author: BROSKY, Judge.

text:
    595 A.2d 109
    Regina G. KEATING, Appellant, v. Frank J. KEATING. Regina G. KEATING v. Frank J. KEATING, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1991.
    Filed July 19, 1991.

      Regina G. Keating, pro se.
    David L. Marshall, Norristown, for Frank J. Keating.
    Before McEWEN, KELLY and BROSKY, JJ.
   BROSKY, Judge.

Regina G. Keating (hereinafter referred to as “mother”) appeals and Frank J. Keating (hereinafter referred to as “father”) cross-appeals from the September 21, 1990 trial court order modifying and raising father’s child support payments to $425.00 per week, setting father’s arrearages at $3,890.00, and directing father to pay for the private school, tutoring, psychological treatment and medical expenses of their child, F.J.

Father and mother were married on March 20, 1972 and divorced in 1978. Thereafter, relations between the parties have been hostile. One child, F.J., was born of the marriage and the child resides with mother. Although the child has normal to above average intelligence he suffers from organic learning disabilities, first diagnosed when he was six years old. F.J. has psychological problems that have resulted from his decreased ability to perform in those areas affected by his learning disabilities. On September 11, 1984 mother filed a petition for child support. On January 24, 1985 father was ordered to pay $300.00 per week in child support. On November 10, 1986 mother petitioned for a modification of child support, in part to offset the child’s increased educational expenses. On January 8, 1987 father’s support payments were raised to $350.00 per week. Apparently mother filed another petition to modify support and on July 27, 1987 father was ordered to pay $370.00 per week in child support. On August 24, 1987 father filed a notice of appeal to this Court. In his consolidated appeal father challenged the child support modification and the trial court’s denial of his petition for modification of legal custody. In August 15, 1988, in a memorandum opinion, this Court affirmed the July 27, 1987 trial court order. Keating v. Keating, 385 Pa.Super. 661, 555 A.2d 253 (1988). Father filed a petition for allowance of appeal to our Supreme Court and said petition was denied on June 16, 1989.

On August 22, 1988 mother filed another petition to modify/increase child support. She alleged that increased child support expenses between July 27, 1987 and August 22, 1988 necessitated an increase of $43,000.00 per year, or $875.00 per week. The trial court stated that,

After a series of continuances, the matter finally came before the Court for a hearing [on September 19, 1990]. At that time, the Court requested counsel for [wife] to give a summary statement as to what the evidence would consist of. After hearing counsel on the record, the Court called the attorneys into chambers for a conference which was not recorded. As a result of the conference, the Court directed counsel to consult with their clients and relay the Court’s thinking, and to ascertain if there were any objections. This was done, and since there were no objections, the Court ordered [husband] to pay ... $425.00 per week [child] support effective as on September 7, 1988, plus a lump sum of ... $3890.00.

Trial Court Opinion, 12/17/90, at 1-2. The order was entered on September 21, 1990 and is the order appealed and cross-appealed from.

Mother stated the following issues in her pro se brief. [1.] Must the court ascertain the earnings and wealth of the Father, as well as the Mother, regardless of the amounts involved, in order to satisfy the mandates of the statute and constitutional protection of equal treatment under the law, whether the action is an original order or a modification, before entering an order for child support? [2.] Must the court consider the expenses involved in providing a home, rearing the child within the framework of the custom and living standards of the parties, consider the costs resulting from the special circumstances of the child, and calculate amounts as of the date of the petition for modification in determining an award of Child Support?
May the court provide for temporary order in order to protect the child from the harm of delay and may the court provide for legal fees where they have been incurred to enforce compliance with an Order for Support? [4.] Must the court determine issues of modification of legal custody and of child visitation based on competent evidence and the best interest of the child?

Mother’s Brief at vi.

Father’s issues in his cross-appeal are as follows.

1. Did the Court hold a hearing? (The Court assumed that both parties agreed with the recommended order.)
2. Did the Court base its Order upon evidence concerning the reasonable needs of [F.J.]? (The Court used the prior Order of July 21, 1987, as a “baseline” in determining what additional expenses would be allowed.)

Father’s Cross-Appeal Brief, at vi. Pursuant to mother’s issue number one and father’s issues numbers one and two we vacate the September 21, 1990 order of the trial court and remand with directions consistent with this Opinion. Since we are vacating the trial court’s support order we will only address the aforementioned three issues.

Our Court’s standard of review regarding support orders is a narrow one. Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990).

A trial court has broad discretion concerning support payments and we will not reverse its decision unless there is insufficient evidence to sustain it or the trial court abused its discretion in fashioning the award. More than mere error of judgment is required; discretion is abused only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable. [Citations omitted.]

Id., 392 Pa.Superior Ct. at 243, 572 A.2d at 782.

MOTHER’S APPEAL:

Mother first claims that the trial court erred in failing to acquire knowledge concerning and consider father’s as well as mother’s income when it modified father’s support payments in the September 21, 1990 trial court order. Mother contends that the amount of child support is “substantially less than what the Father c[an] afford.” Mother’s Brief at 9. She avers that the trial court should have determined father’s income pursuant to 23 Pa.C.S. § 4322(a), which states:

(a) Statewide guideline.—Child ... support shall be awarded pursuant to a Statewide guideline as established by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child ... seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child ... and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.

Basically, mother is arguing that the trial court erred in failing to apply the support guidelines.

The September 21, 1990 trial court order dealt with a modification of father’s child support obligation. Appelleefather alleges that since “the parties’ joint monthly income exceeds $8,000, then the case is outside the [support] guidelines and the amount of support is to be determined pursuant to existing case law.” Father’s Brief at 2. Father alleges that mother admitted in her brief that the case is “outside of the guidelines.” Id. While Pa.R.C.P. 1910.16-5(d) does contain such a provision the instant record does not reveal the amount of father’s or mother’s income. Additionally, mother’s brief contains no admission that the parties’ joint monthly net income is over $8,000.00. Hence, based on what appears of record, we cannot say that the instant case is “outside the guidelines.”

Mother filed the instant petition for modification on August 22, 1988. As mentioned, supra, there were several continuances. The trial court held what it considered to be a hearing on September 19, 1990. Counsel for mother and father presented statements to the trial court regarding whether a modification was justified; mother and father were present. Counsel presented exhibits regarding mother’s overall expenses, expenses for F.J., F.J.’s private school expenses and mother’s household receipts. Then the trial court had counsel in his chambers for a brief, unrecorded conference; we assume that the trial court arrived at a decision regarding an increase in father’s support payments. While in chambers, the trial court “asked [the attorneys a] question in terms of the incomes of the parties and Mr. Marshall [father’s attorney] relied upon his stipulation that [father] would provide for the reasonable needs of the child.” N.T., 9/19/90, at 49. The trial court stated in its opinion that it then directed counsel to return to the courtroom to consult with mother and father and determine if the parties objected to the trial court’s determination. Subsequently, the trial judge returned to the courtroom and announced the details of the September 21, 1990 order, which is the order appealed from. Mother and father and their counsel were in the courtroom. Father’s counsel stated that,

There has been no evidence of any showing of increase in expenses, that [father] has gone to great length and trouble to attempt to validate expenses for his son, and his research which he would present to Your Honor would show that the expenses for the child don’t show any documented increase of any nature between 1987 and 1988, or 1987 and today; that [father] would be prepared to present to Your Honor evidence to substantiate that contention[.]

N.T., 9/19/90, at 46. The trial court stated in its opinion that since it determined that there were no objections it issued the September 21,1990 order. The trial court stated that it arrived at the instant determination regarding father’s support obligations after it considered a previous modification order, by Montgomery County President Judge William Vogel, as a “baseline to arrive at the [instant] modified order.” Trial Court Opinion, 12/17/90, at 9. President Judge Vogel set support at $370.00 per week. The trial court also relied upon father’s August 16, 1988 testimony that,

[P]lease don’t think that Frank Keating [father] is somebody who only walks into a courtroom fighting for $288. Obviously, $370 [in child support] a week ... is a substantial amount for the child. I do it ... very willingly____ Money is not a factor. I don’t even want to discuss it____ I’m more than willing to share it.

N.T., 8/16/88, at 63.

