author: HESTER, Judge:

text:
    564 A.2d 960
    Irene GRANDOVIC, Appellant, v. Anthony Bradley GRANDOVIC.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Sept. 20, 1989.

      Dennis M. DiMartini, Monaca, for appellant.
    Richard E. Davis, Midland, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and HESTER, JJ.
   HESTER, Judge:

Irene Grandovic appeals from the final divorce decree, which also provided for equitable distribution and no alimony, entered by the Court of Common Pleas of Beaver County on July 8, 1988. Appellee, Anthony Grandovic, cross-appealed, but we dismissed his appeal for failure to file a timely brief and reproduced record. Consequently, only appellant’s direct appeal is before us. We reverse and remand for further proceedings consistent with this adjudication.

Appellant filed for divorce on February 8, 1982. However, the parties continued to live in the marital home until appellee left on October 1, 1983. Hearings were held before a master on February 11, 13, and March 19, 1987, and the master filed his report on December 18,1987. Both parties filed exceptions which the trial court ruled upon prior to issuing its final decree.

The court adopted the following findings of the master. The parties were married on November 19, 1960. Two children were born during the marriage; Gary, born in 1962, and Sandra, born in 1965. Appellee was the primary wage earner and was employed as a purchasing agent by Crucible Steel, a division of Colt Industries, from 1964 until the mill was closed and sold in October, 1982. Subsequently, appellee obtained employment in a similar capacity with Mannesmann Demag Wean, a division of Mannesmann Demag Corporation. During the course of these proceedings, Mannesmann Demag Wean was consolidated with Mannesmann Demag Corporation. Consequently, appellee received two W-2 wage statements in 1986. Appellee currently is employed by Mannesmann Demag Corporation.

During the marriage, appellant, who has minor health problems that do not interfere with her ability to work, was a secondary wage earner and a homemaker. She was employed as an office manager and bookkeeper for a local dental practice.

Our standard of review for divorce cases is clear. We stated in Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986):

“[A]n appellate court will reverse an order determining equitable distribution of marital property [or alimony] only for an abuse of discretion by the trial court.” 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 a 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 discretion.” Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984). “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence ... However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law.” Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d at 613, 615 (1985).

Appellant’s first argument is that the trial court erred in adopting the master’s findings concerning the respective incomes of both parties against the clear weight of the evidence. Appellant argues that the finding that appellee’s income was $39,840, ignored the total of $50,000 printed on his two W-2 forms, and wrongly credited his explanation, without documentation, that he received a one-time bonus of $11,000. Similarly, appellant argues that the trial court erred by adopting the master’s finding that her annual income was $16,080, despite her testimony that this figure included unrecurring overtime due to a temporary personnel shortage.

“A master’s report is entitled to great consideration, but the court is not bound by it.” Morschhauser v. Morschhauser, 357 Pa.Super. 339, 349, 516 A.2d 10, 15 (1986). See also 24 Standard Pa. Practice 2d § 26:364; Herwig v. Herwig, 279 Pa.Super. 65, 420 A.2d 746, 748 (1980). Instantly, the trial court determined in its discretion that the master’s findings were accurate. A finding of fact by the trial court will not be disturbed on appeal unless unsupported by competent evidence or predicated on errors of law. R.P. Clarke Personnel v. Com Nat. Bk., 384 Pa.Super. 524, 559 A.2d 560 (1989).

After a careful review of the record, we conclude that the trial court’s findings were supported by competent evidence. Appellee testified that he received two W-2 forms due to the corporate reorganization and that his income included a one-time bonus for completing a project in Mexico. Appellant’s argument is that an increase would be part of the normal employment pattern, and appellee’s income of $39,840 represents a $3,100 decrease from the proceeding year. Further, appellee’s testimony lacked any supporting documentation. However, this does not persuade us that the trial court’s finding is not supported by competent evidence. It was based on appellee’s credited testimony. Similarly, the finding that appellant’s annual income was $16,080, despite her testimony that this included unrecurring overtime, is supported adequately by her wage statements and the tax returns in the record.

Appellant’s second argument is that the trial court erred in adopting the master’s finding that appellee had the potential for twelve more years of employment until retirement, which affected the calculations of appellee’s future income. Appellant objects to the determination that appellee had twelve years of employment remaining since appellee would be only sixty-two years old at that time. Appellant contends that normal retirement is widely understood to be at age sixty-five. Thus, she claims that the court’s adoption of the findings is contrary to the weight of the evidence and constituted an abuse of discretion. Appellant points out that the findings result in a significant difference in appellee’s potential lifetime future income, an important consideration in awarding equitable distribution. Instantly, appellee’s potential lifetime income as determined by the trial court is $120,000 less than if appellee were to be employed for an additional three years with an annual income of $39,840 until age sixty-five, and $270,000 less than if he were to continue with an income of $50,000 until age sixty-five (i.e. twelve years with an additional $10,000 more per year and an additional three years at $50,000 per year).

Appellant relies upon Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), which involved equitable distribution of a defined benefit pension plan. The husband in Braderman had exclusive control of the contributions that he made to the plan in order to obtain specific annual payments upon retirement. We found that the trial court did not abuse its discretion in using age sixty-five in determining the value of his pension plan when ordering equitable distribution. Similarly, we conclude that in this case, since the age at which appellee would retire is a matter of speculation, it is an issue of fact to be determined by the trial court. We cannot conclude that the trial court lacked any basis for its finding, especially since retirement before age sixty-five is common. Therefore, we do not find an abuse of discretion. See R.P. Clarke Personnel v. Com. Nat. Bk., supra.

Appellant’s next two contentions are based on appellee’s abuse of his exclusive control over marital property investment accounts which were opened with money that he received from a lump sum distribution of his Colt Industries pension. With those funds, appellee reduced the marital estate by satisfying a joint marital obligation of $10,705 in 1983-1986 federal income tax deficiencies and without permission, reimbursed himself from marital assets for $31,000 paid for college expenses for the parties’ two children. The trial court concluded that both disbursements were proper and reduced the marital estate accordingly.

Appellant contends that the burden is on appellee to show that the marital estate properly was reduced by these obligations since both obligations accrued after October 1, 1983, which is the stipulated date that the parties separated. She contends these debts were mutual but not marital, since they accrued after the date of separation. See 23 P.S. § 401(e). Therefore, she argues, these funds should be returned to the marital fund for equitable distribution. She further contends that these payments provided a greater benefit to appellee since his income was greater than her income following separation, and therefore, he must bear a greater proportion of both the tax liability and college expenses. Appellant asserts appellee benefited by paying only one-half of these liabilities as a marital debt, and in this sense, satisfied an individual debt. Consequently, she argues that it was improper to exclude these amounts from marital property and claims appellee may seek contribution from her to satisfy their joint liabilities. In failing to proceed in this manner, appellant concludes that the trial court commenced its analysis for equitable distribution on an incorrect basis.

Specifically, appellant asserts that the $10,705 tax liability arose due to underwitholding and miscalculation of tax for each of the years from 1983 to 1986, and the involuntary conversion of Colt Industries stock in 1986, when the company recapitalized. The liability accrued and the payment was made after the date of separation for the tax years 1984, 1985 and 1986. Appellant argues that although the parties signed joint returns, she could have signed a separate tax return with minimum tax liability, and the joint return did not convert the mutual debt into a marital debt.

We begin our analysis by noting that appellant correctly characterized the tax liability for the years 1984 through 1986 as a joint, but not marital obligation. Marital obligations, like marital property, arise between the date of marriage and the date of separation. 23 P.S. § 401(e). However, although appellant is jointly liable for the tax liability, the debt is not a marital debt to be satisfied by use of marital assets, since the debt arose after the date of separation. Id. That the parties are permitted to file joint tax returns pending their final divorce for tax purposes has no bearing on the fact that these debts accrued after the date of separation for purposes of determining the marital estate. Both parties must contribute to satisfy the debt, but the money appellee used to pay the debt should have been included in the marital estate subject to equitable distribution. The payment of the total tax liability out of the marital assets benefited appellee by disproportionately lowering his tax liability relative to his income, compared to that of appellant.

The trial court’s finding concerning the payment of the tax debt from marital assets was based on the Pennsylvania Supreme Court’s holding in Duff v. Duff 510 Pa. 251, 507 A.2d 371 (1986). The supreme court determined that it was proper to pay a joint tax deficiency from marital assets in 1980, where the liability had accrued in 1979 prior to the parties’ separation in 1980. Duff is distinguishable, however, in that the tax liability in Duff accrued prior to the parties’ separation. In the present case, the parties’ tax liabilities accrued after their separation. We do not imply, nor do we find any evidence of agreement, that the filing of a joint return for post-separation tax returns permitted appellee to use marital assets to pay the liability. Consequently, we cannot agree that payment of these debts was made in good faith and for value under 23 P.S. § 401(e), and that the funds used to pay these debts properly were excluded from marital property. In our view, the payments clearly benefited appellee unfairly. Therefore, we conclude that the trial court abused its discretion in excluding the assets used to pay the debt from the marital estate.

