author: BROSKY, Judge.

text:
    568 A.2d 1320
    COMMONWEALTH of Pennsylvania v. Donald R. TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1989.
    Filed Jan. 22, 1990.

      Robert Glessner, York, for appellant.
    H. Stanley Rebert, Dist. Atty., York, for Com., appellee.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from an order denying appellant’s motion for new trial and in arrest of judgment. Appellant contends, among other things, that he was wrongfully convicted of 75 Pa.C.S. § 1543(b), which prohibits driving while under suspension for a DUI, or DUI related offense. Appellant also challenges notice of suspension. We agree with appellant that, within reasonable bounds of statutory construction, appellant was found driving under suspension for being a habitual offender and not under suspension as a condition of acceptance of ARD for a violation of section 3731. Thus, as a matter of law, he could properly be convicted under 75 Pa.C.S.A. § 1543(a) but not under 75 Pa.C.S.A. § 1543(b). However, we also find that the Commonwealth failed to prove that actual notice was received, therefore, we reverse the order appealed from and vacate the judgment of sentence imposed.

Briefly stated, the relevant facts are: appellant was arrested for driving under the influence and charged with that offense on November 15, 1986. Appellant was admitted into the Accelerated Rehabilitative Disposition (ARD) program for that offense and under the guidelines of the program, his license was suspended for a period of three months beginning June 4, 1987. Previously, in 1983, appellant had been convicted for violations of 75 Pa.C.S.A. §§ 1501(a) and 3733. Thus, on July 2, 1987, PennDot mailed appellant a notice stating:

As a result of your acceptance in the accelerated rehabilitative disposition (ARD) program for violating section 3731 on 11/15/86, your driving privileges are being revoked for a period of 5 years as mandated by section 1542A of the Vehicle Code.

The five year suspension became effective on September 4, 1987. Appellant was subsequently stopped while driving an off road motorcycle on March 12, 1988, and charged with violation of 75 Pa.C.S.A. § 1543(b), which reads:

Any person who drives a motor vehicle ... at a time when their operating privilege is suspended or revoked as a condition of acceptance of accelerated rehabilitative disposition for a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

When the record of this case is reviewed it becomes apparent that an erroneous conclusion has been reached by the equation of the terms “condition of”, as used in subsection (b), and “result of”, which does not appear in the applicable statute and which represents the true course of events here. We believe this is logically faulty and cannot be sustained.

A brief logical sketch of the relevant law and facts of this case indicates that appellant was wrongly convicted of violating 75 Pa.C.S.A. § 1543(b). First, it is conceded by the trial court, and is also readily apparent, that appellant’s license was expressly suspended as a condition of acceptance of ARD, for violation of section 3731, the key phraseology under subsection (b), for a period of three months beginning on June 4, 1987. This can be seen in the trial court’s statement “A common condition of being accepted into this program is that the Defendant is not permitted to drive for a period of three (3) months. For the Defendant, this period began on June 4, 1987.” However, when contemplated to some degree, it becomes equally clear that the suspension relevant to subsection (b) was for three months only and that the five year suspension handed appellant was not a condition of acceptance of the ARD but merely a result of such acceptance, (plus the presence of two prior traffic convictions). Nothing in appellant’s ARD program was conditioned upon such a suspension. Rather the five year suspension was issued because appellant’s acceptance of ARD constituted a third traffic offense under the terms of the habitual offenders statute and was collateral to the ARD proceedings altogether.

It is further conceded that appellant was not caught driving during the three months following June 4, 1987, the period which could reasonably be considered to be a suspension as a condition of acceptance of the ARD. Thus, it is really rather elementary that appellant was not caught driving while under suspension as a condition of acceptance of ARD and therefore falls outside of the provisions of 75 Pa.C.S.A. § 1543(b), although, as he was caught driving while under suspension, within the provisions of 75 Pa.C. S.A. § 1543(a).

Upon consideration it is clear that appellant received a five year suspension as a result of not as a condition of, or to, acceptance of ARD. This is borne out in the PennDot notice, which states: “As a result of your acceptance in the accelerated rehabilitative disposition (ARD) program for violating section 3731 ..., your driving privileges are being revoked for a period of 5 years____” (In actuality it is not even entirely correct to state that the five year suspension was a result of acceptance of ARD as the suspension results from the acceptance of ARD and the prior two convictions for traffic offenses. There must be three such convictions, none of which has to be, under the wording of the applicable provision, a conviction for DUI or DUI related.) Clearly there is a difference between the terms “condition of” and “result of”.

First of all, within the general meaning of “condition of” and in consideration of the wording of 75 Pa.C.S.A. § 1543(b), appellant does not fall within the language of that section. For instance, “condition” is defined as “a premise upon which the fulfillment of an agreement depends” and “a provision making the effect of a legal instrument contingent upon an uncertain event”. Webster’s Ninth New Collegiate Dictionary. In contrast, the term “result” is defined in the same dictionary as “to proceed or arise as a consequence". (emphasis added). In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928, 931 (1985), ARD was described by our Supreme Court as a “pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant’s successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.” (emphasis added). If the defendant successfully completes the program, the charges against him will be dismissed. If the ARD is not completed successfully, the defendant may be prosecuted for the offense(s) charged. Lutz, Id.

Appellants’ five year suspension was clearly a result of, not a condition of, acceptance of ARD. It was a factor preceding the suspension for five years, not a penalty or provision attached to the acceptance of ARD or a part of the ARD program. From all appearances, appellant’s ARD program, under the terms imposed, could be successfully completed in a three month period. Certainly, the success or failure of the ARD program did not require a five year waiting period to await possible violations of the § 1542 suspension. In contrast, the three month suspension given appellant under the guidelines of his ARD program was a condition of ARD in the sense that it was part of the penalty/program handed appellant for the violation of § 3731 and failure to comply with the three month suspension could have been considered evidence of unsuccessful completion of the ARD program. Of course, construction of penal statutes must be in favor of the defendant, not in favor of the Commonwealth, Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978), and this alone militates toward reversal.

Secondly, construing the term “condition of” in this fashion ties the suspension directly to violation of the offense, which is consistent with the other provisions of 75 Pa.C.S.A. § 1543(b). All three of the suspensions listed in the applicable section are directly tied to the violation of the DUI or DUI related offense in that they are penalties for the commission of the offense, or, alternatively, are handed down as part of a rehabilitation program. Subsection (b) talks about suspension handed down because of refusal to take a BAC test, conviction of DUI or as a condition of acceptance of ARD-DUI (which is treated as a guilty plea.) In all three situations there is a direct tie between the suspension and the DUI offense. In contrast, when an individual receives a five year suspension as a habitual offender its relation to a DUI conviction is either fortuitous or, at best, collateral to the violation of a DUI offense. The suspension under 75 Pa.C.S.A. § 1542 results because the offender is considered habitual, as evidenced by the commission of three offenses, not because he or she has been convicted of a DUI offense. It is immaterial to that specific section whether or not one or more of the offenses happens to be a DUI offense. The suspension for being a habitual offender is collateral to the self-contained proceeding regarding the DUI or DUI related offense. As such, the distinction being made is not simply a technical one. Rather, it is integrally related to the distinction in the code for penalties associated for a violation of a license suspension.

The purpose of the distinctions between subsections (a) and (b) in 75 Pa.G.S.A. § 1543 is to treat people caught driving while under suspension for a DUI or DUI related offense more severely than those caught driving under a more general suspension. Obviously, it is illegal to drive while under any suspension of license. However, those who violate a general suspension are not treated as harshly as those who violate the DUI related suspension. In determining who is a habitual offender, the DUI offense is treated no differently than the other enumerated offenses, and if it happens that one or more of the offenses underlying a habitual offender suspension is a DUI offense, the suspension given does not vary. This is so simply because the focus in such a scenario, is not upon the DUI conviction, but upon a habitual offending of the vehicle code. If one or more of the offenses is a DUI, or is DUI related, separate punishment is handed out commensurate with that violation. However, it is done in the DUI proceedings, not in a § 1542 proceeding.

In the present case, it is our function to see that the punishment for the violation is not greater than that authorized or allowed under the applicable statute. Except for that period of suspension directly conditional to “the acceptance of Accelerated Rehabilitative Disposition” all other periods of suspension pursuant to the habitual offenders section should be treated simply as that, a suspension under the habitual offenders act, and punishment for violating the suspension should be consistent with any other violation of such a suspension. Apparently, under the approach forwarded by the trial court, all of appellant’s five year suspension would fall within the purview of subsection (b) and a violation of it would be dealt with far more severely. However, if an individual committed his third offense, a non-DUI offense, for habitual offender purposes immediately after serving a 90-day ARD suspension, the subsequent five year suspension would apparently not, under the same theory, be a “condition of” accepting ARD-DUI and would, ostensibly, fall within subsection (a). That is, of course, unless it would be further contended that the five year suspension would fall under subsection (b) if any of the three offenses underlying the habitual offenders suspension happened to be a DUI offense. Yet, if this contention was forwarded, how would it be concluded that the resulting five year suspension was a “condition of” acceptance of ARD when the suspension did not follow the acceptance of ARD but instead followed a simple summary conviction? And if such a contention would not be made, one would have to question the soundness of an approach which would treat a violation with essentially the same underlying circumstances so differently, simply because one offender happened to commit a DUI violation first or second in order rather than third. Upon contemplation, this position simply is not nearly as sound as treating such a suspension as one occasioned by the statute authorizing it.

