author: DEL SOLE, Judge: BECK, Judge,

text:
    534 A.2d 1066
    SIDKOFF, PINCUS, GREENBERG & GREEN, P.C., Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellees. SIDKOFF, PINCUS, GREENBERG & GREEN, P.C., Appellant, PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellees. SIDKOFF, PINCUS, GREENBERG & GREEN, P.C., Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellees.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Nov. 17, 1987!
    Reargument Denied Jan. 11, 1988.

      Neil A. Morris, Philadelphia, for appellant.
    Janet W. Mason, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This appeal is taken by plaintiff-Appellant, a law firm which had entered into a contract of fire insurance with defendant-Appellee, an insurance company, from an order of the trial court denying a motion for summary judgment by Appellant, and finding Appellee not liable. Three appeals have been filed in this matter and have been consolidated. The appeal at No. 2604 PHL 1986 and the appeal at No. 1364 PHL 1987 are from the the trial court’s order of September 11, 1986, denying Appellant’s petition for reconsideration. A denial of reconsideration is not subject to review on appeal. Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977). Therefore, we quash these two appeals. Furthermore, for the reasons expressed herein, we find that Appellant’s third appeal, filed at No. 1582 PHL 1987 is untimely and consequently should also be quashed.

Appellant had business fire insurance with Penn National. Appellant alleges that Appellee has breached its agreement by refusing to pay a portion of Appellants claim for losses incurred in connection with a fire in its offices. Appellant filed suit against Penn National, and upon completing discovery filed a motion for summary judgment, contending that based on the provisions of the policy and the undisputed facts, Appellee was liable for the unpaid portion of the claim.

In an order dated June 25, 1986, the trial court denied the Appellant’s motion for summary judgment and found Appellee not liable. This was a final order granting summary judgment in favor of Penn National. It is well established that an order granting summary judgment is final and appealable, and once summary judgment is granted, an appeal must be filed, if at all, within 30 days. Progressive Home Federal Savings and Loan Association v. Kocak, 359 Pa.Super. 120, 518 A.2d 808 (1986). Burkhart v. Brockway Glass Co., 352 Pa.Super. 204, 507 A.2d 844 (1986); Pa.R.A.P. 903(a).

Apparently, Appellant was under the misconception that although this June 25th order was a final one, the appeal period would not begin to run until the order was reduced to judgment and docketed. Accordingly, Appellant’s filed a praecipe to enter judgment pursuant to Pa.R.C.P. 227.4(2) on June 3, 1987, and filed an appeal from this judgment on June 4, 1987.

Our Supreme Court held in United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985), that an order sustaining the preliminary objections in the nature of a demurrer of the appellee, and dismissing appellee as a defendant to appellant’s action, was a final and appealable order, and such an order does not need to be reduced to judgment in order to be appealed. Admittedly, this Supreme Court case was dealing with preliminary objections, but generically, as in the case sub judice we are dealing with orders entered by the court which terminate litigation.

In Progressive Home Federal Savings and Loan, supra, this Court held that the trial court’s docketed order which granted summary judgment for the plaintiff was a final and appealable order, requiring the appellant to file an appeal within 30 days of the order. No further action was required to make the order final and appealable. The June 25, 1986 order herein, docketed on July 2, 1986, is also an order granting summary judgment which consequently terminated the litigation. Therefore, Appellants had 30 days after the entry of the summary judgment on July 2, 1986 to appeal. Appellants’ praecipe to enter judgment pursuant to Pa.R.C.P. 227.4(2) on June 3, 1987 was a meaningless act because the order was already final. Id.

Because the appeal from the summary judgment was filed on June 4, 1987, almost a year after the entry of summary judgment for the defendant, the appeal is untimely and must be quashed.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I concur with the majority’s quashing of the appeals at Nos. 2604 PHL 1986 and 1364 PHL 1987, which were filed by the appellants from the trial court’s order of September 11, 1987, denying its petition for reconsideration. However, it is my opinion that the appellant’s third appeal, filed at No. 1582 PHL 1987 is timely. Therefore I would consider the merits of the order of the trial court denying a motion for summary judgment by appellant Sidkoff, Pincus, Greenberg & Green, P.C. (“Sidkoff”), and finding appellee-defendant Pennsylvania National Mutual Casualty Insurance Company (“Penn National”) not liable.

Sidkoff carried business fire insurance with Penn National. Fire damaged Sidkoff’s office suite which it leased from Penn Mutual (“landlord”). The damage included damage to an acoustical ceiling which landlord had originally installed. Following the fire, Sidkoff admitted that one of its employees negligently caused the fire by running a fan overnight. The fan malfunctioned. Landlord demanded that Sidkoff replace the damaged ceiling at its expense, and Sidkoff requested coverage from Penn National. Penn National denied coverage for damage to the ceiling amounting to $75,869.85, although it paid Sidkoff approximately $125,000 for other damage caused by the fire.

Sidkoff brought suit against Penn National, completed discovery, and moved for summary judgment. The trial court denied Sidkoff’s motion for summary judgment, finding Penn National not liable for coverage for the ceiling:

This Court having reviewed the pleadings, depositions, exhibits finds as a matte[r] of law that plaintiff and defendant agreed that no liability should rest upon defendant in accordance with section II, E 4 of the parties[’] insurance contract which provide[s] for exclusions of liability ...
Accordingly, since plaintiff entered into a lease agreement with landlord Penn Mutual for the latter to install specific acoustical tiles, the nature of which were fixtures; this Court finds defendant is not liable for the resulting loss and/or damage.
Given the sophistication of plaintiff, a law firm and defendant, we will not rewrite the contract of insurance to impose liability where none was intended. Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974).

At this juncture, the trial court did not dismiss the case. The court denied summary judgment to the plaintiff-appellant Sidkoff and found defendant-appellee Penn National not liable. The effect of the court’s order was to grant summary judgment in favor of Penn National. Therefore, for purposes of appellate review on the merits, we must treat Penn National as though it were the party which moved for summary judgment and prevailed.

On appeal, Sidkoff raises the following issues: did the trial court err in (1) entering judgment in favor of Penn National, (2) holding that a contract exclusion clause in the insurance policy is applicable, (3) overlooking the extent of Sidkoff’s coverage, under its policy of insurance, for fire damage to fixtures, and for replacement costs for business personal property, and (4) failing to enter summary judgment in favor of Sidkoff.

I would find that the trial court erred in holding as a matter of law that Penn National was not liable. Since I would find that summary judgment was improperly entered, I would reverse.

It is well established that a motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R. C.P. 1035(b), Huffman v. Aetna Life & Cas. Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984), Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108, 109 (1983).

In the case sub judiee, the trial court interpreted the contract and found as a matter of law that the exclusion precluded coverage. The interpretation of a contract of insurance is a question of law to be decided by the court. Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979), Adelman v. State Farm Mut Auto. Ins. Co., 255 Pa.Super. 116, 386 A.2d 535 (1978). Therefore, I consider whether the trial court erred in its interpretation of the contract.

The trial court bases its decision on section II, coverage E of the policy (Business Liability) and refers to an exclusion clause applicable to that section. However, I note that Sidkoff s claim of coverage relies not only on the Business Liability clause but also on the Business Personal Property clause. The court did not consider the Business Personal Property clause as an alternative provision for Sidkoff’s coverage.

As to the Business Liability clause, Sidkoff relies on one provision within this coverage to assert Penn National’s liability:

The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, property damage or personal injury caused by an occurrence to which this insurance applies.
FIRE LEGAL LIABILITY: The Company will also pay on behalf of the insured all sums which the insured shall become legally obligated to pay for property damage to structures rented to or occupied by the named insured, including fixtures permanently attached thereto if such property damage arises out of fire or explosion. The total liability of the Company for all damages as a result of any one fire or explosion or a series or combination of such fires and explosions shall not exceed $50,000 for each occurrence.

Penn National asserts that the trial court correctly construed the policy when it held that this provision is not applicable because of the “other contract” exclusion. Sidkoff asserts that the trial court erred in holding that the “other contract” exclusion was applicable.

Under Coverage E, this policy does not apply:

4. to liability assumed by the insured under any contract or agreement except a contract as defined in this policy:

This exclusion precludes coverage unless the contract in which the insured assumes liability qualifies according to the policy definition of “contract.” The definition of those contracts for which the insurance company assumes liability is:

contract means any written contract or agreement wherein the named insured has expressly assumed liability for damages to which this policy applies, provided that such liability shall not be construed as including liability under a warranty of the fitness or a quality of the named insured’s products or a warranty that work performed by or on behalf of the insured will be done in a workmanlike manner:

I must therefore examine the lease to determine if the court correctly concluded as a matter of law that the exclusion was applicable.

