author: WIEAND, Judge: TAMILIA, Judge,

text:
    580 A.2d 1138
    Larry R. MOORE, and Donna L. Moore, Administrators of the Estate of Douglas R. Moore, Deceased, Appellants, v. Joy L. GATES, Appellee.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Filed Oct. 3, 1990.

      James N. Bryant, Millheim, for appellants.
    John W. Blasko, State College, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, TAMILIA, JOHNSON and HUDOCK, JJ.
   WIEAND, Judge:

The present appeal requires that we review the steps required by statute to effect a binding settlement of wrongful death and survival claims asserted by the administrator of a minor decedent’s estate.

Douglas Moore, age 15, was killed when, on June 18, 1986, the vehicle in which he was riding as a passenger went out of control and crashed. He was survived by his parents, Larry and Donna Moore, and by an adult brother. Shortly after the accident an adjustor from Nationwide Mutual Insurance Company, the liability carrier for Joy Gates, the vehicle’s driver, arrived at the Moore home to discuss settlement. It appears that eventually the parents of the decedent agreed verbally to accept one hundred thousand ($100,000.00) dollars in settlement of their wrongful death and survival claims. There was no agreement, however, regarding the manner in which the proceeds were to be apportioned between survival and wrongful death actions. The adjustor directed appellants to an attorney employed by the insurance company, and it was he who suggested that ninety thousand ($90,000.00) dollars of the total proceeds be distributed in the wrongful death action and only ten thousand ($10,000.00) dollars to the decedent’s estate in settlement of the survival action. A petition for approval of the settlement and distribution of the proceeds, addressed to the orphans’ court, was prepared in accordance with this proposed distribution by counsel. However, the petition was not signed by appellants, and it was never presented to the orphans’ court. Instead, the appellant-parents took out letters of administration in the estate of their deceased son and filed wrongful death and survival actions against the operator of the offending vehicle. After a hearing on cross-motions for summary judgment, the trial court held that the parents’ wrongful death and survival actions were barred by their verbal agreement to settle and entered judgment in favor of the defendant. The decedent’s parents appealed.

The procedure pertaining to motions for summary judgment is contained in Pa.R.C.P. 1035. “The motion for summary judgment is not a ‘pleading’ within the definition of Rule 1017____” 2 Goodrich-Amram 2d, § 1035(a):4. An adverse party need not file a formal response to a motion for summary judgment. 2 Goodrich-Amram 2d, § 1035(b):1. See also: Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971). “Rule 1035 contains no provisions for any action by the adverse party except the filing of affidavits in opposition if he wishes.” 2 Goodrich-Amram 2d, § 1035(b):l. Neither the failure to file an answer to a motion for summary judgment nor the failure to file an affidavit in response thereto constitutes a waiver of issues necessary to decide the motion for summary judgment.

The need for court approval of the settlement in this case is at the heart of the dispute. It is an issue which was argued before the trial court and which has been fully preserved for appellate review.

In Pantazis v. Fidelity & Deposit Co. of Maryland, 369 Pa. 221, 85 A.2d 421 (1952), the plaintiff, individually and as administratrix of her deceased husband’s estate, brought an action alleging wrongful death and survival claims for damages arising from the death of her husband in an automobile accident. At trial, the court dismissed the wrongful death action because the wife, for a valuable consideration, had executed a release in favor of the tortfeasor. The survival action was allowed to go to the jury and resulted in a verdict in favor of the decedent’s estate. Judgment was entered on the verdict, but when the administratrix sought to enforce the judgment the defendant argued that, since the wife was the sole heir, her release had the effect of releasing not only her individual claim for the wrongful death of her husband but also any interest which she had in the damages awarded to her husband’s estate in the survival action. Although the Court noted that the doctrine of res judicata rendered the defense spurious, the Court said the following about the substantive law.

All that plaintiff released was her claim as an individual in the death action. As administratrix of her husband’s estate, she lacked authority, as fiduciary, to release her deceased husband’s estate. To do so required leave of the orphans’ court, upon proper cause shown. Furthermore, she could not effectively stipulate, as fiduciary in her husband’s estate, that there were no debts or taxes due. Only an audit and adjudication could determine that. Nor can plaintiff’s release in the death action of her individual rights be regarded in the survival action as a release and assignment of her distributive share under the intestate laws in her deceased husband’s estate. What the plaintiff receives in distribution in settlement of her husband’s estate is what the law directs shall be paid to her as her distributive share, (emphasis in original).

Id., 369 Pa. at 226, 85 A.2d at 424.

The Pantazis decision was viewed as a judicious statement of policy necessary to protect the interests of the Commonwealth, possible creditors, and other parties interested in the decedent’s estate. It was procedurally troubling, however, because it required approval of the settlement of a pending action by the orphans’ court rather than by the common pleas court in which the action was pending. See, e.g.: Pa.Bar Assoc. Quarterly, October, 1952, at 16, cited in Trigg Estate, 86 Pa.D. & C. 76, 77 (1953); Fiduciary Review, September, 1953. Because of this perceived procedural shortcoming, the legislature enacted the Act of July 28, 1953, No. 198, §§ 1-3, 20 P.S. §§ 1151-1153, which provided that any Court in which an action was pending could approve the proposed compromise and settlement of a survival action. In adopting this provision in 1953, the legislature specifically rejected a recommendation that a personal representative be permitted to compromise or settle a survival action without prior court approval. See: Fiduciary Review, supra at 4, citing Legal Intelligencer, June 9, 1953.

The 1953 statute was substantially reenacted as Section 3323 of the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, 20 Pa.C.S. § 3323. This section provides in pertinent part as follows:

§ 3323. Compromise of controversies
(a) In general.—Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against an estate, or to compromise or settle any question or dispute concerning the validity or construction of any governing instrument, or the distribution of all or any part of any estate, or any other controversy affecting any estate, the court, on petition by the personal representative or by any party in interest setting forth all the facts and circumstances, and after such notice as the court shall direct, aided if necessary by the report of a master, may enter a decree authorizing the compromise or settlement to be made.
(b) Pending court action.—
(1) Court order. Whenever it is desired to compromise or settle an action in which damages are sought to be recovered on behalf of an estate, any court or division thereof in which such action is pending and which has jurisdiction thereof may, upon oral motion by plaintiffs counsel of record in such action, or upon petition by the personal representative of such decedent, make an order approving such compromise or settlement. Such order may approve an agreement for the payment of counsel fees and other proper expenses incident to such action.

The necessity for court approval of a survival action is not determined by the amount of the settlement. Section 3323 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 3323, provides for court approval “[wjhenever it shall be proposed to compromise or settle any claim ... by or against an estate.” The requirement for court approval of survival actions is intended to protect the estate, as well as the creditors and beneficiaries thereof. Thus, a court may refuse to approve a settlement of a survival action which is inadequate. Court approval was particularly necessary here, where it was proposed to apportion a total settlement so that the major part thereof would be paid to the heirs of the decedent in settlement of the wrongful death action and only a small portion of the settlement would be paid to the decedent’s estate in settlement of the survival action.

The law is clear. Where the only heirs entitled to recover for the wrongful death of a decedent are competent adults, they may settle their claims without court approval. This is not altered because the decedent was a juvenile at the time of his or her death. Before a survival claim can be settled on behalf of a decedent’s estate, however, such a settlement must be judicially approved. Where there is no action pending, the statute requires that the settlement be approved by the Orphans’ Court having jurisdiction of the decedent’s estate. Where a survival action is pending, however, a settlement thereof may be approved by the court in which it is pending; and it is then unnecessary to obtain approval from the orphans’ court which has jurisdiction of the decedent’s estate. This is the view which has been consistently followed by the trial courts in this Commonwealth. See, e.g.: Brooks v. Philadelphia, 63 Pa.D. & C.2d 249 (1973); Wexler v. Philadelphia Transportation Co., 3 Pa.D. & C.2d 122 (1955). See also: Olson Estate, 25 Pa.D. & C.2d 622 (1961); Annotation, Power and Responsibility of Executor or Administrator to Compromise Claim Due Estate, 72 A.L.R.2d 191, 215, 296. It follows that where wrongful death and survival actions are settled for a single amount, the amount apportioned to the survival action must be approved by a court having jurisdiction.

In the instant case, there never was a full and complete agreement resolving all details of the proposed compromise, including the amounts to be distributed in settlement of the wrongful death and survival actions. Moreover, the settlement of the survival action and the apportionment of the proceeds between wrongful death and survival claims had not been approved by a court of competent jurisdiction. The record is clear that, no court ever undertook to determine the reasonableness of the terms of settlement proposed by the insurance company or its attorney. When the defendant-appellees raised in their answer the issue of the prior, oral agreement to settle plaintiffs’ claim and thereafter moved for summary judgment in the wrongful death and survival actions, the only issue before the trial court was whether the action was barred by a prior, binding settlement. Such a settlement, however, did not exist.

