author: HOFFMAN, Judge: JOHNSON, Judge,

text:
    583 A.2d 474
    Giacomo Filippo BALLESTRINO v. Enrica BALLESTRINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1990.
    Filed Dec. 6, 1990.

      Frank Carano, Philadelphia, for appellant.
    Angela L. Martinez, Bala Cynwyd, for appellee.
    Before BEL SOLE, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant (Wife) appeals from the April 22, 1988 order entered by the Honorable Evelyn M. Trommer, which determined that a prior support order that had been incorporated in the parties’ 1986 divorce decree was modifiable. Wife also appeals from the June 20, 1989 order entered by the Honorable Jerome A. Zaleski, which granted in part the petition of appellee (Husband) to remit and reduce alimony. The effect of the latter order was to reduce Husband’s monthly obligation from $432 to $357. Wife contends that the court below erred in determining that the support order was modifiable. For the reasons set forth below, we quash the appeal from the order entered April 22, 1988, and we affirm the order entered June 20, 1989.

On April 9, 1986, Judge Trommer entered a decree and order divorcing the parties. The decree also incorporated by reference the terms of a stipulation entered into by the parties on October 15, 1985. The decree and order provides, in its entirety, as follows:

AND NOW, this 9th day of April, 1986, the Master’s Report in the above case having been duly approved, the Court by virtue of the authority vested in it by law, DECREES that GIACOMO FILIPPO BALLESTRINO AND ENRICA BALLESTRINO are hereby divorced from the bonds of Matrimony, and the said parties shall be at liberty to marry again.
AND IT IS FURTHER ADJUDGED AND DECREED, that the terms, provisions and conditions of a certain property settlement Stipulation between the parties dated October 15, 1985, and attached hereto, are hereby incorporated in this Decree and Order by reference as fully as though the same were set forth herein at length. Said agreement shall not merge with, but shall survive this Decree and Order.
IT IS FURTHER ORDERED AND DECREED that the alimony and support provisions of the agreement attached to this Decree and Order shall be incorporated into an order of the Domestic Relations Branch of the Court of Common Pleas of Philadelphia County, No__, and all payment thereunder shall be made through the Domestic Relations Branch of the Court of Common Pleas of Philadelphia County.

The October 15, 1985 stipulation incorporated in the decree provides in pertinent part:

Now, therefore, it is mutually stipulated and agreed as follows:
1. The Preliminary Objection of Defendant to the Complaint in Divorce Raising Questions of Jurisdiction be and are [sic] hereby withdrawn.
2. It is agreed that the Report of the Master SAMUEL C. STRETTON recommending that the Plaintiff be divorced from the Defendant on the ground of Indignities to the Person be approved by the Court conditioned upon the Plaintiff making the following payments to the persons and for the purposes designated;
(a) Plaintiff shall pay Defendant the sum of $4,000 in full settlement of arrearages for support of Defendant and her son, FABIO BALLESTRINO; $2,000 thereof to be paid upon execution of this stipulation and $2,000 thereof within 60 days after approval of the Master’s Report.
(b) Plaintiff shall pay Frank Carano, Esq. within 80 days after approval of the Master’s Report the sum of $2,000 for counsel fees due and owing by defendant to Frank Carano, Esq., and co-counsel.
(c) Plaintiff agrees to pay Defendant the sum of $482 per month from approval of the Master’s report for and during her natural life and so long as she remain unmarried.

In June, 1987, Wife instituted a contempt action against Husband for his failure to comply with the decree. As a result, the court ordered Husband to pay an additional $200 per month toward arrearages. To enforce this order, the court directed that Husband’s wages be attached.

On January 27, 1988, Husband filed a Petition to Remit and Reduce Alimony. He alleged that changes in his financial circumstances had occurred since the time the stipulation had been entered into. Specifically, Husband alleged that he had been permanently discharged from Ms employment which had paid $45,000.00 per year, and had secured other employment at substantially less pay. In addition, he had remarried and had a daughter who was two years old at the time of the filing of the petition. Following a hearing and briefing by the parties, Judge Trommer entered an order on April 22, 1988, finding that the support provisions of the decree were modifiable, and directing Wife to submit evidence of her income and expenses.

Thereafter, Judge Trommer became ill, and the matter was listed before Judge Zaleski On June 20, 1989, Judge Zaleski entered an order confirming Judge Trommer’s order and reducing Husband’s alimony payments to $857.00 per month. The reduction was based on the decrease in Husband’s income. Wife then filed the instant appeal from both the April 22, 1988 order and the June 20, 1989 order.

As a preliminary matter, we note that the appeal from the April 22, 1988 order is improper. Wife’s notice of appeal was filed on July 19, 1989, almost fifteen months after entry of the order. Thus, the appeal is untimely. See Pa.R.A.P. 902, 903. In addition, the appeal is improper because the April 22, 1988 order was a non-final order that did not end the litigation between the parties. See Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (en banc). Accordingly, we quash the appeal from the April 22, 1988 order. Our quashal of this appeal in no way affects Wife’s substantive rights, however, as her sole claim, properly presented in her appeal from the June 20 order, concerns the propriety of the conclusion that the original support order was modifiable.

The single issue presented on appeal is whether the court below erred in determining that the support provision contained in the parties’ stipulation, and incorporated in the divorce decree, was modifiable. It is settled that, if a property settlement agreement containing support provisions survives as an enforceable contract, it is governed by the law of contracts. See D’Huy v. D’Huy, 390 Pa.Super. 509, 518, 568 A.2d 1289, 1293 (1990) (en banc); Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc); McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987); see also Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). Thus, in such an instance, “the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible.” Dechter v. Kaskey, 379 Pa.Super. 45, 49, 549 A.2d 588, 590 (1988) (en banc) (construing Sonder v. Sonder, supra). If a property settlement agreement is merged into a divorce decree or court order, however, the agreement “take[s] on all of the attributes of support Orders for purposes of modification and enforcement.” Sonder v. Sonder, supra, 378 Pa.Super. at 512, 549 A.2d at 175. Such an agreement, therefore, “is no longer enforceable as a contract but is subject to the full range of modification and change permitted to court Orders under section 501(e) [of the Divorce Code, 23 Pa.Stat.Ann.]. It is also subject to enforcement provisions provided by section 503, Enforcement of arrearages.” Id., 378 Pa.Superior Ct. at 491-92, 549 A.2d at 164 (footnote omitted).

The question whether a settlement agreement should survive the divorce decree or be considered merged into the decree and subject to modification as a court order depends upon the intention of the parties. See Lipschutz v. Lipschutz, 391 Pa.Super. 537, 541-43, 571 A.2d 1046, 1049 (1990); D’Huy v. D’Huy, supra; see also Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990) (en banc) (plurality opinion); Sonder v. Sonder, supra. And, of course, the intention of the parties generally is determined by examining the terms of the agreement itself. See, e.g., Lipschutz v. Lipschutz, supra; McGough v. McGough, supra.

Appellant argues that this case is controlled by McGough v. McGough, supra. In McGough, the parties entered into a property settlement agreement that provided for support, and the subsequent decree in divorce incorporated the settlement and provided further that the agreement “shall not merge with but shall survive this Decree and Order.” 361 Pa.Super. at 393, 522 A.2d at 639. The McGough panel rejected the Husband’s claim that this agreement was modifiable, reasoning as follows:

The terms of the property settlement agreement demonstrates a clear intent on the part of both parties to enter into a binding contract. The document contains the statement “Husband and Wife now desire to settle and determine for all time their mutual property rights”. Immediately prior to the covenants providing for marital property division and support obligations, there is a statement of the parties’ intent to be legally bound____ [T]he agreement was a detailed contract covering all aspects of the economic relationships of the parties and the amount of support provided was not unfair or inadequate. Both spouses were represented by counsel and the agreement reached cannot be termed one-sided.
From the foregoing it is evident that both appellant and appellee fully intended to enter into an enforceable contract in accordance with the terms of the property settlement agreement---- Nothing suggests that this agreement was entered into with an understanding that it would later merge into a divorce decree and thereby be rendered modifiable by the courts. To the contrary, the agreement suggests that appellee relinquished valuable property rights and potential claims for counsel fees and costs in exchange for and in reliance upon certain promises made by her husband—including his promise to pay a fixed amount of child support per month.
We note further that the divorce decree, despite the arguable inconsistency, was quite explicit in stating that there would be no merger and that the property settlement agreement would survive as an enforceable contract.