I conclude that the court erred in concluding that as a matter of law the exclusion was applicable. Rather I would find that the exclusion clause is ambiguous, and therefore the order which in effect granted summary judgment to Penn National must be reversed. In analyzing the nature of those contracts which under the policy give rise to coverage, I examine the policy language quoted above.

The lease meets the first prong of the policy definition of “contract” for which the insurance company provides coverage in that it is a “written contract or agreement.” However, it is not clear whether the lease meets the second criteria in the next phrase of the definition because the language in the definition is ambiguous. The phrase, “wherein the named insured has expressly assumed liability for damages to which this policy applies,” is unclear and is unexplained.

Sidkoff focuses on the words, “expressly assumed liability,” and claims that it expressly assumed liability in its lease for damages resulting from its misuse or negligence, which it claims caused the damage to the ceiling tiles. In paragraph fifteen of the lease, Sidkoff agreed to repair fixtures damaged by its employee’s negligence. Sidkoff’s claim that the negligence of its employee caused the fire and damage is supported by an affidavit (by Pincus) and the testimony of the landlord facilities manager. Penn National presented no evidence to controvert Sidkoff’s evidence of negligence. Sidkoff asserts that since it expressly assumed liability in the several provisions of the lease and since its employee was negligent and caused the fire, the definition of contract in the policy triggering coverage is satisfied, and the exclusion clause is inapplicable.

Penn National relies on the language of the contract exclusion clause and relevant definitions within the policy in its argument that the exclusion applies.

Since the policy is ambiguous as to whether the exclusion applies, the court was in error when in effect it granted summary judgment in favor of Penn National, and it found as a matter of law that the exclusion applied to the Business Liability provision.

Sidkoff also claims coverage under the Business Personal Property clause. The trial court did not consider this clause in finding that Penn National was not liable. The relevant provisions in the Business Personal Property clause are found in Section I, Coverage B:

This policy covers replacement cost of the Business Personal Property owned by the insured, usual to the occupancy of the insured, at the premises described in the Declarations for which a limit of liability is shown, including:
1. similar property held by the insured and belonging in whole or in part to others but not exceeding the amount for which the insured is legally liable, including the value of labor, materials, and charges furnished, performed or incurred by the insured; and
2. tenant’s improvements and betterments, meaning the insured’s use interest in fixtures, alterations, installations or additions comprising a part of the building occupied but not owned by the insured and made or acquired at the expense of the insured, exclusive of rent paid by the insured, but which are not legally subject to removal by the insured.

In assessing Penn National’s liability, I would direct the trial court to consider the Business Personal Property clause as well as the Business Liability clause.

Sidkoff next contends that the trial court erred in not granting summary judgment in favor of Sidkoff. Since I would find ambiguity in the policy, I believe Sidkoff is not entitled to summary judgment.

      . The order on appeal, although unclear, is a de facto summary judgment order which does not state that judgment is entered, but rather finds sua sponte that defendant is not liable. This case is therefore unlike the Superior Court cases cited in the majority which do not present the issue of an unclear summary judgment order. Since the instant order is unclear, it would be unfair to deny appellant review of the merits. I do not believe our Supreme Court intended United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985) to eradicate the "entry” language in Pa.R.App.P. 903(a) and to apply generally to all cases terminating litigation.

      . The exclusion clause referred to above is not applicable to the Business Personal Property provisions.


source: Caselaw Access Project

author: POPOVICH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    534 A.2d 1071
    NATIONWIDE INSURANCE COMPANY OF DELAWARE, Appellant, v. William F. ENDERLE and Margaret Enderle, his wife.
    Superior Court of Pennsylvania.
    Submitted April 21, 1987.
    Filed Dec. 11, 1987.

      Michael Yanoff, Lansdale, for appellant.
    Edward S. Lawhorne, Media, for appellees.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Delaware County entered against the appellant, Nationwide Insurance Company of Delaware. We reverse.

The record discloses that on December 15, 1977, Clyde and Bernice Ewing, domiciled in the State of Delaware and insured by the appellant, sustained injuries in Pennsylvania as a result of the negligent operation of a vehicle owned by William and Margaret Enderle and insured by a Pennsylvania carrier.

When the Ewings refused to execute a complaint brought by the insured/Nationwide against the Enderles, it secured the status as party-plaintiff and sought the recoupment of $4,309.44 (of basic loss benefits paid to its insured/Ewings) from the Enderles under a right of subrogation afforded to it by the Delaware Motor Vehicle Act, 21 Del. Code Ann. § 2118(f). A verdict was entered against Nationwide and its complaint was dismissed.

A series of appeals and remands transpired thereafter leading to the re-imposition of the original verdict and complaint dismissal. This appeal followed.

Nationwide assails the trial court’s dismissal of its complaint on the ground that the Delaware No-Fault Act (21 Del. Code Ann. § 2118) affords it a right of subrogation which was refused recognition by the court below. We agree.

Under our No-Fault Act (40 P.S. § 1009.101 et seq.), reference to the law of the state of domicile of the victim is required in those instances where the payment of basic loss benefits is at issue, the victim is not domiciled in Pennsylvania but the state of domicile of the victim does provide a No-Fault plan to its domiciliaries. For example, 40 P.S. § 1009.110(c)(1) reads in pertinent part:

(1) Basic Loss Benefits[] available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the State’s No-Fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. * * * *

The Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a) effective October 1, 1984.

Viewing the intention sought to be achieved by the Legislature (see 1 Pa.C.S. § 1921) in promulgating § 1009.-110(c)(1) against a common sense reading of the statute in question, we do not read the provision so narrowly as to impair the appellant’s ability to look to Delaware’s subrogation statute (21 Del. Code Ann. § 2118(f)) to afford it the opportunity to recover monies paid to its insured under Delaware’s No-Fault Act, which grants unequivocally the appellant the right to subrogation for benefits paid.

In doing so, we find that the appellant’s right to subrogation is controlled by Delaware law, and, accordingly, appellant is entitled to seek payment from the appellees for monies paid to its insured. Thus, we see no need to engage in a conflict-of-law analysis when Pennsylvania’s No-Fault Act directs that the domicile of the victim is to be respected in determining one’s rights under No-Fault law. See § 1009.110(c)(1).

In Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980) this Court concluded that 40 P.S. § 1009.110(c)(2), which required that a victim’s right to sue in tort was to be determined by the law of the state of domicile of such a victim, was not undermined by 40 P.S. § 1009.301(a)’s abolishment of tort liability and the $750.00 threshold requirement that had to be met to recover damages for non-economic detriment caused by an automobile accident. Rather, § 110(c)(2), similar in essential language to § 110(c)(1), was read to require that New Jersey’s $200.00 threshold requirement proviso in the law controlled vis-a-vis Pennsylvania’s $750.00 level.

Instantly, as in Toter, the applicable provision of Pennsylvania’s No-Fault Act (§ 110(c)(1)) is being read to allow the out-of-state statute (Delaware’s § 2118) to regulate entitlement to recovery. In this way, Delaware law availing the appellant/insured a right to subrogation, the Pennsylvania’s No-Pault Act need not be relied upon to direct our decision. See Swezey v. The Home Indemnity Co., 691 F.2d 163 (3rd Cir.1982).

Further, under § 110(c)(1), as is obvious from its reading, basic loss benefits are available only to a “victim” or a “survivor of a deceased victim.” However, albeit the appellant is certainly not a “victim” or a “survivor of a deceased victim” as those terms are described statutorily, nonetheless, that is not the end of the inquiry since the appellant seeks to implement its subrogation rights specifically provided for under § 2118(f) of the Delaware law.

Because traditionally notions of subrogation relate to “ ‘the equitable substitution of another person in the place of the lienholder or preferred claimant to whose original rights he succeeds in relation to the claim paid’ ”, Willis v. Continental Casualty Co., 649 F.Supp. 707, 709 (D.C. Del. 1986)(Citation omitted), the “victim’s” entitlement to basic loss benefits under § 110(c)(1) would encompass the appellant, i.e., it stepped into the shoes of the insured/“victim”. See Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987). Thus, the appellant will be availed the opportunity to have payment for injuries incurred satisfied via § 110(e)(l)’s referral to the “victim’s” state of domicile, which here would be Delaware, in determining one’s subrogation rights.