Similarly, we conclude that the college expenses were a post-separation debt. They involved support, which should relate to the respective parties’ income and assets. We conclude that it was an abuse of discretion for the trial court to approve appellee’s use of marital assets to resolve a support issue. The payment of these expenses clearly precluded any petition or finding concerning support, and shifted a duty owed principally by appellee to the marital estate. We conclude that appellee’s payment from marital funds was an impermissible use of the marital estate for his primary benefit. Griffin v. Griffin, 384 Pa.Super. 210, 558 A.2d 86 (1989). In Griffin we stated:

We are constrained to hold that the trial court abused its discretion in allowing a marital asset to be utilized and entirely consumed for the purpose of making child support payments required of Husband when Husband has other funds available from which to make the payments. As marital property, the corporate account will be subject to equitable distribution along with the remainder of the estate.

Id., 384 Pa.Super. at 221-222, 558 A.2d at 92.

Our conclusion is buttressed by our previous observation that appellee claimed the college expenses as a deduction from his income for purposes of alimony pendente lite. We note that he subsequently reimbursed himself for these very same post-separation expenses out of marital assets and thereby excluded these assets from equitable distribution. We find this to be an impermissible dissipation of the marital estate. Thus, the trial court abused its discretion in not including these assets in its order of equitable distribution. See 23 P.S. § 401(d)(7); Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985) (party properly refused credit toward marital estate for assets previously used for her exclusive benefit); Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985) (abuse of discretion not to include pension fund in equitable distribution on grounds that it no longer existed where it was spent after separation but prior to divorce).

Appellant’s next argument is that the trial court incorrectly applied the law in accepting the master’s valuation of 2,300 shares of Colt Industry stock in the pension fund, a marital asset, at $9.50 per share, for a total value of $21,850.00, based on its value on the the date of the master’s hearing in December, 1987. She argues that the trial court was obligated to use the stipulation by the parties that the stock was worth $17.00 per share, or $39,100.00, on June 10, 1988, shortly before the order of equitable distribution was issued. In support, appellant relies upon our supreme court’s decision in Sutliff v. Sutliff 518 Pa. 378, 543 A.2d 534 (1988), which held that marital assets that fluctuate in value should be valued as close in time as possible to the dale of distribution. We conclude that this authority is dispositive; thus, the trial court erred in valuing the stock near the date of the master’s hearing. As a result, the difference in value of $17,250.00 must be added to the value of the marital estate subject to equitable distribution.

Appellant also contends that the trial court erred in failing to award alimony. In McNully v. McNully, 347 Pa.Super. 363, 371, 500 A.2d 876, 880 (1985), we stated:

“Alimony” ... “is a duty arising out of marriage but is distinguished in that it continues after divorce when fixed in conjunction with a divorce or annulment decree. Its purpose is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.” Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984).

Instantly, we find that appellant’s own income and the substantial assets she received through equitable distribution will allow her to be self-sufficient, and the trial court correctly applied the factors set forth in 28 P.S. § 401(d) to the facts. Furthermore, absent special circumstances, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill. Hess v. Hess, 827 Pa.Super. 279, 475 A.2d 796 (1984); Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). Since we do not find this to be the case in light of the marital estate and appellant’s income, we find no abuse of discretion in the trial court’s refusal to award alimony.

Appellant’s final argument is that in view of the previously enumerated errors, the trial court abused its discretion in awarding her only sixty percent of the marital estate and appellee forty percent. Although normally we would refrain from usurping the court’s finding, we remand here solely for the purpose of directing the trial court to reassess its allocation in view of additions to the marital estate discussed supra.

The decree granting divorce is affirmed. The decree awarding equitable distribution is affirmed in part and reversed in part; case remanded for proceedings consistent with this decision. Jurisdiction relinquished.

      . 23 P.S. § 401(e), in pertinent part, provides:
      (e) For purposes of this chapter, "marital property” means all property acquired by either party during the marriage, including the increase in value prior to the date of final separation of any nonmarital property acquired ..., except:

        (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation. (Emphasis added.)

      . Our review indicates it is extremely likely from the record that appellee would have owed support had he not maintained that he already was paying these expenses at the hearing to determine alimony pendente lite.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    564 A.2d 965
    Katherine DALEY-SAND and Richard M. Sand, H/W v. WEST AMERICAN INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1989.
    Filed Sept. 27, 1989.

      William Hourican, Philadelphia, for appellant.
    John P. McKelligott, Philadelphia, for appellees.
    Mitchell S. Clair, Media, amicus curiae.

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

This appeal presents the question of whether underinsured motorist coverage (UIM coverage) provided by the insurer as required by the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. §§ 1701 et seq., is sufficiently nullified by the operation of a consent to settle clause in an insurance contract so that the public policy of the Commonwealth as expressed in the MVFRL is contravened. We conclude that it is. We therefore uphold the equitable remedy fashioned by the trial court placing limits on the manner in which the insurer may withhold consent to settle with the underinsured tortfeasor.

Underinsured motorist coverage protects the insured driver from the risk that a negligent driver of another car will cause injury to the insured and will have inadequate liability coverage to compensate for the injuries. Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988). The Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq., requires that:

No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth ... unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto ...

75 Pa.C.S. § 1731(a).

On March 17, 1985 appellee Katherine A. Daley-Sand sustained serious injuries when a vehicle in which she was a passenger was hit by an automobile owned and driven by Charles Vesseles. Vesseles’ automobile insurance policy with Keystone Insurance Company has a liability limit of $50,000.00. Daley-Sand is a named insured on a policy provided by appellant West American Insurance Company (West American). Under this policy Daley-Sand has paid premiums for and is thus provided with UIM benefits in the amount of $300,000.00 per accident. It is not disputed that Daley-Sand’s damages exceed Vesseles’ policy liability limit. The amount of damages is not at issue here, nor is it disclosed or discussed.

Daley-Sand’s contract with West American provides that West American will:

pay damages which a covered person is legally entitled to recover from the owner .... of [the] ... underinsured [tortfeasor’s] motor vehicle ... because of bodily injury sustained by a covered person ...
only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
The amount of damages we will pay is subject to the provisions of our Limit of Liability.

(Emphasis supplied). The contract also provides that: “We do not provide Uninsured/Underinsured Motorists Coverage for bodily injury sustained by any person: 1. If that person or the legal representative settles the bodily injury claim without our consent.”

On October 14, 1987 Keystone offered to settle with Daley-Sand for the full amount of Vesseles’ coverage, $50,000.00, if Daley-Sand would sign a release for Vesseles. Daley-Sand notified West American of the settlement offer and asked for its consent to settle for this amount and to sign a release for Vesseles. By letter of November 17, 1987, and again by letters of December 28, 1987 and January 26, 1988, West American refused to consent. In each letter West American gave as its sole reason for withholding consent to settle that it was continuing its investigation into whether, in giving consent, it would be relinquishing potential subrogation opportunities.

On May 20, 1988 Daley-Sand filed a Petition to Resolve Subrogation with the Court of Common Pleas. The petition alleged that, if Daley-Sand were to settle with Keystone without West American’s consent, she would, under the terms of her insurance contract, waive her UIM benefits, and that West American had refused to give its consent to an offered settlement. Daley-Sand alleged that this refusal to consent to a settlement so as to effectively prevent her from collecting her contractually provided benefits, which were offered pursuant to the MVFRL, constituted “conduct which is contrary to public policy, contrary to the legislative purpose of the MVFRL and frustrates the legitimate expectations of an insured victim.” Daley-Sand asked the court to enter a Rule to show Cause why West American’s subrogation rights should not be deemed waived, unless within thirty days West American circumvented the settlement with Keystone by paying to Daley-Sand its draft in the amount of the settlement offer in exchange for the tendered draft of Keystone, and for the court to enter such other relief as it may find appropriate.

By Order and Opinion of November 17, 1988, the court granted Daley-Sands’ petition. The court found that enforcement of the consent to settle clause as exercised by West American would frustrate the legislative purpose of providing UIM coverage as well as the legitimate expectations of the insured who purchased coverage. The court therefore styled equitable relief by authorizing Daley-Sand to settle with Keystone for $50,000.00 and to execute a full release in favor of Charles Vesseles while at the same time preserving her right to proceed with an underinsured motorist arbitration against West American. The court then stayed this relief for a period of thirty days to allow West American to tender its own draft for $50,000.00 to Daley-Sand to substitute for the Keystone settlement, thus perfecting its subrogation rights.

West American did not tender the draft to Daley-Sand but appealed from the November 17 order on December 16, 1988. Judgment was entered on January 23, 1989. On appeal West American challenges the propriety of the trial court’s equitable remedy by arguing that the trial court erred in modifying the consent to settle provision of the policy, that the court erred by eroding West American’s subrogation rights, and that the court erred in ruling that the amount of the UIM claim should be decided by litigation against the tortfeasor.

