author: CAVANAUGH, Judge. DEL SOLE, Judge, BROSKY, Judge;

text:
    618 A.2d 1032
    Patricia TERMINATO, Appellant v. PENNSYLVANIA NATIONAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed Jan. 11, 1993.

      Michael T. Collis, Pittsburgh, for appellant.
    Colin E. Fitch, Washington, for appellee.
    Before CAVANAUGH, DEL SOLE and BROSKY, JJ.
   CAVANAUGH, Judge.

Peer review is a procedure to evaluate disputed automobile insurance medical claims established by recent amendments to the Motor Vehicle Financial Responsibility Law. It enables insurers to submit such claims to an entity known as a Peer Review Organization, which determines whether the claims conform to professional standards of performance and are medically necessary. The predominant issue before us is whether a party, once the Peer Review process is invoked, must exhaust that process before proceeding to court. The lower court, relying, inter alia, on Insurance Department regulations to inform its decision, held that a party in the Peer Review process must exhaust the remedies in that process before proceeding to court. We affirm.

On October 21, 1989, the appellant, Patricia Terminato, was involved in an automobile accident in Washington County. Terminato claimed that as a result of the accident she suffered injury to her head, neck and back. She submitted to the appellee, Pennsylvania National Insurance Company, various medical bills purporting to be for medical services which were necessary because of the accident. To date, Terminato submitted $4,282.10 in medical bills to the appellee.

Initially, the appellee paid for treatment rendered by A.R. Bond, D.C., as well as other health care providers. However, the appellee refused to pay certain of the medical bills after invoking the Peer Review process by submitting appellant’s medical expenses to a Peer Review Organization (“PRO”) for an initial determination. The PRO determined that certain of Terminato’s medical expenses were not medically necessary for treatment of her injury. It felt that certain of these medical expenses were diagnostic in nature and done at the request of the appellant’s lawyer in anticipation of the initiation of litigation. The appellee denied certain claims totalling $1,292.10 after receiving the report by the Peer Review organization.

The appellant subsequently initiated this action in the Court of Common Pleas of Washington County on April 10, 1991 without appealing the adverse determination within the Peer Review process. On July 5, 1991, the appellee answered the appellant’s complaint. The appellee subsequently made a motion to dismiss the appellant’s complaint, which was argued before the motions judge on July 11, 1991. On July 23, 1991, the court dismissed the appellant’s complaint.

The tenor of the lower court’s opinion is that the appellant’s suit was not properly before it because the statute requires the appellant to exhaust the Peer Review process before proceeding to court. The lower court noted that if any party is dissatisfied with the initial determination by a PRO, whether it be an insurer, a medical provider or an insured, 75 Pa.C.S.A. § 1797(b) seems to require that a request for reconsideration must be made to a PRO. Such a request for reconsideration was not made by the insured, which attempted to pursue her relief in court. The Court also based its ruling on Insurance Department regulations interpreting the Peer Review section of the MVFRL, which state that “upon final determination by the PRO, an insurer, provider or insured may appeal the decision in court.” The lower court noted the well-settled principle of administrative law that precludes a party from obtaining judicial review without first exhausting administrative remedies.

Appellant presents five issues for our review:

1. Whether peer review organizations are administrative agencies.
2. Whether § 1797(b) is ambiguous with respect to restricting judicial review.
3. Whether the appellant was denied an opportunity to respond to appellee’s Motion for Leave to Amend or in the Alternative Motion to Dismiss.
4. Whether § 1797(b) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1797(b), restricts judicial review of a determination of a peer review organization.
5. Whether the peer review procedure set forth in § 1797(b) deprives insureds and medical service providers of due process of law when medical bill payments are denied without judicial review.

The appellant’s first two arguments will be addressed at the same time, as they similarly challenge the ruling that the insured must exhaust the Peer Review process.

The appellant claims that she is not required to exhaust the Peer Review process before proceeding in a court of law. She calls to the court’s attention that § 1797(b), the section of the Act dealing with PRO reconsideration, states as follows in pertinent part:

(2) PRO reconsideration.—An insurer, provider or insured may request a reconsideration by the PRO of the PRO’S initial determination.
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She claims that the legislature’s use of the word “may” is permissive, and thus parties dissatisfied with a PRO determination can go directly to. a court of law without seeking reconsideration. The appellant also asserts that the lower court erroneously considered a PRO an administrative agency, and thus mistakenly applied the well-settled principal that a party must exhaust its administrative remedies before pursuing its claim in a court of law. The appellant rightly notes that in Pennsylvania Chiropractic Federation v. Foster, 136 Pa.Cmwlth. 465, 478, 583 A.2d 844, 850 (1990), the Commonwealth Court specifically concluded that “[a] PRO is neither a Court of record nor an administrative agency.”

In order to properly analyze the appellant’s interpretation, we set forth at length the section which establishes the Peer Review process. The Peer Review process appears in 75 Pa.C.S.A. § 1797(b), which states as follows:

(b) Peer review plan for challenges to reasonableness and necessity of treatment—
(1) Peer review plan.—Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer’s challenge must be made to a PRO within 90 days of the insurer’s receipt of the provider’s bill for treatment or services or may be made at any time for continuing treatment or services.
(2) PRO reconsideration—An insurer, provider or insured may request a reconsideration by the PRO of the PRO’S initial determination. Such a request for reconsideration must be made within 30 days of the PRO’S initial determination. If reconsideration is requested for the services of a physician or other licensed health care professional, then the reviewing individual must be, or the reviewing panel must include, an individual in the same specialty as the individual subject to review.
(3) Pending determinations by PRO—If the insurer challenges within 30 days of receipt of a bill for medical treatment or rehabilitative services, the insurer need not pay the provider subject to the challenge until a determination has been made by the PRO. The insured may not be billed for any treatment, accommodations, products or services during the peer review process.
(4) Appeal to court—A provider of medical treatment or rehabilitative services or merchandise or an insured may challenge before a court an insurer’s refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO. Conduct considered to be wanton shall be subject to a payment of treble damages to the injured party.
(5) PRO determination in favor of provider or insured—If a PRO determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12% per year on any amount withheld by the insurer pending PRO review.
(6) Court determination in favor of provider or insured—If, pursuant to paragraph (4), a court determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12%, as well as the costs of the challenge and all attorney fees.
(7) Determination in favor of insurer—If it is determined by a PRO or court that a provider has provided unnecessary medical treatment or rehabilitative services or merchandise or that future provision of such treatment, services or merchandise will be unnecessary, or both, the provider may not collect payment for the medically unnecessary treatment, services or merchandise. If the provider has collected such payment, it must return the amount paid plus interest at 12% per year within 80 days. In no case does the failure of the provider to return the payment, obligate the insured to assume responsibility for payment for the treatment, services or merchandise.

We find the appellant’s argument unpersuasive for several reasons. The appellant, first of all, is misguided if it believes that the word “may” is used to indicate that a party has a choice of either requesting reconsideration or appealing directly to a court of law. To the contrary, the use of the word “may” indicates a party has a choice between requesting reconsideration of the initial determination or accepting the initial determination as binding. “It is well settled that where the legislature provides a [statutory] remedy without preserving the parallel right to resort directly to the courts, that remedy is exclusive and must be strictly pursued.” Concerned Taxpay. v. Beaver Cty. Bd. of Assess., 75 Pa.Cmwlth. 443, 446, 462 A.2d 347, 349 (1983); accord Lashe v. Northern York County School District, 52 Pa.Cmwlth. 541, 546, 417 A.2d 260, 263 (1980). In such circumstances, we have interpreted words such as “may appeal” to indicate an aggrieved party must exhaust the statutorily defined remedy before proceeding to court. Concerned Taxpay., supra, 75 Pa.Cmwlth. at 443, 462 A.2d at 347 (words “may appeal” mean that taxpayer must pursue appeal before Taxpayer Board of Assessment). Accordingly, the statute does not indicate that a party in the Peer Review process can resort directly to the courts, but must either appeal within the Peer Review process or accept the PRO’s initial determination as binding.

It is true that the doctrine of exhaustion of administrative remedies does not directly apply to appellant’s claim. Any such implication in the court’s decision would be in error. An Administrative Agency is a governmental body. See 2 Pa.C.S.A. § 101. A PRO, in contrast, is a business run by private citizens with whom insurance companies may contract to determine if certain medical claims conform to the professional standards of care “medically necessary.” See Pennsylvania Chiropractic Federation v. Foster, 136 Pa.Cmwlth. 465, 476, 583 A.2d 844, 850 (1990) (noting that a PRO is neither a court of record or an administrative agency). While surely the doctrine of exhaustion of administrative remedies is not directly applicable to appellant’s claim, we note the function that the Peer Review system serves is quasi-administrative in nature. The legislature could well have delegated the task of reviewing these claims to an administrative agency, but chose instead to attempt to resolve these disputes in the context of our private enterprise system.

Our interpretation of the statute is confirmed by a regulation (effective at the initiation of this lawsuit) promulgated by the Insurance Commissioner, which interprets § 1797 to allow for judicial review only after reconsideration by a PRO has been made. This regulation, 31 Pa.Code 68.2(c), provides as follows:

(c) [t]he Insurance Department interprets Act 6 to permit upon final determination by the PRO, an insurer, provider or insured may appeal the decision in court.
(emphasis added).