Even though argument has been made which makes much of the appellant’s failure to have made payments in excess of Pennsylvania’s No-Fualt statute as some sort of condition precedent to securing recovery, this misses the mark.

If the Delaware law is controlling, which we believe it is, then the appellant need not satisfy some threshold payment to be entitled to exercise its subrogation rights and bring a separate action against the tort-feasor to recover the amounts the carrier has paid its insured. See Swezey, supra. Accord International Underwriters, Inc. v. Blue Cross and Blue Shield of Delaware, Inc., 449 A.2d 197, 200 (Del. Supr. 1982); Givens v. Street, 405 A.2d 704 (Del. Super. 1979); DeVincentis v. Maryland Casualty Co., 325 A.2d 610, 612 (1974). Section 2118(f) does not require such a sine qua non to exercise subrogation rights by an insurer.

Accordingly, we read the statutes and law in question to avail the appellant a right to subrogation, and, thus, the ruling of the court below being to the contrary, we reverse.

Jurisdiction is not retained.

JOHNSON, J., filed a dissenting opinion.

JOHNSON, Judge,

dissenting:

I am obliged to dissent. The decision of the majority subverts the legislative intent of the Pennsylvania No-fault Act by extending basic loss provisions, 40 P.S. § 1009.-111(c)(1), to allow recovery by the no-fault insurer for payment of those benefits to the victims.

The clear policy of this Commonwealth when the legislature passed the No-fault Motor Vehicle Act was to develop a statewide motor vehicle insurance system which assured victims payment of certain basic loss benefits and reduced or eliminated the need for law suits except in cases of serious injury. 40 P.S. § 1009.102. The legislature restricted potential plaintiffs to those suffering statutorily described serious injury to decrease the number of law suits. Those able to sue under the statute are precluded from recovering for some damages and neither the victim nor his no-fault carrier may recover the damages paid as basic loss benefits.

The majority and Nationwide derive their assertion that this claim is subject to subrogation from the Delaware Motor Vehicle Act, Del. Code Ann. tit. 21 § 2118(1977). Section 2118(f) allows an insurer, who is required to pay first party benefits, to recover the amount of those benefits from the tort-feasor. The Delaware No-Pault statute being additive rather than basic provides for certain payments to the victim of an automobile accident regardless of negligence while retaining traditional tort recovery. Subrogation rights are provided to the insurer providing benefits, subject to certain limitations not relevant here. 21 Del. Code Ann. § 2118(f). Unlike the Delaware Statute, Pennsylvania abolished tort liability, with certain exceptions, when an accident occurs within the state. 40 P.S. § 1009.-301. Section 301 of the Pennsylvania No-Fault Act (40 P.S. § 1009.301), abolishes a tort-feasor’s tort liability for economic damage except for amounts in excess of money paid to a victim as basic loss benefits.

The Pennsylvania No-fault law provides:

Rights and duties of obligors.
(a) Reimbursement and subrogation.—
(1) Except as provided in paragraphs (2) and (3) of this subsection, an obligor:
(A) does not have and may not contract, directly or indirectly, in whole or in part, for a right of reimbursement from or subrogation to the proceeds of a victim’s claim for relief or to a victim’s cause of action for non-economic detriment; and
(B) may not directly or indirectly contract for any right of reimbursement based upon a determination of fault from any other obligor not acting as a reinsurer for no-fault benefits which it has paid or is obligated to pay as a result of injury to a victim.

40 P.S. § 1009.111(a)(1).

This language obviously expresses the policy of the Commonwealth of Pennsylvania that insurers providing security under the Act do so without recourse to fault-based subrogation. Id. Under Section 111 of the Pennsylvania No-fault Act (40 P.S. § 1009.111) an insurer’s right of subrogation is preserved only where payment has been made by the insurer to its insured in an amount in excess of basic loss benefits. Brunelli v. Farelly Bros., 266 Pa. Super. 23, 402 A.2d 1058 (1979). However, Nationwide made no payments in excess of basic loss benefits.

This action requires a conflict of laws analysis since the two “no-fault” acts deviate on the issue of subrogation of no-fault benefits paid. Since there is no statutory guidance, a determination of which state’s law should apply to the case before us is required.

The Pennsylvania Supreme Court adopted the “contacts” test for resolving conflicts of law in Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964). Under Griffith, we are required to apply the law of the jurisdiction with the most significant relationship with the occurrence and the parties. To determine the forum with the most significant relationship, reference must be made to the place of the injury, the domicile of the parties, and the “place where the relationship between the parties is centered.” Griffith, 416 Pa. at 15, 210 A.2d at 802. In this case, these contacts would call for the application of Pennsylvania law: the place of the injury, the domicile of the tort-feasor, and the place where the relationship of the parties is centered are all in Pennsylvania.

However, the Griffith test is not merely one of “counting the contacts”. A decision on a choice of law must also be made with reference to the policies underlying the differences in the law. While the Delaware law has as one of its purposes the compensation of victims for economic loss, the Delaware Motorists Protection Act by allowing recovery against tort-feasors, would result in premium differentials based on accident fault experience. This is inconsistent with the policies of no-fault compensation. See, Eugene F. Scoles and Peter Hay, Conflict of Laws § 17.44, n. 9 (1982).

Pennsylvania, on the other hand, has a legislatively declared policy against the fault based subrogation allowed under Delaware law. See also, Automobile Underwriters Inc. v. Erie Insurance Group, 30 Pa.D. & C.3d 152 (1983). The result of Pennsylvania’s policy is to evenly distribute the premium burden on the driving population without regard to fault. Application of the subrogation provision of the Delaware Motorists Protection Act, 21 Del.Code Ann. § 2118(f) would frustrate this purpose if applied to Pennsylvania insured drivers and ultimately to Pennsylvania insurers. It would redistribute the burden of providing benefits in a way not contemplated by the Pennsylvania Act. It is self-evident that tort exemptions in reality finance no-fault benefits.

I would find that § 40 P.S. 1009.111(c)(1) does not encompass subrogation and therefore would not reach the applicability of section 2118(f) of the Delaware Motorists Protection Act. I would find that Nationwide’s cause of action fails since subrogation actions of this character are contrary to the law of the Commonwealth. I would affirm the judgment of the trial court.

Accordingly, I dissent.

      . "Basic loss benefits" means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicrble limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to pro perty. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle.
      40 P.S. § 1009.103 (repealed).

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . We note parenthetically, that in Delaware, where, as previously noted, tort law applicable to automobile accidents has not been abolished, the “contacts” test espoused by such cases as Griffith, supra, has been rejected and Delaware continues to adhere to the traditional rule of lex loci delicti, the law of the place of injury controls. Friday v. Smoot, 58 Del. 488, 211 A.2d 594 (1965); Thornton v. Carroll, 490 F.Supp. 455 (Del. 1980).


author: WIEAND, Judge:

text:
    534 A.2d 1075
    Sidney L. PHILLIPS, Appellee, v. Richard SCHOENBERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1987.
    Filed Dec. 14, 1987.

      Thomas E. Boop, Sunbury, for appellant.
    James R. Ronca, Harrisburg, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

On December 22, 1980, at or about 6:40 p.m., Sidney L. Phillips was a passenger in a vehicle being operated by Richard Schoenberger in a southerly direction on Route 147, a two lane highway in Northumberland County. While attempting to pass a slow moving vehicle, Schoenberger collided with a vehicle travelling in the other direction and being operated by Ray Updegrove. To recover for the injuries which he sustained, Phillips commenced an action against Schoenberger, which was tried before a jury and resulted in a verdict in favor of Phillips and against Schoenberger in the amount of One Hundred Thousand ($100,000) Dollars. Post-trial motions were denied, delay damages were added, and judgment was entered accordingly. On appeal, Schoenberger raises numerous issues which we will discuss seriatim.

The grant of a new trial on the ground that the verdict was excessive and contrary to the weight of the evidence is proper only when the jury’s verdict is so contrary to the weight of the evidence as to shock one’s sense of justice and make a new trial imperative in order that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Bohner v. Stine, 316 Pa.Super. 426, 436, 463 A.2d 438, 443 (1983); Yandrich v. Radie, 291 Pa.Super. 75, 79, 435 A.2d 226, 228 (1981), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982).