We next turn to appellant’s contention that the Commonwealth failed to prove that he received notice of suspension. As to this matter we feel constrained to agree. Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1985), indicates that not only must the Commonwealth prove actual notice of suspension, but also that evidence that notice of suspension was mailed, standing alone, is insufficient to prove beyond a reasonable doubt that the defendant had actual notice of suspension. Application of the Kane precedent has not resulted in hard and fast rules. However, we can glean some standards of proof properly chargeable to the Commonwealth in light of that decision. In Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985), we remanded for a determination of whether counsel had been ineffective for failing to raise this claim. There, the only evidence in addition to proof of mailing was a cryptic notation that an affidavit had been received by the Department of Transportation. Since it was unknown, upon appellate review, what was contained in the affidavit, we remanded to determine if counsel had indeed missed a meritorious defense. The logical implication of the decision being that unless the affidavit contained probative evidence of actual notice counsel would have missed the meritorious defense of lack of actual notice. Contrast that decision with the one reached by a panel of this court in Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986). In Gray, we were faced with evidence that the notice had been mailed to his correct address, plus the fact that appellant had previously surrendered his license in response to a notice mailed to him at that same address. In Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982), we found the facts that appellant had returned his license to the Bureau, and also that he had tried to conceal the fact that he had been driving by removing himself from the driver’s seat probative of actual notice.

In the present case, however, there was unrebutted evidence that appellant no longer resided at the address his license was registered to. Therefore, the presumption that notice was received by mail is certainly not as strong. The only other factor that could raise a suspicion that appellant was actually aware of the suspension is the fact that appellant was stopped approximately six months after the ARD suspension terminated. It could be argued that this fact raised a inference that appellant was aware that he was under suspension because otherwise he would have taken steps to retrieve his license. However, appellant testified that he did not own an automobilfe, therefore, even the aforementioned inference is substantially weakened. Certainly, one would have substantially less incentive to inquire about the return of one’s license if one did not own an automobile. We do not believe that the Commonwealth has provided sufficient evidence to sustain their burden on this issue. We would reiterate our commentary made in Gray, supra, that it is curious that the Bureau of Traffic Safety Operations does not send such notices by certified or registered mail, where there is a return receipt to aid in proving actual notice.

For the above reasons, we reverse the order appealed from and vacate the sentence imposed. Jurisdiction relinquished.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    568 A.2d 1325
    BOROUGH OF WILKINSBURG v. TRUMBULL-DENTON JOINT VENTURE and CNA. Appeal of TRUMBULL-DENTON JOINT VENTURE.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1989.
    Filed Jan. 22, 1990.

      Donald J. McCormick, Pittsburgh, for appellant.
    Warren D. Ferry, Pittsburgh, for appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from a judgment in the amount of $75,276.60 for breach of a contract provision requiring Trumbull-Denton Joint Venture (Trumbull) to obtain insurance covering the Borough of Wilkinsburg. We affirm.

In early 1981, Trumbull was selected by the Pennsylvania Department of Transportation as the general contractor for rehabilitation of 1-376. To discharge its responsibility for handling traffic affected by the contract work, Trumbull entered into an agreement with Wilkinsburg to use off-duty borough police officers to regulate traffic which was rerouted through the Borough. As part of its contract with Wilkinsburg, Trumbull was required to obtain public liability insurance naming Wilkinsburg as an additional insured to protect the Borough and its agents from claims arising from operations under the contract. Trumbull purchased a policy of comprehensive general liability insurance from CNA but failed to have Wilkinsburg named as an additional insured on this policy. Needless to say, an accident occurred at an intersection being controlled by an off-duty Wilkinsburg police officer pursuant to the contract. In the lawsuit that ensued, the officer and the Borough were joined as additional defendants. Wilkinsburg requested CNA to provide a defense and discovered that Trumbull had not named Wilkinsburg as an insured on the policy issued by CNA. Wilkinsburg had a policy of comprehensive general liability insurance which it had purchased from Guaranty National Insurance Company (GNI); GNI therefore provided a defense and settled the action for $67,000.00. The costs incurred were $796.54 and the attorney’s fees were $7,480.06, for a total of $75,276.60, which was expended by GNI due to Trumbull’s failure to provide insurance. Thereafter, this action was brought to recover this sum from Trumbull. The parties stipulated to the facts and the trial court found in favor of Wilkinsburg. This appeal followed.

Trumbull first argues that Wilkinsburg sustained no loss because Wilkinsburg’s general liability carrier paid the claim and incurred the expenses. Entwined with this argument is Trumbull’s claim that this is not a subrogation case. We must answer the second question first because if, as appellant argues, this is not a proper subrogation case, then appellant’s argument that Wilkinsburg did not suffer damages is correct. If, on the other hand, subrogation is proper, then appellant’s first argument fails. In Employers Mutual Liability Ins. Co. v. Melcher, 378 Pa. 598, 107 A.2d 874 (1954), our Supreme Court, quoting the Restatement, Restitution, § 76, set forth the following rule:

Where property of one person is used in discharging an obligation owed by another ..., under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee____

Id., 378 Pa. at 601, 107 A.2d at 876.

It is undisputed that GNI’s property was used to discharge the obligation. The next question then is whether the obligation is one that is owed by appellant.

Where a party breaches an agreement to obtain insurance, the breaching party is liable for the full amount of the damages sustained. In Hagan Lumber Co. v. Duryea School District, 277 Pa. 345, 121 A. 107 (1923), our Supreme Court set forth the following measure of damages:

Plaintiff’s damage is not to be measured by the premium it would have had to pay, had it taken out insurance to protect it against such a loss. This would be the measure had defendant notified plaintiff the insurance would not be or could not be obtained (Veley v. Clinger, 18 Pa.Superior Ct. 125), for in that event plaintiff would be required to minimize the possible loss, if it elected to continue performance of the contract notwithstanding. No such notice appears to have been given, however, and, in the absence thereof, plaintiff was entitled to assume defendant would comply with its contract, and may recover the damages actually sustained because of its failure so to do.

Id., 277 Pa. at 349, 121 A. at 108-09.

In Hagan, as in Zortman v. Volk, 97 Pa.Super. 137 (1929), which followed Hagan’s holding, the plaintiff suffered damage to his property due to fire. The defendant had agreed to obtain fire insurance but failed to do so. In both cases, the defendant was liable for the full amount of damage. Under these cases, appellant is liable for the full amount expended on account of the accident claim. Thus, the second prong of the test, that the obligation discharged is that owed by another, is satisfied.

Appellant also contends that it is not liable because it did not cause the accident and is not legally responsible for the accident. However, the issue here is not whether appellant is liable for causing the accident but whether appellant is liable for breaching its contract. Subrogation is not limited only to actions against a tortfeasor. See, e.g., Zurich General Accident & Liability Ins. Co. v. Klein, 181 Pa.Super. 48, 121 A.2d 893 (1956) (breach of general warranty deed). Further, appellant’s contention that it is liable only for the cost of obtaining insurance is contrary to the principles set forth in Hagan, supra.

Finally, it must be remembered that subrogation is an equitable principle. “It is a device adopted by equity to compel the ultimate discharge of an obligation by him who in good conscience ought to pay it.” Potoczny v. Vallejo, 170 Pa.Super. 377, 380-81, 85 A.2d 675, 677 (1952), quoting 50 AmJur., Subrogation, § 2, page 678. We do not agree with appellant’s premise that appellant should be excused of its obligations under the contract merely because an insurance company was the ultimate payor of appellant’s obligation. As noted in Employers Mutual Liability Ins. Co. v. Melcher, supra, the fortuitous circumstance of additional insurance cannot, in good conscience, permit appellant to avoid its duties under its contract.

Appellant also contends that the court erred in determining that an agreement to obtain insurance implies the right of indemnification. This is an incorrect statement of the issue, which is whether the measure of damages determined by the trial court is correct. That measure is the one set forth in Hagan, supra.