Two preliminary matters must be disposed of before we reach the principal issues in this case. First, West American filed no exceptions to the court’s order of November 17th. Generally, issues not brought before the trial court in exceptions following a declaratory judgment in the form of a decree nisi are waived on appeal. Emerald Energy Enterprises, Inc., v. Karsnak, 288 Pa.Super. 31, 430 A.2d 1198 (1981). However, we have held that where the order appealed from contained no findings of fact, no conclusions of law and no language to suggest that the order was anything but a final order or that the parties were required to file exceptions to preserve a right of appeal, failure to file exceptions will be excused. Palladino v. Dunn, 361 Pa.Super. 99, 521 A.2d 946 (1987); Storti v. Minnesota Mutual Life Insurance Company, 331 Pa.Super. 26, 479 A.2d 1061 (1984). Because the trial court’s order contained no findings of fact or conclusions of law and because the order by its own terms became final after thirty days if West American did nothing, West American’s failure to file exceptions does not defeat appellate review.

Second, West American challenges the trial court’s jurisdiction over disputes arising under the insurance contract because the contract contains an arbitration clause. This challenge fails. The arbitration clause provides:

If we and a covered person do not agree:
1. Whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle;
2. As to amount of damages; either party may make a written demand for arbitration.

The disagreement between West American does not arise under either of the above-enumerated categories. Rather, Daley-Sand’s objection is that West American invokes the consent to settle clause in a way that frustrates the intent of the legislature and public policy by effectively precluding her from collecting the UIM benefits for which she has contracted.

The law is clear that, although a case turning on the application or construction of an uninsured motorist clause is within the exclusive jurisdiction of the arbitration system, when the issue is whether a particular provision of the contract is contrary to a constitutional, legislative or administrative mandate, the courts properly exercise their jurisdiction over the entire matter. Wilbert v. Harleysville Mutual Insurance Co., 254 Pa.Super. 217, 385 A.2d 987 (1978); In re Webb and United Services Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974). Daley-Sand specifically challenged the operation of the consent to settle clause on the ground that it was against public policy and legislative intent. West American’s tenuous argument that the dispute should have been arbitrated because Daley-Sand stated the issue in terms of the “operation” of the clause is unpersuasive. We see no distinction between a claim that a clause per se violates public policy and a claim that the operation of the clause within the contract violates public policy. The trial court properly exercised jurisdiction over this dispute.

We now reach the chief issue on appeal, whether West American’s withholding consent and thus effectively denying UIM benefits violates legislative intent and public policy. Public policy means that the law can restrict freedom of contract or private dealings for the good of the community. Tallman v. Aetna Casualty and Surety Co., 372 Pa.Super. 593, 539 A.2d 1354, alloc. denied 520 Pa. 607, 553 A.2d 969 (1988) (Johnson, J. dissenting). Public policy is determined with reference to the laws and legal precedents rather than from general considerations of supposed public interest. Guardian Life Insurance Co. v. Zerance, 505 Pa. 345, 479 A.2d 949 (1984).

The Motor Vehicle Financial Responsibility Law requires that uninsured and underinsured motorist coverage must be part of every automobile insurance contract. We do not speculate upon general public interest but rather conclude from a clear and unambiguous statute that insurers who do business in this Commonwealth must provide UIM coverage. A court of this Commonwealth may decide that a challenged contractual clause is void as contrary to law, Insurance Company of North America v. Hippert, 354 Pa.Super. 333, 511 A.2d 1365 (1986). We may also decide that a clause as applied executes an injustice. See Wilbert v. Harleysville Mutual Insurance Co., supra.

West American justifies withholding consent to settle by elevating its future subrogation rights to primary importance, suggesting that it may take as long as it chooses to research its subrogation opportunities and thus to indefinitely postpone payment of UIM benefits. In so arguing, West American essentially proffers that its subrogation rights are primary over all other rights at issue. We cannot seriously entertain this proposition.

The principle underlying an insurance contract is that the insurer assumes the risk of possible non-recovery from the tortfeasor in return for paid premiums for insurance coverage. When an insurer pays a claim under a policy, it is actually paying the debt of the tortfeasor. The insurer is only secondarily liable; it is the tortfeasor who is primarily liable. Once the insurer has paid a claim to the insured, it may then stand in the shoes of the insured and assert the insured’s rights against the tortfeasor. The right to stand in the insured’s shoes and to collect from the tortfeasor once it has paid the insured an amount representing the tortfeasor’s debt is called the insurer’s right to subrogation.

Subrogation is an equitable principle. First, it presupposes an actual payment and satisfaction of the debt or claim at issue by the one who asks for the right to subrogate. Demmery v. National Union Fire Insurance Company, 210 Pa.Super 193, 232 A.2d 21 (1967). As we have written:

It is well established that the action fcr subrogation is one based on considerations of equity and good conscience. The goal is to place the burden of the debt upon the person who should bear it. The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles. [Associated Hospital Service v. Pustilnik, [497 Pa. 221, 439 A.2d 1149 (1981)]. It has often been said that the equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated, (citations omitted).
However, as the subrogee stands in the precise position of the subrogor the subrogee should be limited to recovering in subrogation the amount received by the subrogor ..., for equity will not allow the subrogee’s claim to be placed ahead of the subrogor’s.

Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 201, 527 A.2d 1021, 1023 (1987). Thus, whatever the contractual language regarding subrogation, the equitable nature of subrogation is not altered.

Finally, subrogation is not an inflexible legal concept but, as an exercise of equitable powers, it is to be carried out with an:

exercise of a proper equitable discretion, with a due regard for the legal and equitable rights of others.

American Surety Co. of New York v. Bethlehem National Bank of Bethlehem, 116 F.2d 75, rev’d on other grounds, 314 U.S. 314, 62 S.Ct. 226, 86 L.Ed. 241, 138 A.L.R. 509 (1941).

First, West American has not yet paid Daley-Sand’s claim. Thus, it has only a possible, future subrogation right. Further, West American has presented no evidence to this court that its withholding of consent was reasonable. While not a contract requirement, reasonableness of withholding of consent would be a proper factor for a court to consider when fashioning an equitable remedy. For instance, in the Unfair Insurance Practices Act, 40 P.S. § 1171.1 et seq., “[n]ot attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which the company’s liability under the policy has become reasonably clear,” 40 P.S. § 1171.5(a)(10)(vi), is, if committed with regularity, an unfair business practice. In this case, West American does not contest its liability. However, neither does it attempt to show that its withholding of consent was in good faith or was in any way reasonable; it simply makes the bald claim to subrogation rights. Keeping in mind that one who comes to equity must do equity, we cannot give due consideration to West American’s defense of entitlement to its subrogation rights, an equitable principle. Nor did the trial court, and we find the chancellor’s determination entirely proper.

The propriety of the trial court’s particular declaratory judgment remedy is a question of first impression in this Commonwealth. As guidance, the trial court followed a practice lately employed in other jurisdictions that had been affirmed by the appellate courts in those states. These courts found, as we do, a public policy supporting UIM coverage and that certain contractual provisions, either by their mere existence or by their operation, serve to frustrate the legislatively mandated provision of UIM coverage.

The seminal case employed for guidance by many jurisdictions is Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983). At issue in this consolidated case involving the same insurer under a no-fault act was whether an exhaustion (of the underinsured tortfeasor’s liability) clause and a consent to settle clause frustrated public policy and whether the trial courts’ equitable remedies were proper. Holding that the insurer’s application of these clauses did indeed frustrate public policy, the trial courts devised remedies that involved limiting the time the insurer could withhold consent, after which the insurer could either submit its own draft to prevent the settlement or lose its subrogation right. The Supreme Court of Minnesota affirmed the trial courts’ actions. The insurer argued that preservation of its subrogation rights was paramount. Therefore, key to the court’s analysis was a balancing of the equities.

In Vogt v. Shroeder, 129 Wis.2d 3, 383 N.W.2d 876 (1986), the court held, citing Schmidt, that an insurer has a right of subrogation to the extent that the underinsured’s insurer has paid benefits to its own insured. Its rationale was as follows:

Looking at the question from the viewpoint of a motorist who is injured by an underinsured tortfeasor, it would appear only just that a motorist who carries underinsured coverage should not be worse off than if he were injured by a fully insured motorist. Such motorist ought to be able to “settle” with the tortfeasor’s insurance company to the extent of that tortfeasor’s coverage. The motorist should not be required to sue for what is being offered and thus incur larger fees and expenses just to accommodate the underinsurance company’s desire to protect its subrogation rights. At least the motorist should not be obligated to do so if it is possible, under the terms of the contract and in justice, for the injured party to receive the settlement proceeds, or its equivalent, and the underinsurer is still able to protect its subrogation rights.

Vogt, 383 N.W.2d at 882. The court then affirmed a trial-court-fashioned remedy similar to the one in Schmidt. The court recognized that the insurer’s withholding of consent to settle because of its concern that its future subrogation interest would be jeopardized did not weigh strongly in a balancing of the equities against the insured’s right to underinsured coverage.

Most recently, the Superior Court of New Jersey, Appellate Division, relied on Schmidt v. Clothier and applied the same kind of equitable remedy in Longworth v. Van Houten, 223 N.J.Super. 174, 538 A.2d 414 (1988). The precise issue before the court in two consolidated cases was how an exhaustion of remedies clause, a consent to settle clause and a subrogation clause functioned with regard to UIM coverage and whether their application frustrated the public policy behind UIM coverage. In the case involving a consent to settle clause and the insurer’s subrogation right, the court recognized that the sole purpose of the consent to settle clause was protection of the insurer’s subrogation rights. It also recognized that enforcement of this clause casts the insured victim into a limbo that “utterly frustrates the legislative purpose of providing maximum and expeditious protection to the innocent victims of financially irresponsible motorists”, Longworth, 223 N.J.Super. 184, 538 A.2d at 419, while it also frustrates the legitimate expectations of the insured victim who purchases UIM coverage. Therefore, the court imposed the Schmidt remedy of giving the insurer a limited time period during which it may investigate following a settlement offer.

