author: BECK, Judge:

text:
    520 A.2d 31
    In re ADOPTION OF A.N.D. Appeal of S.L.D.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1986.
    Filed Dec. 3, 1986.
    Reargument Denied Jan. 26, 1987.

      Suzanne Noble, Chester, for appellant.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   BECK, Judge:

This is an appeal by the natural mother from a final order terminating her parental rights. We affirm.

While in the hospital, the natural mother initially consented to the adoption of Baby A., born December 1984. After leaving the hospital and learning she would only receive compensation for medical bills, she revoked her consent. She then cared for Baby A. for over six months, while staying with her current boyfriend’s family and receiving their help. The record reveals that during this period, she did not show affection towards Baby A. and was anxious to let others take care of the Baby. On Easter 1985, she attempted to relinquish custody of Baby A. to the natural father who had denied paternity and was not supporting the child. She changed her mind again. In July, 1985, when forced to change residences, she made her third conscious decision to give up Baby A. She contacted a private intermediary, an attorney, and demanded he arrange for an immediate adoption. He advised her fully of the consequences of her act and confirmed her awareness of alternative possibilities. She executed a consent to adoption on July 12, 1985. The next day, Baby A. was placed with appellees, the adoption couple.

Appellees filed their report of intention to adopt and petitioned to terminate the rights of the natural parents. The natural father had consented, and his rights were terminated. Appellant officially withdrew her consent on September 22, 1985, and requested custody and visitation. The court denied the request and ordered a home study, psychological and psychiatric evaluations. After hearing in January 1986, appellant’s rights were terminated.

The home study focused on three areas;- housing, employment and familial resources. The social worker determined there was no long-term stability in any of these areas. Although she found one familial resource, the family with whom appellant was residing, that family had asked appellant to leave the weekend before the hearing. At the time of hearing, appellant was twenty-two years old, pregnant, moving for the fourth time in a twelve-month period and had recently been fired from two jobs because of absences from work.

Dr. James Ewing, the court-appointed psychiatrist, diagnosed appellant’s condition as a dependent personality disorder and possibly a passive-aggressive personality disorder. He testified that appellant currently lacked the capacity to parent. He further testified that there was a possibility, but not likelihood, of her developing the capacity after treatment for at least nine months to one year.

Dr. Robert Keller, the psychologist testifying for appellant, confirmed a personality disorder with passive aggressive features affecting appellant’s current ability to parent. He believed that if appellant stayed in therapy, there was a fairly good chance that some of her substantial problems could be resolved.

The court-appointed guardian ad litem recommended termination. He determined that during the six months before the hearing, appellant had done nothing to remedy her situation. She had not initiated therapy or formulated a substantial plan for housing, working or care for Baby A. He also was concerned about appellant’s potential to take care of Baby A. and the baby she was currently expecting.

The record reveals the court also considered other indicia of appellant’s capacity and willingness to parent. She had a psychological history of emotional disturbance. Appellant was a victim of child abuse and had attempted suicide at least once. In October 1980, she married. At that time she was receiving psychiatric treatment. Later she moved to Canada with her husband and had two sons who are now in the custody of their father. In early 1981, she and her husband had marital counseling. During the next two years appellant had difficulty maintaining the house and raising two young sons. In early 1983, she negligently poisoned her younger, two-month old son. The baby, however, was not permanently harmed. The social worker who counseled the couple previously, intervened and gave appellant psychological therapy. A nutrition aide and a homemaker were assigned to help her in part with her parenting skills. The homemaker aided appellant for almost nine months but she made no progress. Despite therapy and help, appellant’s parenting ability did not improve and she showed no potential for change. In December 1983, appellant returned to Pennsylvania where she resumed relations with Baby A.’s father and developed a drug abuse problem. She was shooting cocaine and smoking marijuana.

In the context of terminating parental rights, competing interests must be considered: that of the parents to raise the child as they see fit and that of the child to mature in a healthful environment. As a third party, the state has the dual interest in preserving family autonomy and in protecting children.

A child’s biological parents have a blood-tie to the child that gives them first right in possession of the child. Accompanying that right is a duty or moral compact to provide reasonably for the physical and emotional well being of the child. Parents’ rights to raise their children, however fundamental, do have limits. The child has a right to physical and emotional safety and is entitled, at least, to an environment conducive to proper development.

Children at an earlier time in the common law were viewed as property over which parents had total control. The enactment of termination statutes eroded that concept. The growing trend balances the rights of the parents against those of the child. If a parent’s performance falls wide of the mark of providing a reasonably healthful psychological and physical environment, the right of the parent may be terminated.

The mediator between the parent and the child is the state and the state must weigh the integrity of the family against the protection of the child. In addition, the state has an independent interest; i.e. in having its citizens in the future be productive law-abiding members of society.

In deciding to terminate parental rights involuntarily, the court must be satisfied that the party seeking termination has established by clear and convincing evidence the existence of grounds for doing so. Adoption of J.J., 511 Pa. 590, 593, 515 A.2d 883, 885 (1986), citing Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984).

In reviewing a termination order, this court must employ a scope of review limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. Adoption of JJ., 511 Pa. at 593, 515 A.2d at 885. See also, G.T.M., 506 Pa. 44, 483 A.2d 1355.

In the instant case, the court terminated appellant’s parental rights pursuant to Sections 2511(a)(2) and 2511(b) of the Adoption Act, 23 Pa.Cons.Stat.Ann. §§ 2511(a)(2), 2511(b) (Purdon Supp.1986):

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental wellbeing and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

Appellant argues that it was appellees’ burden to show all three elements of Section 2511(a)(2): incapacity or refusal to parent, resulting lack of essential parental care, and irremediability of the incapacity or refusal. Appellant further contends that these elements must be satisfied before considering Section 2511(b) which refers to the needs and welfare of the child. Appellant is correct in the formulation of the requirements but is incorrect in concluding that the trial court erred or abused its discretion. We will consider these arguments seriatim.

I.

The first element required for involuntary termination of parental rights under Section 2511(a)(2) is the repeated and continued incapacity, abuse, neglect or refusal of the parent. In the instant case, there is no question that appellant currently lacks the capacity to take care of Baby A. This is the testimony of both the court-appointed psychiatrist and the psychologist testifying for appellant.

The court found that appellant not only lacked the current capacity to parent but that she also refused to take care of Baby A. and that her current incapacity and refusal were repeated and continued.

The court also considered appellant’s past incapacity. The court relied on appellant’s past performance, both with Baby A. and with her two sons, now in the custody of their father. The court referred to her care of her sons as a trial period. We note that past incapacity alone is not a sufficient basis for finding present incapacity or refusal. Matter of Adoption of Ferrante, 334 Pa.Super. 53, 67, 482 A.2d 1076, 1084 (1984). The court in its formulation, however, combined past evidence of incapacity with a finding of current incapacity and refusal.

The court particularly reviewed the facts as they pertain to appellant’s repeated and continued refusal. Salient facts include her attempting to give up Baby A. on several occasions. In addition, when she was in charge of Baby A. for six months her parenting skills were lacking. She did not show affection or adequately assume the role of caretaker. Of extreme significance is appellant’s lack of planning to achieve even a minimal stability in regards to child care, housing and employment during the six months between the time appellant gave up Baby A. to appellees and the hearing.

We find sufficient evidence to support the court’s findings that appellees met their burden under the standard of clear and convincing evidence.

II.

The second condition delineated in Section 2511(a)(2) is that appellant’s incapacity or refusal must “have caused the child to be without essential parental care, control or subsistence.” 23 Pa.Cons.Stat.Ann. § 2511(a)(2) (Purdon, Supp.1986). However, this section does not “require a showing that a parent have an opportunity to inflict substantial harm upon the child when a parent has demonstrated a continued inability to conduct [her] life in a fashion that would provide for [her] child____ See In Re Adoption of Michael J.C., 506 Pa. 517, 528, 486 A.2d 371, 373 (1984) [Opinion Announcing the Judgment of the Court, McDermott, J., Larsen and Zappala, J.J. joining]; In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied 439 U.S. 880 [99 S.Ct. 216, 58 L.Ed.2d 192] ... (1978).” Adoption of Baby Boy J., 354 Pa.Super. 575, 582, 512 A.2d 689, 693 (1986).

The court concluded that appellant’s repeated and continued refusal has caused Baby A. to be without the essential parental care necessary for her physical or mental well being. Upon review of the record, we find no abuse of discretion in this conclusion.

III.

The third element of Section 2511(a)(2) requires appellees to show by clear and convincing evidence that appellant’s incapacity or refusal cannot or will not be remedied. Appellant argues that there has been no showing of irremediability; and that, on the contrary, both the psychiatrist and the psychologist believed that appellant’s capacity to parent would improve with therapy.

However, the court found that appellant’s incapacity could not be remedied. Furthermore, the court found a refusal which would not be remedied. This determination was properly based on much more than the psychiatric and psychological testimony presented at the hearing.

Appellant had had psychiatric help before her marriage, and psychological help during her marriage. The support she received in Canada was in part to encourage the development of parenting skills. Yet these encounters were unproductive. This previous repeated lack of success in therapy is compounded by appellant’s current lack of stability. These factors are predictive that appellant would not follow through with the therapy suggested by the expert witnesses. Another significant factor is that appellant made no attempt to help herself since changing her mind about giving up Baby A.

Although Dr. Ewing testified that appellant had a chance of improving after at least nine months to one year of therapy, he believed that her chance was a possibility, not a likelihood. Furthermore, his prediction was premised on appellant’s pursuing therapy, despite her past unsuccessful experiences with therapy.