Id., 361 Pa.Superior Ct. at 394-95, 522 A.2d at 640.

In the case at bar, the stipulation stated that it was the “desire of [Wife] to withdraw [her] Preliminary Objections, and to resolve other disputes between the parties.” The parties then stipulated that Wife’s jurisdictional objections would be withdrawn, and a divorce on the ground of indignities (grounds that Husband sought) should be approved by the court. In return, Husband agreed to pay Wife $4,000 in arrearages for support of Wife and her son, $2,000 for Wife’s attorneys’ fees, and monthly support of $432 “for and during her natural life and so long as she remain unmarried.” The stipulation was signed by both parties and their counsel.

At first blush, Wife’s claim that McGough governs this case appears to be persuasive. The case is similar to McGough in that the stipulation is not one-sided, as Wife withdrew her objections concerning jurisdiction and the basis for the divorce (indignities), in return for economic concessions made by Husband. Moreover, it is undisputed that both spouses were adequately counselled, and that the amount of support is adequate. In addition, the stipulation purports to resolve economic issues involving support, counsel fees, and arrearages. And, finally, as in McGough, the stipulation is silent with regard to whether it was intended to survive the decree in divorce or to merge into it, and the only reference to merger is contained in the divorce decree itself, which states that the stipulation “shall not merge with, but shall survive this Decree and Order.”

Despite these similarities, Wife’s assertion that the facts in McGough are “on all fours” with this case is overstated. Here, unlike McGough, the stipulation does not purport to be a “detailed contract covering all aspects” of the parties’ economic relationship. Moreover, there is no joint statement of the parties’ desire to determine “for all time” their property rights, and there is no separate statement of the intention to be legally bound. Finally, although the stipulation does not state that it would later merge into a divorce decree, it clearly was entered into in contemplation of the divorce decree, as the parties conditioned their obligations on the court’s approval. See para. 2, 2(a)-2(c). Thus, the stipulation here contains a far less clear indication of the parties’ intent with regard to merger and modification than did the agreement in McGough.

If Wife were correct that all that is present in this case is the parties’ silence concerning merger and the decree’s exclusion of merger, there would be little question that McGough would require a holding that the support provision is not modifiable except “in accordance with the law regulating contracts through proceedings of law or in equity.” See Sonder v. Sonder, supra, 378 Pa.Super. at 513, 549 A.2d at 175; McGough v. McGough, supra, 361 Pa.Super. at 393, 522 A.2d at 639-40. However, Husband argues, and we agree, that the court’s finding of modifiability clearly is proper when it is considered in light of Wife’s actions since entry of the decree, and the parties’ silence regarding merger.

Husband notes that in 1987 Wife instituted a contempt action against him based on his failure to pay support. As a result, the trial court ordered Husband to pay an additional $200 per month to pay off arrearages. In so doing, the court ordered that Husband’s wages be attached. As we have already noted, such relief is proper only if the support provision merged into the court order, and was not an independently enforceable contract. See Sonder v. Sonder, supra; see also Dechter v. Kaskey, supra. In light of these facts, Husband argues that:

having previously used the enforcement and contempt powers of the court and received the advantages thereby, the appellant/wife can not now claim that the said Stipulation is a contract, enforceable only as such____ The same authority by which Judge Trommer granted her requested relief in 1987 is the same authority by which Judge Trommer found the agreement to be modifiable and by which Judge Zaleski did in fact modify the Order.

Appellee’s Brief at 9.

Husband’s point is well-taken. Where the parties have been silent on the question of modifiability, and the court already has employed the vast powers of contempt and attachment to enforce a support order in favor of the other party, we cannot conclude that the court erred in determining that the order was modifiable.

We find further support for this conclusion by reference to principles of estoppel. As the panel in Lipschutz v. Lipschutz, supra, noted: “[judicial estoppel provides that a party to an action will be estopped from asserting a position inconsistent with his/her assertion or claim in a previous action, particularly if his/her contentions were successfully maintained.” 391 Pa.Super. at 547, 571 A.2d at 1052 (citing Associated Hosp. Serv. of Philadelphia v. Pustilnik, 497 Pa. 221, 489 A.2d 1149 (1981)). Here, although Wife did not “successfully maintain” in her contempt action that the support provision was modifiable, she nevertheless was successful in having the provision enforced under the Divorce Code, and she did not seek relief under contract and equity principles. In such a situation, it is not improper for the court to refuse to entertain a later claim that the support provision is governed only by contract law.

For the foregoing reasons, we find that the court below did not err in determining that the support provision incorporated into its divorce decree was modifiable. Accordingly, we affirm the order entered June 20, 1989.

Appeal from the order of April 22, 1988 quashed. Order of June 20, 1989 affirmed.

JOHNSON, J. files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I join my esteemed colleagues in concluding that the appeal taken on July 19, 1989 from a trial court order entered on April 22, 1988 must be quashed for the reasons set forth in the majority opinion. I also agree that we are presented with a single issue for review: May an agreement of support contained in a property settlement agreement be modified when such agreement is incorporated in a decree of divorce which provides that “said Agreement shall not merge with, but shall survive this Decree and Order”?

For me, the answer is found in § 401.1 of the Divorce Code, 28 P.S. § 401.1 (as amended by the Act of February 12, 1988, P.L. 66, No. 13, § 2) (Act No. 13). Under that amendment to the Code, a court may enforce all divorce agreements but may not modify them unless the agreement specifically provides for modification. In the case before us, there is no provision set forth in the agreement for modification. Modification is prohibited under the Code. I, therefore, would reverse the order which sought to reduce the alimony payments of Giacomo Filippo Ballestrino (Husband). Accordingly, I must dissent.

On February 12, 1988, the state legislature enacted 23 P.S. § 401.1 which provides:

(a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

23 P.S. § 401.1 1980, April 2, P.L. 63, No. 26 § 401.1, added 1988, Feb. 12, P.L. No. 13, § 2, imd. effective, (emphasis supplied).

In a footnote, the majority opinion intimates that we cannot properly consider the applicability of the statute to the question presented on this appeal because of the statute’s “possible retroactive effect.” Majority opinion, page 242, n. 1. The majority does not explain what is meant by that phrase nor how the term has any applicability to § 401.1. While the opinion invites us to review earlier statements on the matter, I do not find those earlier footnotes any more helpful. Cf., D’Huy v. D’Huy, 390 Pa.Super. 509, 515 n. 2, 568 A.2d 1289, 1292 n. 2 (1990) (refusal by the en banc court majority to reach applicability of Act No. 18, in spite of special scheduling and briefing for just that purpose); Bell v. Bell, 890 Pa.Super. 526, 530 n. 1, 568 A.2d 1297, 1299 n. 1 (1990) (plurality opinion, same refusal).

Most recently, a panel of our court has continued the apparent technique of “rejection by footnote” with regard to the viability and applicability of Act No. 13. Nessa v. Nessa, 399 Pa.8uper. 59, 581 A.2d 674 (1990). Without setting forth the language from the Act which is claimed to be inapplicable, the panel declared, in passing:

____ The agreement contained a specific provision for incorporation and not merger, therefore, it survived as a contract and was not modifiable by the court.