The above regulation explicitly denotes that the predicate for a party to proceed to a court of law is that the underlying claim must have undergone reconsideration in the Peer Review process. The construction of a statute by an administrative agency is entitled to great weight and only may be disregarded if clearly erroneous. Insurance Co. of North America v. W.C.A.B., 137 Pa.Cmwlth. 393, 397-98, 586 A.2d 500, 502 (1991); No. 1 Cochran v. Unemp. Comp. Bd. of Rev., 135 Pa.Cmwlth. 252, 579 A.2d 1386, 1391, app. den. 527, Pa. 653, 593 A.2d 424 (1990). As indicated supra, the interpretation afforded § 1797 by the Insurance Commissioner is, rather than clearly erroneous, in harmony with the current state of the law. Moreover, as indicated infra, such an interpretation facilitates the internal design of the law.

A contrary interpretation would undoubtedly frustrate the internal design of § 1797(b). Peer Review is designed as a forum where an insurer can challenge claims stemming from an automobile policy it deems medically unnecessary or not conforming to professional standards. The essence of the Peer Review process is the medical evaluation of disputed claims by a PRO, which is defined as follows:

“Peer Review Organization” or “PRO.” Any Peer Review Organization with which the Federal Health Care Financing Administration or the Commonwealth contracts for the medical review of Medicare or medical assistance services, or any health care review company, approved by the commissioner, that engages in peer review for the purpose of determining that medical and rehabilitation services are medically necessary and economically provided. The membership of any PRO utilized in connection with this chapter shall include representation from the profession whose services are subject to the review.

75 Pa.C.S.A. § 1702. Insurers are the only entity which can initially invoke the Peer Review process. 75 Pa.C.S.A. § 1797(b)(1). Indeed, the insurer has a contractual relation with the PRO. Id.

Although the statute does not mandate that the insurer invoke the Peer Review process, it does provide strong incentive for the insurer to do so. An insurer who decides to deny a claim without invoking the Peer Review process faces the potential for greater expense if the aggrieved party’s claim is found medically necessary. If the insurer denies a claim without invoking the Peer Review process, the aggrieved party (either an insured or a medical provider) may take the dispute directly to court. 75 Pa.C.S.A. § 1797(b)(4). A determination against the insurer will result in the aggrieved party receiving attorneys fees and costs, along with the claim plus interest at 12%. 75 Pa.C.S.A. § 1797(b)(4). Moreover, in this forum conduct considered to be wanton can result in the payment of treble damages to the injured party. Id. However, if the insurer routes the claim into the Peer Review process, the insurer will only be liable when an adverse determination is made for the claim plus interest at 12%. 75 Pa.C.S.A. § 1797(b)(5). There is no provision for a PRO to provide treble damages for “wanton conduct.”

Thus, it appears the statute is structured to push the insurer to submit claims it considers dubious into the Peer Review process. We believe the statutory design evidences an intention to make the Peer Review process the primary system for initially evaluating challenged insurance automobile policy medical claims. To accept the appellant’s argument, we would have to provide insured individuals the unilateral right to circumvent the Peer Review process by allowing them to proceed at their inclination in a court of law. The statute does not lend itself to such an interpretation.

We next address appellant’s argument that she was denied full and fair opportunity to respond to appellee’s Motion to Dismiss. Appellant’s position is that the appellee only designated its motion as a “Motion to Dismiss” instead of particularly designating it as Preliminary Objections in the nature of a Demurrer, a Motion for Summary Judgment, or a Motion for Judgment on the Pleadings. Appellant implies that this designation sandbagged her counsel into not responding forcefully enough to appellee’s motion.

We reject this meritless argument out of hand. While surely the better practice would have been for the appellee to designate its motion with more particularity, we cannot accept counsel’s protestations that he was in any way confused by the appellee’s motion or at what stage of the litigation the motion was made. If the appellant’s counsel was confused, it forms no basis for the grant of relief.

Our above dispositions indicate that the lower court properly granted appellee’s Motion to Dismiss. We hold that once the Peer Review process is invoked, the parties must exhaust their statutory remedies in the Peer Review process. We also rule that there is no merit to appellant’s argument that the Motion to Dismiss was made -without affording a full and fair opportunity to be heard. Accordingly, we find sufficient basis to affirm the lower court’s Order. Having so determined, we need not address the appellant’s last two arguments, which address whether a court of law has judicial review of a PRO determination.

Order Affirmed.

DEL SOLE, J., files a concurring statement.

BROSKY, J., files a concurring opinion.

DEL SOLE, Judge,

concurring.

I join the Majority Opinion authored by Judge Cavanaugh. However, I wish to point out that we have not decided whether an insurer which invokes the PRO process can seek judicial review from an adverse determination. That issue was not before this court.

BROSKY, Judge;

concurring.

Appellant reasons that because a PRO is not an administrative agency; she is not required to follow the PRO review procedure outlined in the statute before obtaining judicial review. This argument is premised on the assumption that the statute in question provides to appellant, as an insured, a vehicle by which to obtain judicial review. Appellant argues that if the statute does provide a method of obtaining judicial review of a PRO determination, this procedure is unduly restrictive in violation of due process. In this latter vein, appellant maintains that since the statute frames the request for reconsideration by an insured, an insurer or a provider of an unfavorable determination of a PRO in non-mandatory language, the failure of any aggrieved party to request reconsideration from a PRO does not bar the right to judicial review of this adverse determination. Appellant argues, alternatively, that the statute does not provide a right to judicial review. I agree with appellant insofar as the statute in question does not provide a forum for judicial review of a determination of a PRO.

The majority chooses not to address the question whether the statute at bar provides a forum for judicial review of a determination of a PRO “because of [its] preference for affirming orders on the narrowest possible grounds rather than a belief that Peer Review process is not subject to judicial review after statutory remedies are exhausted.” Majority Opn. at p. 1038, note 6. In this vein, the majority also “note[s] that a denial of a [sic] access to a court of law after the conclusion of the Peer Review process would raise serious constitutional problems, especially in light of the financial relationship between an insurer and PROs.” Id. However, I believe that the question whether the statute in controversy provides a forum for judicial review, and, if it does not, whether the lack of such forum violates due process goes to the heart of appellant’s contention at bar. Since I consider this question pivotal, I concur only in the decision of the majority to affirm the Order of the trial court. My reasoning follows.

Section 1797(b) of the MVFRL, 42 Pa.C.S.A. § 1797(b), is entitled “Peer review plan for challenges to reasonableness and necessity of treatment”, and subsection (1) thereof describes the operation of the plan as follows:

(1) Peer review plan.—Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer’s challenge must be made to a PRO within 90 days of the insurer’s receipt of the provider’s bill for treatment or services or may be made at any time for continuing treatment or services.

Section 1797(b) also contains two subsections relating to the methods by which challenges may be made to the medical necessity of health care services or products. Section 1797(b)(2) provides for reconsideration by a PRO of its initial determination. It reads in relevant part as follows:

(2) PRO reconsideration.—An insurer, provider or insured may request a reconsideration by the PRO of the PRO’s initial determination. Such a request for reconsideration must be made within 30 days of the PRO’S initial determination.

(Emphasis supplied.) Section 1797(b)(4) sets forth the condition under which a court may hear a challenge to an insurer’s refusal to pay for health care services. This subsection states in pertinent part:

(4) Appeal to court.—A provider of medical treatment or rehabilitative services or merchandise or an insured may challenge before a court an insurer’s refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO.

(Emphasis supplied.) The Insurance Department regulation in effect during the time period here involved described the initial procedure by which an insurer could dispute the medical necessity of a health care provider’s services or products and the subsequent method by which an insurer, a health care provider or an insured might challenge a determination by a PRO. Former 31 Pa.Code § 68.2(c) provided in pertinent part:

(c) A property and casualty insurer that disputes a provider’s bill for treatment or services may request that the bill be reviewed by a PRO. Following the PRO’s initial determination, an insurer, provider or insured may request reconsideration of the decision.... If an insurer has not challenged the propriety of medical treatment or services, a provider may challenge an insurer’s refusal to pay for the treatment in the courts of this Commonwealth. The Insurance Department interprets Act 6 [Section 1797(b) ] to permit that upon final determination by the PRO, an insurer, provider or insured may appeal the decision in court.

20 Pa.Bull. at 2055. (Emphasis supplied.) I am also aware of two federal decisions which have reached the same interpretative conclusion. See Elliott v. State Farm Mutual Automobile Insurance Co., 786 F.Supp. 487 (E.D.Pa.1992), and Danton v. State Farm Mutual Insurance Co., 769 F.Supp. 174 (E.D.Pa. 1991). In like vein, the Danton court stated with respect to an insured’s right to judicial review after an adverse determination by a PRO:

[T]he insured or provider still has the right to sue if the insurance company refuses to pay the provider’s bill in full without consulting a PRO. Furthermore, the insured still has the right to appeal the decision of the PRO to court if it is against the insured. This route to the courts may be more indirect than [previous legislation allowed], but ultimately, the insured or provider has the right to challenge the insurance company decision in court.