Appellant relies on Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982), which involves state agency petitions to terminate parental rights pursuant to 23 Pa.Cons.Stat.Ann. §§ 2511(a)(2), 2511(a)(5). In C.M.E. the third element of Section 2511(a)(2), irremediability, was at issue. A natural mother with limited intellectual abilities, was found incapable of parenting, but capable of possibly developing the necessary skills within maximum two to two and one-half years. The court concluded that the time needed to rehabilitate the mother was not reasonable, and this court reversed. This court refused to punish the mother for her lack of parenting skills based in part on her limited intellectual abilities. The natural mother had been in middle of rehabilitation when she moved, and her efforts to secure support services may have been thwarted by the complexities of jurisdictions of state welfare agencies.

Whereas the mother in C.M.E., 301 Pa.Super. 579, 448 A.2d 59, was attempting rehabilitation and may have sought further help, appellant in the instant case has not been amenable to whatever benefits social service and psychological intervention may provide. Therefore, the court correctly found that appellant’s refusal would not be remedied. Also, unlike C.M.E., appellant’s past encounters with therapy extended for a sufficient period of time to be evaluated. They proved unproductive. Nothing in the record supported the proposition that future encounters would yield a successful, or more precisely, a minimally acceptable result.

We recognize the importance of parental rights and agree that it would be improper to rush to extinguish them. Adoption of Ferrante, 334 Pa.Super. 53, 482 A.2d 1076. But in the instant case clear and convincing evidence support the conclusion that the deficiencies that exist will not be remedied. Considering the record as whole we conclude the nine-month to one-year therapy suggested by the experts would delay evaluating the situation but would not change the result.

IV.

Once the requirements of Section 2511(a) are met, the court must consider Section 2511(b). Adoption of J.J., 511 Pa. at 593, 515 A.2d at 885. This section directs us to consider the “needs and welfare of the child.” The Adoption of J.J. instructs that the phrase “needs and welfare of the child,” requires an examination of the best interests of the child. “[J]udicial inquiry is to be centered on the best interest of the child, rather than the fault of the parent.” 511 Pa. at 607, 515 A.2d at 892.

The policy of examining the best interests of the child was discussed in a recent Superior Court decision, which preceded the Pennsylvania Supreme Court’s decision in Adoption of J.J.

In recent times, the thrust of legislation in the area of termination of parental rights has focused on the best interest of the child and away from the practically inalienable right of parents. Parents can no longer claim exculpation from the responsibility of parenthood due to an inability to fulfill that function. The child, in the meantime, will grow and needs nurture, care, love and attention and stability if it is not to suffer irreversible damage from neglect, however occasioned. In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984).

Matter of K.L.P., 354 Pa.Super. 241, 245-46, 511 A.2d 852, 854 (1986).

A child needs a stable home and a stable family relationship. William L., 477 Pa. 322, 383 A.2d 1228 (1978). The conditions which led to appellant’s lack of stability and difficulty in parenting have not changed and the record supports the conclusion of her refusal to change. Her repeated and continued refusal to parent Baby A. has also not changed despite her alleged desire to do so. Thus the court properly terminated appellant’s parental rights.

Affirmed.

CAVANAUGH, J. concurs in result.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    520 A.2d 37
    Donald M. BENDER, Lucille W. Bender, and F.M. Hsu, trading as Donald M. Bender, Lucille W. Bender and F.M. Hsu, a Partnership, Appellants, v. Fred C. McILHATTEN.
    Superior Court of Pennsylvania.
    Argued Oct. 9, 1986.
    Filed Jan. 5, 1987.
    Petition for Allowance of Appeal Denied May 27, 1987.

      Michael S. Gingerich, Lewistown, for appellants.
    James H. Devittorio, Clearfield, for appellee.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   DEL SOLE, Judge:

At issue in this case is the application of the appropriate statute of limitations to a claim for tortious interference with lease negotiations. The trial court held that the two year limitation period provided in 42 Pa.C.S.A. § 5527(3) made Appellants’ claim time-barred and for that reason granted Appellee’s Motion for Judgment on the Pleadings. Appellants’ filed this appeal in which they assert their action is subject to the six year statute of limitation found in 42 Pa.C.S.A. § 5527(6).

The statutory periods of limitations for civil actions are controlled by Sections 5501 to 5536 of the Judicial Code, 42 Pa.C.S.A. § 5501 et seq. Appellants seek to apply the residual provision of 42 Pa.C.S.A. § 5527(6), which establishes a six year limitation period for any action not subject to any other limitation period. Appellee and the trial court maintain, and we agree, the residual provision does not apply because this action comes under the two year limitation requirements of 42 Pa.C.S.A. § 5524(3). It provides that “(t)he following actions and proceedings must be commenced within two years: ... (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.” Section 5524 was amended in 1982. The amendment added a seventh paragraph to the provision which requires an action to be commenced within two years.

(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.

42 Pa.C.S.A. § 5524(7).

The underlying action in this case was commenced on December 1, 1983 when Appellants filed a complaint in trespass alleging Appellee tortiously interfered with Appellants’ lease negotiations sometime between August and October 1981. “Both parties concede that had ... paragraph [seven] been in effect at the accrual date of this action, it would have required that the two year statute of limitation be applied.” Mazzanti v. Merck and Co., Inc. 770 F.2d 34, 35 (3rd Cir.1985). “The 1982 amendments to th[e] Act admittedly do not determine the outcome of the instant action because the cause of action had accrued prior to the effective date of the amendments to the controlling sections. See: Section 403 of Act 1982, Dec. 20, P.L. 1409, No. 326 (amendments to sections 5524 and 5527 became effective proseetively (sic) sixty days after the date of the Act)” Id. Appellant submits that while paragraph seven does not apply in this case, its enactment evidences that fact that actions for tortious interference were not meant to be covered under 5527(3). Appellants argue: “[i]t must be assumed that since (7) was added to § 5524 that the causes of action covered by (7) were up to that time not within the scope of § 5524.” Appellants’ Brief at 8. Appellants maintain that paragraph three was not meant to include torts against intangible personal property such as contractual rights.

We disagree. In Home for Crippled Children v. Erie Ins. Exchange, 32 D & C 3rd 357, 130 P.L.J. 480 (1982), aff’d, 329 Pa.Super. 610, 478 A.2d 84 (1984), the relationship of the two and six year statutes was analyzed in the context of a claim for tortious interference with a contractual relationship. The court concluded “an action for interference with a contractual relationship is an action for ‘injuring personal property’ within the meaning of 42 Pa.C.S.A. § 5524(3).” Id. 32 D & C 3rd at 359. In reaching this determination, the court relied upon the definition given to the term personal property by the courts of this state. Personal property has been defined as:

‘everything except real estate’, McGlathery’s Estate, 311 Pa. 351, 354, 166 A. 886, 887 (1933), followed in Klingner v. Pocono International Raceway, Inc., 289 Pa.Super. 484, 490-491, 433 A.2d 1357, 1361 (1981), and ‘everything that is the subject of ownership, not coming under the denomination of real estate,’ Klingner v. Pocono International Raceway, Inc., supra, 289 Pa.Superior Ct. at 490-491, 433 A.2d at 1361, quoting Black’s Law Dictionary 1096 (5th ed.^1979). ‘Nothing requires that personal property be tangible.’ Klingner v. Pocono International Raceway, Inc., supra, 289 Pa.Superior Ct. at 490-491, 433 A.2d at 1361.

The court in Home for Crippled Children, also reached its decision by interpreting the purpose of the Act and the policy reasons which underly it.

[T]he language of 42 Pa.C.S.A. § 5524 should be broadly construed because its apparent purpose is to apply a two year statute of limitations to tort actions that are not subject to a lesser limitation period.
[TJhere would be no reason for the legislature to apply a longer limitation period to actions for damages to intangible property. In fact, if the legislature were to distinguish between injuries to intangible property and to tangible property, we would expect an action for damages to tangible personal property to have a greater limitation period because these damages are easier to establish at a later date.
An action for breach of a written contract for the sale of tangible personal property must be brought within four years (42 Pa.C.S. § 5525). It would be absurd to construe the limitation provisions of the Judicial Code in a fashion that permits an action for tortious interference with a contract to be brought within six years while requiring an action for breach of the same contract to be brought within four years, (footnote omitted).

Home for Crippled Children v. Erie Ins. Exchange, supra, at 360-361.

Support for the conclusion that an action for tortious interference is governed by the two year statutory limitation which applies to actions for personal property was found in the Judicial Code Explanation prepared by the Pennsylvania Bar Association Special Committee on the Judicial Code, published in the preface of Title 42 Pa.C.S.A., the prevailing case law in other jurisdictions, and the Superior Court case of Bickell v. Stein, 291 Pa.Super. 145, 435 A.2d 610 (1981). In Bickell v. Stein, the court, without discussing the reasons for its finding the two year period applicable, upheld the trial court’s dismissal of an action for fraudulent misrepresentation and intentional interference with contractual relations since the action “was not commenced within the period provided by the applicable statute, 42 Pa.C.S.A. § 5524(3) and (4)”. Id., 291 Pa.Superior Ct. at 149, 435 A.2d at 612. See: Home for Crippled Children v. Erie Ins. Exchange., supra, 32 D & C 3rd at 361-362.