In addressing this issue we must consider our Court’s August 15, 1988 memorandum opinion, at No. 02411 Philadelphia 1987 and No. 02421 Philadelphia 1987, that addressed, inter alia, the issue of the modification of father’s child support obligation from $300.00 to $370.00 per week. Our Court stated that, “Appellant [father] concedes that for purposes of [the child support] issues his resources are

unlimited.” Memorandum Opinion at page 9; Keating v. Keating, 385 Pa.Super. 661, 555 A.2d 253 [table]. After our Court found that wife demonstrated that the increase in child support was justified it concluded “that the trial court acted properly in awarding the $70 increase^ to $370.00 per week].” Id. We will therefore use $370.00 as a baseline in determining the instant issue.

This Court has held that it is an abuse of discretion for a trial court to enter a modification of a support order, based upon a change in circumstances, if the trial court does not refer on the record to the support guidelines. Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988). The support guidelines must be considered both in entering an original support order and in entering, as in the instant case, a modified order. Id.

The guidelines are to be considered by the court so that the suggested amount of support is, at a minimum, given due consideration and so there may be uniformity of awards for persons similarly situated.

Id., 372 Pa.Superior Ct. at 256, 539 A.2d at 426.

In the instant case the trial court did not refer to the support guidelines. That would have been an impossibility since the trial court did not consider the incomes of either mother or father. Therefore, pursuant to Shutter v. Reilly, supra, we vacate the September 21, 1990 trial court order and remand to the trial court for recomputation of the support award since the trial court abused its discretion in not considering whether or not the support guidelines are to be applied.

If after determining the respective incomes of the parties the trial court determines that the instant case is outside of the guidelines, pursuant to Pa.R.C.P. 1910.16-5(d), which states that “if the parties’ joint monthly income exceeds [$8,000], the case ... is to be determined pursuant to existing case law”, then the trial court must consider the procedure that our Supreme Court created in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Our Court stated in Coffey v. Coffey, 394 Pa.Super. 194, 575 A.2d 587 (1990)

[A]s appellant points out, application of neither the formula in Melzer ..., nor the Montgomery County Child Support Guidelines is evident from the undifferentiated order. This omission alone would be sufficient for reversal. However, the county guidelines have been superceded by those appearing in the Procedural Rules governing support actions; it is therefore the latter, in conjunction with Melzer, and the circumstances of the case which must be considered. [Citations omitted.]

Id., 394 Pa.Superior Ct. at 203, 575 A.2d at 591.

In calculating the support obligations of the parents under Melzer, the court must first determine and set forth on the record the reasonable needs of the child____ The court then must determine the respective financial capabilities of the parents to support their child. To arrive at this amount, the court must make allowances for the parents’ reasonable living expenses and then calculate each parent’s net income or earning capacity— When the court arrives at a figure for both the children’s needs and their parents’ disposable income, the court then computes a support obligation. [Emphasis added.]

Lesko v. Lesko, 392 Pa.Super. 240, 244, 572 A.2d 780, 782-83 (1990).

We wish to add that “the Supreme Court ... recognized that the formula it set forth in Melzer was to be used as a guide and was not meant to divest the hearing court of discretion to consider all of the relevant facts. ‘[A] majority of the Melzer court eschewed strict mechanical formulas and endorsed a flexible approach in ... support cases.’ ” Olson v. Olson, 384 Pa.Super. 224, 227, 558 A.2d 93, 95 (1989). We also note that our Court has recognized that deviations from the Melzer formula may be warranted under “the particular circumstances” of a case. Id. Although it is true that in the usual case the trial court must refer to the formula on the record, the law has recognized that in certain cases the formula need not be shown on the record (i.e., where wife had no income to plug into the formula; and, where father, who petitioned for a reduction in his support payments, intentionally withheld or refused to provide accurate information required under the formula, father could not, on appeal, request the benefits of the Melzer formula and the trial court could calculate support without an on the record reference to the formula). Id. However, the instant case is distinguishable from Olson in that the instant record did not indicate that father intentionally withheld or failed to provide accurate information regarding his income and resources.

FATHER’S CROSS-APPEAL:

Father claims in his cross-appeal that the trial court erred in failing to hold a support hearing and in modifying the then existing support order when mother failed to offer clear and positive evidence that F.J.’s needs had increased since the imposition of the prior support order. We agree and vacate the trial court’s September 21, 1990 order and remand for a new hearing regarding mother’s petition to modify support.

The trial court averred that it held a hearing on the petition to modify support on September 19, 1990. Our review of the “hearing” revealed that it consisted solely of arguments by counsel for father and counsel for mother. Mother and father were present in the courtroom but did not testify. Mother’s counsel presented a summary of mother’s expenses and FJ.’s expenses. Father’s counsel then summarized the position of his client. The transcript indicates that five exhibits were introduced into evidence. Our review of the record only revealed one exhibit, an Income and Expense statement for mother and F.J. There was a brief recess and counsel and the trial judge held a conference in the trial judge’s chambers. The trial court stated in its opinion that it then directed counsel to consult with their clients and inform them of the proposed order that the trial court would enter regarding a modification of support. The trial court stated that since there were no objections from either party it entered the instant order.

When a trial court modifies an existing support order, that action is justified only when supported by clear and positive evidence after a hearing on the merits. Ross v. Ross, 359 Pa.Super. 357, 518 A.2d 1274 (1986). In a support action if counsel for the mother and father present arguments on behalf of the parties but there is no testimony presented then a hearing has not taken place. Beegle v. Rasler, 395 Pa.Super. 174, 576 A.2d 1100 (1990). Hence, there was no hearing on the merits and we remand for a hearing on the petition to modify support.

Furthermore, the “argument” presented by mother’s counsel at the September 19, 1990 hearing clearly did not meet the burden of proof required at such a hearing. In a petition to modify a child support order, the petitioner carries the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support order or any subsequent modifications. Shutter v. Reilly, supra. “The trial court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate whether the petitioner did or did not meet the burden of proof as to changed circumstances.” Id. 372 Pa.Super. at 255, 539 A.2d at 426. In the instant case mother failed to provide documentation for several of the major items (new automobile, increased monthly condominium charges) for which support was increased. The trial court stated at the hearing, “I can appreciate [father’s] desire to have all of this documented, but in the real world things don’t get documented.” N.T., 9/19/90, at 48. Therefore, mother did not meet her burden of proving that a material and substantial change in circumstances occurred since the second modification of support. Hence, we remand for a new support hearing.

Order vacated. Case remanded to the trial court with directions consistent with this Opinion. Jurisdiction relinquished.

McEWEN, J., concurs in the result.

      . In September, 1987 the child was placed in the Temple Laboratory School, which is a private institution that specializes in teaching the learning impaired.

      . We note that F.J., who is now seventeen years old, began attending Hilltop Preparatory School in Rosemont, Pennsylvania in September, 1990. Hilltop is an ordinary private school and does not specialize in educating students with learning disabilities. Father was voluntarily paying the expenses for Hilltop, which amounted to $15,000.00 per year. N.T., 9/19/90, at 4. As mentioned, supra, the September 21, 1990 trial court order directed father to pay for the tuition, transportation, meals, uniforms, lab assessments, school fees and other related expenses at Hilltop; father was ordered to make direct payment to the school. Father was also directed to directly pay F J. for his lunch and transportation expenses. Father also has been paying for monthly tutoring for FJ. for more than four years at the Huntington Learning Center. Id. at 6. Father also has been paying for five years for F J.'s visits to a psychiatrist.

      . This Court has been provided with copies of an expense "sheet” for mother and F.J. We have not been provided with copies of the latter two exhibits.

      . This matter will be discussed, infra.

      . This hearing related to one of mother’s prior petitions for modification of support.

      . At this point we wish to comment upon father’s "unlimited resources” and his "stipulation to provide for the reasonable needs of F.J.”. There is no such written stipulation in the record; we were only apprised of such a stipulation via father’s counsel’s assurances that father would provide for F.J.’s "reasonable needs”. It is important to note that while father may be willing to utilize his "unlimited resources” to provide for F J.’s needs, father has appealed to this Court from each of the last two increases in his child support payments.

      . However, our Court’s holding in Olson implies that the mother in that case could have raised the issue of the trial court’s failure to apply the Melzer formula since she was not the party who withheld or failed to provide accurate information.

      . The arguments were referred to as "statements” on the “Index” page of the September 19, 1990 transcript.

      . Although categorized an Income and Expense Statement, the statement contained no information regarding mother’s income.