769 F.Supp. at 176. (Emphasis supplied.)

My reading of Section 1797(b) leads me to conclude that its plain, unambiguous language does not provide for a forum for judicial review of a PRO determination and, therefore, does not lend itself to the interpretation cast upon it by the Insurance Department and the federal court. Moreover, the regulation of the Insurance Department interpreting Section 1797(b) to provide the right to judicial review of a PRO determination appears to be at odds with the plain language of the statute, itself, which is silent on this subject. It is well established that a regulation cannot be upheld if it is contrary to the statute under which it is promulgated. Consulting Engineers Council of Pennsylvania v. The State Architects Licensure Board, 522 Pa. 204, 560 A.2d 1375 (1989); Commonwealth v. De Fusco, 378 Pa.Super. 442, 549 A.2d 140 (1988), appeal granted, 522 Pa. 572, 559 A.2d 34 (1989), appeal denied, 523 Pa. 425, 567 A.2d 1043 (1990), and courts are not so bound to follow such contrary regulations. Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985). Where, as here, an apparent conflict or inconsistency between a statute and a regulation promulgated thereunder exists, the statute prevails. Commonwealth v. De Fusco, supra; Tiani v. Commonwealth, Dept. of Public Welfare, 86 Pa.Commw. 640, 486 A.2d 1016 (1985). Therefore, I am not bound to consider and hold as controlling this regulation or the decisions of the federal court which have adopted the interpretation of the Insurance Department with respect to a party’s right to judicial review of a PRO determination, see Lookenbill, supra, since the regulation in question appears to be inconsistent and conflicts with the plain terms of the statute.

To summarize, with respect to a PRO determination, the statute in question provides:

1. When an insurer receives a request for payment of health care services or products, only the insurer may initiate a request for determination by a PRO of the medical necessity therefor. Section 1797(b)(1).
2. After the PRO has made its determination as to the medical necessity or not of a health care service or product, the insurer, or the insured or the provider may, not must, request the PRO to reconsider the matter. Section 1797(b)(2).
3. If, however, the insurer does not initiate a request with a PRO for a determination of the medical necessity of a health care service or product, then and only then may the the insured or the provider initiate a proceeding in court challenging the insurer’s refusal to pay for the health care service or product. Section 1797(b)(4).

To reiterate, the statute does not provide for further review of a PRO determination by a court. If no reconsideration of an initial determination of a PRO is sought by the insurer, the insured or the provider, that determination is final and binding upon the parties. If any one of the parties—insurer, insured or provider—requests reconsideration by a PRO of its initial determination, the PRO’s decision upon reconsideration is likewise final and binding upon all parties. Resort to a court of record may only be employed to obtain relief by an insured or a provider where the insurer (1) refuses to pay a health provider’s bill and (2) has not challenged the medical necessity of this bill before a PRO. The fact that the heading to Section 1797(b)(4) reads “Appeal to court”, we think, is not misleading. The plain language within the text of this subsection makes it obvious that an appeal in the context of a judicial review is not to be understood therefrom. I believe, moreover, that my refusal to embrace this interpretation of Section 1797(b) is consistent with the purpose of the MVFRL, which is to reduce the escalating costs of motor vehicle insurance. Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991).

The function of a PRO is to evaluate “treatment, health care services, products or accommodations provided to any injured person.” Section 1797(b)(1). The purpose of such evaluation is to “confirm[ ] that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary.” Id. Hence, the function of a PRO is not to make policy. Rather, the role of the PRO is to factually determine whether a service or a product was medically necessary and whether it conformed to professional standards of performance. Pennsylvania Chiropractic Federation v. Foster, 136 Pa.Commw. 465, 583 A.2d 844 (1990).

If reconsideration is requested concerning “the services of a physician or other licensed health care professional, then the reviewing individual must be, or the reviewing panel must include an individual in the same specialty as the individual subject to review.” Section 1797(b)(2). Hence, the statute provides that the person or the panel making the determination of medical necessity must be or must include not simply a licensed health care professional but, rather, one whose specialty is the same as the one whose service or product is being reviewed. The Legislature has determined that a licensed health care professional in the same specialty as the one whose service or product is the subject of review is in the best position to evaluate the medical necessity therefor. Thus, the insurer and the insured are protected against hasty and/or uninformed decision making by non-experts.

In the event an insurer refuses to make payment for a health care provider’s services or products and does not submit the claim to a PRO for evaluation, then the insured or the provider may institute a cause of action against the insurer in a court for such refusal of payment. Section 1797(b)(4). The Legislature, in its wisdom, has decided that the insurer must first be given the opportunity to avail itself of the expertise of a PRO. If the insurer fails to avail itself of this opportunity, the insured or the provider, to whom the Legislature has not accorded the right to initiate a challenge before a PRO, may seek to invoke the protection of a court of record from an insurer’s unilateral determination of the non-necessity of a medical service or product.

However, I query why appellant expresses concern that the statute in question either restricts or makes no provision for judicial review of a PRO determination adverse to her, for the statute contains a provision which our examination thereof has led me to conclude insulates an insured, like appellant, from such adverse determination. Section 1797(b)(7) provides:

Determination in favor of insurer.—If it is determined by a PRO or court that a provider has provided unnecessary medical treatment or rehabilitative services or merchandise or that future provision of such treatment, services or merchandise will be unnecessary, or both, the provider may not collect payment for the medically unnecessary treatment, services or merchandise. If the provider has collected such payment, it must return the amount paid plus interest at 12% per year within 30 days. In no case does the failure of the provider to return the payment obligate the insured to assume responsibility for payment for the treatment, services or merchandise.

Emphasis supplied.

Hence, if a PRO determines that a service or product is medically unnecessary, the provider thereof may not collect payment. I interpret this to mean that the provider is barred from collecting from the insurer as well as from the insured. I am mindful that the purpose of the MVFRL is to reduce the escalation of motor vehicle insurance costs to the consumer. Lambert, supra. It would be doing violence to the intent of the Legislature to protect the consumer against the rising costs of automobile insurance were it to be the case that the provider would be able to look to the insured for payment of services or products which were determined to have been medically unnecessary in the first instance. If an insured is not required to reimburse the insurer in the event the provider of medically unnecessary services or products refuses to return payment made to it by the insurer, it does not logically follow that an insured should be required to compensate a provider for medically unnecessary services or products, either.

The majority expresses concern in footnote number five that a situation may exist where “the insured may be forced to submit a claim to the insurer in anticipation of future expenses.” Majority Opn., p. 103, note 5. The majority anticipates that the insured will not be held harmless by Section 1797(b)(7) in that event. The short response to that concern is that the scenario described by the majority in footnote five is not presently before us. However, the ultimate decision rendered by the majority appears to rest upon this speculative scenario and is, therefore, in the nature of an advisory opinion.

In footnote number six, the majority states that it is refraining from a discussion of whether the Section 1797(b) provides for judicial review “because of a preference for affirming orders on the narrowest possible grounds rather than a belief that Peer Review process is not subject to judicial review after statutory remedies are exhausted.” Majority Opn., p. 104, note 6. The majority then expresses concern that the lack of a procedure for judicial review following exhaustion of the peer review process would pose serious constitutional problems and correctly notes that the statute in question does not restrict judicial review, since a provider may challenge in court the insurer’s refusal to pay medical expenses if the insurer fails to invoke the peer review process. See Section 1797(b)(4). However, the majority also notes, incorrectly in my view, that an insured may also proceed to court. As I have already exhaustively discussed elsewhere in this concurring opinion, the statute does not provide to an insured a forum for judicial review of non-payment of his/her medical expenses because of the insulating provisions of Section 1797(b)(7). See pp. 100-103, supra. My position in this regard is further bolstered by the language of Section 1797(a) which provides in relevant part:

(a) General rule.—A person or institution providing treatment, accommodations, products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first party medical benefits, including extraordinary medical benefits, for a motor vehicle described in Subchapter B [footnote omitted] ... shall not require, request or accept payment for the treatment, accommodations, products or services in excess of 110% of the prevailing charge at the 75th percentile; 110% of the applicable fee schedule, the recommended fee or the inflation index charge; or 110% of the diagnostic-related groups (DRG) payment; whichever pertains to the speciality service involved, determined to be applicable in this Commonwealth under the Medicare program for comparable services at the time the services were rendered, or the provider’s usual and customary charge, whichever is less. The General Assembly finds that the reimbursement allowances applicable in the Commonwealth under the Medicare program are an appropriate basis to calculate payment for treatments, accommodations, products or services for injuries covered by liability or uninsured and underinsured benefits or first party medical benefits insurance---- Providers subject to this section may not bill the insured directly but must bill the insurer for a determination of the amount payable. The provider shall not bill or othenvise attempt to collect from the insured the difference betiveen the provider’s full charge and the amount paid by the insurer.

Emphasis supplied.

Thus, unlike the majority, I can imagine no scenario where an insured will not be held harmless and, in keeping with the factual scenario actually before this court, the insured in this case has no need to resort to the judicial process to resolve her claim. The majority’s imagined scenario which it relates in its footnote number five, supra, will never come to fruition because, pursuant to Section 1797(a), it is the provider who must submit the claim to the insurer. The insured will never be in the position of having to pay the provider “up front.” Nor will the insured be harmed by the insurer’s refusal to pay for future treatment or a series of treatments based upon a peer review determination of medical non-necessity because the statute bars the provider from billing an insured for any service or product ultimately determined to be medically unnecessary. Thus, it is apparent to me that Section 1797(a) and (b)(7) complement each other and provide for consistency of interpretation. I also believe that Section 1797(a) and (b)(7) provides the answer to the question why the statute does not provide to an insured a forum for judicial review of an adverse determination of a PRO. Simply put, within the framework of Section 1797, an insurer has no standing to challenge a PRO’s determination because the administrative procedures of submission of bills and issuance of payment thereof involve an interplay between only two parties—i.e., the provider and the insurer.