It is not, of course, our function to rewrite contracts of insurance. However, it is our function to see that a contract does not violate clear public policy. Therefore, we now hold that the law of this Commonwealth requires that we see to it that clear public policy requiring UIM coverage not be frustrated by conflicting clauses in an insurance contract. Hence, we uphold the trial court’s equitable remedy. As the New Jersey Superior Court wrote in Longworth, the insurance industry may rewrite their contracts in a way that will reconcile the purposes of the statute with the legitimate rights of all the affected parties, or the legislature may decide to prescribe a method for bringing about this goal. We hold only that the operation of the consent to settle clause in this case as now written frustrates public policy.

We conclude that the trial court’s remedy fairly balances the equities in this case, Daley-Sand’s right to paid-for and legislatively mandated UIM coverage balanced against the insurer’s future subrogation opportunities — recall that West American has paid nothing to Daley-Sand. The order breaks the logjam by authorizing Daley-Sand to accept the settlement offer without waiving her UIM coverage, but the order will have this effect only if West American refuses to both consent to the settlement or to tender its own draft to Daley-Sand in the amount of the settlement, $50,000.00. The thirty days given West American by the court is an eminently reasonable amount of time, considering that West American, by its own admission, has been continuing the investigation into its possible subrogation opportunities at least since its letter to Daley-Sand of November 17, 1987.

Last, West American argues that a statement in the trial court’s opinion is erroneous. This contention is without merit. In the trial court’s remedy scheme, Daley-Sand may proceed to litigation against the tortfeasor if she decides to refuse the offer made by the tortfeasor represented by West American’s draft. West American argues that any finding of damages must be made in arbitration, not in litigation. It is true that the insurance contract provides that if West American and the insured do not agree on the amount of damages, then the parties must proceed to arbitration under the Pennsylvania Uniform Arbitration Act. However, there is no issue here between Daley-Sand and West American regarding amount of damages. The contract does not, of course, bind the tortfeasor. In light of the existence of the present litigation brought about by West American’s refusal to deal in a reasonable way with a legitimate claim of its insured, we find West American’s misdirected effort to spare the courts the burden of additional litigation to be disingenuous.

Because we conclude that the trial court’s remedy in this case is entirely consistent with the law of the Commonwealth, we will affirm the trial court’s order.

Order affirmed.


author: MELINSON, Judge:

text:
    564 A.2d 972
    Steven LANCI v. METROPOLITAN INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1989.
    Filed Sept. 28, 1989.

      Charles A. Harad, Philadelphia, for appellant.
    Steven C. Forman, Philadelphia, for appellee.
    Before McEWEN, POPOVICH and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from an order denying Metropolitan Insurance Co.’s [“Metropolitan”] motion to compel enforcement of a settlement agreement. Metropolitan contends that the trial court erred in voiding a release provision in the agreement after finding that it was based on a mutual mistake.

Before addressing the merits of Metropolitan’s claim, we must first determine whether this appeal is properly before the court. Upon initial review of this appeal, the court issued a rule to show cause why this appeal should not be quashed pursuant to National Recovery Systems v. Perlman, 367 Pa.Super. 546, 533 A.2d 152 (1987). In Perlman, a panel of this court, with Judge Olszewski dissenting, held that an order denying a motion to enforce an alleged settlement agreement was not appealable under the collateral order doctrine enunciated by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, it will be irreparably lost. In Perlman, the court found that the order satisfied the first two elements of Cohen, but not the third because the appellant would be free to raise the issue of the validity of the settlement agreement on appeal from the judgment following trial.

In response to the rule to show cause, Metropolitan argues that this appeal is distinguishable from the appeal in Perlman. Metropolitan asserts, and we agree, that the third element of Cohen is met in the instant case. If this appeal were to be quashed, the case will proceed to an uninsured motorist arbitration hearing, rather than to trial as in Perlman. The Uniform Arbitration Act, 42 Pa.C.S.A, § 7302(d)(2), sets forth the standard of review for arbitration awards, providing in pertinent part:

... a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provisions of this subchapter, modify or correct the award where the award is contrary to the law and is such that had it been a verdict of a jury the court would have entered a different judgment or judgment notwithstanding the verdict.

This standard limits appellate review to corrections of arbitration awards where it is determined that the award is the result of a mistake of law. Derry Township Municipal Authority v. Solomon and Davis, Inc., 372 Pa.Super. 213, 539 A.2d 405 (1988). A mistake of law is a mistake as to the legal consequences of an assumed state of facts. Acme Markets, Inc. v. Valley View Shopping Center, 342 Pa.Super. 567, 493 A.2d 736 (1985).

Here, Metropolitan appeals from the trial court’s factual determination that the settlement agreement was based upon a mutual mistake, and therefore, was not binding. Metropolitan does not contest the “legal consequences of an assumed state of facts,” but rather, the facts as stated. Thus, Metropolitan is correct in its assertion that such an issue would not be subject to appellate review following an arbitration award. As a result, we find that the facts of this case are distinguishable from those in Perlman, and that the requirements of the collateral order doctrine of Cohen have been met. Having determined that this court has jurisdiction to hear this appeal, we turn to the merits of Metropolitan’s claim.

The facts of this case are simple. Lanci was involved in an automobile accident with an uninsured motorist. Lanci and Metropolitan entered settlement negotiations and ultimately agreed to settle all claims for fifteen thousand dollars ($15,000.00). On or about October 17, 1986, Lanci signed a Release and Trust Agreement. Thereafter, he refused to accept the settlement proceeds asserting that Metropolitan had fraudulently or incorrectly represented that the policy limits were $15,000.00 rather than two hundred fifty thousand dollars ($250,000.00), the correct amount. Thus, Lanci argued, the release and trust agreements were signed as the result of a misrepresentation or mutual mistake and were therefore a nullity. The trial court agreed, relying on correspondence from Lanci’s attorney to Metropolitan dated October 12, 1986, which stated:

This will confirm and memorialize our telephone conversation of October 10, 1986 during which it was agreed that you on behalf of your principal shall ténder the sum of $15,000.00 in settlement of this claim which sum you have represented to be the straight and/or stacked policy limits applicable to this claim.

The trial court held that this correspondence evidenced a mutual mistake concerning the policy limits of the insured and denied Metropolitan’s motion to enforce the settlement agreement.

Metropolitan argues that the record does not support the trial court’s factual finding that there was a mutual mistake. Metropolitan relies on the deposition testimony of its claims adjuster, John Pellock, who refutes Lanci’s assertion that the policy limits were discussed during settlement negotiations. Pellock testified that he did not discuss the limits with Lanci’s attorney, nor did counsel for Lanci indicate that he was unaware of the policy limits, until after the settlement had been reached and the draft transmitted. He further testified that Lanci’s attorney initiated the settlement negotiations with a demand for $15,000.00 and never asked for more. We agree that this testimony, if credited, does not support a finding of mutual mistake. However, we can affirm the decision of the trial court on any basis even if the reasons given by the trial court are incorrect. Coatesville Dev. v. United Food Wkrs., 374 Pa.Super. 330, 542 A.2d 1380 (1988).

A release is binding on the parties thereto, unless executed under fraud, duress or mutual mistake. Iman v. Hausman, 354 Pa.Super. 458, 512 A.2d 41 (1986); Price v. Ross, 339 Pa.Super. 461, 489 A.2d 252 (1985). Whether relief should be granted to a party who is adversely affected by a mistake in a written contract depends upon the nature and effect of that mistake; the mistake must relate to the basis of the bargain, must materially affect the parties’ performance, and must not be one as to which the injured party bears the risk before the party will be entitled to relief. Northwest Sav. Ass’n. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986). However, irrespective of actual fraud, if the other party knows or has reason to know of the unilateral mistake, and the mistake, as well as the actual intent of the parties is clearly shown, relief will be granted to the same extent as a mutual mistake. Hassler v. Mummert, 242 Pa.Super. 536, 364 A.2d 402 (1976). See also, Com., Dept. of Educ. v. Miller, 78 Pa.Cmwlth. 1, 466 A.2d 791 (1983) (where a mistake made in contracting is not mutual, but unilateral, and is not due to the fault of the party not mistaken, but rather to the negligence of one who acted under the mistake, it affords no basis for relief unless the party not mistaken has good reason to know of the mistake).

The Restatement (Second) of Contracts § 153 provides that a contract is voidable due to unilateral mistake under certain circumstances.

Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake ..., and
(a) the effect of the mistake is such that enforcement would be unconscionable, or
(b) the other party had reason to know of the mistake or his fault caused the mistake.