Finally, appellant contends that the trial court erred by applying the collateral source rule to prevent appellant from proving that Wilkinsburg did not suffer a loss. This claim is refuted by the record. As previously stated, this case was submitted to the court on a stipulation of facts. This stipulation set forth that GNI had issued to Wilkins-burg a policy of general liability insurance, which was in effect on the date of the accident. The stipulation further stated that GNI had defended the action and had paid the settlement amount of $67,000.00 as well as costs and attorney fees. The trial court clearly considered the fact of GNI’s involvement and payment and in fact stated the issue as “what the measure of damages if any should be when the non-breaching party is otherwise insured ...” Opinion at 3. Contrary to appellant’s argument, the collateral source rule was not applied.

Judgment affirmed.

      . Judgment was entered in favor of CNA and no appeal was taken. Therefore, the present appeal involves only Wilkinsburg and Trumbull.

      . The trial court found that there was no evidence that appellant notified Wilkinsburg of its failure to name Wilkinsburg as an additional insured as required by the contract. Therefore, appellant is not entitled to reduce the damages to the amount of the premium Wilkins-burg would have had to pay in procuring its own insurance.


author: BECK, Judge:

text:
    568 A.2d 1327
    Joanne DAUER, Administratrix of the Estate of Richard H. Dauer, and Joanne Dauer, in her Own Right, Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., Nicolet Industries, Inc., Successor-in-Interest to Keasby Mattison; and Pittsburgh Corning Corporation v. GAF CORPORATION, Keene Building Products, Owens-Corning Fiberglas, Owens-Illinois, and Combustion Engineering, Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1989.
    Filed Jan. 23, 1990.

      Antonio D. Pyle, Pittsburgh, for appellants.
    Jane S. Barnes, Pittsburgh, for appellees.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This is an appeal from an order granting summary judgment in favor of defendant asbestos manufacturers. This case presents the question whether the wrongful death statute permits a claim against defendants who were third party defendants in the decedent’s lifetime action for damages. Finding the instant action prohibited by the wrongful death statute, we affirm.

The history of this case can be briefly stated as follows. The decedent, Richard Dauer, filed an action in federal court on October 19, 1982 against several asbestos manufacturers. These defendants later joined Armstrong World Industries, Pittsburgh Corning Corporation, and Nicolet Industries, Inc., successor in interest to Keasby & Mattison, as third party defendants. The decedent died on April 23, 1983. On April 19, 1985, appellant Joanne Dauer filed wrongful death and survival actions in the Court of Common Pleas of Beaver County against the three manufacturers who had been joined as third party defendants in the federal court action, alleging that her husband died as a result of exposure to asbestos products manufactured, sold and supplied by them. Armstrong World Industries Inc. subsequently filed a motion to join GAF Corporation, Keene Building Products Corporation, Owens Illinois, Inc., and Combustion Engineering, Inc., successor in interest to Refractory and Insulation Corporation. All of the above named defendants were defendants in the lifetime action, and all except Combustion Engineering, Inc. filed motions for summary judgment on the grounds that the actions were barred both by the statute of limitations and the wrongful death statute. By order dated September 15, 1986, the trial court granted the motions as to the survival action, but denied them as to the wrongful death action. Defendants/appellees filed a motion for reconsideration of the September 15, 1986 order. Upon reconsideration, the trial court granted summary judgment as to the wrongful death claim, finding it to be barred both by the terms of the wrongful death statute and by the statute of limitations. Joanne Dauer appeals from that order.

A motion for summary judgment may be granted only if the “pleadings depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be entered only in those cases which are clear and free from doubt. Young v. Eastern Engineering and Elevator Company, Inc., 381 Pa.Super. 428, 554 A.2d 77 (1989).

In passing on a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. It is not the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980, 981 (1986) (citations omitted).

With this standard in mind, we address the claim that appellant’s action is prohibited by the wrongful death statute.

The Pennsylvania wrongful death statute provides, in relevant part:

Death Action
General Rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.

42 Pa.Cons.Stat.Ann. § 8301 (Purdon 1982 & Supp.1989) (emphasis added).

Appellees contend, and the trial court agreed, that since the decedent filed an action for damages in federal court prior to his death, and all defendants in the wrongful death action were either defendants or third party defendants in the lifetime action, appellant is now barred from bringing a wrongful death action against them. Appellant argues that because the lifetime action was not initially brought against the three original defendants to the wrongful death lawsuit, Armstrong World Industries, Nicolet Industries, Inc., and Pittsburgh Corning Corporation, who were joined as third party defendants in the federal court case by the defendants, appellant should be permitted to proceed against those three. Appellant urges that her right to recover for the wrongful death of her husband should not be extinguished by the actions of the original defendants in the federal court action, when the decedent did not seek to to recover from Armstrong, Nicolet, and Pittsburgh Corning during his lifetime. We disagree.

In Franz v. GAF Corporation, 650 F.Supp. 602 (W.D.Pa. 1986), the court held that a wrongful death action could not be brought against asbestos manufacturers when the decedent had brought an action for damages during his lifetime, and the defendants in the wrongful death action had been joined as third party defendants in the lifetime action. The court stated:

Courts have strictly construed this statute to mean that if a suit for personal injuries is brought by the person injured during his lifetime, no other action of any kind is maintainable even though he subsequently dies of his injuries. Pezzulli v. D Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). We believe this law is controlling and that the current action must be dismissed.

Id. at 602. We adopt this view, and hold that 42 Pa.Cons. StatAnn. § 8301 does not permit a plaintiff to proceed in an action for wrongful death against parties who were defendants in the decedent’s lifetime action for damages. This result is consistent with prior decisions construing this statute.

In McCullough v. Philadelphia, Newtown & New York R.R. Co., 81 Pa.Super. 318 (1923), the decedent had filed an action for damages against the Reading Railroad prior to his death. This case was nonsuited because the Reading Railroad Company could not be connected with the car that injured the decedent. However, the decedent’s widow subsequently filed a wrongful death action against the Philadelphia, Newtown & New York Railroad, under a predecessor to the current wrongful death statute. The railroad argued that because the decedent had filed suit for his injuries during his lifetime, the widow was precluded from filing a wrongful death action. Nevertheless, the court permitted the wrongful death action to proceed, reasoning that the intention of the legislature in prohibiting wrongful death actions subsequent to lifetime actions for damages from the same injury, “was to prevent the injustice of calling upon a defendant to respond twice in damages for the same negligent act.” McCullough, 81 Pa.Super. at 323.

In the case sub judice, appellees were either original or third party defendants in the decedent’s action for damages. Permitting a wrongful death action against them would potentially make them twice liable for the same negligent act. It would therefore be improper to allow the wrongful death action to proceed. See also Black v. Baltimore & Ohio Railroad, 224 Pa. 519, 73 A. 903 (1909) (An action for death caused by negligence can only be brought where no suit for damages has been instituted by the party during his life.)

The order of the trial court granting summary judgment is affirmed.

      . The trial court also found the instant action to be barred by the statute of limitations. Because we find this claim to be prohibited by the wrongful death statute, we do not reach the statute of limitations issue.


author: DEL SOLE, Judge:

text:
    568 A.2d 1329
    COMMONWEALTH of Pennsylvania v. Todd E. RAMIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1989.
    Filed Jan. 30, 1990.

      Richard J. Callahan, Williamsport, for appellant.
    Robert W. Ferrell, Asst. Dist. Atty., Williamsport, for the Com., appellee.
    Before ROWLEY, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

This is an appeal from a Judgment of Sentence imposed following a jury trial in which Appellant was convicted of driving while under the influence of alcohol. On appeal Appellant challenges the trial court’s decision refusing to suppress certain audio portions of a videotape made at police headquarters following his arrest.

Before we can analyze Appellant’s claim we must first dispose of the Commonwealth’s assertion that the issue has been waived because Appellant failed to timely file his post-trial motions. These motions which contain the claim of error now presented before this court were filed fifty-four (54) days after the verdict. Appellant offers no reason for his failure to comply with the ten day requirement of Pa.R.Crim.P. 1123(a). However, the record indicates that despite the untimely nature of the motions the merits of Appellant’s claim were considered and ruled on by the trial court. Because the trial court considered Appellant’s issue on its merits, we will not deem the issue waived. Commonwealth v. Markovitch, 565 A.2d 468 (1989).

The video tape referred to in the instant case, taken the night of Appellant’s arrest, was included in the original record sent to this court. The parties and the trial court agree that certain portions of this tape were not shown to the jury. The jury did view the remainder of the tape which showed Appellant answering questions such as his name, date, age, social security number and employer. The jury was also able to view Appellant’s admission that he “had a few” drinks on the evening in question. It is Appellant’s position that the audio portion of this tape should have been suppressed because it contained incriminating statements which were compelled by police conduct in violation of Appellant’s constitutional rights. Because upon review of the tape we conclude that the incriminating statements made by Appellant were not compelled by police questioning which was likely or expected to elicit an incriminating response, but rather were spontaneous and voluntary utterances, we affirm the trial court’s ruling.

The Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution protect those individuals accused of crimes from being compelled to testify against themselves or otherwise provide the state with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Conway, 368 Pa.Super. 488, 498, 534 A.2d 541, 546 (1987). This privilege is not violated by réquiring a driver to perform physical tests since the evidence procured is of a physical nature rather than testimonial. Id. Verbal communications which are both incriminating and compelled by police conduct are, however, protected; and absent a waiver of those protections identified in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), they are inadmissible at trial.

In this case, it is undisputed that Appellant stated he did not wish to answer police questions in the absence of his attorney. Although attempts to contact counsel were unsuccessful, the police did ask Appellant certain questions. These inquiries each related to various biographical information which Appellant was readily able to answer. Questions which seek nonincriminating biographical data do not amount to “police interrogation” and therefore they do not violate the accused’s constitutionally protected rights. Commonwealth v. Wray, 296 Pa.Super. 379, 442 A.2d 819 (1982). Thus, when an accused makes an incriminating remark which is irrelevant and unresponsive to a routine biographical question asked by a police officer, that remark is admissible at trial whether or not the accused has expressed a desire to remain silent. Id.

In this case Appellant did not make any incriminating statements in response to the statistical questions asked by the officers. Although Appellant may argue that it is not the content of his answers but the manner in which they were conveyed which was incriminating when later played on tape before a jury, we cannot find that Appellant’s constitutional rights were violated. The police officers asked questions which were purely biographical and unlikely to elicit incriminating information. The responses made to such questions and the manner in which an accused conveys these responses, whether it be garbled or slurred, is information of a physical nature which could be testified to by an observant. A video tape recording of these responses is thus equally permissible. See: Commonwealth v. Muniz, 377 Pa.Super. 382, 547 A.2d 419 cert. granted — U.S. —, 110 S.Ct. 275, 107 L.Ed.2d 256 (ruling that video taped responses to questioning which was not ostensibly requested for record-keeping purposes and which sought to elicit information revealing the suspects’ thought process rather than statistical information which is commonly committed to rote memorization, was inadmissible absent the issuance of Miranda warnings).

The video tape played before the jury which convicted Appellant also contained what were obviously incriminating statements. After obtaining the biographical information a police officer informed Appellant that he could not drive home and would have to contact a friend or relative to provide him with a ride. At some point during this conversation Appellant stated that he “had a few” but that he was not drunk.

Unlike the statements made in response to questions concerning routine biographical information, this statement spoken by Appellant and viewed by the jury on video tape was incriminating. Nevertheless we determine that this remark is admissible because it passes the second part of the two prong test; it was spontaneous and voluntary and not compelled by police conduct.

If a testimonial statement is given ‘freely and voluntarily without any compelling influences’, it is admissible. Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978). See also Commonwealth v. Bracey, 501 Pa. 356, 367, 461 A.2d 775, 780 (1983) (quoting Sero, supra). However, if police conduct is; likely or expected to elicit a confession or other incriminating statements’ Miranda warnings are required. Id. (emphasis added). If the accused, like Mr. Conway [the appellant], does not waive the privilege against self-incrimination, any testimonial statements obtained as a result of police conduct likely to elicit incriminating statements are inadmissible at trial.

Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987).

. Appellant made the utterance concerning his consumption of alcohol spontaneously. Our examination of the video tape convinces us that the trial court correctly ruled that the admission of this evidence was proper because the police did not engage in questioning which was designed, or which was likely to elicit incriminating information. The police officer in this case was merely advising Appellant that it would be inappropriate for him to return to the road as a driver. The police were instructing Appellant concerning his options for returning home. Appellant’s admission made in defense of his ability to drive was not in any manner compelled by police conduct so as to violate his constitutional rights.

Judgment of Sentence affirmed.

      . Although the actual tape, which was admitted into evidence was included in the record, a transcription of that portion of the tape heard by the jury was not. Because notes of the particular audio portions of the tape which were played to the jury were not available for our review, it was necessary for us to view the tape keeping in mind what portions the parties and the court agreed were redacted. The obvious difficulties of such a review, and the potential for disagreement as to what was actually presented to a jury, necessitates a requirement that a transcript of the audio portion which was heard by a jury be included along with the original tape in the record sent to our court for review.


author: CERCONE, Judge: POPOVICH, Judge,

text:
    569 A.2d 353
    Robert T. LOZINAK v. Kathleen LOZINAK, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1989.
    Filed Jan. 29, 1990.

      Douglas M. Johnson, Souderton, for appellant.
    Richard B. Perlman, Norristown, for appellee.
    Before CIRILLO, President Judge, and POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by Kathleen Lozinak from the final supplemental order of the learned trial judge, the Honorable Marjorie C. Lawrence, entered on November 28, 1988, setting forth a conditional arrangement for the physical custody of an eight-year-old child, Heather, born to Kathleen and her husband Robert T. Lozinak, on November 11, 1980.

The order provided for primary physical custody to Kathleen, the mother, and partial physical custody to Robert, the father, on the condition that the mother remain in Pennsylvania. If she decided to move to Iowa, primary physical custody would be placed with the father.

In the face of the facts of this case, the custody order did truly contain a Solomonic touch, as the trial judge intimated. However, unlike the mother who was faced with the dilemma of Solomon’s challenge, the mother in the instant case need not fear for the physical well-being of her child. If she is more interested in her child’s best interests than her own, considering all the circumstances of this case as they presently stand, she will remain in Pennsylvania and continue to have primary physical custody of her child, as the learned court has given her the option to do.

The procedural and factual history of this case are set forth at length in the most able opinion and supplemental opinion of Judge Lawrence. The judge has filed an articulate, comprehensive, and clear analysis of the record giving specific reasons for her decision as supported by Pennsylvania law relevant to trial and appellate court standards of duty and of review in custody cases. For cases concerning the paramount concern for the best interest of the child, see Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984); Artzt v. Artzt, 383 Pa.Super. 23, 556 A.2d 409 (1989); Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988); Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983); for standard of review by appellate court, see Burke v. Pope, 366 Pa.Super. 488, 492, 531 A.2d 782, 784 (1987); Lombardo v. Lombardo, 515 Pa. 139, 147, 527 A.2d 525, 529 (1987); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984); Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (1988); Dolan v. Dolan, 378 Pa.Super. 321, 548 A.2d 632 (1988); for the role of primary caretaker, see Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982), Brooks v. Brooks, supra; for credibility of witnesses, see Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 448, 427 A.2d 1370, 1372 (1981).

We will therefore not repeat the law applicable in this case nor all the general facts adduced at trial, but will distill from the totality of the evidence the essence of this rather mundane but all important ease.

Kathleen and Robert were married on July 8, 1978. A daughter, Heather, was born to them on November 11, 1980. After six years, they separated in September, 1986. Upon separation, the mother, lived with daughter Heather at five different places all in a relatively short time — at a girlfriend’s house in Phoenixville, at her brother’s apartment in Hatfield, at two different apartments in Lansdale and again in Phoenixville, all in the southwestern part of Pennsylvania.

A month after separation, Kathleen, the mother, met 21-year old James A. Grace (at the time of hearing on July 9, 1988, Robert Lozinak, father, was 31 years of age and Kathleen, the mother, was 28 years old) and a year later began living with him. During this time, the father met Sandy Zigon to whom he became engaged and with whom he lived after separation and his divorce from his wife.

On December 2,1986, the father began a divorce action in Montgomery County. The parties resolved the question of custody of Heather by entering into an agreed court order dated June 3, 1987, providing shared legal custody of Heather, with primary physical custody remaining with the mother and partial physical custody with the father.

This arrangement of custody proved to demonstrate that both parties were fit parents who gave loving care and protection to Heather. Each gave much time to Heather in play, recreational outings, time, study, proper food and clothing. However, as between the mother and father, there was little or no evidence to indicate the presence of enchantment or abiding love so poignantly heralded by the poets. During this union, the mother cared for Heather and did the housework and the father worked as a truck driver. In this comparatively short time of marriage, the seed of estrangement and unknowing grew into a bitter' fruit of dissension to finally deteriorate into the dust of a final decree in divorce which occurred on April 28, 1988. In the meantime, little Heather proved herself to be a strong, self-reliant, well-balanced, emotionally stable and intellectually sound child. She loves both her parents and was impressively careful at the hearing not to favor one over the other. A warm and strengthening relationship developed for her with both parents. It was apparent she could be happy with either parent. The problem facing the learned court, however, was to decide what would be in Heather’s best interest insofar as primary physical custody was concerned.