      . In fact, father's counsel complained in open court that mother had not presented any evidence to indicate an increase in expenses, and he also averred that father was prepared to present evidence to rebut mother’s claims.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    595 A.2d 115
    Joanne BRANGS v. Douglas BRANGS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1991.
    Filed July 23, 1991.

      Dagmar W. Wolf, Lansdale, for appellant.
    Lizabeth A. Auspitz, Fort Washington, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

This case involves the often visited question of the modifiability of a property settlement agreement which has been incorporated into but not merged with a final decree of divorce. In particular, the instant case raises the important question of whether the child support provisions in a settlement agreement executed prior to February 12, 1988, are subject to downward modification by the court upon a showing of changed circumstances.

Effective February 12, 1988, section 401.1(b) of the Divorce Code provides that: “A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.” 23 Pa.Cons.Stat.Ann. § 401.1(b) (Purdon Supp.1990), repealed by 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days, re-enacted as 23 Pa.Cons.Stat. Ann. § 3105(b). The resolution of this case hinges on the applicability of section 401.1(b) to the child support provisions of the agreement at issue here, which was executed in 1987. We hold that section 401.1(b) cannot be applied retroactively to allow husband to obtain a reduction of child support payments which he is obligated to pay under a valid, unmerged, enforceable, pre-amendment property settlement agreement. Therefore, we affirm.

Joanna Carr Brangs (wife) and Douglas H. Brangs (husband) were married in 1979 and separated in 1987. They have three children. On August 14, 1987, wife and husband executed a property settlement agreement which resolved all economic issues pertinent to the dissolution of marriage, including child support. The provision on child support in the agreement stated that: “Husband shall pay the sum of $150.00 per week for the support of the three (3) minor children, Peter Brangs, Adam Brangs and Jillian Brangs.” The agreement further provided that, upon entry of a divorce decree, the agreement and its provisions would be incorporated into the judgment for divorce and would survive the decree and not merge into it. A divorce decree entered thereafter on September 22, 1987, likewise incorporated the agreement but stated that the agreement survived and did not merge.

In November, 1987, wife filed a petition for contempt claiming that husband had failed to make the agreed-upon child support payments. Husband counterclaimed alleging, inter alia, various violations by wife under the agreement. On February 12, 1988, the Honorable Marjorie C. Lawrence of the Montgomery County Court of Common Pleas entered an order which found husband in contempt for failing to adhere to the terms of child support in the property settlement agreement. The court ordered that husband make up arrearages and that he continue to pay the $150.00 per week agreed to in the property settlement agreement. The trial court also found wife in contempt for failing to make a $1000.00 payment to husband pursuant to the agreement and ordered wife to comply.

Two years later, in February 1990, husband filed a petition to modify the decree and reduce child support, based on an alleged change of circumstances. Thereafter, wife filed a petition alleging that husband continued to be in contempt of his child support obligations under the agreement and under Judge Lawrence’s order which implemented the agreement’s terms. On May 15, the Honorable Albert R. Subers denied husband’s petition to modify and found, instead, that husband was in default of his child support payments under the agreement, in the amount of $7,405.00. The trial court found that the 1988 amendment to the Divorce Code which allows modification of child support provisions of private agreements upon a showing of change of circumstances is not applicable to the instant agreement executed prior to the effective date of the amendment. This appeal followed. Husband makes the following arguments. First, he contends that the 1988 amendments to the Divorce Code were intended by the legislature to be given retroactive application to private agreements executed prior to their enactment. Further he argues that such retroactive affect would not offend due process. Husband also argues that, under the circumstances of this case, modification downward of husband’s child support obligation would not constitute retroactive application of the statute since his petition to modify was filed after the amendments were effective. Finally, husband claims that the property settlement agreement was always intended by the parties to be modifiable and that this alleged intent controls.

With respect to husband’s first claim regarding the retroactive application of section 401.1(b) to child support provisions of private agreements, we note that some judges of this court have expressed non-precedential views on the question. However, a recent case is binding precedent. Albeit in a footnote, Nessa v. Nessa, 399 Pa.Super. 59, 65 n. 2, 581 A.2d 674, 676 n. 2 (1990) held that “this agreement is not affected by the amendment to the Divorce Code, § 401.-1(b), (c), added 1988, Feb. 12, P.L. 66, No. 13, as the agreement predated the amendment.” Nessa involved facts substantially the same as those in the instant case. The parties in Nessa had executed a property settlement agreement in 1983 which subsequently was incorporated but not merged into a divorce decree the same year. In 1989, husband’s circumstances in Nessa took a dramatic and unfortunate downturn attributable to illness. Husband petitioned the court to modify his support obligations and the trial court denied his petition, citing the agreement as a bar to downward modification. This court affirmed and held that, since the agreement contained a specific provision for incorporation and not merger, the agreement survived as a contract and was not modifiable by the court. Id. This conclusion was reached in Nessa despite the fact that husband’s filing of the petition to modify, and the change of circumstances upon which it was based, did not occur until after the effective date of section 401.1. Moreover, as noted above, the court held that the pre-amendment agreement was not modifiable based on 401.1 because the agreement predated its enactment. In our view, we are bound by Nessa. It dictates the result here. We write to enlarge and clarify what we believe was a fair and correct holding in Nessa.

Basic principles of statutory construction govern our inquiry into the applicability of new legislation to pre-existing transactions. There is a well-settled presumption against retroactive application of statutes affecting substantive rights. This presumption is legislatively mandated in 1 Pa.Cons.Stat.Ann. § 1926 (Purdon Supp.1991), which provides: “No statute shall [be] construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” Our courts have repeatedly interpreted this provision as creating a strong presumption of prospective statutory application only, absent clear language to the contrary. See, e.g., Rudolph Rosa, Inc. v. Latrobe Brewing Co., 347 Pa.Super. 551, 500 A.2d 1194 (1985); Green v. Pennsylvania Public Utility Com’n, 81 Pa.Cmwlth. 55, 473 A.2d 209, affirmed 507 Pa. 430, 490 A.2d 806 (1985); Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983).

The presumption against retroactive application of statutes and amendments thereto is particularly strong when application of the statute would interfere with existing contractual obligations. “Where the application of a statute would make a substantive change in the rights and obligations of the parties, it is presumed that the legislature intended its provisions to have no application to contracts existing prior to the effective date of the law.” Rudolph Rosa, Inc. v. Latrobe Brewing Co., 347 Pa.Super. at 562, 500 A.2d at 1200. See also Rupert v. Policemen’s R. & P. Fund, 387 Pa. 627, 632, 129 A.2d 487, 489 (1957); Krenzelak v. Krenzelak, 503 Pa. at 379-380, 469 A.2d at 990, citing Commonwealth v. Greenawalt, 347 Pa. 510, 512, 32 A.2d 757, 758 (1943).

In contrast to statutes which affect substantive rights, such as existing contractual obligations, statutes which aptly can be characterized as remedial, curative or affecting procedural matters may operate retroactively. Thus, it is a basic precept of statutory construction that laws which create remedies, affect procedural avenues, or clarify existing rights, all may escape the presumption against retrospective application of legislation. See, e.g., Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960) (“Retrospective laws may be supported when they impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted.”); 2 SUTHERLAND, STATUTORY CONSTRUCTION § 41.09 (Sands 4th ed. 1986).

Finally, in order to invoke the presumption against retroactivity it is necessary to determine whether the proposed application of the enactment at issue would actually be “retroactive”. A retroactive law is “one which relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired”. Com., Dept. of Labor and Industry, Bureau of Employment Sec. v. Pennsylvania Engineering Corp., 54 Pa.Cmwlth. 376, 380, 421 A.2d 521, 523 (1980). However, our courts have held that “[w]here ... no vested right or contractual obligation is involved, an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date”. Creighan v. Pittsburgh, 389 Pa. 569, 575, 132 A.2d 867, 871 (1957) (emphasis added).