In the instant case, the record reveals that Lanci did not have a copy of his policy and that Metropolitan was advised of that fact in Lanci’s Petition to Appoint Arbitrators and to Compel Arbitration Hearing. Lanci’s correspondence accepting the settlement offer clearly indicates his understanding that his policy liinit is $15,000.00. We find, therefore, that Metropolitan knew, or should have known, that Lanci accepted the terms of this settlement offer under the mistaken belief that it was the limit of his coverage. Thus, Lanci is entitled to void the contract and the trial court did not err in denying Metropolitan’s petition to enforce the settlement agreement.

Order affirmed.

      . The record indicates that counsel for Lanci did not appear at the deposition despite receiving notice. As a result, there was no cross-examination of Pellock, and no explanation for his failure to respond to Lanci’s letter accepting the settlement offer and specifying Lanci’s understanding that the limit of the policy was $15,000.00. It is also unclear whether Pellock was aware of the correct amount of the policy limits during negotiations.

      . This petition was filed April 1, 1985.


author: TAMILIA, Judge:

text:
    564 A.2d 975
    COMMONWEALTH of Pennsylvania v. James Wesley MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 7, 1989.
    Filed Sept. 25, 1989.

      Sanford A. Krevsky, Harrisburg, for appellant.
    Joseph A. Curcillo, III, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before TAMILIA, POPOVICH and HESTER, JJ.
   TAMILIA, Judge:

On October 14, 1968, appellant shot and killed Mrs. Mattie Moore. He was found guilty of first degree murder after a jury trial and sentenced to life imprisonment on January 2, 1970. Appellant has since filed five petitions under the Post Conviction Hearing Act (PCHA), the most recent filed on March 18, 1987. On January 24, 1989, the Honorable Sebastian D. Natale denied appellant's latest petition without a hearing, and this appeal followed.

On appeal, appellant argues trial counsel was ineffective for failing to object to the introduction of damaging evidence and not seeking cautionary instructions from the trial court. Further, he argues all prior appellate counsel were ineffective in failing to preserve the ineffectiveness of trial counsel. In addition, appellant claims the prosecution introduced “perjured or obviously false testimony.”

As to appellant’s now familiar and previously litigated PCHA claim of ineffectiveness of counsel, the threshold issue remains whether this Court should even consider the merits of this appeal in light of the recent Supreme Court decision in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), wherein the Court stated, “We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Id., 519 Pa. at 513, 549 A.2d at 112.

Appellant’s ineffectiveness claims have been raised in each of his PCHA petitions, albeit on different grounds. Our review of these issues is subject to the prior PCHA statute providing for finality of criminal matters:

§ 9544. When an issue is finally litigated or waived
(a) Issues finally litigated. — For the purpose of this subchapter, an issue is finally litigated if:
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.
(b) Issues waived. — For the purposes of this subchapter, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption. — There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
42 Pa.C.S. § 9544(a), (b), (c) (repealed).

In a memorandum filed January 31, 1986 affirming an Order of the hearing court denying appellant's fourth request for PCHA relief, this Court found appellant’s ineffectiveness claims to have been finally litigated as either considered in previous PCHA petitions and found to be without merit, or as presented for the first time in the fourth PCHA proceeding and waived for not being raised at the first available opportunity. We again conclude the issues of ineffectiveness of trial and appellate counsel raised by appellant in his latest PCHA petition have been “finally litigated” — appellant offers no proof to rebut the presumption of section 9544(c). Nor does appellant attempt to justify his failure to raise all of his claims in the first petition. Ineffectiveness of trial counsel must be raised at the first opportunity at which the counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

We hold today that the mere assertion of ineffective assistance of counsel is not sufficient to override the waiver and “finally litigated” provisions in the P.C.H.A., as to permit the filing of repetitive or serial petitions under the banner of that statute. A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate.

Lawson, supra 519 Pa. at 513, 549 A.2d at 112 (footnote omitted).

In the case at bar, there has been no showing of prejudice to appellant, and the actions at trial complained of are without merit. As the hearing court stated, cautionary instructions were inappropriate, as the record indicates the witnesses had adequate opportunity to identify appellant and testify to events they witnessed. (Slip Op., Natale, J., 1/24/89, pp. 2-3.) Moreover, we find no basis for appellant’s unsubstantiated allegation of prosecution use of “perjured or obviously false” testimony. The asserted perjury was merely the minor inconsistencies found among witnesses in almost all cases. The trial court properly instructed the jury it could believe all, part or none of each witness’ testimony.

Appellant has failed to make a prima facie showing a miscarriage of justice may have occurred and this fifth PCHA petition was dismissed correctly without a hearing. As recognized by this Court when we previously denied appellant relief on prior appeals, “where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Based upon our careful review of the record, we now assume appellant, in the almost 20 years since his conviction, has exhausted all possible avenues under the PCHA and no further PCRA petitions should be entertained by the trial court. Should an eighth counsel be assigned to review claims by appellant, it is inconceivable that a petition to withdraw would not be requested and then granted, pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), because any further collateral petitions for relief would be frivolous and should only be pursued pro se or with privately retained counsel. Id.

Order affirmed.

POPOVICH, J., concurs in the result.

      . 18 Pa.C.S. § 2502(a).

      . Effective April 13, 1988, the Pennsylvania Legislature repealed in part and subsequently modified in part the Post Conviction Hearing Act, renaming it the Post Conviction Relief Act (PCRA). Act of April 13, 1988, No. 47 § 3, 1988 Pa.Legis.Serv. 227, 42 Pa.C.S. §§ 9541-9546. Since the new act applies to all actions for collateral relief instituted on or after the effective date, appellant's latest petition must be analyzed under the former act. Also, as a matter of clarity, appellant has filed four petitions under the PCHA and one amended PCHA petition, pursuant to a March 2, 1984 judgment by this Court, reversing the dismissal of the petition by the hearing court.

      . Our review of the record reveals the following appeals which were filed by appellant through the years. Relief was denied on four of the five appeals. The only relief appellant ever received was permission to amend his fourth PCHA petition because issues therein had not been finally determined in prior counseled proceedings. Following amendment relief was denied.
      IN SUPREME COURT

        Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971); judgment of sentence affirmed December 20, 1971.

        Commonwealth v. Miller, 469 Pa. 370, 365 A.2d 1251 (1976); Order dismissing application for writ of habeas corpus affirmed November 24, 1976.

        Commonwealth v. Miller, 474 Pa. 170, 377 A.2d 1268 (1977); Order denying PCHA relief without a hearing affirmed October 7, 1977.
      IN SUPERIOR COURT

        Commonwealth v. Miller, 325 Pa.Super. 163, 472 A.2d 698 (1984); case remanded March 2, 1984 for filing of amended PCHA petition.

        Commonwealth v. Miller, 354 Pa.Super. 628, 508 A.2d 341 (1986); Order denying PCHA relief without a hearing affirmed January 31, 1986; allocatur denied December 10, 1986.


author: POPOVICH, Judge:

text:
    564 A.2d 978
    In re ESTATE OF Lucia A. MAMMANA. Appeal of Angelina HARDIN, Patrick Mammana, Minnie King, Carmella Borowski and Lucy Snyder.
    Superior Court of Pennsylvania.
    Argued June 21, 1989.
    Filed Oct. 2, 1989.

      Thomas F. Traud, Jr., Allentown, for appellants.
    Raymond J. DeRaymond, Easton, for participating parties.
    Before McEWEN, POPOVICH and MELINSON, JJ.
   POPOVICH, Judge:

This case involves an appeal from the final decree of the Court of Common Pleas of Northampton County, Orphans’ Court Division, admitting the signed copy of the last will executed by the decedent (Lucia A. Mammana) on November 4, 1968, to probate. We affirm in a case of first impression.

A review of the testimony proffered reveals that in October of 1967, Lucia A. Mammana, in the company of her two daughters (Carmella Borowski and Josephine Yeisley) and son (Frank Mammana), was transported to the legal offices of Coffin, Grifo and DeRaymond. There, the then Attorney Richard D. Grifo, now a member of the judiciary of the Court of Common Pleas of Northampton County, interviewed Mrs. Mammana with regard to the preparation of a will.

A will was written in 1967 for Mrs. Mammana. However, it was never executed. It was not until Grifo contacted Carmella Borowski that he wished to be paid for his services and resolve the status of her mother’s intentions as to a will that Mrs. Mammana returned to Grifo’s office in the company of the same three children and drafted a new will (dated November 4, 1968) identical to the first (1967) document in that it left a farm of approximately 135 acres to Frank Mammana, but altered the residuary clause to read that the remaining estate was to be divided among her other six children instead of just to Josephine Yeisley and Carmella Borowski.

During both sessions with Mrs. Mammana, Grifo came away with the impression that the testatrix was “completely aware” of the nature of the conversations and she was cognizant of what she wanted and desired as to the disposition of her estate, as well as to the “objects of her bounty”. The witness had “no doubt” in his mind that Mrs. Mammana “knew exactly what she wanted to do with her property, and did it.”

Also, Grifo recollected that Mrs. Mammana wanted her son Frank to have the farm, but she did not want him to sell it because of her attachment to it. So, it was Mrs. Mammana’s choice to put a time period within which he could not sell it — five years after her death.