I would affirm the Order in question for the reasons set forth above.

      . The Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S.A. § 1701 et seq., was amended by Act of February 7, 1990, P.L. 11 (Act 6). This amendment included the addition of the Peer Review Procedure, now appearing in 75.Pa.C.S.A. § 1797.

      . Contradicting the thrust of its holding, the court also implied that there could be no judicial review of a PRO determination. The court felt that a bar to judicial review may be indicated by 75 Pa.C.S.A. § 1797(b)(4), which states that a medical provider or an insured may challenge in court "an insurer’s refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO.” (emphasis added) The court felt this language limited the jurisdiction of the judiciary. According to the court, the words indicated that a medical provider or insured could not challenge in court medical claims which were not challenged first by the insurer before a PRO.

      . We note that a recently decided case, although not directly addressing this issue, comports with our analysis.
      In Harcourt v. General Accident Ins. Co., 419 Pa.Super. 155, 161-63, 615 A.2d 71, 75 (No. 00752 Harrisburg 1991; filed October 5, 1992), our Court addressed as part of its disposition whether a Court of Common Pleas would be deprived of subject matter jurisdiction where a party who suffered an adverse PRO initial determination appealed to a court when a PRO declined to make a reconsideration determination. Apparently, the PRO refused to act on a medical provider's request for reconsideration because the medical provider refused to pay in advance a fee for the PRO to make reconsideration. The PRO argued that a court of law would not have subject matter jurisdiction until after a reconsideration determination was made.
      We rejected this argument. In the course of our discussion, pertinent to the present case, we recognized that the law indicated that where a statutory remedy is clear and adequate, that remedy is exclusive. We implied that if the medical provider could gain recourse through the Peer Review process, we would not have jurisdiction. However, we found that the PRO’s conduct prevented the medical provider from attaining reconsideration, which in turn denied his access to a court of law. Under this circumstance, we held that the medical provider had no adequate remedy but to file a declaratory action in the Court of Common Pleas for relief.

        Thus, we find our analysis implicitly confirmed by Harcourt, supra. We note that there is no allegation in the present case of a PRO impeding the insured’s ability to seek reconsideration. Rather, the appellant had a wholly and clearly adequate statutory remedy which she chose to ignore.

      . We note that subsequent to the initiation of the lawsuit, the Insurance Commissioner has revised the regulations pertaining to Peer Review. The revised regulations similarly require a claim to advance through the reconsideration stage of the Peer Review process before an appeal is taken to a court of law. For instance, 31 Pa.Code 69.52(m) (effective 1991) reads as follows:
      (m) Upon determination of a reconsideration by a PRO, an insurer, provider or insured may appeal the determination to the courts.

      . The Concurring Opinion interprets § 1797(b)(7) to provide that an insured is insulated from an adverse determination by a PRO. The Concurrence believes that this subsection assigns liability for medical expenses either on the insurer or on the medical provider, thus holding an insured harmless for treatment alleged medically unnecessary. As perhaps this view helps inform its analysis that judicial review of a Peer Review determination has not been afforded, we address that interpretation presently.
      Such an interpretation is contrary to the plain reading of § 1797. If, as the concurrence avers, an insured is never "aggrieved” because the function of Peer Review is to determine, between the insurer and the medical provider, who pays for medical expenses, why is the word "insured” even mentioned in § 1797? More specifically, why would the legislature in § 1797(b)(2) allow the insured to ask for reconsideration of an initial determination within the Peer Review Process? The answer to both questions is that there is at least one situation where the statute anticipates that the insured will need to invoke the Peer Review Process. Namely, the statute anticipates that the insured may be forced to submit a claim to the insurer in anticipation of future expenses. While not denying that an insured is held harmless under at least this one scenario, this is not true under all scenarios. There will be an occasion(s), as rightly recognized by the statute, when an insured will be aggrieved and need to pursue a claim in the Peer Review process.

      . We note that we do this because of a preference for affirming orders on the narrowest possible grounds rather than a belief that Peer Review process is not subject to judicial review after statutory remedies are exhausted. See, e.g., PA. Chiropractic Federation v. Foster, 136 Pa. Cmwlth. 465, 477-78, 583 A.2d 844, 850 (1990) (judicial review of PRO decision available). One would suppose that the extreme result of barring judicial review would be the occasion of serious legislative debate. See, e.g., Hanna v. Philadelphia Asbestos Company, 743 F.2d 996 (3rd Circuit 1984) (without clear evidence of legislative intent, statute should not be construed to preclude judicial review); see also, Acme v. Weinberger, 580 F.Supp. 490 (E.D.Pa.1984). The legislative debates concerning the 1990 amendments to the MVFRL do not give any indication that judicial access would be restricted. In fact, the legislative history suggests quite the contrary: the legislature had no intention of denying access to the courts in the 1990 amendments to the MVFRL. See 10 House Legislative Journal 213-5 (1990) (exchange between Rep. Kenney and Rep. Hayden) (legislation did not deny judicial review to uninsured motorists because of constitutional concern of eliminating a person's access to the courts).
      We note that a denial of access to a court' of law after the conclusion of the Peer Review process would raise serious constitutional problems, especially in light of the financial relationship , between an insurer and PROs. See Harcourt v. General Accident Ins. Co., 419 Pa.Super. 155, 161-63, 615 A.2d 71, 75 (1992) (noting that a PRO, because of its financial relationship with an insurer, is not an independent body). Contrary to the lower court's impression, moreover, 75 Pa.C.S.A. § 1797(b)(4) does not restrict access to a court of law by a party that has exhausted the Peer Review process. That section merely informs an insurer that if it declines to invoke the Peer Review process, an insured or medical provider will be able to proceed directly in a court of law.

      . The majority cites 31 Pa.Code § 69.52(m) which it states is "a regulation promulgated by the Insurance Commissioner, [sic] which interprets § 1797 to allow for judicial review only after reconsideration by a PRO has been made.” This regulation was not in effect at the time that the questioned services had been rendered. See 31 Pa.Code § 69.2 which provides in relevant part: "This chapter applies to insurer payments to providers for services rendered on and after November 30, 1991.” This matter is academic, however, because of my belief that both the new regulation and the one in effect at the time that services were provided is contrary to the language in question. See pp. 95-99 in text.

      . Appellant similarly lacks standing to make this argument on behalf of the health care providers here involved, since none of these individuals or entities is/are (a) party/ies to this action.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    618 A.2d 1043
    Tong Xu XU and Zhangai Xu, His Wife, Appellants, v. MONTEFIORE HOSPITAL and Dr. Allan B. Schachter.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1992.
    Filed Jan. 11, 1993.

      Gregory Whitney, Pittsburgh, for appellants.
    James R. Miller, Pittsburgh, for appellees.
    .Before TAMILIA, HUDOCK and MONTGOMERY, JJ.
   TAMILIA, Judge:

Plaintiffs Tong Xu Xu and Zhangai Xu, his wife, bring this direct appeal from the March 20, 1992 judgment of non pros entered in favor of appellee Dr. Allan B. Schachter.

Prior to January 1, 1992, parties seeking relief from a judgment of non pros had the option of filing a petition to open and/or strike judgment or filing a direct appeal to this Court. Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (1990). However, on November 19, 1991, a rule was adopted which established relief from a judgment of non pros could be sought only by petition:

Rule 3051. Relief from Judgment of Non Pros
(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.
Adopted Nov. 19, 1991, effective Jan. 1, 1992.

Pa.R.C.P. 3051.

Because appellants’ challenge to the judgment of non pros was made as a direct appeal, on April 20, 1992, we are constrained to quash this appeal without further discussion.

Appeal quashed.

Jurisdiction relinquished.

      . Although at oral argument plaintiff's counsel informed this Court a petition to strike the judgment of non pros was properly filed, our review of the docket entries and record reveals a petition was not filed with the trial court. Including an alleged copy of said petition in the reproduced record (not time stamped) does not suffice. The appeal, moreover, was taken from the court's Order of March 20th, not from denial of a petition for relief from the judgment of non pros. We also note appellee has contested our consideration of plaintiff’s unfiled petition to strike. (Appellee’s brief, p. 7, footnote 5.)


author: WIEAND, Judge:

text:
    618 A.2d 1044
    Richard P. KOVALESKY, Appellant v. GIANT RUG MARKET and Giant Floor & Wall Covering of Hazleton, Inc., and Robert C. Laughlin, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1992.
    Filed Jan. 11, 1993.

      George A. Marinelli, Philadelphia, for appellant.
    Frank L. Tamulonis, Jr., Pottsville, for Giant Rug Market, appellee.
    Joseph A. McKenna, Pottsville, for Laughlin, appellee.
    Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

In this action, which he elected to call an action for contribution, Richard P. Kovalesky sought to recover damages from Giant Rug Market, Giant Floor & Wall Covering of Hazleton, Inc. and Robert C. Laughlin for injuries caused by a slip and fall on a pool deck. The trial court held that Kovalesky was not entitled to contribution and entered judgment on the pleadings in favor of the defendants. Kovalesky appealed. We affirm.