We can find no reason to support Appellants’ allegation that the enactment of paragraph seven disturbs the analysis cited above and the construction given by the courts to paragraph three. We accept the trial court’s conclusion that the language of paragraph seven, which specifically includes within the two year limitation period any action “to recover damages for injury ... which is founded on negligent ... tortious conduct ... including deceit or fraud ... ”, 42 Pa.C.S.A. § 5524(7), was designed as a “catch basin” and with the intention of “preventing judicial interpretation that would be contrary to the legislative intent.” Trial Court Opinion at 2-3. See: Mazzanti v. Merck and Co., Inc., supra (which discussed the amendment creating paragraph seven, noted it was not in effect on the accrual date of the action, and went on to hold the two year statute of limitations found in 5524(3) applied to a claim for tortious interference with an employment contract.) and Fickinger v. C.I. Planning, 556 F.Supp. 434, D.C. (1982), (which ruled prior to the enactment of paragraph seven that the limitation period for an action based on fraud was two years as mandated in 42 Pa.C.S.A. § 5524(3).)

For the foregoing reasons, we affirm the action of the trial court and rule that Appellants claim was time-barred.


author: CERCONE, Judge:

text:
    520 A.2d 40
    Margaret JONAS, Jay Asper and Romain Whittacker, Supervisors of Delaware Township v. WIESMETH CONSTRUCTION COMPANY, Appellant, v. POCONO CONSTRUCTION COMPANY, INC., National Steel Products Company and Strand Building Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed Jan. 15, 1987.

      Salvatore Vito, Milford, for appellant.
    John H. Klemeyer, Milford, for Jonas, Asper and Whit-tacker, appellees.
    Matthew D. Blumberg, Milford, for Pocono, appellees.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

In this appeal we are asked to determine whether the sixty day period of limitations within which to join an additional party pursuant to Pa.R.C.P. 2253 is tolled where the original defendant files preliminary objections, in the nature of a demurrer, to the plaintiff’s complaint which if granted would result in dismissal of the cause of action against the defendant.

On July 16, 1984 Delaware Township brought an action in trespass and assumpsit against appellant, Wiesmeth Construction Company for faulty construction of the roof on its municipal building. Subsequently, appellant filed preliminary objections in the nature of a demurrer to the complaint which were denied by the lower court on December 27, 1984. Thereafter on January 25, 1985 appellant filed a praecipe to join Pocono Construction Co. (Pocono) as an additional defendant. Pocono responded by filing preliminary objections to its purported joinder and by order of court dated June 25, 1985, the court below granted Pocono’s preliminary objections in the nature of a motion to strike stating, inter alia, “The original defendant’s praecipe for joinder is hereby dismissed without prejudice." The order was supported by an opinion giving as its reason for denial the untimeliness of appellant’s petition. Nevertheless, appellant attempted to have a rule entered upon Pocono to show cause why joinder should not be granted. On April 9, 1986 the lower court denied appellant’s petition for rule to join Pocono as an additional defendant as “moot” in light of its order of June 25, 1986. This appeal followed.

While neither party has questioned the appealability of the lower court’s order of April 9, 1986, it is an issue we may raise sua sponte. Tate v. MacFarland, 303 Pa. Superior Ct. 182, 449 A.2d 639 (1982). At first blush this order seems to be interlocutory and accordingly not appealable. It is also well settled law that Superior Court can only entertain an appeal if the order appealed from is final. 42 Pa.C.S.A. § 742; Temtex Products Inc. v. Kramer, 330 Pa. Superior Ct. 183, 479 A.2d 500 (1984); Commercial Banking Corp. v. Culp, 297 Pa. Superior Ct. 344, 443 A.2d 1154 (1982).

In the case sub judice appellant filed a praecipe to join an additional party to which the additional party responded by filing preliminary objections. In its June 25, 1985 order pursuant to these actions the lower court granted the additional defendant’s preliminary objection in the “nature of a motion to strike” and dismissed appellant’s praecipe for joinder. An order dismissing a party from a suit is always final and appealable. Temtex, supra; Fireman’s Fund Ins. v. Nationwide Mut. Ins., 317 Pa. Superior Ct. 497, 464 A.2d 431 (1983). However, the lower court’s order contained the proviso that the order was granted “without prejudice”. Our court has interpreted the phrase “without prejudice” as importing the contemplation of further proceedings. Robinson v. Trenton Dressed Poultry Co., 344 Pa. Superior Ct. 545, 496 A.2d 1240 (1985). Furthermore, when this phrase appears in a decree it shows that the judicial act done is not intended to be res judicata of the merits of the controversy Robinson, supra; Commonwealth ex rel. Eldredge v. Eldredge, 175 Pa. Superior Ct. 276, 104 A.2d 185 (1954). In essence, through its order the court granted itself an opportunity to inquire into its own record and to rectify it if incorrect. See, Eldredge, supra. Thus, it is possible appellant perceived the qualifying language in the June 25th order as granting a second bite of the apple for thereafter he entered upon Pocono a rule to show cause why joinder should not be granted. The court’s denial of this motion as “moot”, by its April 9, 1986 order, in light of the order of June 25, 1985 would appear to have the effect of making the June 25th order the one that is final and from which appellant’s appeal should lie. But, it is from the April 9th order which appellant appeals. Nonetheless we find the proviso “without prejudice” contained in the court’s June 25th order to be ambiguous as it appeared to lull appellant into a false sense of believing he had further opportunity to address the issue of Pocono’s joinder. Hence, we find that appellant’s taking this appeal from the April 9th order is not fatal and we will address the merits of his claim. See, Feingold v. SEPTA and Duncan, 512 Pa. 567, 517 A.2d 1270, (1986) (Procedural rules are analyzed by the circumstances of each individual case. To analyze them otherwise would exalt the rules to a status far beyond their inherent power).

Appellant contends that the sixty day period for adding additional parties pursuant to Pa.R.C.P. 2253 is tolled where the original defendant preliminary objections in the nature of a demurrer to the plaintiffs complaint. We agree.

The court below found that appellant’s praecipe to join was untimely as it was filed more than sixty days after the original complaint was filed and appellant did not seek leave of the court to enter it. Furthermore appellant did not present a showing to the court of cause for a late filing. The court concluded that all of appellant’s acts were in direct contradiction of Pa.R.C.P. 2253.

Our Supreme Court in Graham v. Greater Latrobe School District, 436 Pa. 440, 260 A.2d 731 (1970) carved out an exception to the time period in which an additional defendant may be joined as prescribed by Pa.R.C.P. 2253.

There the court propounded:

Rule 2253 does not explicitly cover the situation of the joinder of additional defendants when the original defendant has filed preliminary objections to the complaint. If the objections are sustained, no problem will arise, however, for either the action will be dismissed or an amended complaint will be filed after which a sixty day period begins. When the objections are overruled, as here, reason and policy require that the defendant be given sixty days to join additional defendants. Preliminary objections attack the validity of the pleading, and until those objections are overruled, a court has not determined that the plaintiff has filed a valid complaint. Applying that reasoning to time periods (1) and (2), the most reasonable construction of Rule 2253 would be that the defendant has sixty days from the time it is determined that plaintiff has filed a valid complaint. If no preliminary objections are filed, that will be the date of the filing of the complaint. If they are filed, that will be the date they are overruled. Also, it makes no sense to require the defendant to proceed as if the action will continue when he has before the court objections which, if successful, will terminate the litigation. No reasons of policy require that he follow these inconsistent paths at the same time.

Id., 436 Pa. at 443-444, 260 A.2d at 733.

The court’s holding in Graham has been followed in other cases where a complaint was filed, and the original defendant filed preliminary objections which would terminate the litigation if granted. See, Commercial Banking Corporation, supra.

The instant appeal is exactly on point with the cases we cite as precedent. Appellant was served with a complaint by Delaware Township to which it responded by filing preliminary objections in the nature of a demurrer. The sixty day period for joining an additional party was tolled and did not start to run until December 27, 1984 when the lower court issued its order denying the objections. Appellants filed a praecipe to join Pocono on January 25, 1985 well within the sixty day period. We see no reason to deviate from the holdings of Graham and Commercial Banking Corporation, supra.

Accordingly we reverse the order of the court denying the joinder of Pocono as an additional defendant. Jurisdiction relinquished.

      . The June 25th order states in pertinent part:
      AND NOW, this 25th day of June, 1985, Additional Defendant, Pocono Construction Co., Inc.’s Preliminary Objection in the nature of a Motion to Strike is hereby granted. The Original Defendant’s Praecipe for Joinder is hereby dismissed without prejudice. (Emphasis supplied)

      . The order of April 9, 1986 reads as follows:
      AND NOW, this 9th day of April, 1986, Defendant-Wiesmeth Construction Company, Incorporated’s Petition for Rule to Join Pocono Construction Co., Incorporated as Additional Defendant is Hereby Denied. Such Petition is moot, because, it was previously decided on June 25, 1985 by Order of This Court. The reasons were delineated in that OPINION AND ORDER.

      . Rule 2253. Time for Filing Praecipe or Complaint
      Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.
      Adopted Feb. 14, 1939, effective Sept. 4, 1939; amended and effective Dec. 30, 1942; amended and effective Sept. 1, 1958.


author: OLSZEWSKI, Judge:

text:
    520 A.2d 43
    COMMONWEALTH of Pennsylvania v. Peter RUFFO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1986.
    Filed Jan. 15, 1987.

      Elaine DeMassee, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and McEWEN, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from judgment of sentence imposed following appellant’s plea of guilty to burglary, indecent assault, aggravated assault, possession of an instrument of crime and kidnapping. Appellant contends that the trial court abused its discretion in sentencing him to 20 to 40 years total confinement when it failed to consider any factor other than the nature of the crime involved. We have carefully reviewed the record and conclude that this contention has merit. Accordingly, we vacate the judgment of sentence and remand the case for resentencing.

The trial court set out the facts as follows.