The 1968 will was signed by the decedent (on November 4th) and witnessed by Grifo and two of his office secretaries (Anita DiBona and Catherine Wilson). The original will was placed into the office safe.

Sometime in August of 1984, after Grifo was elevated to the bench, his former law partner George Coffin was attempting to determine which wills (both originals and copies thereof) in the office were either of deceased individuals or were no longer effective because of subsequent wills written for that person. Toward that end, the secretarial staff aided Coffin in preparing a list of wills, their date of execution and the scrivener. Once this had been accomplished, and in particular as to the case of Lucia Mammana’s will, Judge Grifo was forwarded a “batch” of wills to examine and then was to advise Coffin which wills were no longer worth keeping. In compliance therewith, Judge Grifo returned the 1968 Mammana will to Coffin’s office believing, erroneously, that it belonged to someone who had since died. This was noted on the list of wills prepared by Coffin’s legal secretary for Judge Grifo by the use of an asterisk next to Lucia Mammana’s name indicating: “Deceased per RDG 8/23/84”. This list was returned to Coffin’s office along with the original will of Mrs. Mammana.

In Coffin’s efforts to up-date the office records with regard to wills, he discarded or destroyed the original 1968 Mammana will. It was only with Mrs. Mammana’s death on January 16, 1987, that a copy of the 1968 will, kept by the successor law firm to Coffin, Grifo and DeRaymond, was presented to the Orphans’ Court for probate.

After a 4-day non-jury trial, the court entered findings of fact and conclusions of law leading to the admission of the copy of the lost original 1968 will of Mrs. Mammana to probate as a valid testamentary disposition of her estate. Exceptions to the court’s decree nisi were filed, denied and followed with the entry of a final decree upholding its initial adjudication. This appeal ensued and challenges the lower court’s action on two grounds framed in the appellants’ brief at page 3 thusly:

A. Was the ... copy of an alleged Will correctly admitted to probate since the original Will could not be found.
B. Was the document admitted to probate procured by fraud and undue influence?

Before addressing the resolution of the first issue posed, it is worth noting that:

There are few problems facing the parties and the court having to do with the administration and distribution of decedents’ estates that are more difficult of solution than those arising out of various facts affecting lost wills.

Anno., Sufficiency of Evidence That Will Was Not Accessible To Testator For Destruction, In Proceeding To Establish Lost Will, 86 A.L.R.3d 980, § 2[b] at 983-84 (1978), quoting O’Neill’s Estate, 58 Pa.D. & C. 351, 359 (1946). Nonetheless, in this area of the law, it is well-established that:

When a will is known to have been executed by the decedent and cannot be located after her death and no other will is found, the lost instrument can be probated if: (1) the presumption that the testator revoked the lost instrument is rebutted; and (2) proof is given of both the execution and of the contents of the missing document.

Aker, Law of Wills in Pennsylvania, Section 1.10A. In this Commonwealth, the proof necessary to permit the submission of a copy of a will destroyed by one other than the decedent has been articulated by Mr. Justice Benjamin R. Jones in Murray Will, 404 Pa. 120, 129 & n. 12, 171 A.2d 171, 175 & n. 12 (1961) as follows:

Certain proof is essential to establish a destroyed or suppressed will: (1) that testatrix duly and properly executed the original will; (2) that the contents of the executed will were substantially as appears on the copy of the will presented for probate; (3) that, when testatrix died, the will remained undestroyed or unrevoked by her: Michelle v. Low, 213 Pa. 526, 63 A. 246.

See also In re Estate of Keiser, 385 Pa.Super. 24, 560 A.2d 148 (1989). The instant record clearly establishes that the decedent duly and properly executed her will on November 4, 1968, in the presence of Grifo and his two legal secretaries. And, the contents of the will were substantially as set forth in the copy of the will as probated. This was proven through the testimony of Anita L. DeBona, employed at the Coffin law firm in November of 1968, who testified to signing the decedent’s 1968 will as a witness and that the copy of the will offered for probate (which had the decedent’s signature) was “a true and correct copy of the final will that [she] prepared on behalf of Lucia Mammana[.]” Further, on the question of the execution of the 1968 will by Mrs. Mammana, Judge Grifo (the scrivener) stated he “recall[ed] ..., absolutely, ... her signing this will in [his] presence” and the presence of Mrs. DeBona and Catherine C. Wilson, the secretaries in the law office at the time.

Next, turning to the status of the 1968 will when the decedent died, i.e., whether it remained undestroyed or unrevoked by her, the record is supportive of a finding that the original 1968 will was inadvertently “destroyed”, by someone other than the testatrix under the mistaken belief that she was deceased.

In 1972, Attorney DeRaymond, a former partner in the Coffin law firm, was hired by Mrs. Mammana to handle some legal matters. In the course thereof, it was learned that she did not have a copy of her 1968 will. To remedy the matter, Attorney DeRaymond satisfied himself that the original will was still in the office safe and made Mrs. Mammana a copy of it.

Additional testimony appears in the record buttressing the finding by the court below that the original 1968 will was never in the possession of the decedent so as to raise the presumption that, because of the will’s absence, it was revoked or destroyed by the testatrix. See Murray Will, supra. For instance, Melanie J. Huff, employed at the law office of George Coffin, gave deposition testimony to preparing a list of wills for the office in 1982. She found the original will of the decedent “in the safe” kept at the office, and, thereafter, placed a check mark next to the decedent’s name to indicate possession of the original will by the law firm.

In 1984, a second list of wills was prepared by Mr. Coffin's secretary and sent to Judge Grifo. On this second list appeared the initials of Grifo and an asterisk next to Mammana’s name indicating that she was deceased as of August 23, 1984.

This second list was prepared by Jeanne Weinsteiger in August of 1984 and the asterisk appearing next to Mammana’s name, which was placed there by the witness, indicated, as already stated, that someone had reported to the witness that such person was deceased. As mentioned by the witness, if Mammana’s original will had not existed, it would not have appeared on this list prepared for the then Attorney Grifo for his perusal. Moreover, Weinsteiger was “certain” that she “actually physically had in her hands in 1984, the will of Lucia Mammana.”

Ruth I. McGovern, another secretary at the Coffin office, confirmed that the check mark next to the Mammana name was to indicate that the law firm had the “original” will as of 1984. This witness also remembered seeing the will of the decedent in the office safe and in Coffin’s office. The witness gave her accounting in the following fashion:

And the reason I did, is because I came from Cape Cod, and we never saw names like you have down here, Dutch-type names and whatnot. And I saw that name Mammana, and I never heard of it before, and I remember looking at it. I just remember that name.

On cross-examination, the witness was firm in her resolve of seeing the decedent’s will in 1984; to-wit:

[Attorney for the appellants:]
Q. ... are you sure that the will you saw in this cardboard box [in Coffin’s office] was Lucia Mammana’s ... [?]
A. Yes. Because, I remember the name Lucia. I always liked that particular name. And that name, coupled with the Mammana name, I was not familiar with it, and liked it.
Q. And you know that that was in this cardboard box around Christmas of '84?
A. Ah-ha.
Q. And do you think it was there for sometime after that?
A. Yes. I think it was still there during 1985?
Q. But at some point, it was no longer there?
A. Right.

From the evidence presented, there is ample proof upon which to hold that the “original” 1968 will was never in the possession of the decedent prior to her death, and that it was “destroyed” or discarded by Attorney Coffin (or someone on his behalf) in an effort to “clean out” office documents that were no longer necessary to retain.

Accordingly, we do not find persuasive the argument of the appellants that the retention of the original will by the attorney for the decedent is not enough to rebut the presumption that a lost will is thought to be revoked or rescinded by its author. Rather, we find that if a will is lost while in the hands of one other than the decedent, it is presumed that the person who had possession of it lost the document. See Thompson v. Dobbs, 234 S.W.2d 939 (Tex. Civ.App.1950). Thus, we have no dispute with the tenet in the law that the failure to find a will, after a careful and exhaustive search, raises a presumption that the decedent destroyed it with the intent to revoke it. Murray Will, supra. However, such a presumption is rebutted by proof that after the execution of the will, it was deposited by the testator or testatrix with a custodian (in this case, an attorney) and that the decedent did not thereafter have it in his/her possession or have access to it. See In re Pinney’s Will, 72 N.Y.S.2d 895 (1947).

In the instant case there was satisfactory evidence to show that the testatrix never had possession of the original document nor access to it. Therefore, the lost will cannot be presumed to be destroyed by the testatrix. Id. See also Estate of Yost, 117 So.2d 753 (Fla.App.1960); Bohnson’s Will, 203 Misc. 116, 115 N.Y.S.2d 147 (1951); Condon’s Estate, 124 Misc. 845, 208 N.Y.S. 797 (1925); Gfroerer v. Gfroerer, 173 Ind. 424, 90 N.E. 757 (1910). As such, the presumption of the lost 1968 will being revoked or destroyed by the testatrix, so as to foreclose a submission of a copy for probate, is to take a myopic view of the law and the facts at bar. This we will not do.

The copy of the decedent’s 1968 will is held to have been admitted properly for probate by the Orphans’ Court.