Nessa v. Nessa, supra, 581 A.2d at 676, including n. 2.

Does the utilization or application of § 461.1 of the Divorce Code implicate issues of retroactivity? I submit that it does not. The comprehensive 1988 amendments to the Divorce Code were intended to be remedial in nature. It was thought that new § 461.1 would clarify and simplify future proceedings which dealt with the line of cases beginning with Brown v. Hall, 495 Pa. 685, 435 A.2d 859 (1981); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983); and Commonwealth ex rel. Tokach v. Tokach, 826 Pa.Super. 859, 474 A.2d 41 (1984). As the author of the Tokach opinion, I am acutely aware of the confusion arising in the domestic relations bar following its filing. And it is reasonable to accept that the two-year reform effort culminating in Act No. 13 was intended, in material part, to remove the uncertainty remaining in this area of our family law. For reasons that remain totally unclear to me, our court has been adamant in insisting that the only way to ameliorate the uncertainty is to publish more opinions which, in my humble judgment, have preserved and rigidified the uncertainty rather than lessened it. See, e.g., Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc, four separate opinions); Bell v. Bell, supra (plurality opinion, one concurring statement, three dissenting opinions).

What does § 401.1 purport to do? Subsection (a) does nothing more than to make the enforcement provisions of 23 P.S. § 401(k) and other remedies and sanctions under the Divorce Code available to any party to an agreement, so long as the agreement deals with “matters within the jurisdiction of the court under this act.” This relief is available “whether or not the agreement has been merged or incorporated into the decree” and “to the same extent as though the agreement had been an order of the court.” In my reading, and re-reading, of this subsection, I find nothing to even suggest that retroactivity is an issue where a petitioner comes into court seeking relief in praesenti.

Similarly, subsection (c) of § 401.1 very simply declares that contracts will no longer be modified by the courts “in the absence of a specific provision to the contrary appearing in the agreement. This subsection, together with subsections (a) and (b), all relate to the power of the common pleas court to provide, or withhold, relief at the present time, at the time the matter is before the hearing judge. There is absolutely nothing in § 401.1 which would empower a trial judge to amend, change or delete any provisions appearing in a written agreement. The drafters of a bill which operates to dictate future judicial conduct will be bemused, I feel certain, upon being told once again, through this decision, that the “retroactive provisions” of the Act preclude its implementation.

It seems almost disingenuous for our court to first declare, without any explanation, that a legislative enactment has “retroactive effect” and then to refuse to consider the applicability of the statute on the basis that “neither party has raised a question concerning the possible retroactive effect” arising therefrom.

And I fail to discern the distinction, apparently drawn by my colleagues in the majority on this appeal, between the “enforcement provisions” found in § 401.1(a), which are relegated to footnote 2 in the majority opinion, at page 247, but are found to be viable, and “the 1988 amendments ... concerning merger and incorporation” referred to in footnote 1 of the opinion, at page 242, which are beyond our review because of “retroactivity.” As far as I can perceive, the only reference to “merger and incorporation” to be found in § 401.1 is found in subsection (a) which the majority opinion concludes is operative.

My research has not disclosed any case which determines, in a straightforward manner, the effect of § 401.1 on agreements executed by the parties before the effective date of that provision. However, I conclude that the legislature clearly intended that § 401.1 govern the court’s authority over divorce agreements, including those executed before the provision was enacted. I further conclude that § 401.1 was narrowly drawn not to impair any substantive rights of the parties. Accordingly, I firmly believe that, even though neither party raised the applicability of § 401.1, that section governs the authority of the court in this legal area. Thus, it must be applied to the agreement under which Husband is obligated to pay Wife $432.00 per month.

Here, the divorce agreement between the parties contains no modification provision, and thus, § 401.1 by its terms precludes modification. However, at the time the agreement was executed, court-ordered modification may have been permissible under the then-existing law. Therefore, a concern arises among some of my colleagues regarding retroactivity of § 401.1, as it impacts upon modification of this agreement.

Although I firmly believe claims of retroactivity are, as suggested above, disingenuous, I am prepared to examine the issue which my colleagues have been reluctant to address.

Retroactivity has two components: first, one must be concerned with whether the legislature intended that § 401.1 affect an agreement existing prior to its enactment and second, one must be concerned that the provision does not impair any substantive rights of the parties. Although the effect that § 401.1 has on prior divorce agreements may be discussed in terms of whether the statute is in fact retroactive, I would separate this analysis, treating retroactivity only in terms of whether § 401.1 was intended to apply to past agreements and treating the statutes effect in terms of its constitutionality.

The analysis begins with a determination of whether the legislature intended that § 401.1 be applied retroactively, as against agreements executed before the statute. The general rule is that statutes will be considered only prospective in their application, unless the legislature clearly manifests a contrary intent. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). Although § 401.1 does not use the term retroactive, the statutory language nevertheless might be found to suggest an express intent that the statute be applied “retroactively.”

The statute unequivocally instructs that courts apply the statute immediately on its effective date of February 12, 1988. We should interpret this directive to mean that § 401.1 is to be applied both to actions pending in the trial court and to actions pending on appeal on February 12,1988 and thereafter. Nowhere does the statute restrict the application of its provisions to those agreements executed on or after February 12, 1988.

Obviously, many if not most cases pending on appeal and on the trial level at the time § 401.1 was enacted were cases involving agreements executed prior to February 12, 1988. The legislature, by requiring that the courts immediately aPPty § 401.1 and by not excepting from the statute those cases involving agreements executed prior to February 12, 1988, has indicated a clear intent to apply § 401.1 “retroactively.” This finding is consistent with the legislature’s intent that the equitable distribution provisions of the Divorce Code be applied retroactively and the Supreme Court and Superior Court decisions holding that retroactive application of those provisions neither violates due process, see Bacchetta v. Bacchetta, 498 Pa. 227, 234, 445 A.2d 1194, 1195 (1982), nor constitutes an unconstitutional impairment of contract, Nuttall v. Nuttall, 386 Pa.Super. 148, 562 A.2d 841 (1989).

Next, I will consider whether retroactive application of § 401.1 in particular violates due process considerations. It is within the state’s police power to provide for the orderly dissolution of marriages. Bacchetta v. Bacchetta, 498 Pa. at 232, 445 A.2d at 1197. Just as the legislature is permitted to oversee the distribution of the parties’ property upon divorce, it is equally empowered to permit the parties to come to an independent agreement about property distribution and other divorce related matters and to restrict the court’s involvement with these agreements. To determine whether the state’s police power is being exercised in a constitutional manner, we balance the interests of the parties to determine if retroactive application would be unreasonable. Krenzelak v. Krenzelak, 503 Pa. at 382, 469 A.2d at 991.

Traditionally, retrospective laws which have been deemed reasonable are those which “ ‘impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted.’ ”

Krenzelak v. Krenzelak, 503 Pa. at 382-383, 469 A.2d at 991 citing Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960).

Specifically, with regard to contracts, the Pennsylvania Supreme Court has held:

Any law which enlarges, abridges, or in any manner changes the intention of the parties as evidenced by their contract, imposing conditions not expressed therein or dispensing with the performance of those which are a part of it, impairs its obligation, whether the law affects the validity, construction, duration, or enforcement of the contract^] [emphasis supplied].
The amount of impairment of the substantive obligation of a contract is immaterial. Any deviation from its terms, however slight, falls within the meaning of the constitution[.] [emphasis in original].