The trial court applied general principles of contract law and determined that both actions had been settled for the sum of one hundred thousand ($100,000.00) dollars. This was error. Not only had there not been a final agreement regarding the apportionment of the proceeds, but there had never been court approval of the portion thereof to be paid in settlement of the survival action. In the absence of court approval, there could be no final settlement. Because their claims are not barred by settlement and release, appellants are entitled to pursue their wrongful death and survival actions in the trial court.

Reversed and remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

JOHNSON, J., concurs in the result.

TAMILI A, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

Appellants’ son, Douglas Moore, age 15, was killed in an automobile accident on June 18, 1986 while a passenger in a vehicle driven by 17 year old Joy Gates. Gates, driving at an excessive rate of speed, ran a stop sign and lost control of the car which turned over, pinning Douglas underneath. Nationwide Mutual Insurance Company, Gates’ insurer, sent Robert Swingle, an adjustor, to the Moore’s home approximately one week after the accident. Swingle gave them his card and said whenever they were ready to talk to him he wanted to discuss the accident. After several phone calls to the Moores, he finally did meet with them and obtained background information on Douglas to submit a report to the Harrisburg office. Swingle requested permission to offer appellants $150,000 to settle the case but received authorization for $100,000 which he offered to the Moores as settlement. Eventually Mr. Moore agreed to the offer and Swingle told them they had to settle the paperwork and become court-appointed administrators before he could issue them a check. Swingle sent the Moores to the attorney Nationwide was utilizing where they picked up the papers, which they never signed. Later, the Moores refused to accept the $100,000 settlement and on March 12, 1987, they filed an action for wrongful death and survival claims.

The majority acknowledges parents agree to settlement of $100,000, and there is no evidence to dispute the apportionment between the wrongful death ($90,000) and the survival action of $10,000. According to the record, there is a sufficient basis to find, as did the trial judge, that a settlement in the amount of $100,000 had been reached. While the majority maintains the appellants took out letters of administration and were appointed administrators of the estate of their decedent son, the only place on the record this assertion is made is in their complaint. It is unsupported by a date of appointment or any other verification and was in fact denied by appellees in their answer as a conclusion of law and as such remains to be proven.

In their answer to the plaintiffs complaint, appellees preserved the defense of settlement and on December 2, 1987, filed a motion for summary judgment based on that claim. While failing to answer appellees’ motion, on December 19, 1987, appellants filed their own motion for summary judgment. While appellees claim waiver for failure to answer their motion for summary judgment, this issue is not material to a proper resolution of this case. On January 20, 1988, defendant/appellees’ motion for summary judgment was denied as after review of the record including deposition to that point, the trial judge still had doubts concerning the reluctance of the Moores to settle the case prior to litigation. At that time the court said, “In any event, a case is ripe for summary judgment only when it is free from all doubt. This is not such a case.” Slip Op., Brown, J., 1/20/88, p. 3.

It was only after numerous additional depositions that a hearing was held May 2, 1988 on the cross-motions for summary judgment. Following the hearing during which the court attempted to clarify the issues and arguments of the parties, the court on May 9, 1988 filed its Opinion and Order granting defendant/appellee’s motion for summary judgment and denying that of plaintiff/appellant. This appeal followed.

Appellants now claim they did not regard the settlement as final until the papers were signed and they received their check. They raise three issues on appeal: 1) whether the court erred in enforcing an uncounseled, oral agreement to settle a claim for the death of a minor; 2) whether they had authority to settle and if court approval was necessary; and 3) whether Swingle made a material misrepresentation to them which would set aside the agreement.

In light of the appellants’ position and the apparent belief by both parties that settling such an action requires court approval and appointment of an administrator, my careful review of statutory and case law leads me to the conclusion that Orphans’ Court approval of minors’ claims is necessary only when the minor survives in a negligence case or is the beneficiary of a trust or inheritance case or when a survival claim is in issue. Where, as here, the minor is deceased, the parents may settle without court approval on the wrongful death action, since this is not an estate’s cause of action, and as to the survival action with approval by the court wherein the claim is presented, without letters of administration, since it is an estate with a value of $10,000 or less. Where he is deceased, the statutes and cases cited by appellant do not apply as to the wrongful death claim, and under the facts of this case, the effect of the settlement as to the $10,000 survival amount must be construed in light of the applicable law.

When no suit is pending, judicial authority is required to compromise the minors’ survival claims but under the facts of this case, approval of the compromise may be had in the division of the court in which the action is pending, by the personal representative. Compromise of controversies, 20 Pa.C.S. § 3323, provides:

(a) In general.—Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against an estate, or to compromise or settle any question or dispute concerning the validity or construction of any governing instrument, or the distribution of all or any part of any estate, or any other controversy affecting any estate, the court, on petition by the personal representative or by any party in interest setting forth all the facts and circumstances, and after such notice as the court shall direct, aided if necessary by the report of a master, may enter a decree authorizing the compromise or settlement to be made.

The question remains whether the parents could act as personal representatives, without obtaining letters of administration through the Orphans’ Court. It is clear that the wrongful death action may be settled by the parents without court approval or obtaining letters of administration to be appointed personal representatives. Clearly, however, survival claims are governed by section 3323(a), supra, except where the amount is $10,000 or less. The facts of this case bring the $10,000 settlement of the survivor’s estate clearly within the meaning of 20 Pa.C.S. §§ 5101 and 5144. Section 5101, When guardian unnecessary, states:

When the entire real and personal estate, wherever located of a resident or nonresident minor has a net value of $10,000 or less, all or any part of it may be received and held or disposed of by the minor, or by the parent or other person maintaining the minor, without the appointment of a guardian or the entry of security, in any of the following circumstances:
(1) Award from decedent’s estate or trust. When the court having jurisdiction of a decedent’s estate or of a trust in awarding the interest of the minor shall so direct.
(3) Other circumstances. In all other circumstances, when the court which would have had jurisdiction to appoint a guardian of the estate of the minor shall so direct.

20 Pa.C.S. § 5144 Powers, duties and liabilities identical with personal representatives, permits a guardian to engage in:

(10) Compromise of controversies, as in section 3323 (relating to compromise of controversies).

The trial court which obtained jurisdiction of this case by reason of the wrongful death and survival actions filed by the parents had jurisdiction to enter a decree, without the appointment of a guardian, if the survival claim was $10,000 or less. Pursuant to appellee’s motion for summary judgment and after depositions were taken the trial court concluded the wrongful death claim was settled for $90,000, and the survival claim for $10,000. The court could enter a decree and approve a settlement for both, without letters of administration having been issued as detailed above. In granting summary judgment, after taking depositions, the court in effect approved the settlement of both the wrongful death and survival actions. As to the wrongful death action, court approval was not required. The requirements of sections 3323(a), 5101 and 5144 as to the survival action require prior court approval which, as discussed below, are not met by the proceedings in this case.

Corollary to this issue is whether the Moores could bring an action without first obtaining letters of administration. Appellants allege in their brief they had not been appointed administrators at the time settlement was reached and the record is devoid of any evidence that such letters were obtained at that time, therefore, they allege this action would fail on that basis. The executor or administrator of an estate is the only one entitled to bring an action on behalf of a decedent. Harvey v. Hassinger, 315 Pa.Super. 97, 461 A.2d 814 (1983). This places appellants in the awkward position that if we would find the agreement was void and no right of action was maintainable, they would be out of court and since the statute of limitations has run as of June 1988, there is no further remedy. However, as discussed above, this estate could properly be settled without obtaining letters of administration.

As to the second issue, the court found the Moores had settled with Nationwide and entered summary judgment in favor of appellee. There is no basis for us to substitute our judgment for that of the trial judge in determining whether a binding agreement was entered. Where a trial court has entered summary judgment, our function is to determine whether any issues of triable fact exist. Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 544 A.2d 50 (1988). The trial court determined a settlement was reached and based upon this determination, summary judgment was appropriate. The only question remaining is whether the agreement is binding on the parents in both the wrongful death action and the survival action. As discussed above, the parents were capable of settling the wrongful death action without obtaining letters of administration and without court approval. This part of the settlement, amounting tp $90,000, is clearly unassailable. If this is so, the agreement as to the $10,000 survival action is also binding if it obtained prior court approval. When the complaint was filed, raising the issue as to whether or not the agreement was binding, it subjected the agreement to court review and called into play judicial discretion in approving or rejecting the agreement. Since the appellants had the right to enter into the agreement, as to the wrongful death action without court approval, I would not disturb the summary judgment as to the wrongful death action. See Pantazis, supra. I would, however, view the alleged settlement of the survival action from a different perspective and through a different lense. As stated above, the court in which a survival action is pending may approve settlement of that action and letters of administration are not required where the parents are the claimants and the amount is less than $10,000. However, it is also a prerequisite to such a settlement that the court grant prior approval to the settlement. In light of the fact that prospective rather than prior approval resulted under the posture of this case, I would find that as to the survival action the summary judgment must be vacated and the case remanded for trial on the factual issues involving the survival action. Despite hearings and depositions on the effect of the settlement, these do not substitute for the required prior approval.