With these principles in mind, we turn to the statutory amendment at issue here. In our view, the threshold inquiry is whether downward modification of husband’s child support obligation pursuant to section 401.1(b) would constitute retroactive operation of that amendment. We conclude that it would. For the amendment to permit a reduction of the child support obligation fixed in an unmerged, surviving and enforceable property settlement agreement, it would certainly have to give “a previous transaction a legal effect different from that which it had under the law in effect when it transpired”. Com., Dept. of Labor and Industry, Bureau of Employment Security, supra, 54 Pa.Cmwlth. at 380, 421 A.2d at 523. Under the law in effect when the property settlement agreement here was executed, a child support provision in an incorporated but unmerged private agreement was not subject to downward modification by the court upon a showing of change of circumstances. A long line of decisions established the “legal effect” of support provisions in such cases. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983); Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985); Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985); McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987). By contracting as they did in 1987, the parties here evidenced their intent that their agreement would “survive” the entry of a divorce decree and that the court would thereby have power to enforce the terms and provisions of the agreement but not modify them. In fact, this is precisely what Judge Lawrence did in the instant case in her order of February 12, 1988. In that order the court enforced the mutually agreed upon terms of the contract, implementing them only and refusing to modify them, despite an asserted change of circumstances by husband. See Sonder v. Sonder, 378 Pa.Super. 474, 540-541 n. 3, 549 A.2d 155, 188-189 n. 3 (1988) (Beck, J., concurring and dissenting). Such was the legal effect of the contractual obligation entered into by these parties in 1987. Permitting the court unilaterally to modify that obligation in a manner inconsistent with the terms of the agreement, based upon the 1988 amendment, certainly would constitute retroactive operation of section 401.1(b).

Appellant husband’s argument to the contrary is wholly meritless. He contends that his petition to modify was filed after the effective date of the amendment and that application of section 401.1(b) to reduce his support obligation would merely be a determination of his present obligations. Husband argues that the existence of the contract was just a condition or fact which came into existence prior to the enactment and merely constitutes a predicate for application of the amendment. First, the same situation existed in Nessa and this court refused to modify the private agreement despite the enactment of section 401.1(b). More importantly, the argument is fundamentally flawed. The very statement of statutory construction upon which husband relies to make this argument, i.e., that a statute does not operate retroactively merely because some facts or conditions upon which its application depends came into existence before its enactment, is expressly limited to cases “where no vested right or contractual obligation is involved”. The private agreement at issue here is not a mere antecedent event—it is the contractual obligation being altered by operation of the statute. Such an application is a clear example of retroactivity.

Moreover, it is clear that the amendment at issue affects substantive rights and cannot be considered merely remedial, curative or procedural. As we discussed above, the impact of section 401.1(b), if applied to the instant private agreement, would be to allow modification of a contractual obligation heretofore unmodifiable under previous law. While the line between “procedural” and “substantive” enactments may occasionally be difficult to fix, we can think of no clearer example of substantive change than empowering the court to remake the terms of an enforceable contract where no such power existed until the amendment was enacted. Although appellant argues that the amendment is “remedial”, we believe he misconstrues the term. While the amendment undoubtedly was enacted to rectify a perceived problem in the interplay between court ordered support and support through private agreement, this fact alone does not make the amendment at issue here “remedial”. In this sense, all legislation is “remedial” in that it attempts to correct a perceived societal problem through the exercise of valid police powers. “Remedial”, however, is a term of art and has particular significance in the area of retroactivity. Thus, Black’s Law Dictionary defines “remedial laws or statutes” as follows:

Legislation providing means or method whereby causes of action may be effectuated, wrongs redressed and relief obtained is “remedial”..... Those statutes which pertain to or affect a remedy, as distinguished from those which affect or modify a substantive right or duty.

BLACK’S LAW DICTIONARY 1162-1163 (5th ed. 1979).

No doubt section 401.1(b) is aimed at achieving a salutary purpose. In doing so, however, it has given courts the power to alter contractual agreements by permitting modification of mutually agreed upon terms in the specified areas of child support, custody and visitation. Such a law is substantive in nature.

Having found the amendment at issue to affect substantive rights and obligations, we presume, as we must, that it was intended to apply prospectively only. In order to overcome this presumption against retroactivity, the legislature must have expressed in clear and unequivocal terms that it intended the disputed amendment to operate retrospectively. We find no such language in the enactment nor has appellant cited us to any. Appellant argues that “there is no language in the Act which limits the application of Section 401.1 to only those agreements which came into being after the effective date”. Appellant is correct but this statement argues against retroactive application of the amendment, not for it. A statute affecting substantive rights is construed to act prospectively only, absent clear language to the contrary. The language and intent to the contrary must be “so clear as to preclude all questions as to the intention of the legislature”. Commonwealth v. Repplier Coal Co., 348 Pa. 372, 381, 35 A.2d 319, 324 (1944) (citation omitted).

We reject appellant’s suggestion that the retrospective intent of the legislature can be found in the fact that the amendment provided that it became effective immediately. As this court has stressed before, such language alone does not manifest retroactive intent on the part of the legislature which “knows well how to provide that a statute should be applied retrospectively or prospectively” in order to make its intent plain. S.D. Richman Sons, Inc. v. Com., Board of Finance and Revenue, 53 Pa.Cmwlth. at 114, 416 A.2d at 1163. See also Commonwealth v. Repplier Coal Co., supra. We conclude that, with respect to the modifiability of child support provisions of unmerged private agreements, the legislature intended prospective application only.

Since there is no language whatsoever evidencing retrospective intent in the amendment itself, we look to the whole statute to determine whether retroactive operation can be inferred from the act in its entirety. See Wilson v. Central Penn Industries, Inc., 306 Pa.Super. 146, 452 A.2d 257 (1982) (to determine legislative intent, sections of the statute must be read together and construed with reference to whole). On the whole, in enacting the 1980 Divorce Code, the legislature provided that marital agreements executed prior thereto would not be affected by the Act. Section 103 of the original Divorce Code provided in part that: “This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.” When the 1988 amendments were enacted they merged with and became part of the original divorce code but, according to statute and settled law of statutory construction, the new provisions “shall be construed as effective only from the date when the amendment became effective”. 1 Pa.Cons.Stat. Ann. § 1953 (Purdon Supp.1991); S.D. Richman Sons, Inc. v. Com., Board of Finance and Revenue, supra. The only provision specifically addressing the impact of the Divorce Code on previously executed marital settlement agreements provides that the act shall not affect the obligations undertaken thereunder. Nothing in the amendment convinces us that, where settled contractual obligations would be altered, the amendment was intended to operate retroactively.

Despite appellant’s argument, we do not believe that this conclusion offends the general social policies underlying the Divorce Code in general and the 1988 amendment in particular. We conclude only that the amendment may not be applied retroactively to permit the court unilaterally to reduce a child support obligation in contravention of the clear intent of the parties at the time they entered into a counselled, valid and mutually agreed upon contract. We note further that, with respect to the equitable treatment of children of divorce, the law has always provided that where the best interests of the child so require, child support obligations pursuant to agreement may be increased to meet a child’s needs. See McGough v. McGough, supra, 361 Pa.Super. 391, 392-393 n. 1, 522 A.2d at 639 n. 1; Millstein v. Millstein, supra. Clearly, parties executing settlement agreements subsequent to the enactment of section 401.1(b) of the 1988 amendment to the Divorce Code, cannot, in light of the statute, enter into non-modifiable agreements for child support. On the other hand, absent express and manifest legislative intent to the contrary, the rights and obligations of the parties cannot be altered by retroactive operation of statute to achieve a result certainly not intended by them and not permitted by law at the time they assumed their obligations. The United States Supreme Court long ago underscored the inherent equity of the presumption against retroactivity affecting substantive rights:

[T]he first rule of construction is that legislation must be considered as addressed to the future, not to the past. The rule is one of obvious justice, and prevents the assignment of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed.

Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913).

Order affirmed.

      . The Divorce Code (23 P.S. §§ 101 to 801) was repealed by Act of Dec. 19, 1990, and re-enacted as Part IV of the Domestic Relations Code, 1990 Dec. 19, P.L. 1240, No. 206 § 2. See 23 Pa.Cons.Stat.Ann. §§ 3101-3707 (Purdon Supp.1991). The amendment formerly codified as 23 Pa.Cons.Stat.Ann. § 401.1(b) is now 23 Pa.Cons.Stat.Ann. § 3105(b). The provision is unchanged. We note that 1 Pa.Cons.Stat. Ann. § 1962 (Purdon Supp.1991) provides:
      § 1962—Repeal and reenactment Whenever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continued in active operation. All rights and liabilities incurred under such earlier statute are preserved and may be enforced.
      Since the foregoing is what occurred here, our interpretation and conclusions regarding former section 401.1(b) (now section 3105(b)) are unaffected by the repeal and reenactment.