Lastly, to the appellants’ contention that fraud and undue influence were perpetrated upon the decedent by Frank Mammana to secure his inheritance of the 135-acre farm, we find that the record does not establish a basis for any such conclusion.

We have the testimony of the scrivener of the 1968 will that Mrs. Mammana was a “very strong woman in good health, and active” during the time of the drafting of the will in question. See In re Estate of Agostini, 311 Pa.Super. 233, 244, 457 A.2d 861, 867 (1983) (Popovich, J.) (Period during the execution of the will is crucial to decide whether testatrix was unduly influenced). He also stated that the testatrix was aware of the substance of his conversation with her concerning the manner in which she proposed to dispose of the bulk of her estate to her son, Frank, and that she was aware of what she wanted and desired to do with her property in giving the farm to her son.

Even more enlightening is the testimony of the daughter, Josephine Yeisley, who would stand to profit (from a larger share of her mother’s estate) if the copy of the 1968 will were invalidated. Yet, she admitted on the stand that:

The thing is it was she [decedent] wanted [Frank] to have the farm, and Carmella and [the witness] to distribute ... the rest with the other children.

And, this intention of the decedent was “indicated” by Lucia to Grifo, so stated Yeisley. This witness also remarked that her mother “knew” what she was doing at the time and was in good mental and physical health. Further, neither sister present at Grifo’s office during the 1968 will discussion voiced an objection to the mother’s intended disposition of the farm to Frank.

Suffice it to say, our review of the record fails to establish any evidence of fraud or undue influence being engaged in by Frank so as to justify a revocation of the copy of the 1968 will. Accordingly, we will join in the court’s allowance of the copy of the 1968 will to be probated.

Order affirmed.

MELINSON, J., concurs in the result.

      . The appellants allege in the deleted section of the issue reproduced that the copy of the 1968 will was "unsigned". Our review of the record indicates otherwise in that it was executed by the decedent and witnessed by three individuals. See Proponent’s Exhibit No. 4 & Record No. 28.

       That is, “destroyed” or "suppressed” by some one other than the testa[trix].

      . We would note that Keiser does not discount the first-impression status of the present case because instantly the will was lost while in the possession of the scrivener of the will, whereas in Keiser the decedent was in possession of the original will which could not be found upon the decedent’s death and an unsigned, unwitnessed, and undated copy was probated in its stead.


author: ROWLEY, Judge: BROSKY, Judge,

text:
    564 A.2d 983
    COMMONWEALTH of Pennsylvania v. Tyrone JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Oct. 2, 1989.

      Leonard N. Sosnov, Asst. Public Defender, Philadelphia, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.
   ROWLEY, Judge:

This is an appeal by Tyrone Jones from the judgment of sentence following his conviction in absentia for robbery as a felony of the second degree and criminal conspiracy. Appellant presents seven issues for our review and asks that his conviction and sentence be reversed and his case be remanded for a new trial or, in the alternative, that his sentence be vacated and his case remanded for resentencing. However, we find that appellant has forfeited his right to appellate review because he was a fugitive. We are, therefore, unable to address the merits of the issues he raises and must quash his appeal.

A brief recitation of the procedural history is in order as background to our discussion of the applicable principle of law. Appellant was arrested on January 27, 1984, in Philadelphia, and charged with the mugging of Mr. James Watson, from whom it was alleged the appellant had taken two hundred and sixty-seven dollars, all but seven of which was in brand new currency. Soon after his arrest, and while he was confined alone in a police van in the yard of a nearby police station, the appellant was identified by Mr. Watson as the assailant. Appellant’s request for an identification lineup prior to his preliminary hearing was denied on February 2, 1984. His preliminary hearing was held that same day, and Mr. Watson again identified the appellant as his attacker. Appellant then moved to suppress any testimony regarding the confiscation or condition of four ten-dollar bills which he was carrying when he was arrested, as well as the police yard one-on-one confrontation and the preliminary hearing identifications. His suppression motion was denied on January 31,1985. Appellant also filed a motion in limine to suppress any testimony about the currency found in his possession. This motion was denied on February 1, 1985.

Selection of the jury for appellant’s trial was started, but not completed, on February 1, 1985, a Friday. Appellant, who was free on bail was present throughout Friday's proceedings. When appellant’s trial resumed on Monday, February 4, 1985, however, appellant was absent. A bench warrant for his arrest was issued that day. Appellant was not immediately apprehended and the trial court, pursuant to Pa.R.Crim.P. 1117(a), continued with the trial. Appellant was tried and convicted in absentia. Timely post-verdict motions were filed by appellant’s counsel. The trial court denied the motions. Appellant, still not having been apprehended, was sentenced on June 10, 1985, in absentia. A motion to modify sentence was filed by appellant’s counsel and denied by the trial court. This timely direct appeal was taken and is now before us for decision. Appellant has been represented throughout these proceedings by counsel who has vigorously asserted appellant’s rights at every stage of the case.

Appellant now claims that his constitutional, statutory and procedural rights were violated during his trial. However, before we can consider the merits of appellant’s arguments, we must determine whether he has forfeited his right to appellate review.

The trial court correctly denied appellant’s post-trial motions because appellant, at the time, was a fugitive. Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978). The question is whether we have discretion to hear appellant’s appeal which was filed while he was a fugitive, now that he has been returned to custody in Pennsylvania and is amenable to any order that may be entered.

In Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975), our Supreme Court permitted an appeal by a criminal defendant who had been a fugitive, but was later recaptured. Galloway had been convicted of murder in the second degree. Post-trial motions, which included a reservation that he be allowed to file additional supplemental reasons after the notes of testimony were transcribed, were timely filed. Before argument was held on the motions, however, Galloway escaped from the Lancaster County Prison and became a fugitive from justice. The Commonwealth petitioned the trial court to dismiss Galloway’s post-trial motions and the trial court granted the petition, dismissing Galloway’s motions with prejudice. Galloway was later apprehended, and sentenced to a term of ten to twenty years imprisonment. Following sentence, Galloway filed “Additional and Supplemental Motions for a New Trial, Nunc Pro Tunc”, which the trial court allowed, by order, to be filed and dismissed them the same day on the basis that Galloway had been a fugitive.

A direct appeal was filed by Galloway to the Supreme Court and the case was listed for argument. When the case was called, the Court was informed that Galloway had again escaped from custody and was once again a fugitive. The district attorney petitioned the Court to dismiss Galloway’s appeal with prejudice. The Court took no action on the petition and continued the argument generally until Galloway was returned to custody. Three months later the Court was advised that Galloway had been returned to custody, a new argument date was scheduled, and oral argument was heard on both the merits of Galloway’s appeal and the petition to dismiss.

The Supreme Court denied the Commonwealth’s petition, to quash the appeal, reasoning that the rationale behind dismissal of an appeal while a convicted defendant is a fugitive from justice rests upon “the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court.” Id., 460 Pa. at 311-312, 333 A.2d at 743. Because Galloway was in custody and no longer a fugitive when the case was actually argued, the Court held, he was subject to the jurisdiction of the Court and would be responsive to any judgment the Court would enter. Accordingly, the Court held that there was no basis upon which to dismiss Galloway’s appeal. The Court then remanded the case to the trial court for disposition of Galloway’s supplemental post-trial motions, which were filed after his return to custody, on the merits to allow the trial court the first opportunity to correct any errors that may have occurred and to aid in clarifying the issues on appeal.

Following the Supreme Court’s decision in Galloway, this court has been consistent in its view that a trial court can dismiss post-verdict motions which are pending and not yet decided when the defendant escapes or absconds from the jurisdiction; and that this Court has the discretion to hear an appeal, properly filed in the convicted defendant’s absence, so long as the criminal defendant has returned to the jurisdiction before the appeal is dismissed. See e.g., Commonwealth v. Milligan, 307 Pa.Super. 129, 452 A.2d 1072 (1982); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981); Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978); Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975).

More recently, however, the Supreme Court has decided two cases, Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988); and Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). Based upon our review of these two decisions, we conclude that Galloway is no longer controlling and that we have no discretion to consider an appeal by a convicted defendant who escapes or absconds from the jurisdiction, regardless of when he returns.

In Passaro, the defendant was retried and convicted following his successful post-conviction challenge to a guilty plea. Passaro was sentenced to a term of five to ten years imprisonment. A timely notice of appeal was filed in the Superior Court and briefs were filed on his behalf. Before argument was scheduled on the appeal, Passaro escaped from prison. Six months later, the Commonwealth filed a motion to quash the appeal, which was granted by the Superior Court. Passaro was subsequently found and returned to Pennsylvania, at which time he filed a petition to reinstate his appeal, which the Superior Court denied. He then filed a similar petition in the Supreme Court.

In denying Passaro’s petition, the Supreme Court recognized that the right of appeal is guaranteed by Article 5, Section 9 of the Pennsylvania Constitution, but that the right is conditioned upon compliance with the procedures established by the Court, and that “a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision.” Id., 504 Pa. at 614, 476 A.2d at 348. The Court also recognized the rationale for dismissing an appeal of a convicted defendant while he is a fugitive from justice, as explained in Galloway, but then went on to say:

“More fundamentally, however, a defendant’s resort to escape constitutes a flagrant and deliberate bypass of the entire judicial process. The escape of a convicted defendant from confinement may properly be considered a rejection of the legitimate means afforded the defendant for challenging his conviction and imprisonment. Thus, by choosing to flee and live as a fugitive, a defendant forfeits the right to have his claims considered.”