I also find no merit in the third issue, material misrepresentation as to the amount of money available to settle. Mr. Swingle was not obligated to inform appellants of the total amount available under the policy. The record does not indicate appellants sought this information, nor does it support appellants’ contention that Swingle led them to believe $100,000 was the policy limit. He stated during his deposition he offered the “full $100,000” to appellants but that was in reference to his authorized amount, not the policy total. {See N.T. 4/5/88, p. 22.) Since there were no discovery proceedings in which disclosure might have been required, appellees cannot be charged with fraud for failing to volunteer the information. Under these circumstances, it cannot be said that appellant was able to establish, to the degree of certainty required, that fraud was in fact intended or committed.

Finally, I believe it appropriate to comment on the general circumstances of this case and the deficiency that exists in the law and rules as to settlement of claims for damages as to deceased minors. Our research convinces us the laws, rules and procedures established regarding the estates and settlements of actions relating to surviving minors assures monitoring by the court of settlement and protection of the minor’s estate once a fund is created. Such is not the case in regard to deceased minors, despite the fact there are frequently circumstances wherein special damages have been incurred which are not given adequate consideration, or the beneficiaries themselves are not protected. The anomaly occurs in that settlements by the parents may be entered into on behalf of the deceased child, as here, which may be uncounseled, failing to take into account the medical and other expenses incurred as a percentage of the total loss, thus seriously reducing reasonable compensation for wrongful death to the parents, and without full knowledge of the policy limits which may be applicable. Only when the parents decide to pursue the case in court is there the requirement that an administrator be appointed and the monitoring and evaluative process of the judicial system comes into play, assuring some protection to the minor’s estate, heirs and creditors.

Obviously, the reason settlement of wrongful death actions are not subject to monitoring by the court prior to filing of a complaint or, following the complaint, unless a minor has an interest, Pa.R.C.P. 2206(a), or a party in interest has petitioned for designation of payment, Pa.R. C.P. 2206(b), is that the settlement is for pecuniary loss to the beneficiary (spouse, parent, child) who, unless a minor, can determine the value he or she placed on the loss. Manning v. Capolli, 270 Pa.Super. 207, 411 A.2d 252 (1979).

Part of the problem is that if settlement is entered into before suit and within six months of the death of the decedent, parties entitled to notice under Pa.R.C.P. 2205 will not be notified and they have no opportunity to institute an action for wrongful death as “any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.” Pa.R.C.P. 2202(b); 42 Pa.C.S. § 8301(d). If the court is not monitoring the settlement, then problems of payment may arise after the settlement which may produce an unfair result for one or the other of the parties in interest.

Thus the law and rules skirt the problem of protecting the interests of all parties in interest, and for lack of specificity fails to do so thereby providing a condition for subsequent recrimination and litigation which otherwise would have been avoided. This is further aggravated by the provision of 42 Pa.C.S. § 8301(b): “The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.” (Emphasis added.)

Additionally, wrongful death action settlements are frequently pursued, rather than survival actions, even when the latter might appear to be more appropriate, as this avoids payment of inheritance taxes. The avoidance of inheritance taxes is not subject to control by the courts and is not a factor in my belief that a more closely monitored system is required. Likewise, the possibility that attorney’s fees would come under scrutiny if such settlements were reviewed by the court, should not be a reason to avoid such review, when it is presumed that such fees are reasonable and would usually pass scrutiny. Upon analysis, there appear to be few reasons why court scrutiny of wrongful death action settlements as to deceased minors should not be the rule and a number of important legal and policy reasons why they should. These matters, however, are beyond the scope of this Court and must be addressed by the Supreme Court and local rules committees.

I would affirm summary judgment as to the wrongful death action, vacate summary judgment as to the survival action and remand the case for trial as to the survival action.

      . Arva and Dorothy Gates, the parents of Joy Gates and the owners of the vehicle, were also named as defendants, but they were later removed as defendants pursuant to stipulation by the parties and are no longer parties to the action.

      . The failure to file countervailing affidavits, however, may constitute an admission of facts under the practice set forth in Pa.R.C.P. 1035(d).

      . A decision in Albright v. R.J. Reynolds Tobacco Co., 350 F.Supp. 341 (W.D.Pa.1972), aff'd, 485 F.2d 678 (1973), which interpreted state law to the contrary, is not binding authority.

      . Although the author of the Dissenting Opinion advocates that the survival action alone be remanded for trial, the record does not reveal that the parties ever agreed to settle the wrongful death action independently of the survival action.

      . The policy limit was $250,000.

      . The majority cites Pantazis v. Fidelity & Deposit Co. of Maryland, 369 Pa. 221, 85 A.2d 421 (1952), as depositive of the issue that the parents could not settle the survival action without court approval. It goes on to discuss the difficulty with the holding of Pantazis which resulted in legislative change permitting the court in which the survival action was pending to be capable of approving such settlements. The majority, however, stops short at the point whereby additional legislation was adopted to permit settlement of actions without letters of administration and appointment of guardians (personal representatives) where the estate is valued at less than $10,000 as is the case here. The majority’s lightly construed and limited interpretation of sections 3323 and 5101 does a disservice to the legislative intent and reverses the intended relaxation of the prior procedures in order to move relatively minor survival and estate actions through the overburdened judicial system.

      . The majority would find that this is a basis for requiring that all settlements be approved by the Orphans’ Court. I find no support in the law for this position.

      . The majority, in its footnote 4, finds that because the parties did not agree to settle the wrongful death action separately from the survival action, we must remand both. The two actions are distinct and, despite the technical defect in approval of the agreement on the survival action, nothing precludes affirming the wrongful death action settlement which did not require court approval.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    580 A.2d 1146
    Robert F. PURDUE, Appellant, v. Barbara A. PURDUE, Appellee. Robert F. PURDUE, Appellee, v. Barbara A. PURDUE, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1990.
    Filed Oct. 12, 1990.

      Howard V. Heck, Bakerstown, for appellant (at 1082) and appellee (at 1083).
    Caroline A. Mitchell, Pittsburgh, for appellant (at 1083) and appellee (at 1082).
    Before DEL SOLE, JOHNSON and HESTER, JJ.
   DEL SOLE, Judge:

These cross-appeals are taken from a final decree setting forth an order of equitable distribution of the parties’ marital property. Because the original action was bifurcated, the decree in divorce was entered in September of 1985 but the division of the marital estate was not determined until 1989. The events which occurred during this passage of time, including the wife’s remarriage, have fostered many of the claims now made.

Upon review of the issues presented in these cross-appeals we have concluded that the order setting forth equitable distribution must be vacated. Although we find no merit with regard to the issues presented by the parties which concern the valuation and distribution of the marital property, the court’s decision regarding spousal support requires that the entire award be vacated.

A support order was originally entered in October of 1984 which required husband to pay $1,040.00 per month for the support of wife and their minor child. Despite the entry of a divorce decree in September of 1985, and the wife’s remarriage one month later, the support order continued. Approximately 3x/2 years later in considering the economic claims with regard to equitable distribution, the trial court also entertained husband’s claim that his support award should be reduced retroactive to the time of wife’s remarriage. The court refused to reduce the award retroactive to the date of wife’s remarriage because husband failed to raise the issue at that time. The court remarked that since husband did not make any efforts to seek modification until he appeared at a conciliation in December of 1987, the court would only credit him with the spousal portion of the unallocated support award for the period January 1988 until the date of its order of distribution. The credit was recognized to be $750 per month.

On appeal husband contends that the court erred in refusing to credit him with the spousal support payments he made back to the date of wife’s remarriage. He asserts that he was unable to seek modification at that time because he was unaware of wife’s remarriage since she failed to notify him of this significant change of circumstances. Wife counters this claim by arguing that the court erred in giving husband any credit since her need to alimony pendente lite was supported by the record.

The difficulty in examining the opposing arguments presented by both parties resides in the fact that the initial support award continued despite the parties divorce. Although the wife now refers to it as alimony pendente lite and the trial court commented that support awards automatically convert to alimony pendente lite at the issuance of a divorce decree, Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987) instructs us otherwise.