In June, 1982, Kovalesky slipped and fell on artificial, plastic grass on a pool deck owned by Donald E. Cerene and Lawrence L. Becker. He commenced an action for damages against Cerene and Becker and also against Esther Williams Swimming Pools and Aluminum Shapes, Inc. Cerene and Becker attempted to join Laughlin as an additional defendant, but the joinder was disallowed because it was untimely. The Superior Court affirmed. Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 497 A.2d 661 (1985).

The action was settled on June 23, 1986. In exchange for the sum of fifty thousand ($50,000) dollars, Kovalesky executed and delivered a joint tortfeasor’s release to Esther Williams Swimming Pools. Kovalesky also received from Cerene and Becker the sum of one hundred thousand ($100,-000) dollars and an assignment of their rights to contribution against Laughlin and Giant Floor & Wall Covering. Pursuant to the terms of their agreement, Kovalesky was to try his claim -for damages in order to obtain a verdict for damages. In a subsequent bench trial, the court assessed Kovalesky’s damages at $1,540,829.80. This was increased to $1,989,238.17 after the addition of damages for delay.

In February, 1988, Kovalesky, as the assignee of Cerene and Becker, filed a complaint seeking to recover contribution. Laughlin and Giant Floor & Wall Covering filed a motion for judgment on the pleadings in which they contended that there could be no contribution because their liability had not been extinguished by the settlement which Kovalesky had effected with Cerene and Becker. The trial court agreed and entered judgment on the pleadings in favor of the defendants.

The right of contribution among joint tortfeasors is governed by the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321, et seq. The Act defines joint tortfeasors as “two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 42 Pa.C.S. § 8322. Two parties may be jointly liable for an injury if their conduct “causes a single harm which cannot be apportioned ... even though [the actors] may have acted independently.” Mattia v. Sears, Roebuck & Co., 366 Pa.Super. 504, 507, 531 A.2d 789, 791 (1987), quoting Capone v. Donovan, 332 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984).

As a general rule, the right of contribution exists among joint tortfeasors. 42 Pa.C.S. § 8324(a). However, joint tortfeasors are not entitled to contribution unless they have discharged the common liability or paid more than their pro rata share of common liability. 42 Pa.C.S. § 8324(b). The Act provides, in addition, that joint tortfeasors who enter into a settlement with the original plaintiff are “not entitled to recover contribution from another joint tort-feasor tuhose UaMlity to the injured person is not extinguished by the settlement.” 42 Pa.C.S. § 8324(c) (emphasis added). Thus, the Supreme Court, in Swartz v. Sunderland, 403 Pa. 222, 169 A.2d 289 (1961), set forth two conditions which must be met in order that a valid claim for contribution arise. The Court said:

“[The] right of contribution arises [where] one joint tortfeasor has discharged the common liability or paid more than his prorata share ... [and] the liability of the other joint tort-feasor to the injured persons has been extinguished by the settlement.”

Id. at 225, 169 A.2d at 291. See also: Oviatt v. Automated Entrance System Co., Inc., 400 Pa.Super. 493, 498, 583 A.2d 1223, 1226 (1990).

In Swartz v. Sunderland, supra, a joint tortfeasor had settled with the original plaintiff before the entry of suit and had obtained a release of all claims against both tortfeasors. Id. at 223, 169 A.2d at 290. The settling tortfeasor then instituted an action for contribution against the non-settling tortfeasor for one-half of the amount paid in settlement. The court held that the right of contribution existed because (1) the settling party had discharged the common liability and because (2) the liability of the non-settling party to the original plaintiff had been extinguished. Id. at 225, 169 A.2d at 291.

Similarly, in Oviatt v. Automated, Entrance System, supra, the original plaintiff in a personal injury action had executed a release in favor of all the defendants. Id. 400 Pa.Super. at 495, 583 A.2d at 1224. The language of the release explicitly discharged “the said defendant and any and all other persons, firms, partnerships and corporations which are or might be claimed to be liable to me ... from any and all actions, causes of action, claims and demands of whatsoever kind or nature.” Id. at 495 n. 2, 583 A.2d at 1224 n. 2. The Superior Court held that the settling defendant was entitled to contribution against the non-settling defendants because it had satisfied the Uniform Act “by securing a general release from [the plaintiff].” Id. at 499, 583 A.2d at 1226.

Most recently, the Commonwealth Court had the opportunity to examine section 8324 of the Uniform Act. In Schuman v. Vitale, 144 Pa.Commw. 560, 602 A.2d 390 (1992), a settling defendant had attempted to pursue a claim against another settling defendant, PennDOT, on a theory of contribution. The defendants had settled with the original plaintiff via two separate releases. Because the release of the claimant had not extinguished the liability of PennDOT, the court held that the defendants had no right of contribution against PennDOT under Section 8324(c). Id. at 565, 602 A.2d at 393.

In the instant case, Kovalesky’s settlement with Cerene and Becker did not extinguish the liability of Laughlin and Giant Floor & Wall Covering. On the contrary, the settling parties not only acted to preserve the liability of Laughlin and Giant Floor & Wall Covering but actually conspired to subject them to a liability in excess of the amount paid in settlement. Under such circumstances, the Uniform Act does not permit a recovery for contribution. Moreover, and in any event, a court should not allow the parties, under the guise of an action for contribution, to use legal process to effect a recovery against a third person in excess of its pro rata share of the amount paid in settlement by the settling defendant. The trial court recognized the impropriety of Kovalesky’s action against Laughlin and Giant Floor & Wall Covering and properly entered judgment on the pleadings against the claimant.

Judgment affirmed.


author: CERCONE, Judge:

text:
    618 A.2d 1047
    COMMONWEALTH of Pennsylvania v. Scott BUCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1992.
    Filed Jan. 12, 1993.

      John McLaughlin, Danville, Asst. Public Defender, for appellant.
    Robert W. Buehner, Jr., Dist. Atty., Danville, for Com.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence. We affirm.

Appellant, Scott Buck, was found guilty of a summary offense under the Pennsylvania Game and Wildlife Code, 34 Pa.C.S.A. § 102 et seq. Specifically, appellant was convicted of transporting a deer carcass to which a properly completed “game kill tag” had not been attached as required by section 2323 of the Game and Wildlife Code. Appellant took an appeal to the Court of Common Pleas of Montour County which was tried de novo before the Honorable Scott W. Naus. On March 25, 1992, appellant was adjudicated guilty as charged. Appellant’s timely filed post-verdict motions were subsequently denied and on May 12, 1992, Judge Naus sentenced Mr. Buck to pay a fine of one hundred dollars ($100.00) plus the costs of prosecution. The instant timely appeal followed.

Appellant has presented one issue for our consideration: whether the trial court erred by failing to dismiss the Commonwealth’s prosecution as de minimis under section 312 of the Pennsylvania Crimes Code. This statute contains the following relevant provisions:

De minimis infractions
(a) General rule.—The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negatived by the person.whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

18 Pa.C.S.A. § 312(a).

We note that section 312 of the Crimes Code, set forth in Title 18 of the Pennsylvania Statutes, does not on its face apply to an infraction defined by the General Assembly under a different statutory title. See, e.g., Mitchell v. Liquor Control Board, 82 Pa.Commw. 344, 476 A.2d 479 (1984) (Crimes Code section concerning dismissal of de minimis criminal infractions is inapplicable to Liquor Code citation proceedings). The issue of whether section 312 of Title 18 properly applies to a violation of Title 34 has not been directly addressed by appellant. Our research into this question has disclosed no statute or case precedent which is directly on point. Unfortunately, the Commonwealth has neglected to file a brief in this case and the trial judge has declined to write an opinion explaining the rationale underlying his decision. Therefore, as neither the Commonwealth nor the trial court has challenged appellant’s assumption that section 312 properly applies to the instant matter, this court shall accept the contention arguendo.

The Superior Court has interpreted section 312 as having been enacted for situations in which there was no harm done to either a specific victim or to society as-a whole. Commonwealth v. Moses, 350 Pa.Super. 231, 235, 504 A.2d 330, 332 (1986). “Therefore, it is incumbent upon the trial court not to dismiss criminal conduct that is injurious to the victim or to society.” Id. Appellant contends that his conduct did not adversely affect either a specific human victim or society in general.

At trial, appellant testified that on the first day of the 1991 hunting season, he harvested a “trophy buck.” He stated that he removed the “game kill tag” from his hunting license and completed it in accordance with the relevant provisions of the Game and Wildlife Code. Upon his arrival at the deer processing center, an officer of the Pennsylvania Game Commission determined that appellant had not attached a game kill tag to the buck as required by law. Appellant testified that he had the properly completed game kill tag in his possession, but had not attached it to the deer’s antlers because he had no string of an appropriate diameter and he did not want to damage the animal’s head by punching a hole in the ear through which to affix the tag. Appellant also explained that he had originally placed the tag deep within the deer’s ear and tied the ear shut with heavy rope. Mr. Buck stated that he removed the tag from the ear because he feared it would blow away and he then would be left with a deer and no game kill tag. Appellant noted that before taking the deer to the processing center, he had stopped at his house to show the animal to his brother. He also conceded that he was an experienced hunter and was aware of the requirement that a game kill tag must actually be attached to a harvested animal. See N.T. 3/25/92 at 19-32.