Assessing non-economic damages is primarily a matter for the jury, whose verdict will not ordinarily be set aside unless it is so excessive as to shock the conscience of the court. James v. Ferguson, 401 Pa. 92, 99, 162 A.2d 690, 694 (1960). The trial judge, who was present at the trial and heard the testimony, has broad discretion with respect to granting or refusing a new trial on the grounds that the verdict was contrary to the weight of the evidence; and his decision will not be reversed on appeal unless he has acted capriciously or has abused his discretion. Yandrich v. Radic, supra 291 Pa.Super. at 79, 435 A.2d at 229. A new trial should not ordinarily be granted where the evidence is conflicting and the jury could have decided for either party. Carroll v. Pittsburgh, 368 Pa. 436, 445-446, 84 A.2d 505, 509 (1951). In the instant case, the trial judge said that his conscience had not been shocked by the amount of damages awarded by the jury, and our review of the record does not suggest that this was an abuse of discretion.

The evidence established that Phillips had suffered multiple facial lacerations, a fractured nose, a torn lip and nostril, and a muscular ligamentous injury of the spine. The evidence also established that Phillips had spent several days in the hospital following the accident and had undergone several surgical procedures to minimize the scarring of his face. These efforts were not entirely successful, for Phillips continued at the time of trial to have permanent scarring on his face. He also continues to suffer chronic pain in his back and muscular spasms, as well as chronic headaches due to muscular contraction pain. Because of this, Phillips continues to be treated by physicians for injuries received in the accident.

In Daly v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983), this Court said:

The trial court has the authority to order a remittitur of excessive damages. Ready v. Motor Sport, Inc., 201 Pa.Super. 528, 193 A.2d 766 (1963). However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict. Jones v. Stiffler, 137 Pa.Super. 133, 8 A.2d 455 (1939). Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Stoughton v. Kinzey, 299 Pa.Super. 499, 445 A.2d 1240 (1982). Therefore, it is the duty of the court to enforce the jury’s verdict unless the circumstances cry out for judicial interference. Prather v. H.K. Corp., 282 Pa.Super. 556, 423 A.2d 385 (1980); Stoughton,. supra.

Id., 317 Pa.Superior Ct. at 352, 464 A.2d at 357-358 (emphasis in original). The circumstances in the instant case do not “cry out for judicial intervention.” The verdict was fully supported by competent evidence, and the verdict was not excessive. It cannot be said that the trial court abused its discretion by refusing to grant either a new trial or a remittitur.

Appellant argues that the trial court erred when it refused to grant a mistrial after Ray Updegrove, in response to a question regarding the damages to his car, said, “Oh, the insurance company called it totalled.” It is well settled that “evidence in a personal injury action which informs the jury that the defendant is insured against liability is inadmissible and an improper subject of cross-examination.” Price v. Yellow Cab Company of Philadelphia, 443 Pa. 56, 63, 278 A.2d 161, 166 (1971). Therefore, “reference to insurance coverage held by one of the parties to an action will be excluded where such reference would be irrelevant and prejudicial.” Beechwoods Flying Services, Inc. v. Al Hamilton Contracting Corp., 317 Pa.Super. 513, 518, 464 A.2d 440, 442 (1983). See: Price v. Yellow Cab Company of Philadelphia, supra; Moidel v. Peoples Natural Gas Company, 397 Pa. 212, 154 A.2d 399 (1959); McCormick on Evidence, § 201 (3rd ed. 1984). However, “the mere mention of the word insurance [by a witness during trial] does not necessitate a new trial. There must be some indication that the defendant [was] prejudiced.” Pushnik v. Winky’s Drive In Restaurants, Inc., 242 Pa.Super. 323, 335, 363 A.2d 1291, 1297 (1976). See: Bortz v. Henne, 415 Pa. 150, 204 A.2d 52 (1964); Fleischman v. Reading, 338 Pa. 183, 130 A.2d 429 (1957); Cain v. Kohl-man, 344 Pa. 63, 22 A.2d 667 (1941). The defendant is not prejudiced and a mistrial is not required where the reference to insurance is ambiguous and does not disclose that the defendant is himself insured. See: Pushnik v. Winky’s Drive In Restaurants, Inc., supra; Bortz v. Henne, supra; Richardson v. Wilkes-Barre Transit Corp., 172 Pa.Super. 636, 95 A.2d 365 (1953).

In the instant case, the witness was the driver of the other car, and his reference to insurance did not necessarily suggest that appellant was covered by insurance. The witness’ testimony may as readily have referred to his own insurance company. Therefore, the witness’ reference to insurance was harmless. It did not prejudice the defense, and it did not require that the trial court declare a mistrial.

Appellant also complains because he was not permitted to explain to the jury the nature of his injuries which caused amnesia and robbed him of his memory of the accident. However, counsel for the parties stipulated that appellant’s injuries had caused amnesia and that, therefore, he could not recall the accident.

Prior to trial, Phillips filed a motion in limine to preclude Schoenberger from offering testimony pertaining to the injuries which he had sustained in the accident. When the trial court ruled that it would limit the testimony regarding the nature and extent of Schoenberger’s injuries, appellant prepared a stipulation to the effect that because of serious injuries sustained in the accident, he was suffering from amnesia and could not recall the details of the accident. Phillips refused to sign the stipulation unless the word “serious” was removed. Upon deletion of the word “serious,” both parties signed the stipulation.

Schoenberger now argues that the trial court should have forced Phillips to sign the stipulation as originally prepared. As the trial court properly observed, however, a stipulation is an agreement between the parties, and the court cannot force either party to enter into a particularly worded stipulation regarding the evidence. See: 35 P.L.E. Stipulations §§ 1 and 6. A party is not required to agree to a stipulation regarding evidence and can either accept or reject a stipulation offered by the other party. In this case, Phillips initially rejected the proffered stipulation. When Schoenberger agreed to delete the word “serious,” Phillips acquiesced and signed the stipulation. Schoenberger cannot now validly complain about a stipulation to which he agreed.

Appellant’s complaint that the trial court improperly limited the evidence regarding the injuries which he had sustained in the accident also is not well taken. The stipulation was adequate to explain his amnesia. This was, for purposes of this action, the only relevant fact required by the jury. After the stipulation had been received, there was no need to detail further the nature and extent of his injuries. Furthermore, the trial court told the jury:

THE COURT: Members of the jury, Mr. Boop has just read into the record a stipulation between the lawyers. Now, the stipulation which has been offered and received in evidence constitutes an agreement by the opposing parties through their attorneys that these facts may be accepted as undisputed and require no further proofs and will permit no contradictory evidence. They are to be accepted by you as binding and conclusive for the purposes of this trial.

N.T. at p. 280 (emphasis added). The trial court’s rulings on the admissibility of evidence about the defendant’s injuries was entirely proper. They do not support appellant’s argument for a new trial.

Appellant contends that the trial court erred when it ruled that the plaintiff could not be found guilty of contributory negligence as a matter of law and refused to instruct the jury on comparative negligence. The law requires that “a party’s negligence must be submitted to the jury unless there is no evidence from which an affirmative finding could be made without resort to speculation.” Yandrich v. Radie, supra 291 Pa.Super. at 78, 435 A.2d at 228. However, “a trial judge should not instruct a jury to find a material fact in the absence of evidence to support the finding.” Heffernan v. Rosser, 419 Pa. 550, 554-555, 215 A.2d 655, 657 (1966). Thus, “if a plaintiff’s case discloses no contributory negligence and if the defendant offers no evidence from which plaintiff’s contributory negligence may be inferred, ... since it is defendant’s burden to establish contributory negligence, it is the duty of the trial court to give binding instructions that no such question exists in the case.” Id. See: Miller v. Montgomery, 397 Pa. 94, 97, 152 A.2d 757, 759 (1959).

Phillips’ case disclosed no contributory negligence. He recounted the moments prior to the accident as follows:

A. We went — we went west on Route 11, when we got to Sunbury we continued South on Route 147 as we came past Fishers Ferry, around the bend and started up over the hill Mr. Schoenberger proceeded to pass a vehicle we had been following for two to three miles.
I was unaware of his passing. I was somewhat caught offguard. I was kind of sitting there relaxed and he pulled out, accelerated, pulled out in the passing zone and we were out there only a second or two and I saw head lights coming from the other direction. When I saw the head lights it was enough time for me to brace myself. That’s about all I had time for. And the last thing I remember before the accident, the impact, I don’t remember the accident or the impact. The last thing I remember was another set of headlights approximately five or ten feet away from the vehicle I was in.