In Levine, the court was asked to examine an order of support which continued despite the dissolution of the parties’ marriage. The court noted that while an order of spousal support may be converted properly into an order of alimony pendente lite by a trial court, such conversion is not automatic. The court commented on the different purposes to be served by each order. Spousal support is derived from the marital obligation and is designed to ensure the receiving party a reasonable living allowance. This duty, however, terminates when the marriage ends. See, Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Alimony pendente lite is designed to enable a dependant spouse to maintain or defend the litigation until all economic issues are resolved. See: Horn v. Horn, 388 Pa.Super. 46, 564 A.2d 995 (1989). The Levine court recognized “that the circumstances of the parties are subject to changes throughout each of the steps in the dissolution of the marriage—living separate and apart, pending divorce, and after divorce. The trial court, consequently, must consider these changes in deciding whether to terminate the award, grant a new form of award, or change the amount of the award.” Id. 520 A.2d at 468. Because the spousal award in Levine was never converted to an award of alimony pendente lite and because the parties were divorced, the court ruled that the husband’s duty to provide spousal support had ended and reversed the trial court’s order.

Similarly in the instant case, an order of spousal support continued for many years subsequent to the parties divorce. The trial court was, and possibly the parties were, under the mistaken impression that the support automatically converted to alimony pendente lite. However, whether or not wife was entitled to alimony pendente lite was never determined. Also left unanswered is husband’s question of whether wife had an obligation to notify him of her remarriage so that he could have made a timely motion to modify or terminate the supposed alimony pendente lite award. The trial court refused to credit husband for payments he made back to the wife’s remarriage since he failed to present the matter to the court at this time.

Husband cites to the duties to report found in 23 Pa.C.S.A. § 4353 which provides:

(a) Notice of changes.—An individual who is a party to a support proceeding shall notify the domestic relations section in writing or by personal appearance within seven days of any material change in circumstances relevant to the level of support or the administration of the support order, including, but not limited to:
(1) change of employment; and
(2) change of personal address or change of address of any child receiving support.

This section admittedly does not apply to Appellant’s concern regarding his former spouse’s remarriage because it addresses orders of support which terminate when a marriage ends. However the principle it embodies can be carried over to awards for alimony pendente lite which are designed to continue following divorce and do not necessarily terminate because of a party’s remarriage. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). A party seeking to have alimony pendente lite modified or terminated should not be charged with the delay in filing his or her petition if that party was not notified by the former spouse of the circumstance which would cause the filing. In this case, if husband did not know of wife’s remarriage, he cannot be held accountable for failing to file his termination petition sooner. Thus, as in support orders, the party in receipt of alimony pendente lite must notify the former spouse of any material change in circumstance, such as remarriage. Absent such notification the party seeking modification or termination should be excused for a late filing and the court’s decision should reflect back to the time when the change of circumstances occurred, not to the date the petition was filed.

We again recognize that a remarriage alone may not necessarily effect an alimony pendente lite award. It is, however, a circumstance of which the payor spouse must have knowledge before he or she will be charged with waiving a claim for reduction or termination of alimony pendente lite.

In the present case it remains uncertain whether the wife was entitled to an award of alimony pendente lite following the divorce in 1985. If in fact wife was entitled to such an award, the husband’s claim of termination or modification following wife’s remarriage should have been entertained to examine the wife’s needs regarding the award. If the court should determine that the remarriage altered the parties positions so that wife was not entitled to the same amount of alimony pendente lite, or none at all, then the court must determine the retroactive effect of its decision. Although an order of modification or termination would ordinarily be made back to the time the petition was filed, where a party is able to establish that it was unaware of the circumstances which prompted filing of the petition, such as a former spouse’s remarriage, the late filing can be excused and the order can be made retroactive to the date of the relevant change of circumstance.

Because in this case we are uncertain whether the court meant for wife to receive alimony pendente lite following the divorce, and because the effect of her remarriage and husbands’ claim of lack of knowledge concerning the remarriage were not examined by the trial court, we conclude that a remand is in order. The trial court’s ultimate decision on these issues may cause a change in the economic positions of the parties, therefore we will vacate the award of equitable distribution so that the trial court can be in a position to rethink its equitable distribution award to achieve economic justice.

Order reversed and remanded. Jurisdiction relinquished.

JOHNSON, J., concurs in the result.


author: KELLY, Judge:

text:
    580 A.2d 1150
    William LARKIN and Dorothy Larkin, his Wife, Appellants, v. Richard J. METZ, in his Capacity as Executor of the Estate of Charles Metz, and Anna Bruce and Donald Metz, Appellees.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Decided Sept. 25, 1990.

      Robert L. Simmons, Pittsburgh, for appellants.
    Mark Mansour, Asst. Public Defender, Greensburg, for appellees.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether the trial court properly applied the Dead Man’s Act in its granting of summary judgment in favor of the appellees by precluding both the appellants’ oral testimony and written evidence as to the existence of a written contract, which was allegedly lost or stolen, for the sale of property between the appellants and the decedent. We find that the trial court properly barred the appellants’ oral testimony, however, that it erred in precluding the appellants’ written evidence. Therefore, we find the trial court’s entrance of an order dismissing the appellants’ complaint in equity with prejudice to be in error.

The relevant facts and procedural history are as follows. The appellants allege that they entered into a written real estate contract in 1969 with the decedent, Charles Metz, in his capacity as executor of his father, Edward Metz’s estate. The house and one acre parcel were part of a larger tract of land which was inherited by Charles Metz, Donald Metz and Ann Bruce, as tenants in common, from their father’s estate. The appellants claim by the terms of this agreement, which they allege was either subsequently lost or stolen, that they were obligated to pay the decedent one thousand dollars and make improvements on the property in exchange for title. From 1969 to 1975, the appellants made payments to the decedent totalling one thousand four hundred and ninety-five dollars. The receipts issued by the decedent to the appellants were marked either “for payment on house” or “as payment of rent on house.” The appellants also made substantial improvements on the property totaling nine thousand four hundred and eighty dollars.

Upon the decedent’s death in July 1982, the appellants demanded that his executor, Richard Metz, convey title to the property to them. When Richard Metz refused, the appellants brought this instant complaint in equity seeking specific performance of alleged written contract and requested a jury trial. The appellees denied the existence of any such agreement and counterclaimed to eject the appellants from the property.

At trial, an issue arose as to whether or not the Dead Man’s Statute, 42 Pa.C.S.A. § 5930, was applicable to the case. The parties agreed by stipulation that if the Dead Man’s Act was found to be applicable, a trial would be unnecessary. The trial court found the Dead Man’s Act applicable, and sent the case to the Orphan’s Court which dismissed the suit with prejudice on the grounds that the appellants were unable to present any competent evidence upon which a claim could be sustained. The appellants appealed to this Court. While the matter was pending, the appellants petitioned for a remand in light of newly discovered evidence which tended to prove the existence of a contract which was outside the prohibitions of the Dead Man’s Act. This petition was granted and an order was entered remanding the case without prejudice to the parties to file a new appeal after the trial court had acted. Upon remand, the trial court found that the “newly discovered evidence” was within the actual knowledge of the appellants at the time of the original trial, therefore it did not meet the evidentiary standard for newly discovered evidence and dismissed the complaint with prejudice. This timely appeal followed.

On appeal, the appellants raise three issues for our consideration.

I. Whether the Dead Man’s Rule applied to the case, and, if so, whether such entitled defendants to summary judgment as a matter of law.
II. Whether any genuine issue as to material facts existed in the case, so as to preclude the entry of summary judgment.
III. Whether the lower court abused its discretion by summarily dismissing plaintiffs’ complaint and having failed to address the applicability of the Statute of Frauds, when the Dead Man’s Rule did not preclude plaintiffs’ evidence.

(Appellant’s Brief at 2).

At the outset, we note that in reviewing orders granting summary judgment, our scope of review is limited. This Court has previously summarized the appropriate standard as follows:

A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. Moreover, it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Harford Mutual Insurance Company v. Moorhead, 396 Pa.Super. 234, 237, 578 A.2d 492, 494 (1990); Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 88-9, 546 A.2d 1168, 1170-71 (1988) (citations omitted); Pa.R.C.P. 1035(d). Cognizant of this standard, we turn to the Larkins’ appeal.

Instantly, the appellants contend that the trial court improperly applied the Dead Man’s Act by precluding the appellants’ oral testimony as to the existence of a contract for the sale of the property between themselves and the decedent, and further misapplied the Act by precluding them from presenting canceled checks and written receipts issued by the decedent which the appellants allege proved the existence of a contract between the parties.

In order to decide these issues we must first look to the pertinent part of the Dead Man’s Act:

... in any civil action or proceeding, where any party to a thing or contract in action is dead ... and his right thereto or therein has passed ... to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased ..., shall be a competent witness to any matter occurring before the death of said party ...

42 Pa.C.S.A. § 5930 (emphasis added).

The Dead Man’s Act is an exception to the general rule of evidence in this Commonwealth that: “no interest or policy of law ... shall make any person incompetent as a witness.” 42 Pa.C.S.A. § 5921. The purpose of the statute is to prevent the injustice that may result from permitting a surviving party to a transaction to give testimony favorable to himself and adverse to the decedent, which the decedent’s representative would be in no position to refute by reason of the decedent’s death. In Re Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987); Weschler v. Carroll, 396 Pa.Super. 41, 578 A.2d 13 (1990).