      . Since we conclude, as discussed infra, that the amendment at issue was not intended to operate retroactively, we do not address appellant’s due process argument.

      . We find no merit in husband’s argument that the child support provisions in the property settlement agreement were intended by the parties to be modifiable. The agreement unambiguously expressed the intent of the parties that the agreement survive the entry of a divorce decree and not merge into it. The agreement specifically provided that it represented the parties’ "complete understanding regarding ... support” and that it was a “final and complete settlement of all property rights between them”. In addition, the agreement stated that it "contain[ed] all the terms, conditions and provi sions relating to the matters herein set forth and there are no outstanding modifying verbal understandings, agreements or arrange ments whatsoever with relation thereto”. Finally, husband raised similar arguments challenging the terms of the agreement in 1987 before Judge Lawrence. The court, however, found husband in contempt of an enforceable, valid agreement and ordered him to comply with the child support obligations undertaken therein.

      . The issue of the applicability of the amendment on private agreements for child support executed prior to Feb. 12, 1988, has been addressed by members of this court in dissenting opinions of casea which have failed either to tackle or to resolve this issue. See Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990) (en banc) (plurality opinion) (Montemuro and Johnson, JJ., dissenting); DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990) (Tamilia, J., concurring and dissenting); Ballestrino v. Ballestrino, 400 Pa.Super. 237, 583 A.2d 474 (1990) (Johnson, J., dissenting).

      . In addition, the legislature has specifically addressed amendatory statutes as follows:
      Whenever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part amended, and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.

      1 Pa.Cons.Stat.Ann. § 1953 (Purdon Supp.1991) (emphasis added). See also S.D. Richman Sons, Inc. v. Com., Board of Finance and Revenue, 53 Pa.Cmwlth. 110, 416 A.2d 1161 (1980).

      . Pursuant to this principle, a panel of this court recently held that the enforcement provisions of the 1988 amendments to the Divorce Code (23 Pa.Stat.Ann. 401.1(a) (Purdon Supp.1991)) are applicable to pre1988 private agreements. Jackson v. Culp, 400 Pa.Super. 519, 583 A.2d 1236 (1990). In Jackson, the court reasoned that there was "no anomaly in applying the enforcement procedures provided by the 1988 Amendment to a pre-1988 [marital settlement agreement] while refusing to apply other provisions of the Amendment which would involve a change in the obligation of the parties.” This is so because “[t]he amendment neither adds to nor subtracts from the substantive rights of the parties under their MSA; rather, it merely provides an additional procedural vehicle for the enforcement of their respective rights under their MSA." Id., 400 Pa.Superior Ct. at 523, 583 A.2d at 1238. The Jackson court concluded: "The 1988 Amendment to the Divorce Code allows enforcement but not modification of an unmerged MSA under the Code.” Id. (citations omitted; emphasis in original). We agree.

      . See Creighan v. Pittsburgh, 389 Pa. 569, 575, 132 A.2d 867, 870 (1957) (statute which provided compensation in specified circumstances to fireman disabled from tuberculosis is applicable to a claim for disability arising from tuberculosis which occurred prior to the effective date of the act and which continued to exist when the act came into effect).

      . In contrast, in a recent case, this court found that application of 401.1(c) which prohibits modification of alimony et al. provisions of private agreements, absent a specific provision in the contract to the contrary, did not constitute a retroactive application of the statute. DeMatteis v. DeMatteis, 399 Pa.Super. 421, 434, 582 A.2d 666, 672 (1990). The court reasoned that section 401.1(c) did not interfere with existing contractual obligations or antecedent rights because the statute actually acted to protect pre-existing rights of the parties to the contract. The court stated:
      The statute, which prohibits modification of the voluntary agreements of parties to a divorce action, actually acts to protect such pre-existing rights and obligations. The statute is therefore not retroactive and we may apply the provisions of section 401.1(c) to the parties’ agreement, which was a condition existing on the effective date of the 1988 Divorce Code amendments.
      Based on the above reasoning, we do not find DeMatteis inconsistent with our conclusions today.

      . Relying on Judge Montemuro’s dissent in a recent en banc decision, husband argues that section 401.1(b) was a “remedial measure”. In his dissenting opinion in Bell v. Bell, 390 Pa.Super. 526, 540, 568 A.2d 1297, 1304 (1990) (en banc) (Montemuro, J., dissenting), Judge Montemuro stated that "[i]n enacting Section 401.1(b), our legislature intended to alleviate the confusion in the courts regarding the circumstances in which a child support agreement may be modified”. Assuming there was such confusion and assuming further that the alleviation of the confusion was the legislature’s purpose, these facts alone do not create a "remedial statute” where, as here, the statute operates on pre-existing contractual obligations.

      . See Section 5 of Act 1990, Dec. 19, P.L. 1240, No. 206, which now provides, in pertinent part:
      The provisions of 23 Pa.C.S. Pt. IV [relating to divorce] shall not affect any marital agreement executed prior to the effective date of the Divorce Code of 1980 or any amendment or modification thereto.


author: BROSKY, Judge. OLSZEWSKI, Judge,

text:
    595 A.2d 122
    Carolyn BETHEA, Appellant v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN and the Travelers Insurance Company and Rosemarie Amicone and Philip C. Carfagno.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed July 23, 1991.

      Susan I. Schulman, Philadelphia, for appellant.
    Laura W. Helbling, Medi, for Pa. Financial, appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order granting appellees’ (Pennsylvania Financial Responsibility Assigned Claims Plan and The Travelers) motion for summary judgment and dismissing appellant’s complaint asking for uninsured motorist benefits under the assigned claims plan. Appellant raises one issue, whether the spouse of the registered owner of an uninsured motor vehicle is entitled to benefits under the Pennsylvania Assigned Claims Plan.

Appellant was driving an uninsured vehicle when the vehicle she was driving was struck by another vehicle which was also uninsured. Appellant filed an action against the owner and driver of the other vehicle and against the Plan seeking first party and uninsured motorist benefits. The vehicle appellant was driving was registered in her husband’s name alone. Appellant and her husband lived in the same household and were not estranged.

Appellees filed a motion for summary judgment alleging appellant was ineligible for the claimed benefits under the provisions of 75 Pa.C.S. § 1752(a)(3), which states that one cannot recover benefits if he/she is the owner of a motor vehicle required to be registered under Chapter 13. The trial court granted appellees’ motion finding that appellant was an “owner” of the vehicle in question as the vehicle had been purchased during the marriage of the parties and would be considered marital property. Thus, appellant was a constructive owner of the vehicle in question even though the vehicle was titled in her husband’s name alone.

Any discussion of this dispute must involve the case of Ibarra v. Prudential Property & Casualty Co., 402 Pa.Super. 27, 585 A.2d 1119 (1991). In discussing the identical issue that is presently before us relative to section 1714 of the Code, a panel of this court found that an estranged wife driving her husband’s automobile which was then uninsured would not be prevented from claiming under the Plan simply because under the Divorce Code she may have an equitable distribution right to the vehicle. However, we cannot say that Ibarra necessarily holds that title ownership is the sole factor governing this inquiry. Nor can we readily conclude that Ibarra compels reversal here.

It does not appear that the Ibarra panel, in rendering its decision, was relying solely on the fact that the appellant there was not a registered or titled owner of the vehicle. Had that been considered the dispositive factor, irrespective of any other factor, Ibarra could have been rather summarily dismissed. Instead the panel considered Divorce Code definitions and Motor Vehicle Code definitions as well as other indicia of ownership. The case must be read to indicate that, in the very least, the definition of marital property found in the Divorce Code will not control the determination either. However, the case appears to acknowledge or leave open the proposition that a non-titled or registered owner can be an owner for purposes of the Act and section in question, for the panel finds it necessary to discuss other indicia of ownership such as regularity of usage or availability, the possession of keys and the permanent location of the vehicle. Furthermore, the court discusses the vague concept of “the property right” found in the definitional section of the Motor Vehicle Code, all of which would have been unnecessary had the panel decided to limit the inquiry to the record ownership.

Because the exact holding or premise to be gleaned from Ibarra is not immediately ascertainable it is necessary for us to interpret the case consistent with the policy of the Act and with the factual pattern presented there. For the reasons that follow, we conclude that Ibarra should be construed to represent that more than a mere contingent equitable distribution right is necessary to find ownership for purposes of the Act. However, we cannot read that decision as holding that an ownership interest that is marital in nature is wholly irrelevant to this inquiry.