Appellant argues that his conduct in this matter, while it constituted a literal infraction of section 2323 of the Game and Wildlife Code, did not really violate the spirit of the law. According to appellant, the purpose of requiring the use of game kill tags is to limit the number of animals killed by one individual so that many hunters may enjoy the pleasures of the chase and also to facilitate the Commonwealth’s attempt to monitor the number of animals harvested in a given season. It is appellant’s belief that he was substantially in compliance with the purpose of section 2323 because he had no intention of illegally taking a second buck, and had filled out the game kill tag so as to properly report his kill at the game processing center. Appellant hypothesizes that the only reason he was charged at all is because he was “discourteous” to the Game Commission officers.

Our review of the trial transcript discloses that the Game Commission officer who testified placed a less innocent construction upon appellant’s behavior. Deputy Game Protector William Levan stated that when he initially attempted to inspect the animal tied to appellant’s hood, appellant drove away as soon as he noticed Mr. Levan looking at the untagged deer. Id. at 5. Mr. Levan further testified that appellant “almost [ran] over me” in his attempt to escape. Id. When Mr. Levan caught up with appellant, he saw appellant “alight from the car and lay the tag on the deer.” Id. At that time, appellant told Mr. Levan three different and contradictory stories as to why the carcass had been untagged. Id. at 4.

Wildlife Conservation Officer Peter Aiken substantially corroborated Deputy Game Protector Levan’s testimony. Id. at 11-15. Additionally, Mr. Aiken noted that the Game Commission officers were travelling in a marked vehicle and were in uniform at the time they investigated appellant’s untagged deer. Id. at 18. Mr. Aiken also explained that the purpose of attaching a game kill tag to an animal before moving it is both to identify the owner of the carcass and so that a single license may not be used again during the same hunting season to kill multiple deer. Id. at 17.

Upon careful consideration of the entire transcript, we find that the trial judge was justified in refusing to dismiss the charges against appellant as de minimis. The testimony of the Game Commission officers fully supports the conclusion that appellant’s behavior after harvesting his trophy buck was not consistent with that of a person who intended to comply with the provisions of the Game and Wildlife Code and only inadvertently infringed the letter of the law. Further, appellant’s own testimony indicates that he knew he was required to attach a game kill tag to his deer. He stated that he stopped at his house prior to taking the animal to the processing center yet gave no reason for failing to obtain a means to attach the tag to the deer’s antlers. Appellant has conceded that he “could have been more polite” to the Game Commission officers. Id. at 24. His only excuse for failing to cooperate -with the officers is a belief that “their line of questioning possibly could have been a little different.” Id. Under the circumstances presented here, we find no basis upon which to overturn the trial court’s verdict.

Judgment of sentence affirmed.

      . Appellant incorrectly captioned the case as an appeal from the trial court’s order of May 12, 1992 which denied post-verdict relief. Appeal lies from the judgment of sentence. Pa.R.A.P., Rule 301, 42 Pa.C.S.A. See generally Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979) (discussing timing of appeal from judgment of sentence). We note, however, that the final judgment of sentence in this case was actually imposed by the same order which denied appellant’s post-verdict motions.

      . Section 2323 provides that each person who kills any big game shall attach a tag to the carcass immediately upon effecting a kill and before removing the game from the location of the killing. 34 Pa.C.S.A. § 2323(a) (tags issued with licenses).

      . We are aware that the Pennsylvania Commonwealth Court possesses appellate jurisdiction over criminal proceedings stemming from violations of regulatory statutes administered by Commonwealth agencies and has in the past heard appeals from criminal convictions under the Game and Wildlife Code. See, e.g., Dickerson v. Commonwealth, 138 Pa.Commw. 141, 587 A.2d 379 (1991). However, appellee neither moved to transfer the instant action nor objected to our capacity to hear the appeal. Appellate jurisdiction therefore has vested in the Superior Court. Pa.R.A.P., Rule 741(a), 42 Pa.C.S.

      . The "deer processing center” in question was identified by the investigating Pennsylvania Game Commission officer as "George’s Butcher Shop.” N.T. 3/25/92 at 4.


text:
    619 A.2d 277
    Claire L. SPINK, Appellant, v. Jack D. SPINK.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1992.
    Filed Nov. 18, 1992.
    Reargument Denied Feb. 22, 1993.

      Thomas 0. Schmitt, Pittsburgh, for appellant.
    Robert J. Fall, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

Claire L. Spink (“wife”) appeals the order of the trial court discontinuing alimony pendente lite. For the reasons that follow, we affirm.

Appellant Claire L. Spink (“wife”) and appellee Jack D. Spink (“husband”) were married on March 23, 1963. On May 18, 1988, wife filed a complaint for divorce seeking, among other things, alimony pendente lite and permanent alimony. In a consent order dated July 25, 1988, husband agreed to pay wife alimony pendente lite (APL) in the amount of five hundred dollars ($500) a month. Subsequently, the trial court conducted a hearing on the parties’ claims for equitable distribution. On October 4, 1990, the trial court entered an order distributing the marital assets and a final Decree in Divorce was entered on February 27, 1991.

In its equitable distribution order of October 4, 1990, the trial court ordered husband to pay alimony to wife, also in the amount of five hundred dollars ($500) per month until the sale of the marital residence and for at least one year from the date of the order. The order made no mention of continuing or discontinuing alimony pendente lite. Therein lies the crux of the litigation before us. Following the October 4, 1990 order, husband paid wife five hundred dollars per month. In the interim, wife filed for and was granted leave to file a motion for post-trial relief of the trial court’s equitable distribution order more than two months after its entry. In her appeal of the equitable distribution order, wife contends that she should receive either a greater share of the marital estate, or continued alimony. Wife’s appeal of the equitable distribution order is under separate consideration by this court.

On September 23, 1991, counsel for the parties appeared before a hearing officer on a Rule to Enforce an existing Order for the payment of child support and alimony or alimony pendente lite (“APL”). As quoted by the trial court, the hearing officer found that:

[Husband’s] obligation to continue to pay the $500.00 a month alimony/APL obligation outlined in the 10-4-90 order is on appeal to the Superior Court. Insofar as that appeal is pending and [husband] has satisfied the payments under the 10-4-90 order in duration of payments, said order is suspended insofar as enforcement by this court is concerned.

Trial Court Opinion dated 6/4/92 at 3. Appellant timely filed exceptions to the hearing officer’s recommendations. Adopting the hearing officer’s recommendations, the trial court entered a temporary order on October 7, 1991. On February 7, 1992, the trial court dismissed appellant’s exceptions to the hearing officer’s recommendations and rendered the October 7, 1991 order a final order from which appellant filed this timely appeal.

On appeal, appellant argues that the trial court abused its discretion when it discontinued alimony pendente lite without an evidentiary hearing while an appeal of the equitable distribution order was pending before the Superior Court. Initially, we note that the determination of the amount to be awarded, whether of alimony or alimony pendente lite, rests in the sound discretion of the trial court. Murphy v. Murphy, 410 Pa.Super. 146, 154, 599 A.2d 647, 651 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, — U.S. -, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992). Absent an abuse of that discretion, an appellate court will not disturb the trial court’s award. Id. “In the context of such determinations, the proper employment of judicial discretion includes the mandate to apply the Divorce Code in a compassionate and reasonable manner to effectuate the overriding goal of achieving economic justice between the parties.” Id. 410 Pa.Super. at 154-55, 599 A.2d at 651.

At this point, it is important to make the distinction between alimony and alimony pendente lite. Alimony pendente lite is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets “which are the financial sinews of domestic warfare.” DeMasi v. DeMasi, 408 Pa.Super. 414, 420, 597 A.2d 101, 104 (1991). Under the Divorce Code, however, the trial court may allow alimony to either party only if it finds alimony is necessary. 23 Pa.C.S.A. § 3701(a). Accordingly, alimony is not available until after the divorce decree has been entered. Id. “[Alimony] is based on need and may be reduced or terminated upon remarriage or change in economic circumstances of the party receiving it.” Id. (citing 23 Pa.C.S.A. § 3701(e), 3706, and 3707).

Alimony pendente lite is not dependent upon the status of the parties, but upon the status of the litigation. Id. Theoretically, alimony pendente lite terminates at the time of divorce. Id. However, “a divorce is not final for the purposes of [alimony pendente lite] until appeals have been exhausted and a final decree has been entered.” Id. at 420-21, 597 A.2d at 104. If an appeal is pending on the equitable distribution of the marital assets, alimony pendente lite will continue throughout the appeal process and any remand until a final order is entered. Id. at 421, 597 A.2d at 104. “[Alimony pendente lite] focuses on the ability of the individual who receives the [alimony pendente lite] during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse.” Id. at 421-22, 597 A.2d at 105.

In resolving wife’s present claim, we must address two distinct issues. Initially, we must determine whether the payments to wife subsequent to the trial court’s equitable distribution order constituted alimony or alimony pendente lite. After making that determination, we must then address whether husband’s obligation to wife should continue throughout the duration of wife’s appeal of the equitable distribution order. A review of the history of the payments to wife sheds little light on these perplexing questions.