On August 10, 1984, Stephen and Anita McBeth, 2636 Brown Street, City and County of Philadelphia, hereinafter Complainants, resided at the aforementioned address with their two children, Micah and Leila. On the evening in question, Leila was two years of age. At approximately 9:00 p.m., the Complainants put the two children to bed together in the second floor middle bedroom. At approximately 11:00 p.m., the Complainants retired to bed and Mrs. McBeth checked on the children prior to returning and both were in their beds asleep.
On the morning of Saturday, August 11, 1984, Mrs. McBeth arose at approximately 6:30 a.m. and began to prepare breakfast. Her son Michah came downstairs and questioned the whereabouts of his sister, Leila. The entire family frantically searched the house for Leila, but to no avail. The family summoned the police when they observed that a window fan in the home’s living room had been forced out and was lying on the floor leaving the window wide open.

A search was immediately commenced of the neighborhood for the young child and she was located in a badly beaten condition lying in an alley approximately one block from her home. Philadelphia Police Detective Matthew Hrobak would testify, “she (Leila) was in a fetal position with her head facing South and the child was covered from head to toe with fecal matter. There was a diaper about three feet away with no fecal matter on it. Leila had several cuts and bruises all about her body. At the time she was not breathing and appeared to be blue.” (N.T. January 6, 1986, Page 55). The detective would further testify “... underneath Leila there were two pools of blood and green glass covered with what he thought was blood. The child was bleeding from her neck, chest, abdomen, and her vagina and that she had no pulse and her skin was cold” (Ibid Page 56). The child was transported to Hahnemann University Hospital where she was admitted into the Intensive Care Unit for five days and discharged from the hospital on August 21, 1984. Dr. Harry Kaplan, Chief of Pediatric Services for Hahnemann Hospital, indicated Leila’s diagnosis upon admission as follows:

“Extensive bruises on the forehead and both temples, bruising of both ears, a three to four centimeter deep laceration across the front of her neck exposing her sterno-mastoid muscle; there were multiple lacerations across the abdomen, multiple lacerations across the chest wall, a vaginal laceration and a third degree tear of the vagina, that the rectal mucosa was torn and exposed and there were extensive blood clots indicating recent bleeding in both the vaginal and anal regions. There was multiple scratches over her entire body and she was in a state of shock, not fully conscious, very high pulse rate and very weak.”

Further, as a result of the deep cuts on the Complainants chest, abdomen and neck, permanent scarring has occurred which may possibly be eradicated, if at all, only through plastic surgery.

Opinion at 2-3.

Appellant was arrested on August 14,1984. At that time appellant gave a statement detailing what he remembered of the crime. He admitted that he had entered the McBeth home during the evening of August 11, 1984 and that, upon seeing Leila wake up, had “freaked out” and “just grabbed her.” (N.T. 1/6/86, 72). He recalled carrying Leila downstairs, out the window through which he had entered and to the alley where she was found. (N.T. 1/6/86, 72). Appellant stated that he picked up a beer bottle which was lying in the alley and then said that that was all he could remember. Shortly thereafter, however, when questioned further, appellant said he thought he remembered “going over her chest with the bottle and telling her to shut up.” (N.T. 1/6/86, 74). A mental health evaluation indicates that appellant said he had been drinking and using drugs (quaaludes) prior to the incident and that he had entered the McBeth home intending to rob it.

After denying a motion to suppress appellant’s statement and its fruits, the trial court accepted appellant’s open plea of guilty on January 6, 1986. Following a hearing on May 5, 1986, the trial court imposed prison sentences of ten to twenty years for the burglary, and ten to twenty years for the kidnapping, which were to run consecutively; and terms of one to two years for indecent assault, five to ten years for aggravated assault, and two and one-half to five years for possession of an instrument of crime, all of which were to run concurrently with the sentence for burglary.

Appellant filed a petition to reconsider sentence on May 14, 1986, which the trial court denied without a hearing on the same date. This appeal followed.

Appellant argues that the sentence was manifestly excessive and an abuse of discretion in that the trial judge failed to consider the relevant sentence guideline ranges, 42 Pa.Cons.Stat. § 9721, 204 Pa.Code § 303.2, et seq. (hereinafter referred to as “sentencing guidelines”), or any other relevant factor except the nature of the crime itself. Sentencing is a matter within the sound discretion of the trial court. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986). The trial court, however, must exercise its discretion in view of statutory guidelines and considerations. Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982). We stated the prevailing principle in Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982):

It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court’s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.

Id., 301 Pa.Super. at 31, 446 A.2d at 1320 (quoting Commonwealth v. Martin, 466 Pa. 118, 131, 351 A.2d 650, 657 (1976)). When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion. Commonwealth v. Hollerbush, supra, 298 Pa.Super. at 406-407, 444 A.2d at 1240.

A sentencing court’s responsibilities are set forth in the Sentencing Code, 42 Pa.Cons.Stat. § 9701, et seq. Of significance, a sentencing court must consider the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and set out in 42 Pa.Cons.Stat. § 9721, 204 Pa.Code § 303.2, et seq. 42 Pa.Cons.Stat. § 9721(b). If the court departs from these guidelines, it must provide a “contemporaneous written statement” of the reason or reasons for the deviation. Id. Further, in imposing a sentence of total confinement, the sentencing court must consider the history, character and condition of the defendant and not only the nature and circumstances of the crime. 42 Pa. Cons.Stat. § 9725; Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986). Additionally, the court must follow “the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.Cons.Stat. § 9721(b).

Our Supreme Court summarized the limits restricting a sentencing court’s discretion in Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978):

The constraints placed upon the trial court in the exercise of its discretion are that it must not overlook pertinent facts, disregard the force of the evidence, commit an error of law, or inflict punishment exceeding that prescribed by statute. The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant, and should consult a pre-sentence report if one has been prepared, especially where, as here, incarceration for one year or more is a possible disposition. Likewise, the court should consider any information in the record bearing on degree of punishment.

Id., 479 Pa. at 212-213, 387 A.2d at 1299 (citations omitted). See also Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979); Commonwealth v. Wicks, 265 Pa.Super. 305, 310, 401 A.2d 1223, 1225 (1979); Commonwealth v. Valentin, 259 Pa.Super. 496, 500, 393 A.2d 935, 939 (1978).

After thorough review of the record in light of the foregoing standards and principles, we agree with appellant that the trial court did not adequately discharge its sentencing responsibilities. We therefore vacate the judgment of sentence and remand for resentencing.

Beginning our review, we observe first that, although the sentence is within the limits prescribed by statute, the sentencing judge deviated substantially from the sentencing guideline ranges. In fact, the trial judge imposed the statutory maximum sentence for each crime to which appellant pled guilty. Thus, for kidnapping, which has an offense gravity score of 8, the sentencing guidelines recommend a minimum sentence of 24 to 48 months in the standard range and 48 to 60 months in the aggravated range. The trial court, however, imposed a sentence of 10 to 20 years for the kidnapping charge. For both the burglary and the aggravated assault, each of which has an offense gravity score of 7, the recommended minimum sentence is 8 to 12 months in the standard range and 12 to 18 months in the aggravated range. The trial judge sentenced appellant to 10 to 20 years on the burglary and 5 to 10 years on the aggravated assault. Significantly, the highest possible minimum sentence suggested by the guidelines’ aggravated range if all sentences were to run consecutively would have been eleven and one-half years. Accordingly, appellant’s cumulative sentence of 20 to 40 years was almost double that recommended by the sentencing guidelines. We recognize that these guidelines are not mandatory. Where the trial court deviates so substantially, however, we believe it is especially important that the court consider all factors relevant to the determination of a proper sentence.

Instantly, however, the trial court focused on the seriousness and gravity of the offense in sentencing appellant. During the sentencing colloquy, the court pointed out that:

[T]he legislature, when they promulgated the potential penalties for the commissions of certain crimes, kidnapping and burglary, as it is, the most serious involved here, it doesn’t seem to me it was in the realm of their normal knowledge or anticipation that any court would be confronted with this type of situation, namely where the victim is, for all practical purposes, a defenseless two-year-old that was abducted during the course of a burglary....

N.T. 5/5/86, 37-38. Emphasizing the nature and circumstances of the crime, the trial judge further remarked:

Even if I accept that speculation that Mr. Ruffo, instead of just fleeing from the premises, removed what he perceived to be the person that was thwarting his plans, whether it be a petty or serious burglary, the point that bothers me, he removed it by taking that person out of the house, which in effect as it turns out, since no one was aware inside the house what was going on, that he achieved that purpose and could have secured his escape.
I am constrained to remark he not only did that but executed injury on the person that thwarted his burglary by taking that person in the alley and inflicting the type of injuries.
I say that because it seems to me under that scenario the infliction of the injuries and the distance removed from the subject premises, where the person lived, was an expression of no more than pure violence or viciousness.

N.T. 5/5/86, 38-39. Prior to imposing sentence, the trial judge also commented:

The fact it is a two-year-old child is what underlines this type of case, because in no one’s mind could the two-year-old child be a threat to the person committing the burglary as in those situations where we have a burglary discovered by the adult owner of the premises.
The guidelines were mentioned. I must say the sentence I’m going to give ... will be not within the minimum range of the guidelines; it will be beyond the aggravated range____ Which is what led me to remark originally that both in the Statute and the guidelines the Legislature probably didn’t contemplate this type of situation would occur.

N.T. 5/5/86, 45-46.