Under the Dead Man’s Act three conditions must exist before the surviving party or witness is disqualified: “(1) the deceased must have had an actual right or interest in the matter at issue, i.e. an interest in the immediate result of the suit; (2) the interest of the witness—not simply the testimony—must be adverse; (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest.” In Re Hendrickson’s Estate, 388 Pa. 39, 45, 130 A.2d 143, 146-47 (1957); Weschler v. Carroll, supra.

The appellants contend, citing Rozelle v. Lewis, 37 Pa.Super. 563 (1908), as the basis of their argument, that because they entered into a written real estate contract with the decedent in his capacity as executor of the estate of Edward Metz, their testimony concerning the existence and terms of an allegedly missing or stolen written contract is within an exception to the Dead Man’s Act, and thus they are competent to testify. We disagree and find that the appellant /reliance upon Rozelle v. Lewis, supra, to be misplaced as the case is factually distinguishable from the instant case.

The facts of Rozelle are as follows. The decedent, Charles Tropp, in his capacity as a co-executor of an estate with the power of sale, sold land which was part of the estate to Rozelle. After Tropp’s death, the other co-executor sold the adjoining lot to Lewis. Sometime thereafter, the parties became embroiled in a boundary dispute. Rozelle attempted to testify as to the decedent’s representations of the boundary line. Lewis sought to preclude this testimony under the Dead Man’s Act.

This Court held that Rozelle’s testimony was not precluded under the Dead Man’s Act. The court ruled that although the decedent executor was a party to the contract under which Rozelle claimed the disputed strip of land, his interests, and those of his estate’s, in the outcome of litigation were only nominal as he was not a beneficiary under the will and his estate would not be diminished in any way by a judgment in favor of Rozelle. Thus, Rozelle’s testimony was not adverse to any interest of the decedent and was therefore properly admissible under the Dead Man’s Rule.

The case at bar does not present a scenario even remotely resembling that found in Rozelle v. Lewis, supra. Instantly, the decedent was not only the executor of his father’s estate, he was also a beneficiary under the will who was devised the property in controversy as a tenant in common with his brother and sister. If the appellants were to prevail in this action, title to the property would be transferred from the decedent’s estate to the appellant, thus his estate’s interest in this litigation is far greater than the nominal interest of the deceased executor in Rozelle v. Lewis, supra. Therefore, the trial court correctly held that Rozelle was inapplicable and properly precluded the appellants’ oral testimony.

The appellants’ next contention is that the trial court erred in ruling that written receipts issued by the decedent to the appellants and canceled checks issued by the appellants to the decedent are inadmissible under the Dead Man’s Act. The appellants argue that the receipts and canceled checks are outside of the prohibitions of the Dead Man’s Act and are admissible to prove the existence of a contract between the parties. The appellants assert that had they been able to present the receipts issued by the decedent, some of which state that the decedent acknowledges that he received payment “on the house,” while others state the payments were received as rent, that they would be able to withstand a motion for summary judgment as a genuine issue of fact would exist as to whether there was a contract between the parties. We agree.

The Dead Man’s Act applies only to oral testimony. Written evidence offered by an adverse surviving party is not rendered incompetent by the Dead Man’s Act and is admissible. In Re Estate of Rider, 487 Pa. 373, 409 A.2d 397 (1979); Rauenzahn v. Sigman, 376 Pa. 26, 101 A.2d 688 (1954). Accordingly, we find that the trial court erred when it precluded the receipts and canceled checks offered by the appellants to prove the existence of a contract for the sale of the property between themselves and the decedent. Therefore, as a genuine issue of material fact arises as to whether the decedent received the checks from the appellants as payment for the property or as rent, the trial court’s grant of summary judgment in favor of the appellees was premature and the appellants must be permitted the opportunity at trial to prove the existence of a contract on the basis of the written evidence.

The appellants’ final contention is that the trial court failed to address whether the Statute of Frauds and its exceptions were applicable in the instant case. The appellants contend that while the Statute of Frauds directs that agreements for the sale of real estate must be in writing to be enforceable, see Rosen v. Rittenhouse Towers, 334 Pa. Super. 124, 130-31, 482 A.2d 1113, 1116-17 (1984); Fannin v. Cratty, 331 Pa.Super. 326, 331, 480 A.2d 1056, 1058 (1984); Target Sportswear Inc. v. Clearfield Foundation, 327 Pa.Super. 1, 10, 474 A.2d 1142, 1147 (1984), specific performance of an oral contract for the sale of real estate may be ordered where it appears that continuous and exclusive possession of the subject property was taken under an oral contract and improvements were made by the buyer which are not readily compensable in money. See Zlotziver v. Zlotziver, 355 Pa. 299, 302, 49 A.2d 779, 781 (1946); Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247, 1251 (1988).

It is well established that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). “The doctrine of waiver has become firmly entrenched in Pennsylvania law and it is clear that on appeal a new and different theory of relief may not be successfully advanced for the first time.” Walton v. Philadelphia Nat’l Bank, 376 Pa.Super. 329, 545 A.2d 1383 (1988); citing Morgan v. Sbarboro, 307 Pa.Super. 308, 453 A.2d 598 (1982) (citing cases). We find no evidence in the record that the appellants ever raised a claim of an oral contract below. We therefore find the issue waived on appeal.

As a result of our ruling that written evidence is outside the scope of the prohibitions of the Dead Man’s Act, we find that entry of summary judgment against the appellants was premature. We emphasize that our ruling is limited to the admissibility of the written receipts issued by the decedent and the appellants’ canceled checks. We neither express nor imply any opinion whatsoever upon the merits of each party’s substantive contentions as they must be determined at trial. Our only finding here is that due to the admissibility of the written evidence which may tend to prove the existence of some kind of contract between the appellants and the decedent for the property, the appellants are able to withstand a motion for summary judgment.

Based upon the foregoing, the trial court’s order is vacated and the case is remanded for proceedings consistent with this Opinion.

Jurisdiction is relinquished.

TAMILIA, J., concurs in the result.

      . Donald Metz died shortly after the filing of this suit. The executor of his estate, Edward Metz, voluntarily substituted himself as a party defendant in place of his deceased father, Donald Metz.


author: TAMILIA, Judge:

text:
    580 A.2d 1154
    Kirsti M. WIRTH v. Jeffrey MILLER, John S. Seely, Dale L. Campbell and Helen Ann Heins and the Imperial Metal Finishing Company, Inc. Appeal of Dale L. CAMPBELL and Imperial Metal Finishing Company, Inc. Megan MILLER, a Minor, by her Parents and Natural Guardians, Justine MILLER and Jeffrey Miller, and Justine Miller and Jeffrey Miller in Their Own Right v. IMPERIAL METAL FINISHING COMPANY, INC., Appellant. Megan MILLER, a Minor, by her Parents and Natural Guardians, Justine MILLER and Jeffrey Miller, and Justine Miller and Jeffrey Miller in Their Own Right v. Dale CAMPBELL, Appellant, v. Jeffrey MILLER.
    Superior Court of Pennsylvania.
    Argued June 19, 1990.
    Decided Sept. 26, 1990.

      Avrum Levicoff, Pittsburgh, for appellants.
    Gary M. Lang, Pittsburgh, for Wirth, appellee in No. 59.
    Joseph M. Maurizi, Pittsburgh, for Miller, appellees in Nos. 60, 61.
    Before CIRILLO, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

In this consolidated action stemming from a multi-vehicle accident on July 30, 1986, the jury returned a verdict for the appellees/plaintiffs, Kirsti M. Wirth and Megan Miller. The jury’s verdict allocated 75 per cent negligence to the defendant, Jeffrey Miller, and 25 per cent negligence to appellants/defendants Dale Campbell and Campbell’s employer, Imperial Metal Finishing Company, Inc. (hereinafter “Imperial”). The plaintiffs’ petitions for Order of Court to Mold Verdict for Inclusion of Rule 238 Damages were granted by an Order of court dated December 5, 1989 and a judgment entered December 11, 1989. The court found defendants Campbell and Imperial jointly and severally liable for the $75,000 verdict for Wirth and the $100,000 verdict for Miller, as well as the respective delay damages of $12,133.56 and $16,931.54. The plaintiffs had each executed a joint tortfeasor release to defendant Jeffrey Miller in consideration of $21,500, which was deducted from each award. Accordingly, the court found defendants Campbell and Imperial jointly and severally liable to plaintiff Wirth for a total molded verdict of $65,633.56 and to plaintiff M. Miller for $95,431.54. It is from this judgment that defendants Campbell and Imperial now appeal to this Court.