N.T. at pp, 27-28. Appellant’s evidence was also insufficient to permit a jury to find that the plaintiff had been guilty of contributory negligence. Schoenberger testified:

I don’t remember the turning out into the passing lane. I don’t recall that. I do, however, have memory of after I had passed out into the north bound lane, I do have a memory of seeing lights all of a sudden and being on the — and hitting the brake as a result of this and that I was abreast of the south bound car that I had been about to pass. The south bound car was on the brake as I was. He was dropping back at the same rate of speed that I was. So, therefore, I could not get back into the south bound lane. That’s where it ends.

N.T. at p. 285.

While it is true that “a passenger may be held contributorily negligent for [his or] her failure to warn a driver of impending danger, see, e.g. Smalich v. Westfall, 440 Pa. 409, 418, 269 A.2d 476, 482 (1970); Reeves v. Winslow, 394 Pa. 291,147 A.2d 357 (1959), the duty to warn does not arise when the driver is fully cognizant of [an] impending danger.” Yannuzzi v. Mitchell, 260 Pa.Super. 47, 51, 393 A.2d 1005, 1007 (1978). Here, there was no evidence that would have permitted a finding that Phillips had superior knowledge and should have warned appellant not to pass. He was not in control of appellant’s vehicle and was not required to exercise the same degree of vigilance for oncoming traffic as was the driver. After Schoenberger began to pass the slow moving vehicle, the few seconds before impact did not provide Phillips the “opportunity to control or influence the situation for safety.” Reeves v. Winslow, supra 394 Pa. at 293, 147 A.2d at 358. Therefore, the trial court did not err by ruling, as a matter of law, that Phillips was not contributorily negligent and by refusing a requested instruction on comparative negligence.

Appellant’s next assignment of error is the trial court’s refusal to instruct the jury that because of his amnesia and inability to remember the accident it should be presumed that he exercised due care. The presumption of due care has become a “useless appendage.” Rice v. Shuman, 513 Pa. 204, 214, 519 A.2d 391, 396 (1986). It “is not evidence and thus cannot be used to offset” evidence of negligence introduced against a party. Id., 513 Pa. at 212, 519 A.2d at 395. Consequently, it can only serve to confuse the jury and becloud the issues. Id. It is enough in the instant case that the jury was instructed properly and adequately on the burden of proving the defendant’s negligence. See: Yandrich v. Radic, supra 291 Pa.Super. at 83, 435 A.2d at 230.

Appellant’s next argument is that the trial court committed error when it (1) allowed an expert called by the plaintiff to present and interpret x-rays taken by another doctor and (2) permitted the same expert to testify to the causal relationship between the accident and Phillips’ injuries. The trial court, in an opinion deciding appellant’s post-trial motions, discussed this issue as follows:

The Defendant raises the claim that the Court erred when it allowed Dr. Watt to testify as an expert and to interpret x-rays taken by another doctor. Dr. Watt was also allowed to testify as to a causal relationship between the accident and the injuries suffered by the Plaintiff.
The qualification of an expert is within the discretion of the trial court ... (citations omitted). If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert.
Kravinsky v. Glover, 263 Pa.Super. 8, 20, 396 A.2d 1349, 1355 (1979).
Dr. Watt testified as to his qualifications, and based on those qualifications he was permitted to testify. The issues raised by the Defendant do not dispute the qualifications of Dr. Watt. Rather, the Defendant challenges the testimony offered by the doctor. The weight to be given to Dr. Watt’s testimony was for the jury to decide. The jury determines facts, and they were free to accept or reject the testimony of the doctor. Whatever weight that was to be given to that testimony was within the province of the jury.

We agree and accordingly determine that the trial court did not abuse its discretion or commit an error of law by permitting Dr. Watt to testify.

Phillips testified on cross-examination that he had returned to work within two (2) weeks of the accident. During re-direct examination, he explained why he had returned to work so quickly by saying that he wanted “to get back into the swing of things as soon as [he] possibly could.” N.T. at 93. Appellant contends that this testimony was irrelevant and prejudicial. We find no merit in this argument.

Finally, appellant contends that the trial court erred in assessing damages for delay pursuant to Pa.R.C.P. 238. The mandatory nature of the rule, he argues, was suspended by the Supreme Court in Craig v. McGee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). However, appellant did not raise this issue in the trial court, and he seeks to raise it now for the first time on appeal. This he cannot do. The Craig court specifically said:

[T]he suspension of the mandatory provisions of Rule 238 is to be given prospective effect only. Those parties whose cases are now in the appellate or post-trial process, who have not asserted attacks on the Rule 238 aspect of the damage award, may not now assert such challenges. However, in those cases where the issue has been preserved, the court before whom the case resides on or after this date is to resolve the issue in a manner consistent with this opinion.

Id., 512 Pa. at 66, 515 A.2d at 1353. Because appellant failed to preserve the Rule 238 issue in the trial court, he cannot now challenge the award of delay damages on the basis of the prospective holding of the Supreme Court in Craig v. McGee Memorial Rehabilitation Center, supra. The judgment is affirmed.


author: MONTEMURO, Judge:

text:
    534 A.2d 1081
    Virginia TRAVITZKY, Appellant, v. Thomas TRAVITZKY, Appellee. (Two Cases).
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1987.
    Filed Dec. 15, 1987.

      Joseph F. Lawless, Jr., Media, for appellant.
    Lynne Z. Gold-Bikin, Norristown, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

The instant case is a consolidation of two appeals and involves a complex factual and procedural history. The appellant, Virginia Travitzky, and the appellee, Thomas J. Travitzky, were granted an annulment of their marriage on October 31, 1979. Following the annulment, there was extensive litigation between the parties concerning the custody and support of their two children. On November 29, 1982, following several changes in custody, Thomas Travitzky was granted custody of the children. In December of 1982, Virginia Travitzky, in violation of the trial court’s custody order, left Montgomery County with the two children. She thereafter lived for three years under an assumed name with her children at a location outside of the state of Pennsylvania. During this time, Mr. Travitzky was not aware of the location of his children, and he searched for them. In January, 1986, Virginia Travitzky returned to Pennsylvania and was arrested and charged with kidnapping and interference with a custody order.

On June 18, 1986, a proceeding was held before the Honorable Samuel W. Salus, II, of the Court of Common Pleas of Montgomery County. Virginia Travitzky was represented by counsel at this proceeding. The parties’ minor children were represented by a court appointed guardian ad litem. Thomas Travitzky appeared pro se. Counsel for Virginia Travitzky presented a document entitled “Agreement, Stipulation and Order” (hereinafter referred to as the “Agreement”) which purported to resolve various custody, support and visitation matters. This Agreement required, inter alia, that Virginia Travitzky pay to Mr. Travitzky $25,500.00 “in partial consideration for damages allegedly suffered” by Mr. Travitzky as a result of his search for his children during the three years that Virginia Travitzky had them living outside the state of Pennsylvania. (R. at 61a). The Agreement also confirmed that Virginia Travitzky was to continue to have physical custody of the children. Mr. Travitzky was to have no court ordered visitation with his children and was not to be liable for the payment of any support for the two minor children. (R. at 62a). The Agreement also included the following provision:

Father [Mr. Travitzky] herewith represents that he is not desirous of having MOTHER criminally prosecuted in such proceeding as hereinabove described. Further, Father agrees that, if necessary, he shall communicate such desire to the District Attorney for the County of Montgomery and, further, request that such outstanding criminal charges be nolle prosqued and/or withdrawn.

(R. at 63a). The stated purpose of this Agreement was to resolve the myriad of disputes that had developed between the parties and, to that end, the Agreement includes a statement that the parties would “resolve, end, and terminate all existing legal proceedings between them” and would “not bring any further proceedings against each other relating to these matters and accruing up to the time of this Agreement.” (R. at 60a).

The Agreement was executed by the parties and became an order of the court on June 18, 1986, following a colloquy in which Judge Salus outlined the contents of the Agreement and asked each party whether they understood and agreed to the various provisions. Following the entry of the Agreement as an order of the court, Virginia Travitzky discharged her counsel and sought to have the Agreement vacated by appealing to this Court. On December 30, 1986, this Court quashed the appeal as interlocutory on the grounds that if Virginia Travitzky wished to claim that the Agreement was null and void because her consent to its terms had been procured through duress, she should have filed a petition in the trial court seeking to vacate the Agreement.