We start our analysis with the found purpose of section 1714. As stated in Allen v. Erie Insurance Co., 369 Pa.Super. 6, 534 A.2d 839, 840 (1987), the legislature “was primarily concerned with the rising consumer cost of automobile insurance, created in part by the substantial number of uninsured motorists who contributed nothing to the pool of insurance funds from which claims were paid____ The Act has the effect of requiring all owners of registered vehicles to share the burden of insurance before they can obtain the benefits.” In DeMichele v. Erie Insurance Exchange, 385 Pa.Super. 634, 561 A.2d 1271, 1273 (1989), we stated “[t]he statute was created to ensure that one may not receive first-party benefits unless he has the ability to provide them to another.” Although these commentaries were offered respective to § 1714, section 1752(a)(3) must be regarded as having the same purpose as § 1714. The most logically compelling reason for inclusion of this particular exemption in § 1752(a) would be to exclude from participation an individual who is obligated by law to provide financial responsibility. The absence of language in § 1752(a)(3) specifying owners who do not have financial responsibility, as is present in § 1714, is explained by the fact that the Assigned Claims Plan is not implicated unless there is an absence of other available insurance coverage under the source of benefits section, § 1713. In other words, in discussing claims under the Assigned Claims Plan it is a given that the claimant does not have financial responsibility and it would be superfluous to qualify ownership of a vehicle with failure to provide financial responsibility. Thus, in excluding owners of vehicles in § 1752(a)(3), the legislature is effectively excluding owners of vehicles who have not obtained insurance coverage from claiming benefits under the Act. Having acknowledged a policy that limits benefits under the Act to those who also contribute to the pool or provide financial responsibility we must now consider whether it is consistent with this policy to find a spouse of a record owner of an unregistered vehicle similarly disqualified.

In the typical marital unit the partners of the marriage are partners in most aspects involving the marital unit. Earnings of both spouses, assuming that both contribute financially, are pooled and used to pay bills accruing to either party or to both, and even if bills happen to be split by agreement of the marriage partners there is a mutual flow of benefits by the arrangement. The same is true even if only one spouse is earning income. Our law has always acknowledged the fact that the non-working spouse is providing substantial benefits to the marriage which also enable the “breadwinner” to earn an income. Furthermore, most often management of financial matters is a task that both partners have a certain amount of input on, and certainly, an imputed responsibility for. In such an environment, is it consistent with the policy of the section in question to treat a non-record owning spouse differently than a record owning spouse? We think not. In the typical marital unit where the vehicle is shared, the responsibility relating to it should also be thought of as shared. Furthermore, to allow record ownership to be the sole determining factor could lead to seemingly inconsistent results between different married couples without necessarily being tied to any sound policy.

Consider for example a situation where two married couples purchase an automobile with marital funds and that under either the Divorce Code or our property law the vehicles would be deemed to be the property of both partners of the marriage. However, for whatever reasons one couple chooses to title the car in the name of only one spouse while the other couple has the car jointly titled. If we were to allow record ownership to control and if both couples do not provide financial responsibility, in one couple both parties would be excluded from receiving benefits under the Act while in the other couple one spouse would remain eligible. Savvy couples could expand their insurance protection by one-half simply by titling the car in the name of one spouse, (it would be a particularly effective strategy if the spouse who used the vehicle most infrequently assumed title ownership). All other things being equal, there seems little reason or rationale to treat similarly situated individuals so differently. To rely solely on the record ownership is an overly technical approach which does not necessarily effectuate the purposes of the section in question. To truly effectuate the policy of the Act, it would seem that where both parties to a marriage enjoy indicia of ownership and are, in fact, joint owners of the vehicle, both should be excluded from benefitting under the Act if financial responsibility is not obtained. This is the essence of the section in question, to disqualify from participation those who can reasonably be held responsible for securing financial responsibility and who choose not to do so. Thus, we do not think that it is sound to allow the record ownership to be the sole determining factor.

On the other hand, the Act does, by its language, base the ineligibility feature on the basis of ownership. Consequently, we believe a legally cognizable ownership interest, i.e. a property interest, must be established in order for the ineligibility feature to be applicable, otherwise we would be expanding a feature of the act beyond the words chosen by the legislature. Inasmuch as the section in question disqualifies an individual from participation, a reasonably harsh result, we would not wish to expand the application of this section beyond that reasonably suggested by the language of the section itself. Thus, mere indicia of ownership, i.e. usage or availability to the non-owning spouse or possession of keys to the vehicle, should not disqualify that spouse from participating under the Act if in fact there is no recognized property interest in the vehicle. If the legislature intended this result they should amend the statute to clarify the scope of the section in question. However, having reached a conclusion that record ownership should not be the sole deciding factor, but that some ownership interest is necessary, we are logically brought back to the question of marital property rights.

If we are to disregard the record ownership of the vehicle in determining the scope of section 1714 but are requiring some ownership/property interest, and if we are dealing with married couples, it appears obvious that property interests that have a genesis in the marital relationship cannot be excluded from consideration. Not only are they likely to be the most prevalent type of non-record ownership interests in married individuals, but they are also legally recognized and enforceable rights as well. In DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174, 180 (1975), our Supreme Court discussed property rights of married individuals in household goods and stated that “property that has been acquired in anticipation of marriage, and which has been possessed by both spouses, will, in the absence of evidence showing otherwise, be presumed to be held jointly by the entireties.”

In Simon v. Simon, 286 Pa.Super. 403, 429 A.2d 1 (1981), we considered ownership of a vehicle titled in husband’s name alone and concluded that the truck was entireties property. The truck had been acquired by trading in another truck, titled in husband’s name alone, and with cash from a joint bank account. We stated that the truck was used for the benefit of the marriage with both parties having access to use. Under these facts, we concluded, the truck was entireties property. Thus, it is easy to see that a non-record owning spouse can, indeed, have substantial, recognized and legally enforceable ownership interests in a motor vehicle that does not bear his or her name on the title. To the extent a non-record owning spouse can be found to be an owner under entireties property law, there would seem to be a logical basis for allowing section 1714 to apply to that spouse. However, in making such a determination we must be careful not to conflict with the decision in Ibarra. Ibarra must be reconciled with any holding we make today.

Although it is impossible to read the minds of the Ibarra panel members to discern what factors governed their decision, a factual problem can be seen in the Ibarra case. That is, although Ibarra may have had a certain cognizable and contingent marital property right in the vehicle, she had no other indicia of control or ownership of the vehicle. That vehicle was titled in her estranged husband’s name alone, she did not use the car with any degree of significant frequency and the parties were no longer living together as a marital unit. Consequently, returning to the purpose of the section in question, under the facts of Ibarra, a contingent equitable distribution right notwithstanding, there was no reasonable basis in the facts presented there upon which Ibarra could be charged with an obligation to secure financial responsibility for the car she had been driving. Thus, to disqualify Ibarra simply because of the fact that she was married to the title owner of the vehicle who had not elected to insure the vehicle, would have been unjust. Specifically, we believe, this was the predominant reason that Ibarra rejects the trial court’s reliance upon a Divorce Code definition. To exclude Ibarra under the facts presented there would seem not only unfair but also inconsistent with the purpose of the Act. A contingent equitable distribution right without some other indicia of ownership which could support, in logic and reason, an obligation to provide financial responsibility should not, and does not under Ibarra, disqualify an individual from claiming under the Act. Significantly, there was nothing else in the factual context of Ibarra which would support a finding of ownership.

However, unless the courts are willing to limit the inquiry to record ownership it seems impossible to wholly reject property interests which arise because of the marital relationship. After all, these property interests are founded not only in statute, but also in long-standing property law principles. Since Ibarra does not appear to limit the inquiry to record ownership we believe it must be read to disallow total reliance upon a technical Divorce Code interest but allow exclusion under § 1714 of the Act if other indicia of ownership are present. We would also interject, for the reasons outlined above, a requirement that there be an actual cognizable property right in the vehicle as well as de facto indicia of ownership to satisfy the section in question. In the present case, the summary judgment was granted based solely upon the fact that appellant was residing with her husband at the time of the accident. However, there is nothing in the record which conclusively establishes that appellant has any recognizable property interest in the vehicle. It is possible that despite the fact that the parties are married the vehicle was, considering the entire body of property law, solely the property of her husband. If such is the case, then appellant is not an “owner” of the vehicle and should not be excluded from benefits under the Act based upon § 1714. However, even if appellant is found to have a property interest in the vehicle under marital property law, appellee would still be obligated to show that there exists indicia of ownership which would, consistent with the purpose of the Act, support imputing the obligation to provide financial responsibility to appellant. Since the record fails to support, under these factors, a basis for disqualifying appellant under section 1714, we vacate the order appealed from and remand for additional proceedings consistent with this opinion.