First National Bank of Pennsylvania v. Flanagan, 515 Pa. 263, 270, 528 A.2d 134, 137 (1987) citing Beaver County Building and Loan Ass’n v. Winowich, 323 Pa. 483, 492-493, 187 A. 481, 485 (1936). Retroactive application of § 401.1 raises two concerns: whether court ordered modification is a substantive right of the parties’ agreement, and whether permitting the court to enforce divorce agreements which are not made part of a divorce decree and under prior law could only be enforced if the contract alters the intent of the parties as expressed by their agreement. A review of § 401.1 demonstrates that the provision does not impair contractual obligations, interfere with vested rights or unconstitutionally vary the remedies available under the parties’ divorce agreement.

First, retroactive application of § 401.1 does not interfere with any substantive rights of the parties in this case. Although § 401.1 prohibits modification while prior law, under certain circumstances, permitted it, there is no contractual obligation or vested right to modification of the parties’ independent agreement for support. Court-ordered modification of a support order does not become relevant until there has been a material change in the parties’ circumstances. Even then, it is within the trial court’s discretion to grant modification if it is sought by one of the parties.

Moreover, if there were a “right” to modification, this right would not be impaired by § 401.1. Where the parties have expressed a clear and unambiguous intention on the face of their agreement that the agreement shall be subject to modification by the court, modification by the court is permitted. See 23 P.S. § 401.1(c). Agreements relating to child support, visitation and custody may be modified regardless of the terms of the parties’ agreement. See 23 P.S. § 401.1(b). Cf., Bell v. Bell, supra, Montemuro, J., dissenting, 390 Pa.Super. at 538-540, 568 A.2d at 1303-1305. Accordingly, the legislature has exempted from its general rule of precluding modification those cases in which the intent of the parties, as evidenced by their agreement, could conceivably be affected by this legislation. Consistent with prior caselaw, agreements subject to modification may also be enforced by the court under the Divorce Code.

Second, while court enforcement of non-merged, non-modifiable agreements under the Divorce Code is a change in prior caselaw to the extent that before § 401.1, non-merged agreements could only be enforced in contract, see Lipschutz v. Lipschutz, 391 Pa.Super. 537, 543-45, 571 A.2d 1046, 1050 (1990) citing Dechter v. Kaskey, 879 Pa.Super. 45, 549 A.2d 588 (1988); see generally Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), this alteration in the manner in which divorce agreements may be enforced is not unconstitutional. The legislature may vary the remedies available to a party so long as the subsequent remedies are equally adequate and efficacious as the remedies which could have been obtained under the parties’ agreement. See Beaver County Building and Loan Association v. Winowich, supra, 823 Pa. at 492-494, 187 A. at 485-486. Enforcement of divorce agreements under the Code does not abridge the manner of enforcement which would otherwise be available under contract. Therefore, this change does not raise constitutional concerns.

Section 401.1 eliminates the complexity of prior caselaw in determining whether an agreement is modifiable. Most important, it permits the courts to enforce the parties’ agreement under the Divorce .Code, consistent with the Code’s general purpose to effectuate economic justice between the parties, as it is often the economically weaker spouse who is most harmed when the terms of the parties’ agreement are not honored and it is also that spouse who is least able to seek redress in the courts. In addition, this provision furthers this Commonwealth's strong policy of permitting the parties to amicably resolve their own affairs. Balancing the interests of the parties, whose substantive rights remain unaffected by this legislation, I would conclude that “retroactive application” of § 401.1 is both reasonable and constitutional.

The case before us presents the type of contradictions which under prior law would have presented a perplexing problem. Despite these contradictions, the disposition required under § 401.1 is straightforward. The statute makes no distinction between property settlement agreements and alimony, or agreements which have been incorporated or those which have been merged; in either case, the court cannot modify the agreement unless a specific provision of the agreement states otherwise. Here, no provision within the parties’ stipulation states that the agreement is subject to modification by the parties. Therefore, pursuant to subsection (c) of § 401.1, this agreement is not subject to modification. Even though the court may not modify the parties’ agreement, § 401.1(a) permits the court to enforce this divorce agreement without regard to whether it has been incorporated or merged. Accordingly, the trial court’s order requiring that Husband pay $200.00 per month in addition to his support payments to pay off arrearages and directing that Husband’s wages be attached was, in my view, entirely proper. Since the parties’ agreement was not modifiable by the court, I would reverse the order of June 20, 1989.

There appears to be a slight suggestion in the position of my colleagues on this court that the legislature is without power to correct confusion or uncertainty when it is found, and that only we jurists are capable of providing the necessary guidance to our trial courts and to the members of our family law bar in this area. To the extent that such a thought might be held, I would disclaim any association with it. The simplicity and utility of § 401.1 is to be admired and commended. The members of our profession who worked with our legislators in developing the 1988 reforms to the Divorce Code are to be applauded. I continue to believe that significant contributions to the development of the law is not the exclusive domain of our appellate courts but a responsibility and, indeed, a privilege and a duty, shared with our legislature. Section 401.1 is one of those significant contributions. I would hope we permit its intended use before the bramble bush grows any larger.

      . Neither party has raised a question concerning the possible retroactive effect of the 1988 amendments to the Divorce Code concerning merger and incorporation. See 23 Pa.Stat.Ann. § 401.1. Thus, we cannot consider this question. See D’Huy v. D’Huy, 390 Pa.Super. 509, 515 n. 2, 568 A.2d 1289, 1292 n. 2 (1990); see also Bell v. Bell, 390 Pa.Super. 526, 530 n. 1, 568 A.2d 1297, 1299 n. 1 (1990) (en banc) (plurality opinion by BECK, J.) (same).

      . We are aware that the 1988 amendment to the Divorce Code allows a party to utilize the enforcement provisions of the'Code even if the parties’ agreement was not merged into the divorce decree. See 23 Pa.Stat.Ann. § 401.1(a). Under this amendment, therefore, a party’s action in seeking enforcement under the Code could have no bearing on the question whether the parties intended that their settlement agreement should survive the divorce decree. Here, however, Wife’s contempt action was instituted, and she obtained relief, prior to this amendment.

       We also hold that this agreement is not affected by the amendment to the Divorce Code, § 401.1(c),.... as the agreement predated the amendment____


source: Caselaw Access Project

author: WIEAND, Judge: MONTEMURO, Judge,

license: Public Domain

text:
    583 A.2d 483
    Susan May LEIB, Appellant, v. Gary LEIB, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 12, 1990.
    Filed Dec. 7, 1990.

      Michael J. O’Connor, Frackville, for appellant.
    John G. Younglove, Hatboro, for appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   WIEAND, Judge:

Susan May Leib and Gary Leib were married on December 20, 1980 and lived in Montgomery County until August 19, 1989. On that day, Susan took the children, left the marital home and moved to Schuylkill County. There she filed a complaint in divorce on September 1, 1989. Gary filed preliminary objections in which he challenged, inter alia, the jurisdiction of the Schuylkill County Court to hear the divorce action. The trial court agreed that it lacked jurisdiction and dismissed the complaint. Susan appealed.

Jurisdiction to hear divorce actions is vested in the several courts of common pleas by section 301(a) of the Divorce Code of April 2, 1980. Section 302, however, provides that “[n]o spouse shall be entitled to commence [a] proceeding for divorce ... unless at least one of the parties has been a bona fide resident in this Commonwealth for at least six months immediately previous to the filing of the complaint.”