Without question, appellant’s crime was outrageous. In deciding this appeal as we do today we do not mean to ignore or underestimate either the heinous nature of the crime or its impact on the lives of the victim and her family. Indeed, such factors require that appellant be imprisoned for a substantial period. As grievous as the facts are, however, a sentencing court may not, as this court seemed to do, base its sentence upon the seriousness of the crime alone. See Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), appeal granted, 508 Pa. 612, 499 A.2d 1063 (1985); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982). As we stated in Commonwealth v. Franklin, supra, 301 Pa.Super. at 21, 446 A.2d at 1315:

The Supreme Court in Martin made clear that the nature of the criminal act was not to be the sole basis for the determination of the length of sentence but that, in addition, inquiry was to be made into the character of the convicted individual and into any extenuating or mitigating circumstances, so as to enable the sentencing court to exercise its broad discretion in accordance with the applicable statutory requirements.

Id. (referring to Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976)). See Commonwealth v. Peters, 358 Pa.Super. 94, 516 A.2d 1197 (1986).

Our difficulty therefore lies in the trial court’s failure to consider and evaluate, during the sentencing colloquy, the extenuating or mitigating circumstances present in this case. A review of the record demonstrates that, at the time of sentencing, appellant was a young man of twenty-one and, more importantly, that he had had no significant prior contacts with the criminal justice system. The mental health report indicates that appellant has abused drugs and alcohol from a very young age and that he had been drinking and using drugs on the night of the incident. Additionally, appellant confessed to the crime and subsequently pled guilty, thereby saving the victim’s family the pain of hearing the whole story over again. Finally, the presentence investigation concludes that this offense was apparently “situational in nature and not indicative of a persistent problem regarding the subject and his involvement with violent assaultive behavior.”

On remand, these circumstances as well as any other indications of appellant’s history, character and condition must be weighed against the nature and circumstances of the crime and any additional aggravating circumstances present. We note further that, while the gravity of this offense is very high and the protection of the public is an important consideration, the confinement imposed must also be consistent with appellant’s rehabilitative needs. Concerning these factors, we recently stated, in reversing a total sentence of thirty to sixty years for six armed robberies:

It was also necessary to weigh the effect of a cumulative minimum sentence of thirty years, which would take a relatively young man through the prime of his life for a term twice as long as the average life sentence, under a system which unlike the federal system or that of other states, does not permit review and parole upon good behavior in substantially less time than the minimum sentence provides. The weighing, in which the trial court must engage, is a balancing of the defendant’s entire prior life against the crime spree of less than six months for which he was convicted. Simply reciting that the alternatives were considered and rejected ignores the task of weighing those factors when it is apparent that they must be considered.
As the trial court aptly pointed out, she is unable to predict the future, therefore, to the extent that we must make a judgment as to future behavior, we cannot ignore and must be guided by the past. Unquestionably, the safest approach for society and the only way to protect against recidivism, is a virtual life sentence for any offender. This is an unacceptable price to pay to protect society and our sentencing structure must be such that where warranted, an individual has a second or even more chances to become a productive member of society.

Commonwealth v. Simpson, supra, 353 Pa.Super. at 474, 510 A.2d at 763-764 (1986). We then concluded that:

To impose a minimum sentence of thirty years discounts the possibility of rehabilitation and effectively removes appellant from society for his potential working life, precluding the possibility of his ever becoming a contributing member of society.

Id.

In view of the standards and principles discussed above, we conclude that the trial court, in sentencing appellant, failed to consider and weigh the appropriate factors as required by statute and set forth by our case law. We therefore find an abuse of discretion which requires that we vacate the judgment of sentence and remand for further proceedings consistent with this opinion.

Prior to concluding, however, we note that, at first blush, our approach may appear to be inconsistent with that set forth in Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc). We held in Martin that if the appellant does not properly raise the issue of the adequacy of the trial court’s reasons for imposing sentence, see Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), then that issue is waived. In rendering our decision, we added that “if, in the context of an excessive sentence claim, we can determine from the entire record before us, that the sentence imposed was not excessive and there was no abuse of discretion, as we have done in the instant case, the inquiry is at an end.” Commonwealth v. Martin, supra, 328 Pa.Super. at 511, 477 A.2d at 562. Having found no abuse of discretion, we then concluded that we would not remand for further elaboration by the trial court, even if the reasons for the sentence imposed, if properly challenged independently, would have been insufficient to support the sentence.

Instantly, appellant has not raised the adequacy of the trial court’s reasons for sentence as an issue for our review. Moreover, the appeal before us is based on an excessive sentence claim. Significantly, however, unlike the court in Martin, we have found that the trial court abused its discretion by failing to consider all the relevant factors and implement the appropriate procedures in sentencing appellant. We believe the Martin decision allowed for remand under these circumstances.

While we find that our approach is consistent with Martin, we limit our holding to the circumstances of this case. We therefore caution that our decision should not be interpreted to impair the rule set forth above as enunciated in Martin.

On remand, the sentencing court must consider and evaluate the relevant factors in accordance with this opinion. If, after following the required procedures, the sentencing court concludes that the sentence imposed is appropriate, it may allow its original sentence to stand. If, alternatively, it determines that its original sentence is inappropriate, it shall resentence appellant consistent with its findings on remand.

Judgment of sentence of the trial court is vacated and the case is remanded. Jurisdiction is relinquished.

      . These ranges are based upon a prior record score of zero.

      . The aggravated range for indecent assault is the statutory limit of two years, assuming an offense gravity score of 2 and the aggravated range for possession of an instrument of crime is twelve to eighteen months, assuming an offense gravity score of 4.

      . The trial court’s statement in its opinion that it considered all of the appropriate factors does not cure its failure to do so during sentencing. See Commonwealth v. Holler, 326 Pa.Super. 304, 308, 473 A.2d 1103, 1106 (1984).

      . Appellant had received Accelerated Rehabilitative Disposition for an attempted theft at age nineteen and had had no juvenile arrests or adjudications.


author: WIEAND, Judge:

text:
    520 A.2d 50
    Craig Newman SHAFFER and William E. Carll, Appellees, v. Eileen R. FLICK, Co-Executor of the Estates of Glenn W. Shaffer and Violet M. Shaffer, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Jan. 16, 1987.

      Henry G. Beamer, III, Pittsburgh, for appellant.
    David W. Swanson, Warren, for appellees.

      Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from a declaratory judgment. The trial court held that tenants of a farm property, whose lease contained an option to buy, were entitled to the proceeds of a policy of fire insurance, with extended coverage, when they exercised their option after the buildings on the farm had been destroyed by tornado. We affirm.

On or about May 1, 1980, Glenn and Violet Shaffer, husband and wife, decided to retire from farming and leased their farm property, consisting of 250 acres and including three residences, three barns, three silos, a shop and a milkhouse, to their son, Craig Newman Shaffer, and their son-in-law, William E. Carll. The lease agreement, in paragraph 13, granted the tenants an option to buy the farm for $140,000.00. On May 31, 1985, a tornado struck Forest County, killing Glenn and Violet Shaffer and destroying most of the improvements on the farmland. The tenants, pursuant to the terms of the lease agreement, had purchased fire insurance and extended coverage on the farm improvements, naming as insureds themselves and Glenn and Violet Shaffer as the interests of the insureds might appear. As a result, insurance proceeds became payable in the total amount of $147,000.00. Letters testamentary were issued to Eileen R. Flick, and the insurance proceeds were paid to and received by her in her representative capacity. On September 11, 1985 and again on October 23, 1985, Shaffer and Carll gave notice to Flick in writing that they intended to exercise their option to buy the farm and that they wished to apply the insurance proceeds on account of the purchase price. Flick refused to release the insurance proceeds and also refused to execute and deliver a deed for the farm property.

Shaffer and Carll thereupon filed an action for declaratory judgment. They contended that the terms of their agreement required the application of insurance proceeds on account of the purchase price for the farm and that legal and equitable principles, independently of the terms of the agreement, required the same result. Flick denied that the agreement required that Shaffer and Carll receive the insurance proceeds and contended that the attempt to exercise the option had been ineffective because it had been conditional upon receipt of the insurance proceeds. Flick also filed a separate action to have the insurance proceeds declared assets of her parents’ estates. All proceedings were consolidated for hearing, after which the trial court determined that Shaffer and Carll had validly exercised the option to purchase the farm and that they were entitled to have the proceeds of the insurance policy applied against the purchase price of the farm.

Our scope of review is narrow. In Supp v. Erie Insurance Exchange, 330 Pa.Super. 542, 479 A.2d 1037 (1984), this Court said:

Because a declaratory judgment action follows “as nearly as may be” the practice and procedure in an action in equity, Pa.R.C.P. No. 1601(a), we will review the determination of the trial court as we would a decree in equity. Our scope of review is narrow.
A chancellor’s findings of fact ... will not be disturbed on appeal if supported by adequate evidence. Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). However, the chancellor’s inferences and conclusions, which are drawn from the facts, and the application of the law are always subject to review. Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974).
McDole v. Duquesne Brewing Co. of Pittsburgh, 281 Pa.Super. 78, 83, 421 A.2d 1155, 1158 (1980) (quotations and citation omitted).

Id., 330 Pa.Superior Ct. at 544, 479 A.2d at 1038. See: Shepley v. Dobbin, 351 Pa.Super. 182, 505 A.2d 327 (1986); Lombardo v. DeMarco, 350 Pa.Super. 490, 504 A.2d 1256 (1985).