While this particular appeal was pending, Virginia Travitzky did not comply with the court order of June 18, 1986. Specifically, she did not pay the $25,500.00 to Mr. Travitzky. As a result, Mr. Travitzky filed a petition for contempt on September 23, 1986. The record in the instant case includes an unsigned Order for Hearing scheduling a hearing on the contempt petition for November 3, 1986. (R. at 6a). Virginia Travitzky appeared at the November 3, 1986 hearing pro se. During this hearing, Virginia Travitzky testified that she had signed the Agreement under duress and, when asked whether she had paid the $25,500.00, she stated that she did not have the money. (R. at 19a). Virginia Travitzky also acknowledged that she had filed a petition for support against Mr. Travitzky in August of 1986 and that she owned a home under an assumed name in Allentown, Pennsylvania. (R. at 28a). When she was questioned concerning her employment status, Virginia Travitzky testified that she had lost her job with Blue Cross of Lehigh County in June of 1986 when it merged with Capital Blue Cross in Harrisburg. (R. at 28a-29a). She also testified that she had lost a position with the Thermal Seal Window Corporation and that she had lost a waitressing position because of her health. (R. at 29a-30a). Virginia Travitzky also testified that she “had no way of applying for a loan against” her house and that she did not “make enough to qualify for a loan.” (R. at 42a).

During the November 3, 1986 contempt hearing, Virginia Travitzky attempted to have the court hear a petition for recusal which she had filed that morning. (R. at 44a). The trial court stated that it would take this matter “under advisement.” (R. at 46a). On November 21, 1986, Judge Salus entered an order finding that Virginia Travitzky was in willful contempt of the Agreement and of the court order dated June 18,1986. She was ordered to pay the $25,500.00 plus $500.00 in counsel fees within thirty days, and in default thereof, a judgment would be entered against her. On December 11, 1986, when Mr. Travitzky had not received the $26,000.00, he filed a praecipe to enter judgment on the contempt order. Virginia Travitzky appeals from this November 21, 1986 Contempt Order.

On February 26, 1987, Virginia Travitzky filed a petition in the Montgomery County Court of Common Pleas to vacate the Agreement on the grounds that the Agreement is void as against public policy, that there has been a total failure of consideration because Thomas Travitzky has breached the Agreement, and that she had not entered the Agreement knowingly or voluntarily. (R. at la-3a). On the same day, Virginia Travitzky filed a motion to recuse the Honorable Samuel W. Salus, II. On March 3, 1987, the trial court denied both the petition to vacate and the recusal petition, even though Mr. Travitzky had not responded to the petitions and even though there had been no hearing concerning these matters. On March 12, 1987, Virginia Travitzky’s petition for reconsideration was filed and denied by Judge Salus. She appeals from the denial of the petition to vacate the Agreement but has not appealed from the denial of the recusal motion.

On March 25, 1987, Thomas Travitzky successfully entered judgment against Virginia Travitzky on the November 21, 1986 Contempt Order. (This judgment has apparently been docketed against the property held by Virginia Travitzky in Allentown, Pennsylvania). Virginia Travitzky also appeals from this entry of judgment.

In appealing the November 21, 1986 Contempt Order, appellant, Virginia Travitzky, raises four grounds upon which she contends the trial court erred, and upon which she seeks a reversal of the contempt order:

1. Did the trial court err in failing to follow the five-step, two-hearing procedure required for an adjudication of civil contempt?
2. Did the trial court err in adjudicating appellant in civil contempt in view of the uncontested evidence of her present inability to pay the sum of $25,500.00?
3. Did the trial court err in failing to address the question of contemptuous conduct of Mr. Travitzky?
4. Did the trial court err in refusing to consider appellant’s motion for recusal?

Based on our disposition of appellant’s first two issues, we find that we need not address appellant’s remaining alleged grounds for reversal of the contempt order.

We agree with appellant that the law in Pennsylvania is well settled that a five-step, two-hearing procedure is required to hold one in civil contempt. See In re Death of Deol, 84 Pa.Commw. 306, 479 A.2d 55 (1984); Whitt v. Philadelphia Housing Authority, 325 Pa.Super. 135, 472 A.2d 684 (1984). We reject as patently erroneous appellee’s contention that the five-step, two-hearing procedure applies only to actions for support. This has never been the law of this State. We also agree with appellant that the record in the case at bar clearly shows that the proper procedure was not followed. The five steps include: (1) a rule to show case; (2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt citation, and (5) an adjudication of contempt. In re Death of Deol, supra; Whitt v. Philadelphia Housing Authority, supra. In this case, no rule to show cause was issued or served. There was no hearing on the rule, and the rule was not made absolute. However, in the instant case, we cannot base a reversal of the contempt order on the trial court’s failure to follow the procedural requirements prerequisite to an adjudication of civil contempt, because appellant has waived this issue. During the November 3,1986 contempt hearing, appellant never objected that she was not being accorded necessary procedures. Further, this issue was not raised by appellant in her application for post-trial relief in the nature of exceptions to the order of contempt. This Court has recently stated specifically in reference to civil contempt proceedings that an “appellant may not have remained silent before the court below and now be heard to complain that the trial court’s procedures were improper.” Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 418, 487 A.2d 11, 15 (1985).

In regard to appellant’s second issue, it has been recognized that the general rule regarding civil contempt cases is that the complaining party has the burden of proving noncompliance with the court order by a preponderance of the evidence, and that present inability to comply is an affirmative defense to be proved by the contemnor. In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Super. 43, 53, 379 A.2d 323, 327 (1977). In Barrett v. Barrett, 470 Pa. 253, 264, 368 A.2d 616, 621 (1977), our supreme court held that when a contemnor presents evidence of present inability to comply with the court order, the trial court must set conditions for purging the contempt with which it is convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply. In reference to the civil contempt power, the court in Barrett stated that “the use of the power to enforce compliance is exercised with the objective of compelling performance and not inflicting punishment. In accordance with this principle, we have indicated that a court may not convert a coercive sentence into a punitive one by imposing conditions that the contemnor cannot perform and thereby purge himself of the contempt.” Id., 470 Pa. at 262, 368 A.2d at 620 (citations omitted). We find that although the. trial court’s finding of civil contempt was warranted, there was insufficient evidence that appellant had the present financial ability beyond a reasonable doubt to comply with the conditions imposed by the trial court to purge herself of contempt, namely the payment of $25,500.00 plus $500.00 in counsel fees within 30 days. We must therefore vacate the order directing payment of the $25,500.00 plus counsel fees and remand for further findings of fact to determine what conditions will be sufficiently coercive yet enable appellant to comply. See Durant v. Durant, 339 Pa.Super. 488, 489 A.2d 266 (1985).

In finding that appellant had the present ability to comply with its order, the trial court relied on the following:

(a) Appellant ‘owns property in Allentown, Lehigh County-’
(b) Appellant ‘received a property settlement award upon the divorce of the parties.’
(c) Appellant ‘has an earning capacity of at least $400.00 per week.’
(d) Appellant ‘was able to support herself for three years prior to the children’s return to their father.’

(Amended Opinion of Trial Court at 4). Initially, we note as to (b), appellant and appellee were in fact granted an annulment and our comprehensive review of the record has revealed no evidence that appellant received a property settlement upon the dissolution of this marriage. Further, the trial court’s finding that appellant has an earning capacity of at least $400.00 per week does not establish that appellant had the present ability on November 3, 1986 to pay $25,500.00 plus $500.00 in counsel fees within 30 days. Appellant’s uncontested testimony established that on the date of the contempt hearing, she was unemployed. Although appellee contends in his brief that appellant deliberately quit her job to avoid the financial obligations of the Agreement, there is nothing in the record to support appellee’s assertion. (Brief for Appellee at 11). On the contrary, appellant testified that she had lost her job with Blue Cross due to a change in the location of Blue Cross’ offices and that she was not able to continue her work as a waitress because of health problems. (R. at 28a-30a). Likewise, we cannot agree with the trial court that the fact that appellant was able to support her children for three years prior to the contempt hearing is proof of her present ability to pay this sum of money as of November 3, 1986. Indeed, this fact tends to show that any funds that appellant may have had were likely expended in supporting her two children espedally in view of the fact that appellant received no child support during this period of time.