The trial court placed reliance on the provisions of section 301(d) and concluded therefrom that within the period of six months following separation a divorce action could be brought only in the county where the defendant resided or, with the defendant’s agreement, in the county where the plaintiff resided. When we are concerned about the county or counties within which the action may be brought, however, the issue is one of venue and not jurisdiction. Hohlstein v. Hohlstein, 223 Pa.Super. 348, 296 A.2d 886 (1972); Blair v. Blair, 195 Pa.Super. 406, 407-408, 171 A.2d 854, 855 (1961). Because section 801(d) is a rule of venue, it has been suspended absolutely by Pa.R.C.P. 1920.91(1). Venue in divorce actions is determined by Pa.R.C.P. 1920.2, which provides that an action in divorce may be brought in the county in which the plaintiff or the defendant resides. “Under venue [rules] applicable to divorce suits but containing no specification of an amount of time as to the plaintiffs residence in a particular county ... it is universally held that the residence need not have been continued for any particular length of time.” Blair v. Blair, supra at 408, 171 A.2d at 855, quoting 54 A.L.R. 899.

In the instant action, the wife-plaintiff has been a resident of Pennsylvania for more than six months. Therefore, the courts of Pennsylvania have jurisdiction to hear the action in divorce which she commenced against the husband-defendant. Venue of such an action may be laid in the county in which she resides. Because she resides in Schuylkill County, she could properly file her action in Schuylkill County. When the trial court held that the courts of Schuylkill County lacked jurisdiction to hear and decide the divorce action, it erred. The order dismissing the action on jurisdictional grounds, therefore, must be reversed.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

MONTEMURO, J., files a concurring statement.

MONTEMURO, Judge,

concurring:

I am in complete agreement with the majority’s reversal of the order in this case. I write separately only to emphasize that the rules involved here implicate venue, a purely procedural matter, not jurisdiction. Where statutes are inconsistent with rules set by the Supreme Court to whom the authority to promulgate such rules is vested, operation of the statute is suspended. Pivirotto v. City of Pittsburgh, 515 Pa. 246, 528 A.2d 125 (1987).

      . The complaint was served on Gary by certified mail pursuant to Pa.RX.P. 412.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.


author: KELLY, Judge:

text:
    583 A.2d 485
    Edward KRAKOVSKY, Appellant, v. Bernadette KRAKOVSKY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 5, 1990.
    Filed Dec. 7, 1990.

      Mark Clement, Pittsburgh, for appellant.
    Sanford A. Middleman, Pittsburgh, for appellee.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether the trial court was correct in retroactively converting an unallocated spousal and child support order that was continued after the entry of the divorce decree in a bifurcated proceeding into an order for alimony pendente lite and using the arrearage on the unpaid alimony pendente lite as a replacement for alimony when making its determination of equitable distribution of the marital assets. We find this retroactive conversion of the unallocated spousal and child support into an order for alimony pendente lite and the use of the arrearage on the order as a replacement for alimony to be improper; therefore, we vacate the order granting equitable distribution.

The relevant facts and complicated procedural history of this case are as follows. The parties were married in 1953 and had three children. The husband was the sole wage earner throughout the time period the couple resided together. The couple owned a home as tenants by the entirety. The parties separated in 1975, at which time an order was entered requiring the husband to pay $300 a month in support for the appellee and two minor children, Edward (D.O.B. 6/16/61) and James (D.O.B. 6/29/64). The couple reconciled briefly in 1976. The order was lifted; however, they separated again and the support order was reinstated. The support order was modified in January, 1980 to $290.00 when Edward Krakovsky attained the age of majority. The parties were divorced on February 2, 1981, in a bifurcated proceeding; however, the court ordered the support order to remain in force pending the outcome of the property settlement.

Shortly thereafter, inventories and appraisals of the marital property were filed with the court and a conciliation was ordered; but the conciliation which was scheduled for July 21, 1981, never took place. On March 17, 1982, shortly before the youngest child, James, reached the age of majority, the appellant, without leave of court, stopped making support payments to the appellee. No petition for modification was ever filed by the appellant, nor did the appellee ever initiate contempt proceedings.

Almost seven years later, on February 23, 1988, the appellee filed a praecipe for conciliation at which time a hearing was scheduled for March 30, 1988, before the trial court. The conciliation took place as scheduled, however, neither party was ready to proceed. The trial court rescheduled the conciliation to June 30, 1988, with the proviso that both parties be prepared to discuss their present economic circumstances and the extent and value of the marital property in the hopes of affectuating a settlement. At the conciliation, the appellant presented in open court a motion to cancel and strike arrearages. As a result of this motion, the trial court ordered that matters presented in the motion be reviewed by a hearing officer with all exceptions to be argued before the court.

On September 15, 1988, the hearing was conducted before a hearing officer in which she found that the January 1980 support order was actually an order for alimony pendente lite and that a support arrearage of $17,535 existed in the appellee’s favor. The hearing officer arrived at the arrearage figure by taking the total arrearage from the date the appellant stopped paying on the January 1980 support order and subtracting what she deemed to be the appellant’s child support obligation, which should have ended June 29, 1982, the date James Krakovsky reached the age of majority. She also ruled that appellant was not responsible for alimony pendente lite in 1985 because he was unemployed most of that year. The hearing officer recommended that the appellant be ordered to pay $200 a month in alimony pendente lite and $100 a month for the arrears. A temporary order was entered implementing the hearing officer’s recommendations. The appellant filed exceptions to the temporary order. The trial court then modified the order and halted the payment of alimony pendente lite and held payment on any arrears in abeyance for disposition incident to equitable distribution.

On April 5, 1989, following a hearing in which the trial court considered, inter alia, the parties’ income, health, and standard of living, the trial court entered a decree nisi awarding the appellee the marital home, and $1500.00 in counsel fees; the appellant was awarded exclusive rights to his pension from a previous employer. The trial court then adopted the hearing officer’s recommendation that the arrearage was $17,535.00 and ordered that the appellant pay the appellee $150.00 a month until the arrearage is extinguished. Exceptions to the decree nisi were filed by the appellant. The exceptions were dismissed and the decree nisi became a final order. This timely appeal followed.

On appeal, the appellant raises the following issues:

1. Did the trial court err and abuse its discretion when it awarded alimony or alimony pendente lite, counsel fees, and the former marital residence to Appellee, without reduction for one half of the fair rental value of the property from the date when Appellee began sole occupancy of the former marital residence, and without reduction for depreciation of the former marital residence caused by the Appellee’s poor maintenance thereof from the date when Appellee began sole occupancy of the former marital residence?
2. Did the trial court err and abuse its discretion when it awarded alimony pendente lite or alimony and counsel fees to Appellee based solely upon a comparison of each party’s income in 1982, 1983, 1984, 1985, 1986, and 1987 instead of using each party’s income less expenses, when there was no record of need established by Appellee at any time?
3. Did the trial court err and abuse its discretion when it awarded alimony pendente lite or alimony and counsel fees to Appellee when Appellee had failed to pursue the matter to the detriment of Appellant?
4. Did the trial court err and abuse its discretion when it awarded alimony and alimony pendente lite to Appellee retroactively, based upon the way that the trial court would have interpreted the record in 1982, instead of the date of hearing.

(Appellant’s Brief at 4).

Upon review of the issues raised by the appellant, we have concluded that the order setting forth equitable distribution must be vacated. Although we find no merit with regard to the issues concerning the valuation and distribution of the marital property and affirm on the basis of the trial court’s opinion as to these issues, the trial court’s decision retroactively changing a support order into an order for alimony pendente lite requires that the entire award be vacated.

The characterization by the trial court of the arrearage on the support order as alimony pendente lite has proven troublesome. When the trial court granted the divorce decree in bifurcated proceedings on February 2, 1981, it stated in the decree that the January 1980 modified unallocated order was to remain in effect. Shortly before the youngest child’s eighteenth birthday, the appellant ceased making payments on the order.

In the seven years that passed, neither party made any effort to either enforce or terminate the support order or to bring about the distribution of the marital property. Finally, the appellee praeciped the trial court for the long awaited conciliation. Due to both parties inaction, the trial court was then forced to deal with not only the economic issues that were unresolved when the divorce decree was entered, but was also confronted with determining the validity of the unallocated support order and the arrearages on that order. The trial court also faced the issue of what effect the depreciation of the marital residence should have on equitable distribution.