Order vacated, remanded for further proceedings. Jurisdiction relinquished.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority opinion. I would affirm the order of the trial court on the basis that the car was “marital property”, and that the non-titled spouse is an owner under 75 Pa.C.S.A. § 1752(a)(3).

The majority argues that:

... mere indicia of ownership, i.e. usage or availability to the non-owning spouse or possession of keys to the vehicle, should not disqualify that spouse from participating under the Act if in fact there is no recognized property interest in the vehicle.

(Majority opinion at 125.) I cannot agree with this distinction. An automobile purchased during the marriage, titled in the name of one spouse, and available for the use of the other spouse is marital property. Marital property is “all property acquired by either party during the marriage.” 23 Pa.S.A. § 401(e). An adult member of a marital couple in which one spouse purchases a potentially dangerous vehicle must be held accountable for insuring that any damages resulting from the use of that vehicle are covered. When appellant put herself behind the wheel of the car, she put herself and others at risk. Requiring a showing that some “recognized property interest” exists opens the door to subversive methods of avoiding responsibility for damages resulting from property over which both spouses show apparent dominion.

This dissent is consistent with Ibarra v. Prudential Property & Casualty Co., 402 Pa.Super. 27, 585 A.2d 1119 (1991). In Ibarra, the automobile involved in the accident was not registered or titled to the woman driving the car and she was entitled to receive benefits under the Pennsylvania Assigned Claims Plan. Unlike the instant case, however, the woman in Ibarra was estranged from her husband. The two people no longer held themselves out to the public as one unit, and the estranged wife would not be assumed to have free access to an automobile in her estranged husband’s possession. The estranged wife had no indicia of ownership; rather, she became like any other borrower and should not have suffered for the titled owner’s failure to insure the vehicle by virtue of their former united status.

Requiring a showing of actual property interest in a marital situation would defeat the purpose of 75 Pa.C.S.A. § 1752, which states:

(a) General rule.—A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirments:
... (3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).

75 Pa.C.S.A. § 1752(a)(3). I cannot agree with a holding that would potentially permit recovery to a spouse who supports the purchase of a vehicle and publicly shows all signs of ownership, but who fails to ensure the recovery of others put at risk by that spouse’s behavior. A showing of actual property interest is too intangible and subject to abuse. When property is purchased during the marriage and both spouses show indicia of ownership, these factors are enough to define both spouses as “owners” and to deny any recovery under the Assigned Claims Plan.

Accordingly, I dissent from the majority opinion. I would affirm the order granting appellee’s motion for summary judgment and dismissing appellant’s complaint.

      . Section 1752 states: "(a) General rule.—A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements: ... (3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).”

      . Section 1714 states ‘‘[a]n owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.”


author: CAVANAUGH, Judge:

text:
    595 A.2d 128
    Nicholas KOSOR and Beverly Kosor, his Wife v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed July 24, 1991.

      David L. Robinson, Greensburg, for appellant.
    John M. O’Connell, Jr., Greensburg, for appellees.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   CAVANAUGH, Judge:

The issue before us is whether the court below properly entered judgment on the pleadings in favor of the plaintiffs, Nicholas Kosor and Beverly Kosor, his wife (the appellees), and against Harleysville Mutual Insurance Company (the appellant). The judgment directed payment under appellees’ insurance policy of medical expenses and replacement services which had already been paid in full under the personal injury protection provisions of a separate insurance policy. The judgment also awarded interest at the rate of eighteen (18%) percent per year from October 29, 1983.

Nicholas Kosor purchased a personal auto insurance policy No. FAB 04-79-84 from the appellant which provided personal injury protection under the Pennsylvania No-Fault Insurance Law then in effect. Under the policy, the insureds named were Nicholas Kosor and Beverly Ann Kosor. The policy insured a vehicle individually owned by Mr. Kosor.

Niksu, Inc., a business corporation which was wholly owned by the Kosors, purchased a business auto policy to cover a vehicle owned by Niksu, Inc. The policy was in effect from January 1, 1982 to January 1, 1983, and the named insured was Niksu, Inc. Both policies were issued by the appellant and both contained provisions for personal injury protection benefits under the No-Fault Act.

On July 5, 1982, the vehicle owned by Niksu, Inc. was being operated by Mr. Kosor and was involved in an accident. Mrs. Kosor was a passenger in the automobile at the time.

The appellees made claims against Harleysville Mutual Insurance Company under the personal injury protection clauses of both policies, claiming identical benefits under each policy. Harleysville paid in full all of the bills for medical services and replacement services under the policy issued to Niksu, Inc. but refused to pay the same benefits under the policy issued to Mr. Kosor. The appellees acknowledged that their medical expenses and replacement services had been paid by Harleysville under the business auto policy but contended they should be reimbursed for the identical expenses under the personal auto policy issued to Mr. Kosor. Harleysville paid $21,466.25 medical expenses for Mr. Kosor and replacement services of $14.00, and medical expenses of $4,557.44 for Mrs. Kosor and replacement services for her in the amount of $114.00.

The pleadings in the court below consist of a complaint in assumpsit, answer and new matter filed by appellant and reply to new matter filed by appellees. The appellant filed a motion for judgment on the pleadings and subsequently the appellees filed a similar motion. Appellees’ motion for judgment on the pleadings was granted and the court entered judgment in favor of Mr. Kosor in the amount of $21,480.25 and Mrs. Kosor in the amount of $4,674.44, plus interest in the amount of eighteen (18%) percent per year from October 29, 1983. From this order of September 6, 1990, by Ambrose, J., Harleysville Mutual Insurance Company has appealed to this court.

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. Karns v. Tony Vitale Fireworks Corporation, 436 Pa. 181, 259 A.2d 687 (1969). It may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986); Groff v. Pete Kingsley Building, Inc., 374 Pa.Super. 377, 543 A.2d 128 (1988). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings & Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). The scope of review on an appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Keystone Automated Equipment Co. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988).

The pleadings in this case are sketchy at best. Neither the appellees, whose complaint in assumpsit is based on the insurance policies, nor the appellant, whose defense is based on the same policies, attached copies of the policies to the pleadings. However, the appellant attached copies of the policies to its petition for reconsideration and application for leave to amend filed after the opinion of the court below en banc was filed, which application was denied.

The complaint states that Mr. Kosor purchased policy No. FAB 04-79-85 and paid the premium, and policy BA-OX-44-48 was purchased by Niksu, Inc., which paid the premium. However,' in the “Motion for Judgment on the Pleadings” filed by appellees, it is incorrectly stated that “the plaintiffs [appellees herein] allege that they purchased two policies of insurance from the Harleysville Mutual Insurance Company ...” Appellees also incorrectly state at page 2 of appellees’ brief: “The court en banc correctly found, based upon the pleadings filed, that appellees purchased two policies of insurance from the appellant ... Both appellees were named as insured persons under both policies in question ...”

In fact, the plaintiffs, Mr. and Mrs. Kosor did not purchase both policies, but only the personal auto insurance policy. Niksu, Inc. purchased the business auto insurance policy. The court below did not find that the plaintiffs purchased both policies but stated at page 2 of its slip opinion: “Defendant, however, made payments to each plaintiff for medical and replacement services only under the policy purchased by the corporation.” (Emphasis added)

The appellees have argued, subsequent to filing the complaint, that they purchased both policies. The mere fact that they were the sole stockholders in Niksu, Inc. does not obfuscate the fact that appellees were separate and distinct from the corporation. A corporation is an independent entity even where stock ownership is vested in one individual. Sweeney v. Commonwealth of Pennsylvania, 120 Pa. Cmwlth.Ct. 591, 549 A.2d 1001 (1989); Kaites v. Commonwealth of Pennsylvania, Department of Environmental Resources, 108 Pa.Cmwlth.Ct. 267, 529 A.2d 1148 (1987).