Heather achieved excellent grades in school, adjusted well to teachers and classmates at school, and friends and relatives in her familial surrounding. Her grandparents on both sides of her family were kind and loving to her. In other words, her world was a happy, wholesome, healthful one, all flourishing in this supporting environment of southeastern Pennsylvania. Sometime after the divorce, the mother decided to marry James A. Grace, whom she referred to as “Al” and to move to Iowa with him and Heather. The father, realizing the great danger to his partial custody of Heather, filed a petition for modification of the custody order of June 3, 1987, culminating in the hearing before the trial court. The evidence adduced at the hearings demonstrated that both the father and (Al) James Grace were practically on the same economic level at a balance between income and familial needs. There is nothing in Iowa where the mother wishes to take Heather that is predicated upon some economic, educational, religious, health, or emotional compulsion dictating or justifying such a drastic move in the life of Heather at this time. All of the child’s ties are in Pennsylvania. Her significant relationships here are bound up in her teachers, classmates, friends, and relations who give her that abundance of self-assurance and a glowing view of life at this crucial time in her young life. With both parents remaining in Pennsylvania, nothing could give Heather more contentment.

Order of the lower court affirmed and Kathleen, the mother is given 30 days within which she is to decide whether she will live in Pennsylvania or Iowa, thus resolving the problem of primary-partial physical custody.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting.

I respectfully dissent.

In the instant appeal, Heather’s best interest is the primary issue and her welfare should remain the focus of our opinion. After reviewing the trial court’s evaluation of this case, I do not dispute that Heather’s best interest may well be served in Pennsylvania. Clearly, many of her ties are within this state.

However, I disagree with the majority’s analysis granting Kathleen thirty days to decide whether she will live in Pennsylvania or Iowa. This ruling is unduly restrictive. It infringes on Kathleen’s constitutional right of interstate travel. Additionally, it does not settle the issue of which parent can best provide for Heather’s needs.

Custody awards do not hinge upon a parent’s decision whether to move out of state. Instead, where both parents are equally fit, the court’s duty is to balance all of the facts and circumstances of a given case to determine who will serve the best interests of the child. Murphey v. Hatala, 350 Pa.Super. 433, 438-39, 504 A.2d 917, 920 (1986). The law is replete with cases enunciating this standard. See Albright v. Commonwealth ex. rel. Fetters, 491 Pa. 320, 323, 421 A.2d 157, 158 (1980). Case law further indicates that a child of tender years will adjust to a new environment if s/he is moved. The focus of these decisions is on the strength and stability of the relationship between the parent (generally the primary caretaker) and the child, not the potentially adverse effect of interstate movement. See Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 44-45, 446 A.2d 1323, 1326-27 (1982); Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982); Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (in deciding a custody dispute, parent’s intention to remove the child from the state was not a controlling consideration); Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974) (welfare of the child is the primary factor to consider in awarding custody).

Here, the trial court’s order provided primary physical custody to Kathleen and partial physical custody to Robert, conditioned on Kathleen’s remaining in Pennsylvania. In the event that Kathleen moved, primary physical custody would shift to Robert.

These being the circumstances, I would reverse the court’s order and remand with instructions to place Heather in the more suitable environment. To accomplish this end, the trial court should evaluate the child’s situation as a whole, taking into account the reasons that it initially placed primary care for the child with her mother. See Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983); see also Mahoney v. Mahoney, 354 Pa.Super. 585, 512 A.2d 694 (1986) (focus of custody suit was on the strength of the parents’ relationship with the child). If, after considering all of the pertinent facts, the court deems that despite Kathleen’s fitness, Heather’s best interest will be served with her father, then primary physical custody should be placed with him. Further, if the trial court finds that it would be in Heather’s best interest to remain in Pennsylvania, then its order should explicitly reflect this decision. In the instant case, the majority’s review has exceeded the scope of the trial court’s order by adding a thirty-day time limitation in which Kathleen is to choose whether to remain in Pennsylvania or move to Iowa.

The trial court’s order conditions Heather’s custody on her mother’s choice of residence, without any discussion as to corresponding constraints on Robert. There is no guarantee that Robert will choose to stay in Pennsylvania. Nevertheless, the court’s order does not prohibit him from changing his residence. The effect of the court’s order, therefore, is not only an interference with Kathleen’s right to interstate travel, but an unequal application of the restriction as well. In light of the majority’s opinion, I question whether this court’s decision would have been the same if Kathleen chose to move to New Jersey or across town instead of to Iowa. See Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 108-09, 296 A.2d 625, 627 (1972) (paramount interest in a custody contest is the child’s “physical, intellectual, spiritual and emotional Well-being”; all other interests are subordinate thereto).

The evaluation of the custody issue should have ended with a discussion and resolution of Heather’s best interest. The ultimate decision in this case should not be predicated upon whether or not Kathleen decides to move, for this completely discounts the possibility that Heather’s best interest may be with her mother. See Egelkamp v. Egelkamp, 362 Pa.Super. 269, 273, 524 A.2d 501, 503 (1987) (primary caretaker provides stability and continuity to a child); see also Murphey v. Hatala, 350 Pa.Super. 433, 446, 504 A.2d 917, 924 (1986) (judge must award custody to parent who has proved superior fitness by a preponderance of the evidence); Commonwealth ex rel. Steiner v. Steiner, 257 Pa.Super. 457, 390 A.2d 1326 (1978) (conditioning a custody award upon an agreement to remain in the jurisdiction represents an undue restraint on the freedom to travel).

      . I note that the trial court’s order did not place a thirty-day contingency on Kathleen’s decision. There is no indication in the record that the trial court intended to force Kathleen into making her own custody determination; rather, the order placed primary physical custody of Heather with her mother, unless and until Kathleen moved to Iowa.

      . In the event that Robert’s circumstances should change, Kathleen should be made aware of her option to file a petition for modification of custody.


text:
    569 A.2d 357
    Dorothy KLUDO, Appellant, v. Ronald G. KLUDO, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1989.
    Filed Jan. 30, 1990.

      Dennis P. Zawacki, Pittsburgh, for appellant.
    C. Gus Kwidis, Beaver, for appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Dorothy Kludo, Appellant, and Ronald Kludo, Appellee, were divorced in March, 1987 after twenty-five years of marriage. The parties agreed to a consent decree which was entered in December, 1987, leaving the question of alimony to be decided by the trial court. Mrs. Kludo appeals from the trial court’s final decree raising the principal question of whether 501(c) of the Divorce Code as amended, effective February 12, 1988, should apply to her alimony award even though the decree in divorce pre-dated the amendment. We hold that the amended statute does apply.

On April 15, 1988, the trial court awarded Wife $1,500.00 per month for a period of five years beginning January 1, 1988. After that, Husband was to pay Wife permanent alimony of $1,000.00 per month until Wife was 59 and lh years of age or until she was able to draw from the pension fund with maximum tax advantages. The trial court arrived at the $1,500.00 per month figure by accepting Wife’s calculation of her monthly expenses as $2,774.00. The trial court then took into account the interest it expected Wife to receive from the $200,000 in liquid or liquidatable assets available to her. The interest amount was set at 8% per annum of the $200,000 or $1,333.00 per month. Subtracting the $1,333 in interest from the necessary expenses of Wife, the trial court decided upon an alimony award of $1,500 per month for the first five years.

After hearing arguments on post-trial motions, the trial court modified its award to Wife. The court concluded that it had mistakenly used Section 501(c) of the Divorce Code (23 P.S. § 501) as amended, Act No. 1988-13, § 501, effective February 12, 1988 instead of the Section 501(c) which was in effect before the 1988 amendments. The trial court reasoned that because the divorce was granted to the Kludos on March 2,1987, and all other claims, except Wife’s claim for permanent alimony, were disposed of in a consent decree dated December 24, 1987, the pre-1988 Section 501 was the appropriate Section to use. The trial court then modified the Wife’s alimony award to $1,500 per month for three years and $500 per month until she is 59V2 years old. The trial court described the difference between the pre1988 Section 501 and the amended Section 501 as follows:

A principal thrust of the 1988 amendment to Section 501 was largely to eliminate the rehabilitative aspect of permanent alimony. This was a significant change. Under Section 501(c) (which was deleted entirely by the 1988 amendments), in awarding permanent alimony a court was bound to ‘limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by: (1) obtaining appropriate employment; or (2) developing an appropriate employable skill.’ There is little if any dispute that (Wife) worked outside the home before and during the marriage; with further education and some on-the-job training she is capable of obtaining employment requiring significant skills.
Aware as we are of the rehabilitative aspect of the previous Section 501, and of the substantial distribution of marital property which (Wife) has received, we are nonetheless constrained to return to certain factors which guided us in the entry of our decree nisi. (Wife) has made an enormous contribution to (Husband’s) education and training and his increased earning power. She worked outside the home (and as a typist in it), while the parties’ children were young, to help pay for (Husband’s) osteopathic training. Throughout the marriage she was a homemaker and, in the early days of (Husband’s) practice, she worked in his office. Then, when (Husband’s) practice began to flourish, he left (Wife) for another woman. Wife will now be deprived of the benefits of (Husband’s) greatly enhanced earning power which she has done so much to create.
We feel that to entirely terminate (Wife’s) alimony payments before she reaches the age of 59V2, and can begin to realize income from the retirement fund which she received under the equitable distribution decree, would be ‘mechanistic’ and an ‘unjust or unreasonable decision.’ It would simply be wrong to deny (Wife) any participation whatever in (Husband’s) increased earning power during those years.