On July 30, 1986, Megan Miller and Kirsti M. Wirth were injured as a result of a five-vehicle accident. At the time of the accident, Megan Miller, a minor, was a passenger in a vehicle driven by her father, Jeffrey Miller. Appellee Wirth was an operator of one of the other vehicles involved.

On July 14, 1987, Wirth commenced an action against Campbell for personal injuries received as a result of the accident. She subsequently amended her complaint to include Imperial claiming Campbell was acting within the scope of his employment when the accident occurred. On August 31, 1987, appellee Miller filed a complaint against Campbell. Campbell, in turn, joined J. Miller as an additional defendant. On June 24, 1988, appellee Miller commenced a separate action against Imperial. These three separate actions, consolidated for trial by Order of court dated January 27, 1989, were originally scheduled for trial on March 22, 1989. However, upon motion by appellee Miller, a continuance until May 10, 1989 was granted. (See Motion for Continuance, Record at # 68.)

As stated above, the jury returned verdicts in favor of M. Miller and Wirth in the amounts of $100,000 and $75,000, respectively, finding J. Miller 75 per cent negligent and appellants Campbell and Imperial 25 per cent negligent. Appellees subsequently filed petitions seeking delay damages. In accordance with the joint and several liability requirements of the law, the trial court found the appellants liable for the entire amount of the verdicts ($175,000), plus attendant delay damages. The $21,500 release amount was then deducted from each total. The court denied appellants’ motion to mold the verdict to reflect only their 25 per cent comparative liability.

On appeal to this Court, the appellants argue the trial court erred in (1) failing to mold the verdict against Campbell and Imperial by reducing the plaintiffs’ recovery by the comparative fault (75%) of the settling joint tortfeasor as determined by the jury; (2) imposing delay damages against the appellants based on the total verdict rather than their proportionate comparative fault; and (3) awarding delay damages including the period subsequent to the trial continuance granted at the request of the appellee Miller.

The central issue in this appeal is the effect of the appellees’ settlements with one tortfeasor on the liability of the non-settling tortfeasor. The Uniform Contribution Among Tortfeasors Act (hereinafter UCATA), which recounts the effect of a release on a non-settling tort-feasor, is set forth in pertinent part below:

§ 8326. Effect of release as to other tort-feasors
A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.

42 Pa.C.S. § 8326. Based on a clear reading of this provision, where the amount or proportion by which the release provides that the total claim shall be reduced is equal to the consideration paid, the claim against the remaining tortfeasor is reduced only by that amount.

The release executed by each appellee in favor of Jeffrey Campbell, set forth in pertinent part below, specifically negated the reduction of the appellees’ verdict by pro-rata liability in favor of pro tanto liability.

In the event that [plaintiff/appellee named] should recover a verdict jointly against Jeffrey Miller and one or more other defendants herein, and such recovery shall be reduced only to the extent of the amount of money in dollars paid to [plaintiff/appellee named] for this release irrespective of the apportionment of pro rata liability determined by any trier of fact. (Emphasis added.)

{See Release, Record at # 82.)

Appellants contend the Supreme Court in Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987), judicially supplanted the explicit statutory requirement of the UCATA in an effort to reconcile that Act with the principle of comparative negligence. The appellants argue the Charles Court’s interpretation of the interaction between the UCATA and the Comparative Negligence Act necessitates a finding that the obligations of a non-settling defendant, following settlement by a joint tortfeasor, are fixed by the proportionate share of causal fault attributed to the nonsettling tortfeasor by the jury. Specifically, appellants aver the subsequent enactment of the Comparative Negligence Act, 42 Pa.C.S. § 7102, worked to compel the conclusion that in a settlement context, while the amount paid by the settling tortfeasor may be fixed by agreement, the liability of the non-settling tortfeasor is fixed by his proportion of causal negligence. Thus, appellants contend, by settling with at least one but not all tortfeasors, the plaintiff contracts away any right to argue for joint and several liability. {See appellant’s brief, p. 15.) Appellant argues “[T]he liability exposure of the settling party must be extinguished by the settlement, while the obligation of the nonsettling joint tortfeasor to the plaintiff is no more, and no less, than the proportionate comparative fault determined by the jury.” (Appellants’ brief at 17.) This Court finds the appellants’ reasoning unconvincing and its reliance on Charles, to this end, to be misplaced.

The language of the relevant section of the Comparative Negligence Act is set forth below:

Recovery against joint defendant; contribution.—
Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount, of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

42 Pa.C.S. § 7102(b) (emphasis added). As is plainly stated in its heading, this provision applies to the right of contribution as between defendants. As is specifically set forth in the statute, the plaintiff is entitled to collect his award from any or all of the tortfeasors. The fact that a plaintiff may recover from any or all tortfeasors does not necessarily abrogate a nonsettling defendant’s right to contribution. Such rights are controlled by the specific language of the release. The language of the Comparative Negligence Act is held to be unquestionably harmonious with that of the UCATA thereby disposing of the appellants’ charge of incompatibility.

The appellees argue, and we agree, the reasoning of the Charles Court is limited to situations in which a plaintiff obtains from a settling tortfeasor a pro rata release as opposed to a pro tanto release as exists in the case at bar. In Charles, the plaintiff executed a $22,500 release with Giant Eagle in which he agreed that “[A]ny recovery Appellant would obtain against any person other than Giant Eagle on account of the accident would be reduced to the extent of Giant Eagle’s pro rata share of such damage as may. be attributed to Giant Eagle of Appellant’s damages recoverable against all the tortfeasors.” Id., 513 Pa. at 484, 522 A.2d at 5. At trial, Giant Eagle was found 60 per cent negligent and the co-defendant, 40 per cent negligent; however, the amount paid by Giant Eagle for its release exceeded that which would have been Giant Eagle’s pro rata amount owed. The co-defendant argued that its liability should be reduced by the amount which Giant Eagle’s settlement exceeded 60 per cent of the verdict amount. Writing for the majority, Chief Justice Nix relied, in part, on the UCATA in finding the co-defendant was not entitled to offset its pro rata liability by the amount by which Giant Eagle’s settlement exceeded Giant Eagle’s pro rata share. The Charles Court’s Opinion supports the right of parties to negotiate a release which establishes the amount by which a total claim may be reduced pursuant to section 8326 the UCATA. “This section affords the parties to the release an option to determine the amount or proportion by which the total claim is greater than the consideration paid.” Id., 513 Pa. at 482, 522 A.2d at 4. See also Walton v. Avco Corp., 383 Pa.Super. 518, 540, 557 A.2d 372, 384 (1989). The majority stresses the pro rata nature of the release and, in his Concurring Opinion, Justice Papadakos recognizes that the analysis of Charles is confined to factual situations involving a pro rata release. See also Walton, supra. While the language of the Charles release is pro rata in nature, the releases executed by the appellees herein specifically provided that recovery would be reduced only to the extent of the amount of money paid, irrespective of the apportionment of pro rata liability determined by the trier of fact. If the language of the appellees’ pro tanto release is ignored, the effect would be to convert the jury’s apportionment of liability, for purposes of contribution, to one of apportionment of liability for all purposes thereby eliminating joint and several liability as prescribed by law.

The language of the appellees’ release is consonant with the statutory language found in section 8326 of the UCA-TA. Since Charles did not purport to abolish the right of parties to negotiate a release pursuant to the UCATA, the effect given the instant releases by the trial court is entirely consistent with the Court’s interpretation of the UCATA as espoused by Chief Justice Nix.

The second issue presented on appeal to this Court is whether the appellants were properly found jointly and severally liable for Rule 238 damages. The appellants argue the trial court erred by requiring Campbell and Imperial to pay delay damages awarded to appellees based on the total amount of the verdict rather than on the liability of Campbell and Imperial as determined in accordance with the proportion of Campbell’s comparative fault. At the very least, appellants argue, the court should have first reduced the verdicts by the amounts paid for the releases or by the parties’ comparative fault, then computed delay damages on the molded verdict. (Appellants’ brief at 26.)

In a 1989 en banc decision this Court found joint tortfeasors to be jointly and severally liable for the entire amount of delay damages. Tindal v. SEPTA, 385 Pa.Super. 94, 560 A.2d 183 (1989). In Tindal, SEPTA sought an Order from the trial court holding it responsible only for delay damages as calculated on its pro-rata share of the verdict. The Court held:

Liability normally follows verdict. Therefore, appellants are jointly and severally responsible for the entire amount of delay damages because they are jointly and severally liable for the entire amount of the verdict.

Id., 385 Pa.Superior Ct. at 105, 560 A.2d at 189. The Court reasoned delay damages to be in the nature of pre-judgment interest to be added to the compensatory damages at verdict, and explained that the express language of Rule 238 requires delay damages be made part of the verdict or award. Id. Appellants are, therefore, jointly and severally liable for all delay damages regardless of the jury’s apportionment of fault.