It appears that appellant’s ownership of property in Allentown, Pennsylvania is the only factor that the trial court could have relied upon to find that appellant had the present ability to comply with its order. However, the problem is that the record contains no evidence, and presumably the trial court made no determination, as to the value of this property, whether appellant owned it individually, or whether the property was subject to any encumbrances. In short, the trial court made no determination of appellant’s equity in this property. As a result, it is obvious that there was insufficient evidence for the trial court to conclude that it was convinced beyond a reasonable doubt that appellant had the present ability to pay the $26,000.00 within a thirty day period.

The facts of this case are similar to those in the case of Muraco v. Pitulski, 470 Pa. 269, 368 A.2d 624 (1977). In Muraco, the appellant had been found to be in contempt of a support order and was required to pay his arrearages which amounted to $7,184.00 in order to purge himself of the contempt. The supreme court in Muraco found that there was insufficient evidence for the trial court to have concluded that appellant had the present ability to pay the sum of $7,184.00 where appellant had testified that he was involuntarily unemployed, that he was receiving public assistance, and that he owned no property and had no bank accounts. Likewise, in the more recent case of Durant v. Durant, 339 Pa.Super. 488, 489 A.2d 266 (1985), the appellant, Mike Durant, had been found to be in willful contempt of court for failing to pay a support order. He was ordered to pay $4,766.00 in arrearages within ten days of the contempt order. In vacating the order directing payment of $4,766.00, we concluded as follows:

... in the instant case, a totality of the evidence supports a conclusion that Mike Durant operates Durant’s Tavern and is entitled to all proceeds therefrom, but his accountant testified that the net profit of the business in 1982 was $1,848.00. N.T., 9/8/83 at 6. There must be sufficient evidence from which the trial court may find beyond a reasonable doubt that appellant has the present ability to purge himself of the contempt citation. After a thorough review of the entire record, however, we find nothing further to indicate that appellant has access to the sum of $4,766.00 or may readily obtain that amount.

Id., 339 Pa.Superior Ct. at 492, 489 A.2d at 268. See also Commonwealth ex rel. Heimbrook v. Heimbrook, 295 Pa. Super. 300, 441 A.2d 1242 (1982); Yurt v. Brumage, 289 Pa.Super. 88, 432 A.2d 1064 (1981). Cf. Hopkinson v. Hopkinson, 323 Pa.Super. 404, 470 A.2d 981 (1984) (finding of present ability to comply with contempt order to pay $5,000.00 supported by evidence that contemnor had a lucrative medical practice, had entered into an agreement to purchase real estate for $163,000.00, had maintained a membership at a country club at a cost of $1800.00 per year, and had purchased season tickets for professional hockey games).

We now turn to appellant’s contention that the trial court erred in dismissing her petition to vacate the Agreement before appellee had filed an answer to the petition and before either party had proceeded pursuant to Pa.R.C.P. 209. We agree with appellant that the trial court’s decision to dismiss appellant’s petition to vacate the Agreement was premature.

Pa.R.C.P. 209 provides:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the case for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in answer shall be deemed admitted for the purpose of the rule.

In a unanimous en banc opinion, Maurice Goldstein Company, Inc. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369 (1977), this court discussed the operation of Rule 209. In that case, which involved a denial of a petition to open a default judgment, we noted the following:

Here, when the lower court ruled on the petition, neither party had taken any action under Rule 209. Neither party had ordered the cause for argument — or, more precisely (since both parties in their praecipes declined oral argument), for decision — on petition and answer. Since Rule 209 places no time limit on respondent’s taking of a rule on petitioner, both appellee as respondent and appellant as petitioner had the option (until entry of the lower court’s order) to take action. Until one of the parties did act as provided by the Rule, or until some other force spurred matters along, the court should not have acted.
We do not mean that a motions court must wait for the parties to bestir themselves. We have said, ‘until some other force spurred matters along.’ The motions court itself may set a timetable for taking depositions and for decision. If the court does this, however, it must give notice to the parties.

Id., 248 Pa.Superior Ct. at 166-167, 374 A.2d at 1371-1372 (emphasis added) (footnotes omitted). In Instapak Corporation v. S. Weisbrod Lamp & Shade Co., Inc., 248 Pa.Super. 176, 374 A.2d 1376 (1977), the trial court had ordered a default judgment opened after the petition to open and the answer to the petition had been filed. In Instapak, after noting that the pleadings had raised a material issue of fact, we stated that “[we] are not informed by the lower court whether it accepted appellant’s or appellee’s version of the facts on that issue. The important point, however, is that the lower court was not in a position to accept one version in preference to the other____ The court had before it no evidence, only contradictory pleadings.” Id., 248 Pa.Superi- or Ct. at 180-182, 374 A.2d at 1378-1379. We therefore remanded the case to the trial court for further proceedings consistent with Rule 209.

When the trial court in the instant case dismissed appellant’s petition to vacate the Agreement, it had only appellant’s petition before it. No answer to the petition had been filed. Thus, the trial court could not have known what material factual issues would have been disputed by appellee. Appellant alleged the following as grounds upon which the Agreement should be vacated:

(1) The statement in the Agreement that Thomas J. Travitzky will not be liable for the support of the parties’ two minor children is void as against public policy.
(2) There has been a complete failure of consideration because Thomas J. Travitzky never contacted the District Attorney’s office to “advise that he did not wish Mrs. Travitzky criminally prosecuted” and did not request that the “criminal charges be nolle prossed and/or withdrawn.” (R. at 3a). Also Mr. Travitzky continued to participate in the indirect criminal contempt proceeding pending against Virginia Travitzky.
(3) Virginia Travitzky did not enter the Agreement knowingly or voluntarily.

In its order of March 3, 1977, dismissing appellant’s petition, the trial court states that the Agreement was “entered into with full knowledge, appropriate mental facilities and with the assistance and negotiating powers of counsel.” The problem with the trial court’s conclusion is that it was of necessity based entirely upon the trial court’s personal involvement and knowledge of the instant case. However, when appellant filed her petition to vacate the Agreement, she raised a material issue of fact for the court to determine, that being whether it was in fact her voluntary intent on June 18, 1986, to enter the Agreement. Appellant, as petitioner, had the burden of supporting her allegations of fact. Reztback v. Berman Co., 222 Pa.Super. 523, 294 A.2d 917 (1972). On the issue of duress, appellant was not provided with an opportunity to present any evidence to meet this burden. See Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961). Appellant was not provided with the opportunity to take depositions as contemplated by Rule 209. Moreover, our record contains an affidavit which was filed by appellant on March 12, 1987, after the trial court had dismissed her petition to vacate the Agreement. In this affidavit, appellant states that both the lawyer who represented her when she entered the Agreement and Judge Salus threatened and intimidated her by telling her that she would lose her children if she did not consent to the Agreement (R. at 48a). Due to the trial court’s premature dismissal of appellant’s petition, appellant did not have a chance to present this testimonial evidence to the trial court. Further, Rule 209 contemplates that the moving party may proceed to take depositions on disputed issues of fact or order the cause for argument on the petition and answer. The procedure followed in the instant case is strikingly similar to that followed in Nigrelli v. Cody, 281 Pa.Super. 156, 421 A.2d 1195 (1980). In Negrelli, an administrative judge had simply decided the case without notice to the parties. In that case, we stated that “the procedure followed here was an even more flagrant abuse than in Maurice Goldstein, supra, since here the parties had not waived their right to oral argument under Pennsylvania Rule of Civil Procedure 211.” Id., 281 Pa.Superior Ct. at 160, 421 A.2d at 1197. Not only was appellant unable to develop factual evidence to support her allegation of duress, she was deprived of the opportunity to present oral argument in support of her contentions. Our supreme court has recognized that after the filing and service of an answer, the petitioner then is ordinarily entitled under Pa.R.C.P. 209 to proceed within 15 days to take depositions or to move the case for argument on the petition and answer. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 94, 477 A.2d 471, 472 (1984).

As to appellant’s contention that the Agreement should be vacated because of a complete failure of consideration, the trial court, in its opinion dated May 26, 1987, states, inter alia, that:

We disagree with plaintiff’s argument. Clearly there was consideration between the parties at the execution of the Agreement-Stipulation____ This Court will not vacate an agreement pursuant to plaintiff’s petition, particularly where the validity of the Agreement-Stipulation was upheld by the Superior Court.

