Valley Forge Industries v. Armaud Construction, Inc., 248 Pa.Super. 53, 374 A.2d 1312 (1977). This court may retain jurisdiction over cases that should have been appealed to the Commonwealth Court in the interest of judicial economy. Overstreet v. Borough of Yeadon, 327 Pa.Super. 291, 475 A.2d 803 (1984). However, as pointed out in the recent opinion by Montemuro, J. in Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986) the interest of judicial economy must be weighed against other interests, one of which is the possibility of establishing conflicting lines of authority. In our opinion, the interest of avoiding conflicting lines of authority concerning governmental immunity and the expertise of the Commonwealth Court in this difficult area of the law are compelling reasons to transfer the case to the Commonwealth Court. Beyond this, we should be most cautious in assuming jurisdiction over matters that properly belong before the Commonwealth Court.

Case transferred to the Commonwealth Court. We relinquish jurisdiction.

      . Two other issues were also raised as follows:
      2. Did the lower court err in failing to find, and refusing to specifically enforce, a binding contract created by the exercise by Lara, Inc. of its option to renew its license for the 1987 racing season prior to the purported termination by the Dorney Park Coaster Company?
      3. Did the lower court err in treating plaintiff's application for a preliminary injunction as a final hearing on the merits without stipulation of counsel or prior notice to plaintiff?

      . The order of March 27, 1987 (filed on March 30, 1987) denied the petition of appellant for injunctive relief and transferred the case from equity to law. The order stated: "This decision is intended to be final under Pa.R.A.P. 311(a)(4) or 341(a), and is certified as ready for appeal without further proceedings.” Footnote 1 of the order stated: "The omission of a decree nisi pursuant to Pa.R.C.P. 1517(a)(4) is intentional. Time is of the essence to the Plaintiff if injunctive relief is to be required by an appellate court." (Emphasis added)
      The order is appealable as an appeal may be taken from the denial of a petition for an injunction. Pa.R.A.P. 311(a)(4). See also Independence Hall Parking, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, 86 Cmwlth.Ct. 573, 486 A.2d 534 (1984) affd. 509 Pa. 623, 506 A.2d 896 (1986).

      . 42 Pa.C.S. § 8541 provides:
      § 8541. Governmental immunity generally
      Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.

      . The complaint in equity alleged inter alia:

      27. The conduct of the defendant Township, in entering into an agreement with defendant Dorney Park to prohibit stockcar races at Dorney Park is malicious and capricious and constitutes an interference with the plaintiff’s contractual rights with Dorney Park pursuant to the agreement of April 16, 1979.
      30. The alleged prohibition of stockcar races at Dorney Park is an unlawful, arbitrary, and capricious attempt by the defendant Township to deprive the plaintiff of its property rights without just compensation and is a deliberate misuse of power in the attempt to regulate land use without compliance with the Pennsylvania Municipalities Planning Code and other relevant laws of the Commonwealth of Pennsylvania.

      . While the court did not rule on the issue of immunity of the Township with respect to malicious interference with contract, it stated at page 15 — 16 of the opinion: "The matters of the reasonableness of the notice of the revocation of the license and any damages flowing from the lack of sufficient notice together with any damages arising out of a possible tortious interference by the. Township with the

        contractual rights of LARA must be handled at law in a subsequent proceeding in the event that LARA cannot now show that it has no adequate remedy at law." (Emphasis added).

      . The Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, 53 P.S. §§ 5311.101-5311.803, was repealed by Section 333 of JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, 42 P.S. § 20043. These provisions are now found in Sections 8541-8564 of the Judicial Code (Code), 42 Pa.C.S. §§ 8541-8564.

      . 42 Pa.C.S. § 704 states in pertinent part:
      § 704. Waiver of objections to jurisdiction
      (a) General rule. — The failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title, or of any general rule adopted pursuant to section 503 (relating to reassignment of matters), vesting jurisdiction of such appeal in another appellate court.

      . On May 8, 1987 we granted appellant’s petition for an expedited appeal in this case. This was based on the fact that appellant did not want to miss the 1987 racing season which would have run from April, 1987 until it ended shortly after Labor Day. However, argument in this case was not heard until September 2, 1987 and appellant will suffer no financial loss by having this case transferred to Commonwealth Court as the 1987 auto racing season has now passed.