Wife argues that the trial court erred when it applied the pre-1988 Section 501(c) instead of the amended Section 501(c). We agree and note that this is the first time this question has come before this court. We hold that the appropriate Section 501 to be used is the one in effect when the initial alimony award is made.

When interpreting a statute, we are required to “give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). When interpreting the Divorce Code, we must do what is necessary to “effectuate economic justice between the parties.” 23 Pa.S.A. § 102(a)(6) in Pacella v. Pacella, 342 Pa.Super. 178, 186-187, 492 A.2d 707, 713 (1985). In Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff'd 498 Pa. 570, 449 A.2d 1378 (1982), husband began a divorce action against wife on January 2, 1979. The new Divorce Code came into effect on July 1, 1980. On July 29, 1980, before a final decree was entered, wife filed an application that the action proceed under the Divorce Code. (See 23 Pa.S.A. § 103, below). The trial court denied the application and wife appealed. This court ruled that the trial court, before denying the application, should have asked whether granting it would have furthered the policy of the Commonwealth. 293 Pa.Super. at 496, 439 A.2d 683.

The policy of the Commonwealth is codified in 23 Pa.S.A. § 102. Construing this statute, this court in Gordon concluded that the Commonwealth’s policy would be best served by granting the wife's application since this would allow the achievement of the General Assembly’s most recent objectives in regards to the Divorce Code.

The same rationale holds true in our present case. Although a divorce decree was granted to the Kludos, the divorce proceedings were bifurcated. Part of the policy behind bifurcation is that it allows a divorce decree to become final, and thus appealable, even though economic issues remain unresolved. Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988). There is no mandate, however, from the General Assembly that requires us to peg the date of the divorce decree as the date to use when applying Section 501. It can be years after a divorce decree is entered before an alimony award is made. The present case shows how the General Assembly’s policy towards alimony can change between the date of the divorce decree and the date of an alimony award. We hold that the economic justice intended by the General Assembly can best be effectuated between the parties involved by applying the statute in effect when the initial alimony award is made.

Section 103 of the Divorce Code does not mandate a different result. Section 103 defines the Construction to be given to the Divorce Code and reads

The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded under the laws in existence when such suit or action was instituted not withstanding the repeal of such laws by this act, or upon application granted under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.

23 P.S. § 103 (1980, April 2, P.L. 63, No. 26, § 103) The effective date of the Act as referred to in Section 103 is July 1,1980. The purpose of this Section was to provide for the disposition of divorce actions pending when the Act was passed. Also, it clearly establishes that prior divorces would not be affected by this new change allowing for alimony and equitable distribution of property. Section 103 was not meant to prohibit amendments to the 1980 Divorce Code from applying to initial orders granted after the effective date of the amendment.

We note that the trial court opinion, excerpted above, makes the correct distinction between the pre-1988 Section 501(c) and the amended Section 501(c). The pre-1988 Section 501(c) does not allow for the granting of permanent alimony. The trial court, however, while saying that it is construing the pre-1988 Section 501(c), makes an alimony award to wife which seems to include permanent alimony. Because this is unclear, we vacate the award and remand to the trial court so that it can make an alimony award applying Section 501(c) as amended.

Decree vacated and remanded.

      . The amended Section 501(c) reads
      The court in ordering alimony shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances.
      The pre-1988 Section 501(c) read
      Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
      (1) obtaining appropriate employment; or
      (2) developing an appropriate employable skill.

      . Legislative Findings and Intent

      (a) The family is the basic unit in society and the protection and preservation of the family is of paramount concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
      (1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
      (2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
      (3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
      (4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
      (5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.

        (6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
      (b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.


author: ROWLEY, Judge: KELLY, Judge,

text:
    569 A.2d 360
    COMMONWEALTH of Pennsylvania v. Thomas William SHAFFER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1989.
    Decided Jan. 29, 1990.
    Petition for Allowance of Appeal Denied June 12, 1990.

      John P. Liekar, Public Defender, Canonsburg, for appellant.
    Mary B. Seiverling, Deputy Attorney General, Harrisburg, for Com., appellee.
    Before ROWLEY, KELLY and CERCONE, JJ.
   ROWLEY, Judge:

This is an appeal by Thomas Shaffer from an order of the Washington County Court of Common Pleas denying him relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In Washington County, Appellant was charged with one count of criminal conspiracy; one count of possession with intent to deliver a controlled substance (hashish); and one count of possession of a controlled substance. He also faced other federal criminal charges as well as criminal charges in Fayette County.

Following an extensive plea colloquy on June 4, 1984, at which Appellant was represented by private counsel and during which Appellant was advised of his rights and the potential ramifications of a negotiated plea agreement, he pleaded guilty to the Washington County charges. He was sentenced to a term of three and one-half to ten years imprisonment which was to run concurrently with any sentence imposed by the federal court and the trial court in Fayette County. He was also fined $5000.00 and was ordered to pay $5067.62 investigation costs. Although advised of his right to petition to withdraw his guilty plea, Appellant did not seek to withdraw his plea, nor did he file a post-sentencing motion. No direct appeal was filed.

On June 5, 1985, represented by new counsel, John Liekar, Esq., Appellant filed a petition pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (Purdon 1982) (repealed 1988). He based his claim for collateral relief on allegations of ineffectiveness of his plea counsel and inducement of his guilty plea by the Attorney General’s office. Specifically, he claimed that the plea was unlawfully induced by promises of a “lesser state sentence than his federal sentence.” He claimed his plea counsel was ineffective for failing to request a presentence report, for not challenging the court’s jurisdiction, and for waiving both bond reduction and preliminary hearings.

The 1985 PCHA petition was never disposed of by the trial court because Appellant, acting on his own despite the appointment of Attorney Liekar to represent him, withdrew the petition. In June 1986, Appellant, through Attorney Liekar, filed a “Motion for Inspection of Document” in which he asserted that he wanted to “reinstate” his 1985 PCHA petition, and that in order to prepare for the hearing thereon he needed a copy of a deposition given by him to a state trooper in 1984. Appellant claimed that the Commonwealth had refused to furnish him with a copy of the deposition. The Motion was granted. However, no amended PCHA petition was filed.

In August 1988, two years after his Motion for Inspection of Document was granted, Appellant, acting pro-se, filed a second post conviction petition (PCRA petition). In the PCRA petition, appellant asserted that the fines, fees, and costs imposed were excessive and burdensome and that the investigative fee was duplicative and improperly calculated. A hearing on this petition was held on September 22, 1988. Appellant was not represented by counsel at that time.

On October 11,1988, Appellant filed (1) a pro-se motion to amend the August 1988 PCRA petition, (2) a pro-se amended PCRA petition, and (3) a pro-se motion for appointment of counsel. The trial court granted the petition to file the amended pro-se PCRA petition and also granted the motion for appointment of counsel by ordering John Liekar, Appellant’s previous post-conviction counsel, to represent Appellant in the instant PCRA proceedings.

In his October 1988 pro-se amended PCRA petition, Appellant again alleged the ineffective assistance of his plea counsel and the unlawful inducement of his guilty plea. Appellant also alleged that his plea was unlawfully induced because of the use of perjured testimony of a government witness, use of an illegal subpoena to coerce another individual’s confession, shared use of narcotics by a state trooper and a witness, perjured testimony of the state trooper at Shaffer’s bail hearing, and the government’s decision to “let forty-one co-conspirators go.” Appellant also asserted that his plea counsel misinformed him about where he would serve his sentence and that he could get a sentence reduction via the PCHA. In addition, he alleged that his plea counsel (1) told him to “stand mute” at the plea sentencing proceeding and (2) failed to file an appeal based upon a witness’s supposedly perjured testimony before the grand jury.

On January 4, 1989, a hearing on the amended PCRA petition was held. Testimony was limited to the reasons for Appellant’s withdrawal of his June 5, 1985, PCpA petition. Following the hearing, Appellant’s October 11,1988, amended PCRA petition was denied on. the basis that the issues raised therein, or which could have been raised therein, including plea counsel’s ineffectiveness, had been waived by appellant’s failure to pursue his 1985 post-conviction proceeding.