(Opinion of Trial Court, May 26, 1987 at 3-4). Here again, issues of material fact, which would presumably have been disputed or justified in appellee's answer, were presented by appellant’s petition. For example, did Thomas Travitzky refuse to contact the District Attorney and had he in fact expedited the indirect criminal contempt proceeding? Again, appellant as the moving party was denied the right and opportunity to substantiate the factual allegations of her petition through depositions. Further, she was denied the opportunity to present at oral argument her contention that these facts, if established, warranted an order vacating the Agreement. Further, we find it troublesome that the trial court was of the opinion that this Court had reviewed the Agreement and had upheld its validity. On the contrary, this Court had quashed appellant’s earlier appeal as interlocutory on the grounds that if appellant wished to claim that the Agreement was null and void, she must file a petition in the trial court seeking to vacate the Agreement. This she did.

Because we are convinced that appellant’s petition to vacate raised material factual issues, we find that the trial court abused its discretion in dismissing the petition before the appellee had filed an answer and before either party had proceeded pursuant to Rule 209. Cf. Urban v. Urban, 332 Pa.Super. 373, 481 A.2d 662 (1984). We therefore find it necessary to remand for further proceedings to allow appellant to prove her allegations under the procedures of Rule 209. See Hudgins v. Jewel T. Discount Store, 351 Pa.Super. 329, 505 A.2d 1007 (1986); Philadelphia City Employees Federal Credit Union v. Bryant, 310 Pa.Super. 526, 456 A.2d 1060 (1983); White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974). We have mentioned that appellant filed a motion for recusal of Judge Salus which was denied on March 3, 1987. While this matter is not before us and, therefore, we express no opinion on the disposition of appellant’s recusal motion, we do believe that this entire matter should be heard by a different judge on remand. We find, based upon our review of the record, that there is a significant possibility that Judge Salus may be called as a witness. In addition, it is clear that issues of credibility may arise in determining whether appellant has grounds upon which to vacate this Agreement and, if the Agreement is upheld, then whether appellant has the present ability to comply with the court’s contempt order. In such situations, we have said that “we think we should not ask a judge to resolve issues of credibility when he has already expressed his opinion of one of the parties____ It will be better if the proceedings on remand start afresh.” McCurry v. McCurry, 279 Pa.Super. 223, 238, 420 A.2d 1113, 1121 (1980).

Finally, on March 25, 1987, Thomas Travitzky did enter judgment against appellant pursuant to the November 21, 1986 Contempt Order. We find that the trial court did not err in entering this judgment because of the provisions of Pa.R.A.P. 1701(b)(2):

After an appeal is taken or review of a quasi judicial order is sought, the trial court or other government unit may:
(2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.

See also County of Lawrence v. Pennsylvania Labor Relations Board, 79 Pa.Commw. 14, 469 A.2d 1145 (1983).

We now remand with these instructions:

Within twenty (20) days of the filing of this Opinion, appellee, Thomas J. Travitzky, shall file an answer to appellant’s petition to vacate the Agreement. Thereafter, appellant, Virginia Travitzky, shall proceed pursuant to Pa.R. C.P. 209 to take depositions on disputed issues of fact or order the cause for argument on petition and answer. Should Virginia Travitzky fail to so proceed within fifteen (15) days of filing and service of the answer, Thomas Travitzky shall have the opportunity to proceed as provided in Pa.R.C.P. 209(b). Upon its decision in regard to the petition to vacate the Agreement, the trial court shall promptly proceed to address the remand of the November 21, 1986 civil contempt order in a manner consistent with this Opinion. The Judgment entered against Virginia Travitzky pursuant to the November 21, 1986 contempt order is hereby stayed pending disposition of these matter by the trial court.

Jurisdiction of this panel is relinquished.

Jurisdiction of this Court is retained.

      . At the time of this hearing on June 18, 1986, it appears that the criminal prosecution for interference with a custody order was still pending against Virginia Travitzky. Also pending was a charge of indirect criminal contempt. (R. 60a). The kidnapping charge had apparently been dismissed.

      . Throughout this colloquy, Virginia Travitzky stated that she understood each provision of the Agreement as Judge Salus explained the provision. However, near the end of the proceeding, the following exchange took place:
      VIRGINIA TRAVITZKY: I understand it [the Agreement], But I’d like to say I’m being forced into it. But I understand it.
      THE COURT: Well, if you are being forced into it, then, I'm not going to sign this thing, to be sure that you are doing it of your own free volition, any more than I would make a criminal defendant indicate that he understands this thing and that he is waiving his Miranda rights of his own free volition.
      VIRGINIA TRAVITZKY: I’m signing it, that’s all there is to it. You know, what happens after, I don’t know. We discussed how I felt about it, and I’m signing it because it’s the only recourse I have in this courthouse.
      MR. KELLY [Counsel for Virginia Travitzky]: Ginny, are you saying ... your statement was that you were forced into this. Is your thoughts of being forced into this that which are the physical factual realities of the situation, that being, undergoing a long, protracted custody hearing, undergoing a possibly long, protracted criminal trial, and possibly then undergoing a protracted contempt hearing before Judge Davenport? Are those the things that you are indicating are the factual realities which are compelling you to enter this agreement?

        VIRGINIA TRAVITZKY: The fact that I know basically I would not get a fair trial in Montgomery County; so, I'm signing this.
      MR. KELLY: Would you answer my question?
      VIRGINIA TRAVITZKY: Yes, those are the things that are forcing me to sign it.
      (R. at 81a-82a).

      . The transcript from this hearing reveals that Virginia Travitzky had also attempted to file a contempt petition against Mr. Travitzky for his alleged failure to comply with the terms of the Agreement. During the November 3, 1986 contempt hearing, she testified that the Court Administrator’s Office would not accept this petition, "citing lack of jurisdiction.” (R. at 45a). If we assume for the moment that this is what in fact occurred, it is difficult to comprehend the basis for the failure of the court to accept Virginia Travitzky’s contempt petition when it had accepted Mr. Travitzky's petition and had scheduled a hearing on it. Moreover, trial court possess inherent powers to enforce their orders and decrees by imposing sanctions for failure to comply with their orders. Rouse Philadelphia Inc. v. Ad Hoc 78, 274 Pa.Super. 54, 71, 417 A.2d 1248, 1257 (1979), cert. den. 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). This power is retained even alter an appeal is filed, absent a supersedeas. See Pa.R.A.P. 1701(b)(2). Our review of the record in the instant case shows that no supersedeas had been granted. In any event, it is clear that on November 3, 1986, the trial court did not have a contempt petition filed by Virginia Travitzky before it for its consideration.

      . We do note that, as discussed in footnote 3 supra, the question of contemptuous conduct on the part of the appellee, Mr. Travitzky, was not before the court on November 3, 1986. Appellant attempts to rely on the case of Christian v. Allstate Insurance Company, 348 Pa.Super. 252, 502 A.2d 192 (1985), for the proposition that the trial court was obligated to consider the question of contempt on the part of Mr. Travitzky when this issue was raised orally by appellant during the

        November 3, 1986 hearing. Appellant’s reliance on Christian is misplaced. Christian concerned a petition to enforce a settlement. In Christian, the existence of the settlement was in dispute and this Court held that the trial court erred in not conducting an evidentiary hearing on the existence of the disputed settlement before granting the petition to enforce it. In the instant case, the existence of the Agreement was not in dispute. Appellant's remedy was to file a petition and allege that Mr. Travitzky was in contempt of the Agreement.
      As to appellant’s fourth issue, we note that appellant did file a motion to recuse Judge Salus on February 26, 1987, which was denied on March 3, 1987. Appellant has not appealed from the trial court’s denial of the recusal motion.

      . Even if we were to assume, arguendo, that appellant did receive a property settlement, this would not change our result in this case. There is nothing in the record to show that the trial court determined the value of any property that appellant allegedly received or that the trial court determined that appellant still owned the property at the time of this contempt proceeding.

      . We note that it is well-settled that a parent cannot contract away the right of his or her child to seek adequate support from the other parent. Miesen v. Frank, 361 Pa.Super. 204, 208, 522 A.2d 85, 87 (1987) (citations omitted). Even though we express no opinion as to whether the trial court could have granted appellant’s petition to vacate on this ground alone, the fact that this provision is contrary to public policy of our State was a factor for the trial court to consider in conjunction with the other grounds raised by appellant in her petition to vacate the Agreement.

      . Pennsylvania Rule of Civil Procedure 211 provides in pertinent part: "Any party or his attorney shall have the right to argue any motion and the court shall have the right to require oral argument. With the approval of the court oral argument may be dispensed with by agreement of the attorneys and the matter submitted to the court on the papers filed of record or on such briefs as may be filed by the parties".