There is merit, however, to the appellants’ contention that the release amount should be deducted from the total verdict prior to the application of delay damages. In Hughes v. GAF, 364 Pa.Super. 311, 528 A.2d 173 (1987), the plaintiffs were awarded $284,975 and $10,200 respectively. Since all other defendants had settled prior to trial, the court molded the verdict against GAF to $56,995 and $2,040 respectively, with attendant delay damages computed on the basis of the molded verdict. In denying the plaintiffs’ appeal requesting that the delay damages be calculated on the total verdicts of $284,975 and $10,200, the Court found it would be anomalous to award a plaintiff delay damages on money already received from the settling defendants. Id., 364 Pa.Superior Ct. at 317, 528 A.2d at 176. Such is the case here. Therefore, in accordance with Tindal and Hughes, this Court finds the appellants jointly and severally liable for the entire verdict amount, minus the release amounts paid by the appellees, plus the resultant delay damages.

Lastly, the appellant argues the trial court erred in awarding damages to the appellees for the period subsequent to the trial continuance granted at the request of appellee Miller. As stated above, the trial was originally scheduled for March 22, 1989, but, at the request of appellee Miller, was continued until May 10, 1989. The trial court calculated appellees’ delay damages through the May 15, 1989 date of verdict, without excluding the period between March 22 and May 10, 1989.

The rule governing delay damages does not permit exclusion for calculation of delay damages for periods of delay for which no party is responsible due to extraneous administrative concerns. Tindal, supra. Pertinent section (b)(2) of Rule 238 is set forth below:

(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(2) during which the plaintiff caused delay of the trial.

42 Pa.C.S. § 238(b)(2). The issue becomes whether Miller’s request for a continuance constituted a delay of trial, other than an extraneous administrative matter, thereby precluding delay damages for the time period thereafter.

In a recent Opinion by this Court the plaintiff’s conduct affecting a delay damage award was explained as follows:

Moreover, the plain language of Rule 238 makes clear that plaintiff’s conduct will affect the delay damage award only where his or her conduct “caused the delay of trial.” Pa.R.C.P. 238(b)(2) [emphasis added]. The Explanatory Comment to rule 238 further states:
[W]ith respect to [plaintiff’s] delay of the trial, not every procedural delay is relevant to the issue of delay but only such occurrences as actually cause delay of trial.
Rule 238, Explanatory Comment 519 Pa. at LXXVI. [Emphasis added.]

Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 562 A.2d 875 (1989). The granting of Miller’s request for a continuance conclusively caused a delay of trial. Miller’s argument that her request for continuance saved a delay of six months is speculative at best.

For all of the foregoing reasons, this Court affirms the trial court’s holding, finding the appellants jointly and severally liable for the entire verdict but as to each appeal the judgments are affirmed in part and vacated in part. The judgments as to the verdict amounts are affirmed; the judgments as to the amounts of delay damages are reversed and remanded for calculation in accordance with this Opinion.

Jurisdiction relinquished.

      . It should be noted that as a result of these releases, Jeffrey Miller is not a party to this appeal.

      . Appellee Miller adds that at no time did the appellants oppose the continuance. (See Miller’s brief at 13.) Appellee Wirth avers she appeared at the January 27, 1989 argument and contested the continuance. (See Wirth’s brief at 24.) This averment, however, is not supported by the record as this Court has not been provided with a transcript of the January 27, 1989 hearing.


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    580 A.2d 1337
    Donald S. LIGHT, Appellant, v. GENERAL BATTERY CORPORATION, CT Corporation System and American Casualty Company of Reading C/O CNA Insurance, Appellees.
    Superior Court of Pennsylvania.
    Argued April 1, 1986.
    Filed Aug. 13, 1990.
    Reargument Denied Oct. 19, 1990.

      Joseph Lurie, Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

Donald Light appeals from the trial court’s order sustaining appellees’ preliminary objections in this action concerning an employer’s subrogation rights under Section 319 of the Workmen’s Compensation Act. The trial court found as a matter of law that an employer is entitled to subrogation when the employee receives a settlement from a third party, even if there has been no adjudication of the third party’s liability and the third party denies liability. We agree with the trial court; accordingly, we affirm.

In January 1981, appellant Donald Light was employed by appellee General Battery Corporation. In the course of his employment, he operated a machine manufactured by Winkle Machine Company. Light caught his hand in this machine; as a result of this accident, Light’s right arm was amputated. In accordance with the Workmen’s Compensation Act, Light received workmen’s compensation from General Battery’s carrier, appellee American Casualty Insurance Company.

Subsequently, Light filed a products liability action against Winkle Machine. Winkle Machine settled with Light, but maintained that it was not liable for Light’s injuries. General Battery and American Casualty sought to enforce their subrogation rights pursuant to Section 319 of the Workmen’s Compensation Act, 77 Pa.C.S.A. § 671. Light then brought this declaratory judgment action to establish that General Battery and American Casualty were not entitled to subrogation.

In his complaint, Light alleged that General Battery was solely responsible for the injury. Employers are subrogated only where the compensable injury is caused in whole or in part by a third party, thus Light concluded that General Battery and American Casualty were not entitled to subrogation. General Battery and American Casualty filed preliminary objections, asserting that Light failed to state a claim upon which relief may be granted. The trial court sustained the preliminary objections and dismissed the complaint. This appeal followed.

Light argues that his settlement with Winkle Machine was merely an ex gratia payment and does not entitle the employer to subrogation. He asserts that the employer must prove Winkle Machine’s liability in order to recover. We disagree.

Section 319 of the Workmen’s Compensation Act provides, “[wjhere the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe ... against such third party.” The Commonwealth Court has held that a compromise settlement is sufficient to establish an employer’s right to subrogation. Heiser v. Workmen’s Compensation Appeal Board (Westmoreland Casualty Co.), 95 Pa.Cmwlth. 350, 505 A.2d 1060, 1063 (1986). “[Ejither a ‘recovery’ or a ‘settlement’ with a third party will satisfy the causation requirement under Section 319.” Heiser, 95 Pa.Cmwlth. at 355, 505 A.2d at 1065, quoting the unpublished trial court opinion in Trumbull v. Paris Linen & Decorating Shops, Inc., Phila.County No. 437 July Term 1973.

The Heiser case is directly on point. In Heiser, the employee was injured in a motor vehicle accident. He received workmen’s compensation, then sued the driver of the other vehicle as a third-party tortfeasor. The employee and the third party settled out of court. In the settlement agreement, the third party expressly disclaimed liability. The referee made no factual finding regarding the respective negligence of the employer and the third party. Nevertheless, the referee concluded that the employer’s carrier was entitled to subrogation pursuant to Section 319. The Workmen’s Compensation Appeal Board affirmed the referee’s decision, and the Commonwealth Court affirmed.

The present case is identical in substance. The employee was injured in a work-related accident. Complaint, paragraph 7. He received workmen’s compensation. Complaint, paragraph 10. He sued an alleged third-party tortfeasor. Complaint, paragraphs 11 and 12. The employee and the third party settled the case, expressly disclaiming the third party’s liability. Complaint, paragraph 15; settlement agreement, paragraph 5. Thus, the employer is entitled to subrogation.

Other cases have drawn the same conclusion. In Hill v. Workmen’s Compensation Appeal Board (J.D. Judski Assoc.), 117 Pa.Cmwlth. 540, 543 A.2d 1279 (1988), the most recent case involving employer subrogation rights in a settlement with a third party, the employee filed two separate third-party law suits. In one of these suits, the employer was found solely liable for the employee’s injuries. The other third-party suit was settled. The referee found that the employer was entitled to subrogation, in spite of the fact that a separate action found the employer solely liable. The Commonwealth Court noted that the issue of employer negligence was irrelevant, citing Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983). The court adopted the referee’s conclusion of law, that “the funds realized from the third party action are to compensate the Claimant for the injury he sustained in the scope of his employment, and thus, the employer is entitled to subrogation.”

The only difference between the present case and the cases above is the procedural posture: Heiser and Hill were decided after factfinding by referee; the present case was disposed of on preliminary objections to a complaint for declaratory relief. Light argues that this difference is significant. He notes that a preliminary objection in the nature of a demurrer admits all well-pleaded facts. Light asserts that his complaint is sufficient if the trial court accepts as true the assertions that Winkle Machine did not cause the injury (paragraph 18), and that General Battery did cause the injury (paragraph 19). We do not find his argument persuasive.

As we noted above, negligence of the employer is not relevant in a subrogation claim; consequently, paragraph 19 has no impact on the sufficiency of the complaint. Paragraph 18 is not helpful because a demurrer does not admit matters in conflict with exhibits. Framlau Corp. v. County of Delaware, 223 Pa.Super. 272, 277, 299 A.2d 335, 338 (1972). Although paragraph 18 is not in conflict with the face of the settlement agreement, it is in conflict with the agreement’s legal effect; accordingly, that paragraph is not admitted upon demurrer.