In the instant appeal from the trial court’s denial of his 1988 amended PCRA petition, appellant argues that if the issues raised therein were waived, it was only because of counsel’s ineffectiveness, which ineffectiveness constitutes an extraordinary circumstance excusing the waiver. Appellant’s brief does not specify which counsel’s ineffectiveness constituted the extraordinary circumstances precluding waiver. However, in his brief he asserts that the ineffectiveness of “all prior counsel” have been alleged. Because Appellant was represented through his sentencing by his first counsel, and because his present counsel first represented him during the filing of the first PCHA petition in 1985, the present claim that the ineffectiveness of “all prior counsel” has now been raised necessarily includes an assertion of present counsel’s ineffectiveness in the first PCHA proceedings. Not only is it inappropriate for counsel to raise his own ineffectiveness, but counsel has raised this issue for the first time in the instant appeal. Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983). Moreover, present counsel has given no specific indication of the manner in which his representation of Appellant was ineffective. See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Without inquiring into the claims of ineffectiveness of counsel, however, we agree with the trial court that the issues raised in the amended 1988 pro se PCRA petition have been waived because of the withdrawal of the 1985 PCHA petition.

The burden of establishing that the issues now raised were not waived was on Appellant. See Commonwealth v. McAndrews, 360 Pa.Super. 404, 520 A.2d 870 (1987). The PCRA provides that an issue is waived if an issue could have been raised and Appellant failed to raise it in, among other things, “a prior proceeding actually initiated under this subchapter.” 42 Pa.C.S. § 9544(b). Where an Appellant has voluntarily withdrawn a previous post-conviction petition, and then files a subsequent post-conviction petition, the second petition will be dismissed unless the withdrawal of the first petition was not intelligent. Commonwealth v. Hamzik, 429 Pa. 490, 240 A.2d 495 (1968). Similarly, where an issue is raised in a post-conviction petition, but is not pursued at a hearing, it is deemed to be waived unless the failure to pursue the issue was not knowing and understanding. Commonwealth v. Payton, 440 Pa. 184, 269 A.2d 667 (1970).

Appellant asserts that his 1985 PCHA petition was withdrawn without prejudice based on a letter written by him requesting the same. Appellant, however, never filed the letter requesting the withdrawal without prejudice, and neither the letter nor any order of court granting a withdrawal of the petition without prejudice appears in the original record or in the list of certified docket entries. In fact, the only evidence concerning the disposition of the 1985 PCHA petition is a paragraph from a document filed by Attorney Liekar in June 1986 and Appellant’s testimony at the PCRA hearing in January 1989.

Paragraph 4 of the Motion for Inspection of Document, filed by Attorney Liekar in June 1986, asserts that a hearing on the 1985 PCHA petition had been scheduled for August 6, 1985, “but by letter, defendant requested a withdrawal of this Petition without prejudice, and therefore, a hearing was not held.” Although Attorney Liekar had been appointed to represent appellant with regard to the 1985 PCHA petition, and in fact the 1985 PCHA petition was filed on behalf of Appellant by Attorney Liekar, there is nothing of record to suggest that Attorney Liekar had prior knowledge of Appellant’s request to withdraw his petition at the time the request was made, or counseled Appellant to withdraw the petition. The 1986 Motion for Inspection of Document asserts that “defendant ” requested the withdrawal of the petition, and there is no document of record indicating that the letter was written by, or with the advice or knowledge of, Attorney Liekar.

Moreover, Appellant’s testimony at the January 1989 hearing on the amended 1988 PCRA petition indicates that the decision to withdraw the 1985 PCHA petition was his alone. In response to the question, “And you yourself requested that the Petition be withdrawn,” Appellant answered, “I did.” (N.T. 1.4.89, p. 16.) Appellant then went on to explain why he requested that the petition be withdrawn. Appellant claimed that before he pled guilty to the charges in the present case, State Trooper Spiewak had promised plea counsel that Appellant’s sentence would be less than and concurrent with a Federal sentence to be imposed on related charges. After he was sentenced and serving time in jail, a second state trooper, Trooper Armenize, contacted Appellant in jail in an effort to obtain information about an unrelated crime. Before giving any information to Trooper Armenize, Appellant told the trooper “there’s two things that I want if I give you what you want, and one is that you uphold Trooper Spiewak’s promise that I will not serve an overlapping or a longer state sentence than my Federal Sentence.” (N.T. 1/4/89, p. 19.) Appellant testified that Trooper Armenize agreed to what Appellant wanted, and Appellant then advised the Trooper that he would file two PCHA petitions, one with regard to the charges in the present case, and one in Fayette County on related charges.

Appellant filed both PCHA petitions, but proceeded on the Fayette County petition first. At the hearing thereon, Appellant concluded that Trooper Armenize did not live up to his promise. However, because Appellant was advised that his statements to Trooper Armenize regarding the unrelated charges would still be used in a separate prosecution, but that the investigation of the unrelated charges was still ongoing, appellant “felt that my best position at that juncture was just to waive it temporarily or until they settled this matter and proceed with it later.” (N.T. 1.4.89 p. 20.) Appellant also testified that he withdrew the 1985 PCHA petition because he was waiting for the outcome of his federal habeas corpus petition.

Significantly absent from Appellant’s explanation for his decision to withdraw the 1985 PCHA petition is any mention of a discussion of the idea with his appointed counsel, Attorney Liekar, or notification to Attorney Liekar of his decision to withdraw the petition. On the contrary, it appears from Appellant’s testimony that he, on his own initiative, decided to try to cut an off-the-record deal with the State Police to have his sentence reduced after he had already been sentenced, rather than pursue collateral proceedings for redress from the alleged ineffectiveness of his plea counsel and alleged non-compliance with his plea agreement. He also decided that only if he could not achieve his goal through his own ability to deal with and obtain the cooperation of the State Police, would he then try to achieve his objectives by on-the-record legal proceedings to challenge his plea.

Appellant has failed to provide any evidence that either Trooper Armenize or Attorney Liekar advised Appellant to withdraw his 1985 PCHA petition. In addition, the promise of Trooper Armenize to try to have Appellant’s sentence reduced was not conditioned upon Appellant’s withdrawal of his PCHA petition as a quid pro quo. This is particularly evident since according to Appellant’s own testimony, Trooper Armenize said he would talk to the U.S. Attorney whom he knew before Appellant even mentioned his PCHA petition, let alone the withdrawal of the petition. Based upon the evidence which Appellant has produced, therefore, we can only conclude that the decision to withdraw the 1985 PCHA petition was entirely that of Appellant alone, without notification to or solicitation of the advice of Attorney Liekar who had been appointed to represent him.

Since the evidence reveals that the decision to withdraw the 1985 PCHA petition was a knowing, deliberate, intentional, and calculated choice by the Appellant, and since the filing of the 1985 PCHA petition initiated a prior proceeding under the PCRA, the issues raised in the 1985 PCHA petition, or which could have been raised therein, have been waived. Hamzik, supra; Payton, supra; 42 Pa.C.S. § 9544(b). Moreover, because Appellant was represented by counsel at the time that he withdrew the 1985 PCHA petition, and because there is no evidence whatsoever to indicate that counsel advised him to withdraw the petition, or was even consulted prior to the withdrawal of the petition, Appellant must accept the responsibility for his own decision to withdraw the petition. Under such circumstances no claim of ineffective assistance of post-conviction counsel for permitting Appellant to withdraw the petition can be substantiated. Because all of the issues raised in the amended 1988 PCRA petition either were or could have been raised in the 1985 PCHA petition, and because that petition was knowingly and intelligently withdrawn, the trial court correctly denied Appellant’s amended 1988 PCRA petition.

Subsequent to the submission of the instant appeal for disposition, several petitions were filed. First, Appellant, pro-se, filed a Motion for Leave to File Supplemental Brief. In response thereto, Appellant’s counsel filed an Application for Withdraw (sic) of Counsel, and appellee filed an answer to the pro-se Motion for Leave to File Supplemental Brief. Upon review of these petitions, we grant the pro-se motion to file the supplemental brief. However, our review discloses that the pro-se brief adds nothing materially significant to the counselled brief, particularly in light of our conclusion that Appellant’s withdrawal of his 1985 PCHA petition has resulted in the waiver of any issue raised or capable of being raised at that time. Counsel’s request to withdraw is denied.

Appellant’s motion to file a supplemental brief is granted; counsel’s motion to withdraw is denied; the order denying post-conviction relief is affirmed.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring.

I join the majority opinion. I write separately to note the significance of our allowance of “hybrid” appellate representation in this appeal.

In a collateral appeal, even if an appellant has no issues of arguable merit and counsel is permitted to withdraw on that ground, such an appellant is nonetheless permitted to file a pro se brief in support of any frivolous claims appellant seeks to raise. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). This being the case, I can see no reason to force an appellant on direct appeal to forego representation by counsel on claims of arguable merit, in order to pursue, by a pro se brief, claims or arguments which appellant’s counsel deems frivolous. Consideration of pro se supplemental briefs by this Court avoids that dilemma.