The trial court attempted to resolve these difficulties by sending the case to a hearing officer. The hearing officer determined that the trial court’s continuation of the January 1980 modified support order in the February 2, 1981 divorce decree was actually intended to be an order for alimony pendente lite even though the words alimony pendente lite are nowhere to be found in the divorce decree. The hearing officer then subtracted what she deemed to be child support from the unallocated support order, and made an adjustment for time period that the appellant was unemployed to reach an arrearage figure of $17,535. At the equitable distribution hearing, the trial court accepted the hearing officer’s interpretation that the continuation of the January 1980 support order in the divorce decree was actually intended as an order for alimony pendente lite. The trial court also accepted the hearing officer’s figure as to the amount of arrearage and used both determinations in rendering its decision in the equitable distribution proceeding. We find the trial court’s retroactive changing of a support order to an alimony pendente lite order to have been in error.

The purpose of an order of spousal support is to assure a reasonable living allowance to the party requiring support. The duty to provide spousal support is concomitant with the marital relationship, and terminates with the ending of the marriage. Fexa v. Fexa, 396 Pa.Super. 481, 578 A.2d 1314 (1990). Alimony pendente lite, on the other hand, is awarded to sustain the dependent spouse on a basis of equality with the other spouse while maintaining or defending the divorce action. McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). This Court has long recognized that an award of spousal support is separate and distinct from an award of alimony pendente lite. Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987).

In a bifurcated divorce, as we have instantly, spousal support should terminate with the entry of the divorce decree. Alimony pendente lite may be awarded at a party’s request for the period between the entry of divorce and the adjudication of the economic aspects of the marriage in order to maintain an equality between the former spouses in resolving their differences. Id., 360 Pa.Superior Ct. at 302, 520 A.2d at 467. An order for spousal support may be converted into alimony pendente lite upon application, see Desch v. Desch, 329 Pa.Super. 22, 477 A.2d 883 (1983); however, instantly we have no record of either party making such an application during the time period while equitable distribution was pending.

The appellee, relying upon Desch v. Desch, supra, contends that the trial court’s decision to convert retroactively an unallocated support order into alimony pendente lite by subtracting out what it deemed to be child support was proper. The appellee argues that the conversion of a preexisting support order into an order for alimony pendente lite was merely a change of form and not of substance and occurs automatically. However, Levine v. Levine, supra, instructs otherwise.

In Levine, this Court was asked to examine a support order which continued despite the entry of a divorce decree. The Court stated that while an order of spousal support may properly be converted into an order of alimony pendente lite by the trial court, such a conversion is not automatic and an application must be made before a conversion can take place. The Court commented upon the different purposes to be served by each order and recognized that the circumstances of the parties are subject to change through each of the steps of the dissolution of a marriage and accompanying property settlement. Purdue v. Purdue, 398 Pa.Super. 228, 580 A.2d 1146 (1990), citing Levine, supra, 360 Pa.Superior Ct. at 302, 520 A.2d at 468. In its reversal of the trial court’s order, the Court stated that the trial court must consequently consider these changes in deciding whether to terminate the award, grant a new form of award, or change the amount of award.

In the instant case, the trial court stated on the record that had it considered the matter in timely fashion, it would have ordered the appellant to pay alimony due to the disparity in the parties’ income. However, the case was not considered in a timely fashion. The court, therefore, retroactively converted a support order, which should have ended with the entry of the divorce decree, into an alimony pendente lite order and held appellant responsible for the arrearage on the retroactive order of alimony pendente lite, in lieu of alimony. We find this course of action to have been in error.

As stated earlier, the purpose of alimony pendente lite is to assist the disadvantaged party to maintain or defend the litigation until all the economic issues are resolved. In the instant case, the trial court has attempted to use the support order, which should have ended with the entry of a divorce decree, as its basis for granting retroactive alimony pendente lite and then used the arrearage on this improperly converted order as a replacement for the alimony it would have granted had equitable distribution occurred in a timely fashion. This course of action is clearly an abuse of discretion, as it fails to account for the distinctly separate purposes that spousal support and alimony pendente lite serve. Because as the original purpose of the January 1980 modified support order ended with the entry of the divorce decree on February 2, 1981, we can find no useful purpose for bending and torturing the January 1980 modified order, in order to have it serve purposes it was never intended to serve, Thus, we find the trial court erred in its retroactive conversion of the January 1980 support order to alimony pendente lite and its use of the arrearages on that order as a replacement for alimony.

In light of our determination that the trial court erred in its attempt to make the January 1980 modified support order serve three entirely separate purposes, spousal support, alimony pendente lite, and alimony replacement, we conclude that a remand is in order. As the trial court’s ultimate decision on the issues of alimony pendente lite and alimony may cause a change in the economic positions of the parties and the original scheme of the trial court’s disposition, we vacate the order of equitable distribution so that the trial court can be in a position to reconsider its equitable distribution award in order to achieve economic justice.

Order vacated and remanded. Jurisdiction relinquished.

      . The normal procedure for handling exceptions from a master’s report is specified in Pa.R.C.P. 1920.55. The rule dictates that when exceptions are filed to a master’s report, the court shall hear argument and enter the appropriate final decree from which no motions for post-trial relief may be filed. However, instantly, the trial court scheduled a further hearing on issue of arrearages when it dismissed the appellant’s exceptions to the master’s report; thus, for the purposes of this appeal, the April 5, 1989 hearing will be deemed a “hearing de novo " from which exceptions may be taken. Moreover, we note that the trial court's use of a decree nisi in a domestic relations case was improper; however, as the effect of the trial court’s denial of the exceptions from the decree nisi is the same as the entry of an order by the trial court and the subsequent filing and denial of post-trial motions, we will not elevate form over substance and will allow the appeal. However, in the future, caution should be taken to avoid following the rules of equity when there are specific rules governing domestic relations cases.

      . On March 20, 1987, administrative order No. F.D. 87002867 was issued. This order states, “any existing spousal support order shall hereafter be deemed an order for alimony pendente lite." We seriously question the validity of such an order in light of this Court's decisions in Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987) and Purdue v. Purdue, 398 Pa.Super. 228, 580 A.2d 1146 (1990), which held that orders for spousal support and alimony pendente lite are not automatically interchangeable. However, as neither the parties in their briefs, nor the trial court in its opinion, make any reference to the order, we are precluded from addressing its validity here.


author: MONTGOMERY, Judge:

text:
    583 A.2d 489
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee, v. Juanita PITTS, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Filed Dec. 14, 1990.

      Barry A. Rosen, Philadelphia, for appellant.
    William Kennedy, Philadelphia, for appellee.
    Before CIRILLO, President Judge and MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant declaratory judgment action was filed by the plaintiff-appellee, Nationwide Mutual Insurance Company, seeking a determination of whether or not the defendant-appellant, Juanita Pitts, had an entitlement to certain uninsured motor vehicle insurance benefits under her policy issued by the plaintiff. The defendant filed preliminary objections, which were denied by the trial court. In addition to dismissing the defendant’s preliminary objections, the trial court certified that its order involved a controlling question of law as to which there is a substantial ground for difference of opinion and also stated that an immediate appeal from the order may materially advance the ultimate termination of the matter. Subsequently, our court granted the defendant permission to proceed with this appeal. After review, we conclude that the trial court erred in denying the defendant’s preliminary objections.