On the facts admitted pursuant to the demurrer, the employer and his carrier would be entitled to subrogation as a matter of law. Accordingly, the trial court properly dismissed this complaint for declaratory judgment.

Cases relied on by appellant are inapposite. In Traveler’s Ins. Co. v. Hartford Accident and Indemnity Co., 222 Pa.Super. 546, 294 A.2d 913 (1972) and Pittsburgh v. Rue, 38 Pa.Cmwlth. 187, 393 A.2d 1066 (1978), the employers sought to enforce their subrogation rights against the third-party tortfeasors. Here, the employer seeks to enforce its subrogation right against the employee and the fruits of the settlement.

Light’s remaining arguments can be disposed of summarily. Light asserts that the trial court erred in relying on the unpublished trial court opinion in Trumbull v. Paris Linen & Decorating Shops, Inc., Phila.County No. 437 July Term 1973. This unpublished opinion was adopted by the Commonwealth Court in Heiser v. Workmen’s Compensation Appeal Board (Westmoreland Casualty Co.), 95 Pa. Cmwlth. 350, 505 A.2d 1060, 1063 (1986), as support for the exact proposition set forth in this opinion; consequently, the trial court committed no error.

Light emphasizes the effect of the 1974 amendments to the Workmen’s Compensation Act. Both of the cases that we rely on were decided after these amendments; accordingly, the amendments do not alter our opinion.

Light emphasizes the equitable nature of subrogation. Similar arguments were summarily rejected as meritless in Hill v. Workmen’s Compensation Appeal Board (J.D. Judski Assoc.), 117 Pa.Cmwlth. 540, 543 A.2d 1279 (1988).

Light claims that our opinion constitutes a judicial revision of Section 319, eliminating the statutory requirement that the third party cause the harm. We do not eliminate the causation requirement; we merely find that requirement satisfied by the existence of a settlement for the same injury.

Finally, Light asserts that “[t]he Workmen’s Compensation Act has given the employer a license to ignore the safety of its employees.” Even if that argument were true, it would not affect our decision. If Light disagrees with the statute, then he must present his grievance to the Legislature, not this Court.

Order affirmed.

KELLY, J., files concurring opinion.

KELLY, Judge,

concurring:

I agree with the majority’s affirmance of the Philadelphia County Common Pleas Court’s dismissal of the appellant’s petition seeking a declaratory judgment and had I addressed the merits I would have resolved them in exactly the same manner; however, I do not believe that it was necessary for us to reach the merits as the declaratory judgment action should have been dismissed outright by the trial court. The subrogation issue which is the subject of this declaratory judgment action was already resolved by a workmen’s compensation referee and was pending appeal before the Workmen’s Compensation Appeal Board (WCAB), when the appellant sought a declaratory determination of the issue in Common Pleas Court.

The appellant brought this declaratory judgment action in a bold attempt to use the Declaratory Judgment Act, 42 Pa.C.S.A. 742, as a means of bypassing both the WCAB and the Commonwealth Court who has eventual appellate jurisdiction over all final orders emanating from state administrative agencies. See 42 Pa.C.S.A. 763. The reason for the appellant’s attempted avoidance of the WCAB and Commonwealth Court and the respective acknowledged expertise in workmen’s compensation matters is the overwhelming amount of Commonwealth Court precedent against the appellant’s proposition that an employer is not entitled to subrogation when there is a settlement of a third party claim, as the WCAB is required to use Commonwealth Court precedent in all of its determinations. Because of this fact, the appellant has attempted to use the Declaratory Judgment Act as a tool to avoid the WCAB while at the same time causing a split in appellate authority on the issue of the employer entitlement to subrogation when an injured employee receives a settlement in a third party action.

However, the provisions of the Declaratory Judgment Act preclude a declaratory judgment action in Common Pleas Court where the relief sought is within the exclusive jurisdiction of another tribunal. 42 Pa.C.S.A. § 7541(c)(2). As an appeal from an order of the workmen’s compensation referee is within the exclusive jurisdiction of the WCAB, 77 Pa.C.S.A. § 853, the trial court should have dismissed this declaratory action outright.

In Prudential Property & Casualty v. McDaniel, 342 Pa.Super. 557, 493 A.2d 731 (1985), this Court held that relief by declaratory judgment was not available with respect to a proceeding involving an appeal from an order of a tribunal. We further stated that when an ancillary proceeding can be realized to resolve the issues raised in a declaratory judgment proceeding, the declaratory judgment proceeding should be dismissed. The Commonwealth Court reached the same conclusion in Myers v. Commonwealth of Pennsylvania, Department of Revenue, 55 Pa.Cmwlth. 509, 423 A.2d 1101 (1980), where the court held that when a proceeding lies within the exclusive jurisdiction of a state administrative agency, declaratory relief is unavailable under the Declaratory Judgment Act.

A workmen’s compensation referee is a “tribunal” within the meaning of the exception to the Declaratory Judgment Act providing that relief shall not be available with respect to proceedings involving an appeal from an order of a tribunal. See Pennsylvania Assigned Risk Plan v. Grode, 106 Pa.Cmwlth. 472, 526 A.2d 849 (1987); Hudson v. Union County, 50 Pa.Cmwlth. 378, 413 A.2d 1148, appeal dismissed 505 Pa. 604, 482 A.2d 1273 (1980); 42 Pa.C.S.A. § 7541(c)(3). Because the subrogation issue has already been decided by a tribunal in an ancillary proceeding, I would follow Prudential Property & Casualty v. McDaniel, supra, and dismiss the declaratory judgment action outright without addressing the merits. I believe the interpretation of the Declaratory Judgment Act as dictated in Prudential Property & Casualty v. McDaniel, supra and Myers v. Commonwealth of Pennsylvania, Department of Revenue, supra is the correct one as these cases compel the litigants to follow and exhaust their administrative remedies, rather than use the Declaratory Judgment Act as a means of bypassing them.

Moreover, the outright dismissal of the appellant’s declaratory judgment petition would not create any injustice toward the appellant. A decision as to the merits of the subrogation issue was already rendered by the workmen’s compensation referee and was pending administrative appeal before the WCAB at the time the appellant sought a declaratory determination of the appellee’s right to subrogation, after which the appellant still has full access to an appeal before the Commonwealth Court.

Finally, a further benefit gained by our following of Prudential Property & Casualty v. McDaniel, supra and Myers v. Commonwealth of Pennsylvania, Department of Revenue, supra, is the elimination of the possibility of litigants using the Declaratory Judgment Act as a means of avoiding the exclusive jurisdiction of Commonwealth Court over all final orders emanating from state administrative agency tribunals, by filing for declaratory relief while the matter is pending before an administrative appeals board, then using our exclusive jurisdiction under 42 Pa.C.S.A. § 742 over all final orders from Common Plea Courts to effectuate a split in appellate authority on matters which properly belong before the various state administrative tribunals over whose final orders appellate jurisdiction rests in the capable hands of Commonwealth Court.

      . Wc note in passing that the size of the settlement in this case casts serious doubt upon Light's assertion that it is an ex gratia payment. Under the agreement, Light would receive $200,000 upon settlement; $80,000 in lump sum payments over the next 20 years; and $800 per month from the time of settlement until his death.

      . Appellant incorrectly asserts that "in the Heiser case it is admitted that a third party’s vehicle caused the accident.” Supp. brief at 1. On the contrary, the third party expressly disclaimed liability, Heiser, 95 Pa.Cmwlth. at 352, 505 A.2d at 1062, and the referee found only that the injury occurred "as a result of a vehicular accident with another vehicle.” Heiser, 95 Pa.Cmwlth. at 352, 505 A.2d at 1061. The referee never found that the third party caused the accident in whole or in part.

      . In paragraph 5 of the settlement agreement, Winkle Machine disputes the validity of Light's claim.

      . See Hill v. Workmen’s Compensation Appeal Board (J.D. Judski Assoc.), supra; Swink v. WCAB (Burrell Constr. and Supply), 97 Pa. Cmwlth. 623, 510 A.2d 860 appeal granted, 515 Pa. 590, 527 A.2d 549 appeal dismissed, 517 Pa. 504, 539 A.2d 348 (1986); Heiser v. Workmen’s Compensation Appeal Board, supra; Reese by Reese v. Workmen’s Compensation Appeal Board (Penn Nutrients Inc.), 95 Pa. Cmwlth. 325, 505 A.2d 405 (1986).

      . Armstrong County v. Workmen’s Compensation Appeal Board, 81 Pa.Cmwlth. 474, 473 A.2d 755 (1984).