Hybrid representation of this kind, on appeal, presents none of the serious practical concerns which have caused courts to reject hybrid representation at the trial level. See Commonwealth v. Williams, 270 Pa.Super. 27, 34, 410 A.2d 880, 883 (1980); cf. McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (illustrating the difficulties of hybrid representation via participation of standby counsel in a jury trial conducted pro se). Allowance of written pro se supplemental briefs is highly unlikely to create the kind of circus atmosphere easily envisioned by having a pro se litigant supplement counsel’s efforts during a jury trial, or vice versa. If, as here, the pro se submissions are frivolities, they will be harmless ones. If, on the other hand, an arguable claim is raised in such a submission, the need to appoint new counsel to present the claim would be revealed. Cf. Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989); Commonwealth v. Ely, 381 Pa.Super. 510, 554 A.2d 118 (1988). In either case, the fact and appearance of justice is served by permitting the pro se submission.

      . Although the trial court's opinion recites that a hearing was held on this date, nothing in the original record certified to this Court evidences that the hearing was held. Because no transcript from this hearing has been filed and included in the original record, we cannot take cognizance of anything which may have transpired at that hearing. See, e.g., Goodman v. Goodman, 383 Pa.Super. 374, 556 A.2d 1379 (1989).

      . From the original record certified to this Court, it does not appear that counsel, Mr. Liekar, filed any supplemental PCRA petition after his appointment in October 1988. Thus, the only petition before the PCRA court was the one filed by appellant.


author: WIEAND, Judge: TAMILIA, Judge,

text:
    569 A.2d 365
    STATE FARM INSURANCE COMPANIES, Appellee, v. Donna HUNT, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1989.
    Decided Feb. 2, 1990.

      Stanton J. Goldman, Pittsburgh, for appellant.
    Stephen P. McCloskey, Washington, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

The order which is now before this Court for review directed Donna Hunt, the appellant, to submit to a physical examination pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Act.

The statute, at 75 Pa.C.S. § 1796, authorizes a court to require a claimant to submit to a mental or physical examination by a physician upon a showing of good cause whenever the mental or physical condition of the claimant is relevant to the claim. The requirement of good cause entails more than relevancy. It means that the reasons alleged in a petition must rise to a level of specificity which will insure that a claimant will not be forced to submit to unnecessary examinations in bad faith. State Farm Mutual Auto Insurance Co. v. Allen, 375 Pa.Super. 319, 323, 544 A.2d 491, 492 (1988), quoting State Farm Mutual Auto Insurance Co. v. Zachary, 370 Pa.Super. 386, 389-390, 536 A.2d 800, 801 (1987). “[The] petition must illustrate a need, rather than a mere desire, for an independent medical examination.” State Farm Mutual Auto Insurance Co. v. Zachary, supra. The existence of good cause will vary from case to case according to the nature of the alleged injury and the type of examination requested. Whether good cause has been shown must depend upon the exercise of sound discretion by the trial court, and the exercise of such discretion will not be reversed absent a palpable abuse thereof. Before ordering a party to submit to an examination, however, a trial court should require a showing that a bona fide controversy exists regarding the nature of the claimant’s injuries. It must also be shown that the requested mental or physical examination will substantially aid the insurer in evaluating the claim. State Farm Mutual Auto Insurance Co. v. Allen, supra; State Farm Mutual Auto Insurance Co. v. Zachary, supra. Whether the same information can be obtained by other means is also a proper consideration. State Farm Mutual Auto Insurance Co. v. Zachary, supra.

Donna Hunt was injured as a result of a vehicular accident on January 3, 1988. Following the accident, she did not receive any hospital treatment, either as an in-patient or as an out-patient. On the day following the accident, however, she began a series of treatments with Jack Taylor, a chiropractor. State Farm Insurance Company was the first party insurance carrier for Donna Hunt and paid all of Taylor’s bills up to and including December, 1988. In response to an inquiry made by State Farm in March, 1988, Taylor estimated that Hunt would require treatment for “approximately 12 to 24 weeks.” Despite this estimate, Taylor continued to treat the claimant up to and including March, 1989, when a petition to compel a physical examination was filed. In the interim, Hunt had refused State Farm’s requests that she voluntarily present herself for an examination by an orthopedic surgeon to determine whether she required continuing chiropractic treatment. Neither objective evidence nor medical opinion has been submitted to State Farm to support a continuing need for chiropractic treatments. The trial court found that these circumstances constituted good cause for requiring Hunt to submit to a physical examination. We find therein no abuse of discretion.

That there is a bona fide need for a physical examination of Donna Hunt seems clear. Although never hospitalized, she has been receiving continuous chiropractic treatments for a period in excess of fourteen months. This period exceeded by approximately five months the estimated period of treatment submitted to the insurer by Hunt’s own chiropractor. Thus, it seems patently clear that a physical examination by a physician will substantially aid the insurer in evaluating Hunt’s claim, in determining the nature of her injuries, and in assessing the need for continuing treatment. Indeed, it may appear that other, more satisfactory means are available to correct the condition from which she purports to suffer. Because good cause for a physical examination was shown, the learned trial judge did not abuse his discretion when he granted the insurer’s petition and required the claimant to submit to a physical examination.

Appellant argues that the trial court’s order was premature because depositions had not been taken pursuant to Pa.R.C.P. 209. In this case, however, depositions were unnecessary to establish good cause for requiring the claimant to submit to a physical examination. From the petition and answer, it is abundantly clear that the insurer was being asked to pay for continued treatments, that a bona fide dispute existed as to the need for continued treatments, that the insured had not been examined by a medical doctor or, if so, that the results of such an examination had not been made available to the insurer, and that a physical examination of the claimant would substantially assist the insurer in evaluating the claim and in determining the future course of any treatment which the claimant might require. From the pleadings, therefore, the trial court could determine, as it did, that the test for “good cause” had been met as defined in State Farm Mutual Auto Insurance Co. v. Allen, supra, and State Farm Mutual Auto Insurance Co. v. Zachary, supra.

The order of the trial court is affirmed.

TAMILIA, J., files a dissenting Opinion.

TAMILIA, Judge,

dissenting.

I respectfully dissent to the disposition by the majority which affirms the trial court in requiring the appellant to submit to a physical examination pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Act (MVFR). I do not believe the requirement of “good cause” as enunciated by State Farm Mut. Auto. Ins. Co. v. Allen, 375 Pa.Super. 319, 544 A.2d 491 (1988) (Wieand, J., dissenting), and State Farm Mut. Auto. Ins. Co. v. Zachary, 370 Pa.Super. 386, 536 A.2d 800 (1987), have been met. The majority would ignore the test clearly adopted in Zachary and followed in Allen. As in those two cases, State Farm, without further inquiry of the doctor treating appellant as to her continued need for treatment, or by means of interrogatories or depositions attempting to ascertain her condition, filed its motion for medical examination based on an early estimate of the time required for treatment. This does not carry the burden of establishing “good cause” for an intrusive medical examination which is required by 75 Pa.C.S. § 1796, that is, “[t]he order may only be made upon motion for good cause shown.”

In this case, the author of the majority, Judge Wieand, would adopt his view espoused in a dissent in Allen, supra, for a less stringent requirement for a showing of good cause. Nowhere in the majority is there an analysis of the required steps, in relation to the facts of this case, as established in Zachary and Allen, for a showing of good cause. Instead, the majority relies primarily on judicial discretion, without requiring: (1) that the proofs submitted in support of the claim are inadequate, i.e., that the information supplied by the claimant in support of his or her claim does not eliminate reasonable doubt as to the validity of the claim; (2) that the proposed examination will substantially assist the insurer in evaluating the claim; and (3) that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.

Admittedly, the requirements are stringent, but two panels of this Court have determined that a “good cause” showing must be established with sufficient specificity to avoid intrusiveness of a medical examination in a spurious manner. Mere continued need of treatment beyond the preliminary estimate of the time required for treatment is not a sufficient showing. Zachary and Allen make it explicitly clear how the burden is to be met for a good cause showing. In failing to do anything towards meeting this burden, beyond filing its motion alleging generalities, State Farm has failed to meet the test. I would vacate the Order for medical examination and remand for whatever further proceedings are necessary to comply with a good cause showing.

      . This is an appealable order. See: Keystone Insurance Co. v. Caputo, 365 Pa.Super. 431, 529 A.2d 1134 (1987).

      . Specifically, the statute provides as follows:
      (a) General rule. — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.

      . These payments were in the approximate sum of four thousand, five hundred ($4,500) dollars.

      . While the majority Opinion, in its final sentence (At p. 367), states the trial court determined that the test for "good cause” had been met as defined in Zachary and Allen, declaring it to be so does not make it so, when, in fact, judicial discretion is substituted for the three-part test required by those cases.