Id., 504 Pa. at 615-616, 476 A.2d at 349 (emphasis supplied). Justice Zappala, in a concurring opinion, characterizes the majority’s conclusion as follows:

“I write separately to express my strong disagreement with the majority’s characterization of a defendant who has become a fugitive as having forfeited his constitutional right to have his claim considered. The mere fact of escape should in no way act to divest a person of any of his constitutional rights____”

Id., 504 Pa. at 617, 476 A.2d at 349 (emphasis in the original).

Despite this apparent shift in emphasis, the factual distinctions between Galloway and Passaro would still suggest that the forfeiture analysis of Passaro would not apply to situations like the instant case, where the defendant was returned to Pennsylvania authorities while their appeals were still pending. The Supreme Court’s subsequent decision in Luckenbaugh, however, belies this conclusion.

The defendant in Luckenbaugh entered a guilty plea to one count of robbery. He was sentenced to two to four years incarceration. Following sentencing, Luckenbaugh filed a motion for reconsideration. While that motion was pending, Luckenbaugh escaped. The trial court, sua sponte, dismissed the motion for reconsideration on the ground that Luckenbaugh had forfeited his right to have his claim reviewed. A notice of appeal was timely filed on Luckenbaugh’s behalf. Before the Superior Court, the Commonwealth argued that Luckenbaugh had waived his right to appellate review because he had escaped from custody. This Court stated that although the trial court had properly dismissed Luckenbaugh’s motion for reconsideration, it had discretion to permit review of the claims on appeal when an appellant has returned to the jurisdiction. Furthermore, the Court recognized that certain claims, such as competence to stand trial and a challenge to the legality of sentence cannot be waived. The opinion is unclear as to when Luckenbaugh was returned to Pennsylvania, but it is reasonable to conclude that he was in the custody of Pennsylvania authorities when the Superior Court made its ruling, because the Court addressed the merits of Luckenbaugh’s appeal, vacated the sentence, and remanded for resentencing.

In his dissent, Judge Olszewski argued that by escaping from prison during the pendency of his petition for reconsideration, Luckenbaugh forfeited his right to challenge his sentence. He agreed with the majority that a challenge to an illegal sentence cannot be waived, but recognized that the “waiver which our Courts have excused in challenging sentence is the failure, whether through intent or neglect, to preserve the issue for appellate review.” Luckenbaugh, 356 Pa.Super. at 359, 514 A.2d at 898. This rule, Judge Olszewski wrote, was inapplicable to Luckenbaugh because he forfeited his right to have his petition heard when he escaped. “Consequently, since appellant has jeopardized his right to challenge the legality of his sentence by electing to escape from custody during the pendency of his petition, I would affirm the lower court’s decision to dismiss the petition.” Id., 356 Pa.Super. at 360, 514 A.2d at 898.

The Commonwealth appealed the Superior Court’s ruling and the Supreme Court reversed in a per curiam one line order:

“Order of the Superior Court reversed. See Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).”

Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988). The Court’s reference to Passaro, despite the apparent factual distinctions between Passaro and Luckenbaugh, suggests that the Court in Luckenbaugh was relying upon its reasoning in Passaro. This conclusion is supported by reviewing Justice Zappala’s dissent in Luckenbaugh. Justice Zappala viewed the issue in the case as whether the Superior Court has discretion to entertain an escaped defendant’s appeal after he has been returned to the jurisdiction. The majority, he noted, reversed the Superior Court’s decision without addressing the issue which was not presented in Passaro: whether a court has the authority, i.e., the discretion, to reinstate an appeal once the defendant is returned to the jurisdiction. Justice Zappala concluded that:

“[The] decision in Passaro neither deprives a tribunal of such authority nor dictates such a result. Consistent with this Court’s prior decision in Commonwealth v. Galloway, supra, which was cited in Passaro, I would hold that the lower courts have the inherent discretion to refuse to hear the appeal of a fugitive and the discretion to reinstate such an appeal. The Superior Court properly exercised its discretion to reinstate the appeal in this matter and no abuse of that discretion is indicated.”

Luckenbaugh, 520 Pa. at 78, 550 A.2d at 1319. Six members of the Court, however, voted to reverse the Superior Court’s order on the basis of Passaro. We can only conclude, therefore, that the Court’s statement in Passaro, that “a defendant who elects to escape from custody forfeits his right to appellate review”, meant that we are without discretion to reinstate a defendant’s appeal once he has escaped and the trial court has dismissed his post-trial motions.

As an intermediate appellate court, we are bound by the decisions of our Supreme Court. The Court’s decision in Luckenbaugh is no less binding upon us because it was presented per curiam. As the Supreme Court recently emphasized, “our per curiam affirmance constituted a binding decision of precedential authority on the question presented to and accepted for review by this Court.” Commonwealth v. Gretz, 520 Pa. 324, 325, 554 A.2d 19, 20 (1989). Because we can find no legally significant distinctions between the facts in Luckenbaugh and those here, we are constrained to conclude that we are without any discretion and do not have the authority to consider this appeal on its merits. In the words of our Supreme Court, appellant’s escape “ ‘disentitles [him] to call upon the resources of the Court for determination of his claims.’ ” Passaro, supra, 504 Pa. at 616, 476 A.2d at 349, quoting Molinaro v. New Jersey, 369 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586, 588 (1970).

Moreover, we note that although quashing appellant’s direct appeal may be viewed as a drastic sanction, such a step is not without justification. When an appellant voluntarily absents himself from our jurisdiction, he creates the possibility that, should he be entitled to a new trial, the Commonwealth could find it impossible to retry him, due to the failing memories of witnesses or their deaths, misplaced evidence, or other barriers to the necessary procedures. The effect of our Supreme Court’s mandate against hearing appeals by former fugitives is to protect the public’s interest in preserving its right to apprehend and bring to justice those who would prey upon the innocent, injuring them or depriving them of their property.

Appellant’s appeal is quashed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I am constrained to join with the majority in light of the Pennsylvania Supreme Court decisions in Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988), and Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984), which deny a recaptured fugitive any right to appellate review.

The Supreme Court in Passaro stated that, “[A] defendant who elects to escape from custody forfeits his right to appellate review. It would be unseemly to permit a defendant who has rejected the appellate process in favor of escape to resume his appeal merely because his escape proved unsuccessful.” Id,., 504 Pa. at 616, 476 A.2d at 349.

Such a position relative to a recaptured fugitive can be unduly harsh. While we are aware that escape from official detention is something that must be discouraged in the strongest terms, there are escape statutes that cover this situation. See 18 Pa.C.S. § 5121(a),(d)(1)(i). Escape of a convicted defendant is a third-degree felony, and depending on a defendant’s prior record score, carries a possible penalty of eight-to-eighty months imprisonment. Id., 42 Pa.C.S. § 9721.

Our Supreme Court recognized in Passaro that the right of appeal is guaranteed by Article 5, Section 9 of the Pennsylvania Constitution, and that the past decisions of that court have emphasized that this right is a personal one which may be relinquished only through a knowing, voluntary, and intelligent waiver. However, the Passaro court found that the failure to comply with the procedures for appeal, established by the Supreme Court, would result in a waiver of the right to appeal; escape from detention would be considered a failure to comply with the procedures established for appeal.

While we do not disagree with the reasoning utilized by the Supreme Court in Passaro, we believe that an across-the-board prohibition against any appeals is overly restrictive. A better holding would be to allow for exceptions in certain circumstances, such as competency to stand trial, an illegal sentence, an involuntary guilty plea, or an illegal arrest. Certainly to avoid injustice or the extreme harshness of an illegal sentence, these should be capable of consideration for review by an appellate court. Our court did recognize, in Commonwealth v. Luckenbaugh, 356 Pa. Super. 355, 514 A.2d 896 (1986), reversed at 520 Pa. 75, 550 A.2d 1317 (1988), before it was appealed to the Supreme Court, at footnote 1, that certain claims, such as competency to stand trial and a challenge to the legality of a sentence, could not be waived. I therefore believe that this approach would better serve the ends of justice, and avoid the fundamental unfairness that could inure to a defendant, albeit one who escaped and was recaptured, who was given an illegal sentence or who was incompetent to stand trial in the first place.

      . 18 Pa.C.S.A. § 3701(a)(1)(iv).

      . 18 Pa.C.S.A. § 903.

      . Appellant remained at large until his arrest in Maryland on February 2, 1987.

      . Among his arguments, appellant claims that he should be awarded a new trial because the prosecutor, in his closing remarks, violated appellant’s right to remain silent by commenting on appellant's absence and resulting silence; because the one-on-one station yard identification violated his right to counsel and was unduly suggestive; because he was improperly denied a lineup identification before his preliminary hearing; and because the trial court failed to give any remedy to compensate for the Commonwealth’s loss of its only piece of corroborating evidence, the currency.

      . Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986).