The record shows that defendant was a passenger who was injured in a motor vehicle accident which occurred in July, 1984. Her injuries were very significant. In December, 1986, she accepted the tender of the full amount of the driver’s bodily injury liability insurance coverage. Thereafter, the defendant made a claim against plaintiff insurer for benefits under her policy’s underinsured motorist vehicle coverage. The parties were unable to resolve the defendant’s underinsured motorist claim, and she elected to procéed with arbitration. The Nationwide policy included the following arbitration provisions, applicable to underinsurance claims disputes:

If we and the insured do not agree about the insured’s right to recover damages or the amount of damages, the following arbitration procedure will be used:
After written demand for arbitration by either party, each party will select a competent and disinterested arbitrator. The two so selected will select a third. If selection of the third arbitrator cannot be agreed upon within 80 days, the insured or the company may request that selection be made by a Judge of a Court of Record in the County and State in which arbitration is pending. Each party will pay its chosen arbitrator and bear equally expenses for the third and all other expenses of arbitration.

When the insurer did not respond by naming its own arbitrator, the defendant instituted a proceeding in the Court of Common Pleas of Philadelphia County to compel the appointment of an arbitrator by the insurer. The lower court granted the defendant’s request and ordered Nationwide to appoint an arbitrator to proceed with the arbitration process. Nationwide appointed an arbitrator and the two arbitrators designated by the parties selected a third arbitrator, in accordance with the policy’s arbitration provisions.

After such procedures were complete, but before any arbitration hearing was held, Nationwide instituted the instant declaratory judgment action, seeking a determination that it was not contractually bound to provide underinsured motorist coverage with regard to the defendant’s July, 1984 injuries. Ms. Pitts filed the preliminary objections, contending that the arbitration clause pertaining to underinsured motorist coverage in the Nationwide policy made it improper for the insurer to seek the court’s interpretation of the provisions of the underinsured motorist provisions of the policy. She maintained that the arbitration provisions of the policy mandated that such issues be presented to the arbitrators, and sought the dismissal of the declaratory judgment action.

In dismissing the defendant’s preliminary objections, the trial court held that it could entertain the declaratory judgment action to address the applicability of insurance policy provisions claimed to be contrary to legislative or administrative intent, or against public policy. When it did so, in November, 1988, the trial court relied upon 1987 and 1982 appellate decisions which appeared to support its conclusions.

At that time, the trial court did not have the benefit of the guidance provided by the Supreme Court of Pennsylvania in its decision in Brennan v. General Accident Fire and Life Assurance Corporation, Ltd., 524 Pa. 542, 574 A.2d 580 (1990). In that case, the Supreme Court reversed a Superior Court decision which had held that a panel of arbitrators which considered an underinsured motorist claim had exceeded its jurisdiction in deciding an issue which had previously been agreed by the parties to not be in dispute. In Brennan, the Supreme Court issued its ruling based upon an insurance policy arbitration provision which was similar in scope to the provision in the insurance agreement before us in the instant case. In discussing the category of disputes which must be referred to arbitration under such an insurance policy provision, the Supreme Court stated:

A review of the language of the arbitration clause reveals that arbitration is mandated whenever the insured and the insurer disagree as to when a party is legally entitled to recover damages. There is no limit to the jurisdiction of the arbitrators over what issues may be submitted and in fact the policy declares that all disputes between the insurance company and the insured will be arbitrated. The instant dispute, in its broadest sense, involves a disagreement as to the amount of damages which Appellant would and could possibly receive under the policy. The court has held, since the insurance policy was written by the Appellee, any ambiguity will be interpreted against the Appellee. National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968). Given the broad scope of authority given the arbitrators, we have little difficulty in concluding that the dispute herein is a matter specifically within the scope of the arbitration clause. 524 Pa. at 549, 574 A.2d at 583. (Emphasis added.)

For a similar ruling on the same point, see the opinion of our court in Lamar v. Colonial Penn Insurance Co., 396 Pa.Super. 527, 578 A.2d 1337 (1990).

Because the wording of the insurance policy in dispute in this case must be considered broad enough to encompass a requirement that any dispute concerning underinsurance coverage be referred to arbitration, we must rule that the trial court improperly dismissed the defendant’s preliminary objections. Given the scope of the arbitration provision, the arbitrators appointed pursuant to the policy terms clearly have the jurisdiction to consider the issues raised by the plaintiff insurer in its declaratory judgment action.

The order of the trial court is reversed, and the declaratory judgment action filed by the plaintiff-appellee is dismissed. Jurisdiction is relinquished.


text:
    583 A.2d 492
    WALT MEDICAL, Appellant, v. ELECTRO-NUCLEONICS, Appellee.
    Superior Court of Pennsylvania.
    Argued May 24, 1990.
    Filed Dec. 17, 1990.

      Ronald J. Lapko (Walt Medical), pro se.
    George P. Kachulis, Pittsburgh, for appellee.
    Before ROWLEY, KELLY and MONTGOMERY, JJ.
   KELLY, Judge:

The sole issue on appeal is whether the trial court abused its discretion in not opening judgment of non pros for the appellee. We hold that the trial court abused its discretion, and reverse and remand.

The facts and procedural history can be summarized as follows. Ronald J. Lapko, t/d/b/a Walt Medical (appellant), had an agreement to sell medical equipment for Electro-Nucleonics, Inc. (appellee), in exchange for commission on those sales. There was a dispute regarding the amount of commission due. Walt Medical commenced an action against Electro-Nucleonics, Inc.. A Board of Arbiters of the Court of Common Pleas of Allegheny County entered judgment for Walt Medical for $7,100. On the appellee’s motion, a trial de novo was requested. The case was scheduled for trial on August 10, 1989, at 9:00 a.m. in Courtroom 617 of the Pittsburgh City County Building. The listing of the date, time and place of trial was published in the Pittsburgh Legal Journal, the official newspaper of the court system of Allegheny County.

In the words of the trial court the following transpired on August 10, 1989:

Defendant’s counsel appeared with two witnesses, all ready to try the case. Defendant, witnesses and counsel were forced to wait for several hours while other matters were heard. When all cases assigned for the morning were settled or heard, Defendant’s counsel moved to dismiss Plaintiff’s case. The motion was granted after the nomenclature were revised and corrected. Defendant’s cross-claim (sic) was heard and the Court found in favor of Defendant and against Plaintiff on the cross (counter-claim. The findings of the trial court were filed on 10 August 1989.
On 31 August 1989, Plaintiff filed a “Motion for Reconsideration of Dismissal,” an exotic label not discoverable in the Rules of Civil Procedure governing trial courts. Plaintiff claims he was confused as to the place of trial. The fact is that the author personally posted the notices on the courtrooms to which Plaintiff refers and underlined in red ink with a broad felt-tipped pen the exact time and place of the trial.

Trial Court Opinion 1-2.

Upon denial of the appellant’s “Motion for Reconsideration of Dismissal,” this timely appeal followed.

On appeal, the appellant contends that the trial court’s entrance of a judgment of non pros on his complaint and the entrance of a judgment in favor of the appellee on their counterclaim was in error. In his one page brief, appellant has pleaded for an opportunity to be heard at the trial level. Acting pro se, he has cited no case law, but simply avers that judgment should be opened, because he was not fairly notified that the scheduled trial location had been changed. Appellee asserts that the trial court didn’t abuse its discretion because the appellant did not follow proper procedure by objecting or making a motion when he finally arrived in the courtroom. The trial court refused to open judgment against appellant, steadfastly maintaining that appellant was duly notified about the change and that appellant should have been in courtroom 702, or at least in the 7th floor hallway by 9:00 a.m.

In Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (1990), we explained our standard of review in a non pros appeal and the criteria for opening a non pros judgment as follows:

[A] request to open a non pros judgment is based upon the equitable powers of the trial court, and such an exercise of power will not be disturbed on appeal “unless an abuse of discretion is clearly evident.” Narducci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988) (citations omitted). In order to open a non pros judgment, three factors must be present: (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action. Id. ... Further, when entering a non pros judgment or when granting a petition to open a non pros judgment, the trial court is bound to consider the prejudice to the adverse party.