Two separate policies were issued by Harleysville as there were different insureds with separate insurable interests. Mr. Kosor owned one vehicle and Niksu, Inc. owned a different vehicle. The No-Fault Insurance Act then in effect provided at 40 Pa.S. § 1009.104:

§ 1009.104. Required motor vehicle insurance
(a) Security covering a motor vehicle.—Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth ...
The owner or any other person may provide security covering a motor vehicle by a contract of insurance with an insurer or by qualifying as a self-insurer or as an obligated government.

Neither Mr. Kosor nor Niksu, Inc. could lawfully operate their respective vehicles without separate policies. Appellees have inaccurately argued at page 3 of their appellate brief, “As the appellees paid two full premiums, they were thus entitled to be paid benefits under each policy.” As noted above, Mr. Kosor purchased only one policy which he had to do to lawfully operate his vehicle in Pennsylvania.

The No-Fault statute itself militates against payment of double benefits under two policies issued to different insureds wherein it states:

It is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

The court below in granting the appellees’ motion for judgment on the pleadings compared the matter sub judice to a person having separate life insurance policies on his life stating:

If that individual dies, his beneficiary under each policy receives the amount stated in the policy. Both the life insurance policies in that situation and the automobile insurance policies in this case provide benefits to the insured or his beneficiary in exchange for the payment of premiums.

The analogy is inappropriate. A life insurance policy is a contract between an insurance company and the insured. See, O’Donnell v. Independence Life & Accident Insurance Co., 229 Pa.Super. 259, 323 A.2d 387 (1974). Benefits under each life insurance policy are paid in accordance with the terms of the contract. Such a policy is not mandated by the legislature as was insurance under the No-Fault Act. No one seriously contends that an individual may not obtain more than one policy of insurance on his life and that the designated beneficiaries would not be entitled to the proceeds in accordance with each contract of insurance. In the instant case, the policies issued were mandated by the No-Fault Insurance Act as far as the personal injury protection clauses were concerned.

On the issue of the propriety of entering judgment on the pleadings in favor of the appellees we must deal with the anamalous situation that neither the appellant nor the appellees attached copies of the insurance policies involved to the pleadings. However, copies of the insurance policies were attached to the appellant’s petition for reconsideration and leave to amend. The appellees’ brief in opposition to the defendant’s application for reconsideration and leave to amend does not dispute that the policies set forth are true and correct copies of the original but argued instead that:

“The defendant, on the question of interpretation of the policy, seems to be objecting to normal contract interpretation of these insurance policies. If anything is true, it is that the courts have found that all questions which are ambiguous should be resolved in favor of the policy holder and not in favor of the insurance company.”

The policies in question were the basis for the cause of action by the appellees and the court below stated: “In this case, there is no provision in either policy prohibiting payments under one policy if the same payments are made under the other policy.” We are cognizant that in a motion for judgment on the pleadings nothing should be considered except the pleadings. DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). Nevertheless, in this case all parties, and the hearing court, considered the policies involved. The appellees’ complaint in assumpsit was based on the two policies which it specifically referred to by policy numbers and it cannot be prejudiced by our review of the policies.

We do not reach the same conclusion as the court below which determined that the policies did not prohibit double payment of the same benefits. Each policy provided in dealing with no-fault benefits in § I, H:

H. Non-Duplication of Benefits; Other Insurance. No eligible person shall recover duplicate benefits for the same elements of loss under this or any other similar automobile insurance including self-insurance.

This clause is consistent with the purpose of the No-Fault Act. The Act further provided that where an accident resulting in an injury occurs, the injured person “is entitled to receive basic loss benefits in accordance with the provisions of this Act.” 40 Pa.C.S. § 1009.201(a). The clause is unambiguous and must be construed in accordance with its ordinary meaning. Peerless Dyeing, Inc. v. Industrial Risk Insurers, 392 Pa.Super. 434, 573 A.2d 541 (1990). If the language of an insurance policy is unambiguous, interpretation is a matter of law for the court. United States Fidelity & Guaranty v. Griggs, 341 Pa.Super. 286, 491 A.2d 267 (1985).

In Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983) we held that stacking, or double recovery of basic loss benefits is prohibited.' The Supreme Court affirmed at Antanovich v. Allstate Insurance Co., 507 Pa. 68, 488 A.2d 571 (1985), holding that the No-Fault Act did not allow stacking where there is a plain, unambiguous contract provision to the contrary.

Antanovich, supra, was recently considered in Boothby v. Metropolitan Insurance Co., 382 Pa.Super. 251, 555 A.2d 166 (1989). In that case, two different insurance companies issued policies containing a “no duplication of benefits clause” substantially identical to those involved in this case. We held that liability limiting provisions in the two overlapping policies of insurance were valid, stating at 382 Pa.Super. at 254-255, 555 A.2d at 168:

It was the owner of each vehicle registered in Pennsylvania who was required by the No-Fault Act to provide security for the payment of basic loss benefits. If an accident occurred in which a person was injured, it was that person who was entitled to recover basic loss benefits. Where there were several insurers, the statute did not require that each insurer pay the total amount of basic loss benefits; neither did it entitle a victim under such circumstances to recover double benefits. (Emphasis added.)

In Koval v. Liberty Mutual Insurance Co., 366 Pa.Super. 415, 531 A.2d 487 (1987) we also held that a prohibition against stacking where personal injury protection benefits were included in a policy issued in accordance with the Pennsylvania No-Fault Insurance Act was enforceable and not unconscionable.

The appellees have been fully compensated for their personal injuries under a policy issued by the appellant to Niksu, Inc. containing personal injury protection benefits in accordance with the No-Fault Insurance Act in effect when the policy was issued and when the accident occurred. Even in the absence of a clause in the policies prohibiting duplication of benefits, we do not believe the No-Fault Act contemplated such duplication in a situation that exists in the present case. Since there are no material facts in dispute, the court below should have entered judgment on the pleadings in favor of the appellant.

Judgment reversed and judgment on the pleadings entered in favor of the appellant and against appellees.

      . The Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.S. . § 1009.101 to § 1009.701 was in effect at all times relevant to this case. The No-Fault Act has been repealed and replaced by the Motor Vehicle Financial Responsibility Act (MVFRL), 75 Pa.C.S. § 1701 et seg. The MVFRL applies only to policies issued after October 1, 1984, and policies issued prior to October 1, 1984 remain subject to the repealed No-Fault Act. Soles v. Pennsylvania National Mutual Insurance Co., 372 Pa.Super. 605, 539 A.2d 1360 (1988). The policies in this case were in effect from January 1, 1982 to January 1, 1983 and the accident occurred on July 5, 1982.

      . The court below also erroneously treated the Kosors and Niksu, Inc. as one and the same. This resulted in incorrectly setting forth the issue involved as follows:
      The question to be determined is whether or not a No-Fault insurer is required to pay personal injury protection benefits twice under two (2) separate auto insurance policies [issued] to the same individual. (Emphasis added.)

      . Even if we ruled that we could not consider the language of the insurance policies issued by appellant, we would reverse the judgment on the pleadings and interest thereon entered in the court below, as we are convinced that the No-Fault Act did not provide for duplication of benefits under policies issued to different insureds who had different insurable interests. However, we see no reason to remand to the court below to interpret the insurance policies which are unambiguous and which all parties concede are in existence.

      . The Motor Vehicle Financial Responsibility Act prohibits stacking of first-party benefits "where multiple vehicle policies cover the individual for the same loss.” 75 Pa.C.S. § 1717. See also, Manolakis v. Transamerica Insurance Co., 396 Pa.Super. 256, 578 A.2d 503 (1990). While the MVFRA does not apply in this case, the manifested intent of the legislature to prohibit duplication of benefits has been consistent.

      . In Soles v. Pennsylvania National Mutual Insurance Co., 524 Pa. 280, 571 A.2d 378 (1990), affirming Soles v. Pa. National Mutual Insurance Co., 372 Pa.Super. 605, 539 A.2d 1360 (1988), Chief Justice Nix in a dissenting opinion noted that the Supreme Court had previously held that the stacking of insurance benefits was prohibited under the No-Fault Insurance Act, citing Antanovich v. Allstate Insurance Co., supra.

      . In the recent case of Bowdren v. Aetna Life & Casualty Co., 404 Pa.Super. 595, 591 A.2d 751, (1991) we held that a board of arbitrators had not erred in refusing to permit stacking of uninsured motorist benefits by a claimant of, a particular class.