In a consent order dated July 25, 1988, husband agreed to pay wife alimony pendente lite in the amount of five hundred dollars ($500.00) per month. After a hearing on the equitable distribution of the marital assets, the trial court ordered husband to pay wife alimony in the amount of five hundred dollars per month until the sale of the marital residence and for at least one year from the date of the order. The trial court also awarded wife counsel fees in the amount of ten thousand dollars ($10,000). Unfortunately, the trial court made no mention of husband’s obligation to pay wife alimony pendente lite under the consent order of July 25, 1988. To confuse matters even more, the trial court opinion dated June 4, 1992, addresses wife’s arguments under both scenarios: as if the payments were alimony and, in the alternative, alimony pendente lite. Moreover, a review of the September 23, 1991 hearing transcript yields little assistance in clarifying this matter.

At the September 23, 1991 hearing, wife’s counsel presented the issues of (1) whether the payments made by husband after entry of the equitable distribution order are alimony or alimony pendente lite; and (2) whether the payments should continue longer than one year after the entry of the equitable distribution order. Husband’s counsel countered that “it would seem to me not within the confines of this hearing to determine a very serious legal issue as to how APL orders are treated and what the disposition is when a case is complete....” N.T. 9/23/91 at 13. Husband’s counsel framed the issue before the hearing officer as whether husband paid the five hundred dollars to his wife in compliance with the October 4, 1990 order. The hearing officer stated that “Mr. Spink’s payment today satisfies his APL obligation so far as we know it now[.]” Id. at 38. However, in her written recommendations, the hearing officer characterized the payments as husband’s “$500.00/mo alimony/APL obligation outlined in the 10-4-90 order.” Hearing Summary dated 9-24-91. Therefore, it would seem that the question of whether the payments constituted alimony or alimony pendente lite was never resolved at the trial court level.

After thoroughly reviewing the record, we note that the trial court never ordered termination of alimony pendente lite to wife. However, following the equitable distribution order, the record discloses no contest by wife of husband’s monthly payments of five hundred dollars. Arguably, if the trial court had not discontinued alimony pendente lite, wife would have been entitled to one thousand dollars ($1,000) per month. Of this one thousand dollars, five hundred dollars would have been alimony, and five hundred dollars would have been alimony pendente lite. We can find no other explanation for this discrepancy except that the trial court had discontinued alimony pendente lite in favor of the equitable distribution award, including alimony, and the award of counsel fees.

In light of the foregoing, we find no abuse of discretion by the trial court in determining that the payment made by husband at the September 23, 1991, hearing represented his final installment pursuant to the equitable distribution order of October 4, 1990. Under the terms of the October 4, 1990 order, husband had paid his alimony obligation until the sale of the marital residence and for at least one year from the date of the order. Wife’s argument for an extension' of alimony or for permanent alimony is the subject of a separate appeal of the equitable distribution order and will not be considered at this time.

Even assuming, arguendo, that the equitable distribution order continued alimony pendente lite, we still find no abuse of discretion by the trial court in discontinuing the payments to wife. As noted supra, an award of alimony pendente lite is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets “which are the financial sinews of domestic warfare.” DeMasi v. DeMasi, supra, 408 Pa.Super. at 420, 597 A.2d at 104. Here, the trial court noted that upon the sale of the marital residence, wife would receive one hundred twenty thousand dollars ($120,000) as a partial distribution of the proceeds. The trial court’s conclusion that wife had not demonstrated a need for further payment of alimony pendente lite is supported in the record and we will not disturb it on appeal.

Order affirmed.

      . Although wife argues that she requested an evidentiary hearing on this issue, we find no record of such a request in the certified record. It is beyond cavil that an appellate court is limited to considering only those facts which have been duly certified in the record on appeal. Commonwealth v. Osellanie, 408 Pa.Super. 472, 476, 597 A.2d 130, 131 (1991). For purposes of appellate review, what is not of record does not exist. Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). It is the appellant's responsibility to provide a complete and comprehensive record to the reviewing court. Commonwealth v. Feflie, 398 Pa.Super. 622, 630, 581 A.2d 636, 640 (1990), allocatur denied, 528 Pa. 621, 597 A.2d 1151 (1991).


author: McEWEN, Judge:

text:
    619 A.2d 280
    ESTATE OF Ylynne M. FULTON, Deceased, Appeal of Dolores FULTON, Administratrix of the Estate of Ylynne M. Fulton, Deceased.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1992.
    Filed Dec. 2, 1992.
    Reargument Denied Feb. 11, 1993.

      Mary C. Frye, Harrisburg, for appellant.
    Gary E. French, Harrisburg, for participating party.
    Before CAVANAUGH, McEWEN and KELLY, JJ.
   McEWEN, Judge:

We must in this appeal determine whether the en banc Orphans’ Court properly concluded that the distributable estate of the instant intestate decedent should be distributed to the husband who survived her but from whom she had been separated, or to her surviving parents who assert that the husband forfeited his rights to her estate. Since our study compels us to the conclusion that the surviving husband forfeited his statutory interest in the estate, we are obliged to set aside the decision of the court en banc.

Ylynne M. Fulton died intestate on April 5, 1988, survived by her husband, Lloyd Spinner (hereinafter appellee), and her parents, Bernard Fulton and Dolores A. Fulton. The Register of Wills of Philadelphia County granted Letters of Administration to the mother of decedent, Dolores A. Fulton (hereinafter appellant). It is undisputed that decedent and appellee had been separated for several years prior to her death. The trial judge responsible for the audit concluded that appellee had forfeited his intestate spousal share. . When appellee filed exceptions to this adjudication, the court en banc determined that the auditing judge had erred and ruled that appellee had not forfeited his intestate spousal share, so that, as a result, he became, by reason of the statutory requirement (20 Pa.C.S. § 2102(2)) the principal beneficiary of the total distributable estate of approximately $37,000.00.

The audit court succinctly stated the following facts in the Amended First and Final Account:

Fulton and Spinner first met in the summer of 1983 at the home of Spinner’s mother and step-father in Woodstock, Virginia. Fulton’s mother was related to Spinner’s stepfather and through this family connection was visiting their home.
At the time of the introduction, Fulton was a 26-year-old college graduate, who traveled extensively in her position as the East Coast sales representative for Essence magazine. Spinner was a 33-year-old high school graduate who worked at Avtex Industry in Middletown, Virginia. Their backgrounds and life styles were disparate. Spinner, who described himself as a “small town guy” was concerned about the differences in their education. Nevertheless, their relationship developed over the next year, with Fulton visiting Spinner when her job brought her to the Washington, D.C. area.
Sometime before August, 1984, Fulton invited Spinner to accompany her on a trip to Hawaii for which she paid the expenses. The couple decided to marry there and the marriáge occurred August 2, 1984. They returned to Virginia a few days later, but their co-habitation was short-lived. The testimony is conflicting as to whether Fulton moved out of the couple’s apartment in September, October or November 1984, but it is clear that she moved without notice and that she never returned. Spinner’s testimony that she left in November is not credible in light of the vagueness with which he recalled most dates and time-frames in his testimony and the certainty with which other witnesses testified that Fulton had left him before her birthday, which was September 27.
Kimberly Fulton, decedent’s sister, helped her move and testified that they packed clothing, dishes, plants and similar items and left while Spinner was at work. She' also testified that her sister left a brief note for Spinner, stating “I’ll be in touch” or words to that effect. Spinner agrees that was the substance of the note. There is no evidence that an argument or specific dispute led to Fulton’s departure. Rather, the testimony suggests that Fulton had been disappointed to have been turned down for a job she had wanted in that vicinity and seemed not to have adapted to life in rural Virginia.
Spinner testified that he was despondent upon learning that Fulton had left him and did not work for a few days. However, he made no effort to communicate with her or to persuade her to return. Fulton called him after five or six months and between their separation in the fall of 1984 and her death in April, 1988, their only communication consisted of two or three telephone calls and two “thinking of you” notes, all initiated by Fulton. Although Spinner testified that he did not know where Fulton could be reached much of the time, he could readily have ascertained her whereabouts through her mother, who was a cousin of Spinner’s step-father and who maintained an active communication with Spinner’s step-aunt. In fact, the extent of Spinner’s effort to inquire about Fulton was to ask his step-aunt if she knew anything of Fulton’s whereabouts. According to Spinner, the response was negative, except a report that Fulton at one point was living with her father. Fulton’s parents were divorced. Her mother lived in Harrisburg and her father in Atlantic City. Spinner had met both, however, and could have contacted either of them had he chosen to reach Fulton.
Although he made no attempts at a reconciliation, Spinner testified that Fulton would have been welcome to return. The sincerity of Spinner’s sentiment is questionable, however, as by March or April of 1985, within six months of Fulton’s departure, he had begun cohabiting with another woman in her house in Harrisonburg, Virginia. Spinner, by his own admission, fathered a full-term baby born to that woman on January 27, 1986. Spinner has acknowledged paternity and accepted all accompanying rights, duties and privileges.
During that period, Fulton had likewise moved on with her life, and took jobs and lived in Connecticut, Atlantic City, and Philadelphia. She also held herself out as single and lived that life style.
It was not until three and one-half years later, upon Fulton’s murder in April, 1988, that the technical specter of the otherwise long expired marriage emerged. Bernard Fulton, decedent’s father, learned from the Philadelphia Medical Examiner that his daughter’s body would not be released without her husband’s consent. Mr. Fulton telephoned Spinner who authorized Fulton’s parents to make the funeral arrangements and take her personal possessions. Spinner and his parents attended the funeral and he testified that he offered to assist. However, Spinner did not participate in the funeral planning or payment, abdicating all control to decedent’s parents.
The existence of the marriage re-emerged as an obstacle in obtaining Letters of Administration on Fulton’s estate. Bernard Fulton and Dolores Fulton learned that the renunciation of Lloyd Spinner was required before Letters of Administration would be issued. Upon request, he renounced in favor of Dolores Fulton to whom Letters of Administration were issued. There was then no expectation that decedent’s estate had any value beyond personal effects and insubstantial bank accounts. Subsequently, it was ascertained that life insurance policies were payable to the estate. Following receipt of the notice of audit and proposed distribution, Spinner appeared at the audit to claim his marital share.