“The courts of this Commonwealth recognize the concept that when an option to purchase real estate is exercised, the optionee is considered as having had the equitable title to the property from the date of the option and not from the date that it is exercised.” Hennebont Co. v. Kroger Co., 221 Pa.Super. 65, 72-73, 289 A.2d 229, 233 (1972), citing In re Powell’s Appeal, 385 Pa. 467, 123 A.2d 650 (1956). See: Detwiler v. Capone, 357 Pa. 495, 499, 55 A.2d 380, 383 (1947); Schnee v. Elston, 299 Pa. 100, 105-106, 149 A. 108, 109 (1930); Peoples Street Ry. Co. v. Spencer, 156 Pa. 85, 89-90, 27 A. 113, 114 (1893); Phoenixville, Valley Forge & Strafford Electric Railway Co.’s Appeal, 70 Pa.Super. 391, 396 (1918). Thus, “when the option is exercised, the optionee’s ownership reverts to the granting of the option.” In re Powell’s Appeal, supra 385 Pa. at 474, 123 A.2d at 654, citing Peoples Street Ry. Co. v. Spencer, supra. In Peoples Street Ry. Co. v. Spencer, supra, the lessee had caused the buildings on the demised property to be insured for the protection of lessor and lessee as their interests might appear. After the buildings had been burned by fire, the lessee exercised its option. A dispute arose as to who was entitled to the insurance proceeds. The Supreme Court held that upon exercise of the option, the equitable title of the lessee-optionee reverted back to the date of the original agreement, and the lessee-optionee became the owner as of that date, or of the insurance money which stood pro tanto in its place.

Thus, the law pertaining to options is similar to that applicable to contracts of sale. Real estate law holds that although a vendor of real estate retains legal title, he is regarded as a trustee of the land for the purchaser, who has equitable title and who may recover the insurance proceeds if a loss occurs. See: 32 P.L.E., Sales of Realty § 131. Appellant contends, however, that an option agreement should be treated differently than a contract of sale. In the case of a contract for the purchase of real estate, appellant argues, the buyer is obligated to buy; whereas, in the case of an option, the optionee is not obligated to buy. Therefore, according to this argument, the optionee does not have equitable title to the land but merely a right to elect to buy. As such, appellant contends that the decision of the Supreme Court in People’s Street Ry. Co. v. Spencer, supra, should be overruled. Inasmuch as there was no real risk of loss to the optionee, she contends, the insurance proceeds should become the absolute property of the option- or without duty to account therefor to the optionee. In support of this argument, appellant cites a decision by the Supreme Court of Oregon in Strong v. Moore, 105 Or. 12, 207 P. 179 (1922), which reached a result contrary to and was critical of the Pennsylvania rule. The answers to appellant’s argument are several. In the first place, even though the People’s Street Railway case was decided before the turn of the century, it was a decision by the Supreme Court of this Commonwealth which is binding upon and not subject to being overruled by an intermediate appellate court. Secondly and in any event, the facts of the instant case do not recommend the result for which appellant contends. Because of the circumstances of the instant case and notwithstanding the fact that the option was not exercised until after the loss occurred, it is necessary to relate the transfer of equitable title back to the date of the option contract in order to do equity between the parties.

That is, unless the parties provided otherwise in their agreement. The agreement in the instant case provided, in relevant part, as follows:

TAXES AND INSURANCE.
Lessee shall pay all taxes and premiums for fire and other insurance upon the leased premises promptly as the same shall become due____ i
Lessee shall insure all buildings upon-the leased premises against loss by fire and other risks normally insured under extended coverage insurance in such amounts and with such companies as shall be agreeable with the Lessor and shall cause the insurer to furnish certificates of insurance and copies of the policies to the Lessor whose interest shall be noted upon the policies as Insured parties as their interest appears.
In paragraph 8 the following appeared:
DAMAGE OR DESTRUCTION BY FIRE.
In event any of the buildings upon the leased premises are damaged or destroyed by fire the same may be repaired or replaced out of insurance proceeds at the option of the Lessee and if the same are not repaired or replaced the proceeds of insurance payable thereon shall be paid to the Lessor and in such event, the net amount of said proceeds paid to and received by the Lessor shall be deducted from the option price in the event the Lessee shall exercise Lesses’s option to purchase as hereafter provided for.

Appellant contends that these provisions reflect an intention on the part of the parties to limit the optionees’ right to benefit from the insurance proceeds to situations in which the loss was caused by fire. By providing that the optionees would receive a credit for the insurance proceeds payable upon a loss of the premises because of fire, it is argued, the parties intended that the insurance proceeds should revert unconditionally to the optionors if the loss were caused by an agency other than fire. We reject this argument.

In O’Farrell v. Steel City Piping Co., 266 Pa.Super. 219, 403 A.2d 1319 (1978), we said:

In construing a contract, a court’s paramount consideration is the intent of the parties. If the language of the contract is unambiguous and susceptible of only one interpretation, a court will determine the parties’ intention on the basis of the clear wording of the contract. If the language of the contract is ambiguous and susceptible of two interpretations, then the court will adopt the interpretation which, under all the circumstances, ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.

Id., 266 Pa.Superior Ct. at 229, 403 A.2d at 1324. When we ascribe to the lease agreement in this case the most “reasonable, probable and natural” intent of the parties, “bearing in mind the objects manifestly to be accomplished,” it seems clear that the parties did not intend to subvert the substantive law with respect to “extended coverage” risks while adhering to it solely with respect to “fire” losses. Rather, the parties contemplated fire insurance with extended coverage and intended that if the lessees exercised the option after destruction of the improvements, the lessees were to be entitled to a credit on account of the price to the extent that the lessors had been paid the proceeds of insurance purchased by appellees. The parents wished to retire from farming, and they wanted their son and son-in-law to continue farming the land. Therefore, they negotiated an agreement which would enable their wishes to be achieved while, at the same time, providing for their own security. The lessors did not intend to acquire a windfall at the lessees' expense. This intention became apparent to the trial judge who heard the testimony and saw the witnesses. We perceive no valid reason for disagreeing with the result which he achieved.

Affirmed.

      . Glenn and Violet Shaffer reserved the right to reside in one of the residences during the remainder of their lives.

      . An additional sum of $42,500.00 was payable for loss of the contents of the several buildings. The contents were not subject to the option agreement, however, and these proceeds are not a part of the instant dispute.

      . This contention is lacking in merit. By letters dated September 11, 1985 and October 23, 1985, appellees unequivocally exercised their option to purchase the property. That appellees indicated in the letters their intent to apply the insurance proceeds toward the purchase price did not make their exercise of the option conditional or equivocal.

      . It has been held also that "where condemnation of land follows the granting of an option to purchase it and the optionee subsequently exercises the option according to the agreement, the optionee is entitled to the damages due to the taking unless the optionor has expressly reserved them to himself.” In re Powell’s Appeal, supra, citing Phoenixville, Valley Forge & Strafford Electric Railway Co.’s Appeal, supra.


author: TAMILIA, Judge:

text:
    520 A.2d 53
    COMMONWEALTH of Pennsylvania v. George KOECK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 1, 1986.
    Filed Jan. 20, 1987.
    Helen P. Woolley, Huntingdon, for appellant.

      Stewart Kurtz, Huntingdon, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal arises from the dismissal of appellant’s appeal to the Court of Common Pleas from a summary conviction for speeding. The appeal was dismissed upon motion of the Commonwealth due to failure of appellant to file his appeal within the requisite 30 days. Pa.R.Crim.P. 86(a).

The relevant facts are as follows: Due to his failure to appear at the district magistrate’s hearing, appellant was found guilty of speeding on July 8, 1985. The 30th day of the appeal period was Wednesday, August 7, 1985. Unfortunately for appellant, the Huntingdon County prothonotary’s office closes at noon on Wednesdays; consequently, he was unable to file the appeal that afternoon. Appellant argues that the County’s practice of closing the prothonotary’s office at noon on Wednesdays without any provisions for an officer of the court to remain available to accept papers for filing or to remain on call or even within the county was a breakdown in the court's operation. He also argues lack of prejudice to the Commonwealth in that the appeal was filed promptly on the 31st day and that because counsel was from out of town and unaware of the “closing early on Wednesday custom,” he did not knowingly waive his constitutional right to appeal.

We agree with appellant and find that the appeal filed on the 31st day was timely because the prothonotary’s office was closed for one-half of the 30th day.

The rules provide thirty (30) days, not twenty-nine and one-half (29V2) days, in which to appeal to the Common Pleas Court from the judgment of sentence of a district justice in a motor vehicle speeding case.

The Rules of Construction concerning computation of time, 1 Pa.C.S.A. § 1908, read:

§ 1908. Computation of time
When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

The Rules of Construction, 42 Pa.C.S.A. Rule 106, read:

Rule 106. Computation of Time
(a) When any period of time is referred to in any rule, such period in all cases, except as otherwise provided in Rules 107 and 108, shall be so computed as to exclude the first and include the last day of such period.
(b) Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

Without question, these rules of construction apply equally to appeals from a district justice to the Common Pleas Court.

Since the rules require us to exclude the first day and include the last day of any computation, the last day of computation was a Wednesday. But the rules also require that when the last day falls on a holiday, that day shall be excluded from computation, if it is a legal holiday. The last day in this case was a partial or half-day holiday, and as such, would have been excluded if it was a legal holiday. No rule or statute declares Wednesday a half-day legal holiday in Pennsylvania. See 44 P.S. § 1 Process not to be served on Sunday and § 11 Holidays designated; bank holiday; presentation and paying of instruments.