Appellant urges this Court to reverse the final decree of the court en banc and to reinstate the decision and decree of the audit court which awarded the assets of the Estate to decedent’s parents in equal one-half shares. Appellant essentially argues that the en banc court erred in setting aside the trial court’s finding that appellee consented to the separation and thereby forfeited his intestate spousal share in the estate.

Our esteemed colleague, Judge Justin M. Johnson, reiterated for this Court the standard of review which is to here be our guide:

On appeal, the findings of an Orphans’ Court judge who hears testimony without a jury are entitled to the weight of a jury verdict. In re: Masciantonio’s Estate, 396 Pa. 16, 151 A.2d 99 (1959). This rule is particularly applicable “to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.” Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980).

In re: Estate of Dembiec, 321 Pa.Super. 515, 519, 468 A.2d 1107, 1110 (1983).

Our study commences, of course, with examination of the Probate, Estates, and Fiduciaries Code, specifically Section 2106(a), which provides:

Section 2106. Forfeiture
(a) Spouse’s Share.—A spouse, who for one year or upwards previous to the death of the other spouse, has willfully neglected or refused to perform the duty to support the other spouse, or for one year or upwards has willfully and maliciously deserted the other spouse, shall have no right or interest under this chapter in the real or personal estate of the spouse.

20 Pa.C.S. § 2106(a).

The statute, therefore, precludes participation by a spouse in the distribution of the estate of a deceased spouse when the surviving spouse for a period of one year (1) “willfully neglected to ... support” the deceased spouse, or (2) “willfully and maliciously deserted the other spouse”. Appellant does not contend that appellee failed to fulfill the obligation to support the decedent. Thus, our focus is upon the question of whether appellee “willfully and maliciously deserted” the decedent.

Since it is undisputed that the decedent, and not appellee, departed the apartment which had been the residence of the newly married couple, appellee cannot be said to have “maliciously deserted” the decedent at the time of the separation. Nor did the audit judge so conclude. Rather, the trial court determined that the separation of the parties was consensual. It is the resolution of that quite precise issue and narrow question—did appellee consent to the separation—which controls disposition of this case because the Pennsylvania Supreme Court held in In Re: Archer’s Estate, 363 Pa. 534, 70 A.2d 857 (1950) that once a spouse, subsequent to a consensual separation, violates marriage vows, the spouse forfeits all right or interest to the estate of the other spouse. In the instant case, appellee does not dispute that he engaged in adulterous conduct and, in fact, admits that he fathered, by another woman, a child who was conceived within six to eight months of the separation.

We have carefully studied the record during our consideration of the question of whether the separation of the parties was consensual and are compelled to the conclusion that there is a sound evidentiary basis for the determination of the eminent Judge Judith J. Jamison who as audit judge concluded that “the separation of the parties, though initiated by [the decedent], was a consensual one under the law”. The audit court relied, of course, upon the conduct of appellee subsequent to the separation and recounts in an able opinion:

Spinner testified that he was despondent upon learning that Fulton had left him and did not work for a few days. However, he made no effort to communicate with her or to persuade her to return. Fulton called him after five or six months and between their separation in the fall of 1984 and her death in April, 1988, their only communication consisted of two or three telephone calls and two “thinking of you” notes, all initiated by Fulton. Although Spinner testified that he did not know where Fulton could be reached much of the time, he could readily .have ascertained her whereabouts through her mother, who was a cousin of Spinner’s step-father and who maintained an active communication with Spinner’s step-aunt. In fact, the extent of Spinner’s efforts to inquire about Fulton was to ask his step-aunt if she knew anything of Fulton’s whereabouts. According to Spinner, the response was negative, except a report that Fulton at one point was living with her father. Fulton’s parents were divorced. Her mother lived in Harrisburg and her father in Atlantic City. Spinner had met both, however, and could have contacted either of them had he chosen to reach Fulton.
Although he made no attempts at a reconciliation, Spinner testified that Fulton would have been welcome to return. The sincerity of Spinner’s sentiment is questionable, however, as by March or April of 1985, within six months of Fulton’s departure, he had begun cohabiting with another woman in her house in Harrisonburg, Virginia. Spinner, by his own admission, fathered a full-term baby born to that woman on January 27, 1986. Spinner has acknowledged paternity and accepted all accompanying rights, duties and privileges.
si? * # í¡: K* *
Contrary to the arguments of Spinner and his counsel, we find that the separation of the parties, though initiated by Fulton, was a consensual one under the law. Spinner claimed that initially he did not understand Fulton’s departure to be permanent, in light of the ambiguity of the note stating “I’ll be in touch” and Fulton’s habit of coming and going independently. Yet, he knew she had moved a substantial portion of her and their belongings, and he testified that he was unhappy and unable to work for a time thereafter. Spinner placidly acquiesced in the situation, letting Fulton take the lead as she had in most aspects of their relationship. By his own words, it was her idea to get married and her idea to leave the marriage. He took no meaningful steps to communicate with her or to revitalize the marriage and cohabited with another woman in a lifestyle which unequivocally demonstrated his attitude that no marriage existed. When asked whether he consented to Fulton’s leaving him, Spinner replied, “No, not at all”. Since there had been no prior discussion between the parties about separating, it is no doubt true that Spinner did not verbally consent. Yet, when asked whether he went along with Fulton’s plan to leave, Spinner said, “I had to. I didn’t want to”. When Spinner returned one of Fulton’s telephone calls and a male answered the telephone, Spinner admitted he assumed that she was seeing other men at that point. Yet he did not inquire about the identity of the person, admitting “It wasn’t my business”. Spinner’s passivity demonstrates that he concurred that the marriage was over and that he claimed no spousal rights. Tacit consent to the separation was clearly proved.

Surely there is an abundant evidentiary basis for the findings of the audit court:

That appellee had “placidly acquiesced in the situation”. That appellee’s “passivity demonstrates that he concurred that the marriage was over and that he claimed no spousal rights”.

Thus it is that we, however deep our respect for the individual insight and judicial wisdom of the members of the en banc court, unreservedly differ with the conclusion of the court en banc that such placid acquiescence and passivity is “not supported by competent evidence”.

How, in the face of so persuasive a summary of the evidence as presented by the audit judge, did so sage a court en banc conclude that the evidence did not support a conclusion that the separation was consensual? While the unwary proceed directly to speculation, the wary first seek forgiveness, and so it is that, with request for pardon, we observe that the court en banc seems to have imposed upon the examination of the evidence the requirements that the consent of appellee have been both expressed and contemporaneous with the departure of decedent. Surely, however, the essence of a separation can be transformed, so that a separation, non-consensual at the outset, can become a separation which is consensual on the part of both spouses—as well, of course, as vice versa. In re: Fisher Estate, 442 Pa. 421, 276 A.2d 516 (1971). Nor is such transformation only to be effected by an explicit statement since, as the knee-high adage recites: “Actions speak louder than words”. Application of such notions to the evidence of the conduct of appellee subsequent to the separation would permit the argument that appellee proceeded far beyond “passivity” and “placid acquiescence” in the separation, and even that he effected a de facto divorce since he behaved as would a divorced individual, and demonstrated that he considered the' marriage over.

While it remains for the legislature to study and decide whether scrutiny and revision of the Probate Act is necessary or desirable by reason of the mores of a society which inspired legislative enactment of no-fault divorce, when an individual may lawfully shed a marital partner, without the express consent of that partner and by reason of little more than the passage of time, it hardly seems critical for the judiciary to proceed to rigid interpretation of a forfeiture statute. In any event, we find that the estate must be distributed to the parents of decedent since we agree with the audit court that appellee consented to the separation and thereby forfeited his intestate spousal interest in her estate.

The order of the court en banc is reversed. The order of the audit court is reinstated. Case remanded for proceedings consistent herewith. Jurisdiction relinquished.

      . The statutory forfeiture provision here applicable, Pennsylvania Probate Estates and Fiduciaries Code, 20 Pa.C.S. § 2106, 1972, June 30, P.L. 508, No. 164, § 2, eff. July 1, 1972. As amended 1974, Dec. 10, P.L. 867, No. 293, § 5, imd. effective, mirrors the statutory forfeiture provision which was the subject of the 1950 Supreme Court decision in In Re: Archer’s Estate, supra, specifically, the Intestate Act of April 24, 1947, P.L. 80, No. 37, § 6, 20 P.S. § 42.