Since this day does not qualify as a legal holiday, closing of a court-related office is subject to regulation by the court, which can and should require it to be open to the public at all appropriate times for the receipt and filing of legal documents and to excercise the power and authority as an officer of the court. 42 Pa.C.S.A. § 2737 provides:

§ 2737. Powers and duties of the office of the prothonotary
The office of the prothonotary shall have the power and duty to:
(1) Administer oaths and affirmations and take acknowledgements pursuant to section 327 (relating to oaths and acknowledgements), but shall not be compelled to do so in any matters not pertaining to the proper business of the office.
(2) Affix and attest the seal of the court or courts to all the process thereof and to the certifications and exemplifications of all documents and records pertaining to the office of the prothonotary and the business of the court or courts of which it is the prothonotary.
(3) Enter all civil judgments, including judgments by confession.
(4) Enter all satisfactions of civil judgments.
(5) Exercise the authority of the prothonotary as an officer of the court.
(6) Exercise such other powers and perform such other duties as may now or hereafter be vested in or imposed upon the office by law, home rule charter, order or rule of court, or ordinance of a county governed by a home rule charter or optional plan of government, (emphasis added)

It would, therefore, appear that even though this was a locally mandated non-legal holiday, it was within the power and responsibility of the court to assure that the office was open for the purpose of receiving court documents during regular business hours. In this regard, while the court is not governed by the legislative and executive branch or administrative rulings, it is informative that the Administrative Code, 71 P.S. § 81, provides:

§ 81. (Adm.Code § 221). Office hours
All administrative offices of the State Government shall be open for the transaction of public business at least eight hours each day, except Saturdays, Sundays and legal holidays. The hours when such offices shall open and close shall from time to time be determined by the Executive Board.

In many matters, in the regulation of the courts, the Supreme Court has followed the Administrative Code. There is no reason to believe that in this case or under these circumstances similar requirements should not be enforced.

In conclusion and in consideration of the factors detailed above, we hold that the thirty-day appeal time from a conviction must include a full working day on the thirtieth day or it must be treated as a holiday. However, to construe this half day as a holiday would appear contrary to the rules since it is not a proper legal holiday and, therefore, it must be treated as a breakdown in the operation of the court, since the court had the authority and duty to require that the office be open for business during the entire working day. We do not believe it is relevant that the appellant failed to seek out the prothonotary at his home or waited until the last day to file his appeal. The appeal was required to be filed in the prothonotary’s office and the time permitted for that purpose was thirty full working days and not twenty-nine and one-half. We believe the court could eliminate this problem by ordering that the prothonotary have a person available in the office to' receive and file such actions.

For the above stated reasons, the Order of the lower court is reversed and this case is remanded for a trial de novo in accordance with this Opinion. Jurisdiction is relinquished.

ROWLEY, J., dissents.

      . At the time this case was pending in the trial court the pertinent rule was Pa.R.Crim.P. 67(c).

      . In its brief, appellee/Commonwealth, by its own admission, "perhaps erroneously, perceive[d] several other issues.” (Appellee’s brief at 1). We agree the issues are erroneous and will not consider them; the sole issue pending before this Court is the appellant’s compliance with the thirty-day appeal period.


text:
    520 A.2d 56
    COMMONWEALTH of Pennsylvania v. William L. LIVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1986.
    Filed Jan. 23, 1987.

      J. Michael Klutch, Pittsburgh, for appellant.
    John K. Greiner, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

The issue to be decided in this appeal is whether the penalty for an overweight vehicle can legally be imposed upon the operator of a vehicle who, although authorized to haul an overweight load along a specified route, has operated his overweight vehicle on an unauthorized highway. We conclude that the operator of an overweight vehicle under such circumstances may be punished as though he did not have a permit to haul an overweight load.

On May 16, 1985, William L. Liver was operating a vehicle, with an oversized and overweight load, on U.S. Route 119 in Westmoreland County, when he was stopped and questioned by Troopers Barron L. Zimmers and Robert W. Menser of the Pennsylvania State Police. Although PennDOT had issued a special permit for the transportation of the overweight load, Liver was found to be violating the terms thereof by operating the overweight vehicle along an unauthorized route. The vehicle was weighed by a certified weighmaster and was found to be overweight by 43,869 lbs. A citation was issued which charged Liver with operating an overweight vehicle on a route not authorized by permit in violation of 75 Pa.C.S. § 4961(b). After Liver had been found guilty and sentenced by a district justice, he appealed and was tried de novo in the Court of Common Pleas of Westmoreland County. Following trial without jury, Livers was again found guilty of operating an overweight vehicle. He did not file a motion for post-trial relief. He was then sentenced to pay a fine of $12,450, plus costs. A motion to modify the sentence was filed and denied by the court. The present appeal is from the judgment of sentence and questions only the legality of the sentence imposed by the trial court.

The penalty for operating an overweight vehicle on the highways of this Commonwealth must be determined in accordance with 75 Pa.C.S. § 4945(a), which provides in pertinent part as follows:

(a) Gross weight violations
(1) Any person driving a vehicle ... upon a highway exceeding the maximum weight allowed by section 4941 (relating to maximum gross weight of vehicles) ... is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $75 plus $75 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum gross weight____
(2) If the gross weight of any vehicle or combination exceeds the applicable gross weight allowed under section 4941(a), the fine imposed under this subsection shall be doubled.

The fine imposed upon appellant was computed according to this section. He contends that this computation was erroneous and resulted in an illegal sentence. The applicable section of the Vehicle Code, he contends, is 75 Pa.C.S. § 4907, which provides as follows:

Any person violating any provision of this chapter for which a penalty is not otherwise provided is guilty of a summary offense and shall, upon conviction, pay a fine of not less than $50 nor more than $100.

In Commonwealth v. Austin, 500 Pa. 620, 459 A.2d 336 (1983), the defendant had obtained a permit to haul an oversized and overweight load consisting of a bulldozer. In making the haul, however, the defendant had violated safety regulations adopted by PennDOT. Specifically, the truck had not been accompanied by two pilot cars and had not displayed “OVERSIZE LOAD” placards. The defendant was cited for these violations; and, after his vehicle had been weighed and found to be overweight, Austin was also cited for operating an overweight vehicle. Following conviction, he was fined $50, plus costs, for violating the safety regulation and $20,400, plus costs, because his vehicle was overweight. The Supreme Court vacated Austin’s conviction for operating an overweight vehicle, holding that the invalidation of a permit by violating safety regulations did not trigger all the penalties applicable to operating an overweight vehicle without a permit. The Court observed that the overweight provisions of the Vehicle Code were intended to prevent “highway damage by unlicensed and unsupervised overweight users.” Id., 500 Pa. at 622, 459 A.2d at 337. Safety regulations, even though a violation thereof automatically invalidated a permit which had been previously issued, were intended to serve another purpose. Therefore, the Court concluded:

There is a vast difference between a permit invalidated for safety violations and no permit at all. Appellant obtained a permit by posting a bond guaranteeing against the damage the regulation is designed to prevent. His violation was against the safety regulations, not against the provisions aimed at regulating weight and preventing damage to the highway. To inflict a penalty for a violation already provided against by appellant’s bond is a harsh penalty and can be supported only by the clearest provision. The penalty under subchapter A for violation of the safety regulations is a $50.00 fine and the invalidation of the permit and possible prescription against future applications. The loss of a permit in mid-transit would itself be no small penalty to one who might thus be grounded with an unmovable load. The different penalties provided by the PennDOT regulation address different objectives, each designed to punish and prevent different wrongs. We hold, therefore, that the automatic invalidation of a permit by violation of the safety regulations is a penalty in and of itself and does not trigger all the penalties possible under the regulations.

Id., 500 Pa. at 623, 459 A.2d at 338 (footnote omitted).

The issue in the instant case is different and has not previously been before an appellate court in this Commonwealth. Here, although appellant had been issued an overweight permit, the highway over which he could haul the overweight and oversized load had been prescribed by the terms of the permit. When he was stopped by state police, however, he was hauling the overweight load on a highway not authorized by the permit. While on this unauthorized highway, he had no greater right to haul an overweight load than an operator who had no permit at all. In exceeding his authority, appellant violated not safety regulations but weight limitations intended to prevent “highway damage by unlicensed and unsupervised overweight users.”

PennDOT regulations are consistent with the foregoing and confirm that the limitation of routes defined by the permit is intended to prevent highway damage to roads not equipped to carry overweight loads. Thus, by regulation at 67 Pa.Code § 179.16(b)(2), PennDOT has provided:

If any vehicle or combination operating under a permit to exceed weight limits is found to be operating off the approved route indicated in the permit, the amount of overweight is determined as if there were no permit.

The same issue was previously before the Court of Common Pleas of Bucks County. In Commonwealth v. Bradfield, 21 Bucks Co.L.Rep. 198 (1971), the court held that an overweight permit authorizing the hauling of an overweight load over a specified route was not a defense to an overweight charge arising from hauling an overweight load over another, unauthorized route.

We agree with this decision and hold that a party defending a charge of excessive weight on the ground of a special permit must bring himself within the terms of the permit which has been issued. See: Commonwealth v. Curley, 189 Pa.Super. 506, 151 A.2d 656 (1959). Any other interpretation would be unreasonable. It would permit an operator of an overweight vehicle, who by permit has been authorized to haul over a specified route, to ignore the restriction and, with virtual impunity, take his overweight vehicle on any and all road surfaces throughout the Commonwealth.

The sentencing court applied the correct penalty provision of the Vehicle Code and imposed a legal sentence. The judgment of sentence is affirmed.

      . Although the nature of the charge is clear, it might have been questioned whether the citation contained a reference to the correct section of the Vehicle Code. The section of the Vehicle Code which provides the maximum gross weight of vehicles is 75 Pa.C.S. § 4941(a). The section referred to in the citation issued to appellant was 75 Pa.C.S. § 4961(b) which provides as follows:
      (b) Limitation for truck tractors. — Permits to exceed the maximum weight limit shall be issued only for truck tractors registered at the maximum weight permitted under section 4941(a) or (b) (relating to maximum gross weight of vehicles). When a truck tractor is operating under permit, the fine for axle and gross weight violations shall only be applicable to the weight that the vehicle is in excess of the weight allowed on the permit.
      Because in this appeal only the penalty and not the finding of guilt has been challenged, we express no opinion regarding the adequacy of the citation.


author: MONTEMURO, Judge: POPOVICH, Judge,

text:
    520 A.2d 59
    Jack F. McCORMICK and Mary Ann McCormick, his wife, Appellants, v. BLUE CROSS OF WESTERN PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued May 1, 1986.
    Filed Jan. 20, 1987.

      Wm. Jon McCormick, Bentleyville, for appellants.
    Gerri L. Sperling, Pittsburgh, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

On November 28, 1984, appellants’ action for medical benefits allegedly due from appellee was tried before the Honorable Robert A. Doyle, of the Court of Common Pleas of Allegheny County, sitting without a jury. At the close of appellants’ case, on appellee’s motion, a compulsory non-suit was entered against appellants.

An opinion and order was filed by the court below on January 9, 1985. The court therein determined that appellee’s denial of benefits was improper; nevertheless, in light of appellants’ failure to demonstrate actual damages, i.e., resultant out-of-pocket expenses, the court expressly “found” in appellee’s favor. Both appellants and appellee filed post-trial requests for relief. Responding only to appellee’s request, on March 29, 1985, the court below ordered that its January 9, 1985 opinion and order be vacated and that a nunc pro tunc order be substituted simply granting appellee’s motion for compulsory non-suit.

Appellants thereafter timely reasserted their previous post-trial requests, supplementing those by noting the court’s alleged violations of Pa.R.C.P. 1038(b), (c). By an order dated August 6, 1985, the court below denied appellants’ motion for post-trial relief and directed the entry of judgment on the non-suit in appellee’s favor. This appeal followed.

As framed by appellants, the issue presented is:

Whether an insured, under a policy of hospital insurance, must first pay his own bills before bringing an action in assumpsit against his carrier.

Appellee argued below, and the court so found, that its obligation to provide benefits, if any, was not to appellants directly but to the health care institution which furnished treatment. Therefore, in the absence of any actual out-of-pocket payments by appellants, no right of action exists. We disagree.

The subscription agreement at issue herein states in its preamble:

This Agreement sets forth a Blue Cross program of comprehensive hospitalization and related health care benefits. The Subscriber will receive benefits in accordance with the terms of the Subscription Agreement if in need of care for a condition of illness or of bodily injury and if admitted or accepted for treatment by an Approved Health Care Institution as defined in Article I of this Agreement, (emphasis added).

Further, at article VIII(B), the agreement provides: “The Benefits of this Agreement are personal and may not be assigned.” Nothing in the subscription agreement can be read to require, as a condition precedent to legal action, the actual payment by the subscriber of the medical bills to be sued upon. In fact, the language of the agreement, emphasizing that language quoted above, clearly directs the appellee’s obligations to subscribers personally and creates no express right of action on behalf of health care institutions independently. While convenience may dictate that the benefits be paid directly to health care providers, the legal obligation is to subscribers.

If, due to illness or bodily injury, a subscriber receives “allowable services” from an approved health care provider and appellee denies the agreed benefits, the subscriber possesses an immediate right of action. In Republic Bankers Life Insurance Co. v. Anglin, 433 S.W.2d 795, 796 (Tex.Civ.App.1968), the Court of Civil Appeals of Texas stated,

Mr. Anglin’s [appellee’s] entry into the hospital and reception of its services created an implied agreement between the two that Mr. Anglin would pay the reasonable and customary charges made by the hospital. This action created hospital expense which Mr. Anglin incurred and became legally liable to pay under elementary principles of contract law.

It is precisely the liability recognized in Anglin that confers upon appellants herein a cause of action against appellee without regard to the lack of payments made by appellants to the health care provider. Cf. Reading Hospital v. Capital Blue Cross, 215 Pa.Super. 91, 257 A.2d 60 (1969); Hermitage Health and Life Insurance Co. v. Cagle, 57 Tenn.App. 507, 420 S.W.2d 591 (1967).

Furthermore, on perhaps a more fundamental level, insurance is obtained frequently out of a fear of the financial inability to remedy an unfortunate occurrence. To affirm the decision of the court below would in effect impose the same financial inability, which prompts the procurement of insurance, as a bar to a right of action for any wrongfully withheld benefits. We are unwilling to countenance such an absurd result.

In light of the foregoing, and mindful of our standards of review on appeal from a compulsory non-suit, see Speicher v. Reda, 290 Pa.Super. 168, 434 A.2d 183 (1981), we reverse the order of the court below and a new trial is ordered.

Reversed and remanded. Jurisdiction is relinquished.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

I concur with the result reached by Judge Montemuro, but I do so by a different route.

As stated most recently by our Supreme Court in Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983), the interpretation of insurance contracts is governed by general principles of contract law, i.e., the ascertainment of the intent of the parties is to be garnered from the written agreement, with any ambiguities in the policy being construed in favor of the insured.

Application of the aforestated precepts requires the conclusion that the insured has satisfied the terms of the policy so as to entitle her to sue the insurer for its breach.

It is the insurer’s position that the agreement at issue merely requires that the insured be reimbursed for monies expended by her in the securement of health care services covered under the terms of the policy of insurance. Therefore, the insurer would have us endorse the position that, absent the insured’s pre-payment of the health care costs, the insured is foreclosed from suing for the failure to establish “damages”. As stated by the insurer, it has not “agreed to indemnify [the insured] for medical expenses [she] incurred." (Appellee’s Brief at 6; emphasis added).

I would offer that the terms of the health care agreement themselves counsel against such a conclusion. Specifically, Article III. (Conditions), Paragraph J reserved to the insurer “the right to make payments to the [insured] toward expenses incurred for Allowed Services in accordance with the intent of and in accordance with the provision of the Subscription Agreement.” (Emphasis added)

Based on the reasonable inferences to be drawn from the aforementioned paragraph, the insurer obligated itself to make payments to or on behalf of the insured by her mere incurrence of an expense with a health care provider. See Standard Venetian Blind Co., supra. Further, there is no stipulation anywhere in the policy that the insured has to actually pay for the services performed as a sine qua non to holding the insurer liable for payment of the cost related thereto. If this were the case, as noted quite aptly by counsel for the insured in his brief to us, the purpose for which the insurance was purchased would be vitiated by having to, initially, come up with the monies to pay for a service for which the insurance was specifically purchased to avoid. Conjure this circumstance: A claimant incurs the cost of medical services well beyond his means to pay. Yet, despite having insurance to cover the cost of said services, under the insurer’s theory he would initially have to satisfy the cost out of his own pocket. The exact reason he secured insurance was to guard against this. If he could afford to defray the cost why should he bother to pay for insurance. The circumstance is reminiscent of a “Catch 22”.

Even under Paragraph G of Article VIII., the insurer restricted the insured’s right to bring a suit at law or in equity for any hospitalization expense for services rendered within two years thereafter. Again, no mention is made to the insured’s (pre)condition of payment for said expenses prior to instituting suit. From my reading of the policy as a whole, the insured need only incur an expense from a health care provider to trigger the implementation of the policy of insurance. The topic of “coverage” is resolved subsequent to the initial incursion of the liability/debt by the insured.

In only one instance does the insurer have the option to pay the insured, as compared to the health care provider, and that is when services have been performed by a “NonParticipating Health Care Institution”. Article I. (Definitions), Section 1, Paragraph D.

The point to be made is that the insurer’s calling for the insured’s pre-payment of the hospital bill would be counter to its own policy provisions which restrict such payment to a non-participating hospital, and the health care provider at bar (Magee Women’s Hospital) is not in this classification.

Lastly, if the insurer is fearful of being exposed to multiple suits and double liability from the health care provider (the two have a separate agreement establishing their relationship for reimbursement for services rendered) if the insured were to recover but did not, in turn, pay the hospital, its recourse would be to interplead under the Pennsylvania Rules of Civil Procedure 2301 et seq.

       We note that judgment was not in fact entered below until September 5, 1985, after the filing of appellants’ notice of appeal. Nevertheless, Pa.R.A.P. 905(a) provides that "[a] notice of appeal filed after the announcement of a determination but before the entry of an appeal-able order shall be treated as filed after such entry and on the day thereof." This court, by order of September 25, 1985, therefore denied appellee’s motion to quash.
      We further note that, although the trial court orally granted appellee’s motion for nonsuit on November 28, 1984, appellants did not file their initial motion for post-trial relief until January 14, 1985. Pennsylvania Rule of Civil Procedure 227.1(c)(2) requires parties to file post-trial motions "within ten days after ... notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial.” (emphasis added). If appellants received the required "notice of nonsuit” on November 28, then their motions for post-trial relief were certainly untimely. We conclude, however, that the period for seeking post-trial relief commences only when the prothonotary formally sends notice of the nonsuit, decision or adjudication to the parties. This is consistent with post-trial practice under now-rescinded Rule 1038(d), see Dreher Twp. Bd. v. Solitron Development Co., 333 Pa.Super. 33, 38 n. 3, 481 A.2d 1207, 1210 n. 3 (1984); Gibson v. Miller, 265 Pa.Super. 597, 601 n. 3, 402 A.2d 1033, 1035 n. 3 (1979), which Rule 227.1 replaced. In this case, the ten-day period commenced, at the earliest, on January 9, 1985, when the trial court filed its written opinion and order. This was the earliest possible date on which the prothonotary could have given the required "notice” that triggers the Rule 227.1(c)(2) clock. Appellants therefore filed a timely post-trial motion on January 14 and have preserved for our review the issues raised in that motion.