Id. 398 Pa.Super. at 406, 581 A.2d at 196. We will address the three criteria seriatim.

First, the petition to open judgment of non pros must be promptly filed. The trial court entered judgment for appellee on August 10, 1989. Appellant filed his “Motion for Reconsideration of Dismissal” on August 31, 1989. The parties do not dispute, and we conclude, that the lapse of only three weeks constitutes a prompt filing. See Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988) (trial court opened first judgment of non pros when petition to open was filed “nearly one month later”). See also Wayne v. Pennsylvania Nat. Mut. Ins. Co., 7 Pa. D & C 3d 104 (1977), aff'd, 254 Pa.Super. 192, 385 A.2d 591 (1978) (court found three and one-half week delay before filing petition to open non pros judgment “reasonably prompt.”)

Secondly, appellant must reasonably explain his delay. Our decision in this case is guided by the recent Superior Court en banc decision in Valley Peat & Humus v. Sunnylands, Inc., supra. In that case, the trial court dismissed the appellant’s case because appellant’s counsel did not arrive for trial on the specified time and day. The trial court later denied appellant’s petition for reconsideration. However, this Court reversed on appeal, relying on the fact that counsel for appellant didn’t arrive on time because he was delayed by a severe snowstorm. This Court reasoned that “a compelling reason existed for the delay which occurred in this matter thus precluding the entry of a non pros judgment.” Id., 398 Pa.Super. at 411, 581 A.2d at 198.

“Implicit in Rule 218 is a failure of plaintiff or his counsel to be diligent in determining when the case is to be called for trial.” Id., 398 Pa.Superior Ct. at 410, 581 A.2d at 198. We specifically held in Valley Peat that a non pros judgment must be opened when a litigant was diligent in trying to arrive at trial. That decision effectuates the precise words of Rule 218: “... if without satisfactory excuse a plaintiff is not ready____” We will apply Rule 218 as interpreted in Valley Peat.

The trial judge reasoned that granting judgment for appellee was proper because he personally hung a sign outside of courtroom 617. We disagree.

Instantly, the appellant justifiably relied upon the published notice in the Pittsburgh Legal Journal and appeared in courtroom 617 in compliance with that notice. Upon his arrival at courtroom 617, the appellant was told by a court employee to wait outside and his case would be called. By the time the appellant was informed that both the Pittsburgh Legal Journal and the court employee had made a mistake, his complaint had already been dismissed. Thus, we cannot agree with the trial court that the appellant must bear the harsh penalty of a non pros judgment on his complaint when such breakdowns had occurred in court operations. Accordingly, we find that the appellant was diligent in his efforts to reach the proper courtroom and had a satisfactory excuse for not being in courtroom 702 at 9:00 a.m. on August 10, 1989.

The third consideration is whether appellant has alleged sufficient facts to maintain his cause of action. The record clearly establishes that appellant was victorious in the first trial. Appellee has not pointed to any flaw in appellant’s complaint, nor do we find any. Appellant has satisfied the third criterion.

Lastly, we must consider whether opening the non pros judgment would prejudice appellee. “In considering a petition to open, undue prejudice to the adverse party will prevent the granting of the petition to the other party.” Valley Peat, supra, 398 Pa.Superior Ct. at 406, 581 A.2d at 196. Appellee does not argue that it would be prejudiced if the judgment were open, nor do we find that it would be. According to the transcript, it appears that appellee is already equipped with all relevant evidence needed to present its case. Compare Narducci, supra, (in light of the seventeen month delay, “the granting of relief would result in such prejudice to appellant’s ability to raise a defense that it would be inequitable to expose appellant to such a burden.”).

Because the appellant has shown that (1) his motion for reconsideration of dismissal was promptly filed; (2) his default was reasonably explained; and (3) his claim alleges sufficient facts to maintain his cause of action, and because appellee would not be prejudiced, we conclude that the trial court erred in entering judgment against appellant and for appellee.

Based upon the foregoing, we reverse the order entered denying the appellant’s petition for opening of the judgment of non pros and we vacate the judgment entered in favor of the appellee on the counterclaim. The case is remanded for proceedings consistent with this Opinion.

Jurisdiction is relinquished.

ROWLEY, J., noted his dissent.

      . The trial court followed Pa.RX.P. 218, which states:
      When a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a non-suit on motion of the defendant or a non pros on the court’s own motion. If without satisfactory excuse a defendant’s not ready, the plaintiff may proceed to trial.
      From the trial transcript, it appears that the court itself moved for "dismissal.” Thus, we label the judgment as one of non pros.

      . Unlike appellee, we do not find the nomenclature of appellant’s motion to be fatally flawed. See Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986) (“we look beyond the title of Fortune’s amended petition and consider its contents in order to characterize it.”)

      . In the reproduced record, appellant produced a copy of the notice issued by the trial judge notifying all parties that effective August 14, 1989 all arbitration appeal cases would be heard in courtroom 702. However, there is no indication as to whether this was the actual notice that the trial judge posted on August 10, 1989.

      . In his short form complaint, appellant succinctly alleged that appellee "failed to pay Walt Medical amounts previously agreed to by both parties.”


author: JOHNSON, Judge:

text:
    583 A.2d 495
    COMMONWEALTH of Pennsylvania v. Michael JANIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1990.
    Filed Dec. 17, 1990.

      Joan M. Righter, Norristown, for appellant.
    Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

Michael Janis appeals from the judgment of sentence entered upon his open plea of guilty to the charge of escape. He contends that the sentencing court improperly graded the severity of the offense as a felony of the third degree, rather than as a misdemeanor of the second degree, pursuant to 18 Pa.C.S. § 5121(d). We find that the factual circumstances in existence at the time Janis removed himself from official detention do not satisfy the statutory requirements for the felony conviction. Accordingly, we vacate the judgment of sentence and remand for resentencing on the escape conviction only.

In March, 1989, a Sears Department Store security agent apprehended Janis in possession of two nut driver sets valued at $38.96 outside the Sears store in King of Prussia, Pennsylvania. Janis had exited the store without attempting to pay for the merchandise. He was taken to the Upper Merion Township police station, where he was arrested for retail theft.

According to Janis’ uncontradicted testimony at the guilty plea colloquy on September 15, 1989, he had been at the police station for about two hours following his arrest, sitting in a chair next to a detective. He had not been charged with either a misdemeanor or a felony crime, as the detectives were waiting for Janis’ record to come back. The detective sitting with Janis received a personal telephone call to the effect that he had to pick up one of his suits from the cleaners. The detective attempted to handcuff Janis to the station wall, in order that the detective could leave on his personal business, but the handcuff did not fully engage.

After the detective left to retrieve his suit from the cleaners, Janis removed the handcuff from his wrist and walked into an outer room, looking for his cigarettes. When he discovered that he was the only person in the building, he walked to the door and stepped outside. As he started to walk away, another detective was approaching the station in his automobile. The detective ordered Janis to stop. Janis fled and was taken into custody again when found hiding under a bush behind the police station.

It was only following the passage of another hour after his recapture that the detectives received Janis’ record, determined that he had prior convictions for retail theft, and charged him with retail theft, felony three, and escape. Notes of Testimony, September 15, 1989, pages 8-10.

Counsel for the Commonwealth and the defendant agreed that Janis would tender an open plea to the escape charge and that the court, after receiving the testimony, would determine whether the offense would be graded as a felony or as a misdemeanor. N.T., supra, at 2-3, 11-12.

In pertinent part, the Crimes Code provides as follows: § 5121. Escape
(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
(d) Grading.—
(1) An offense under this section is a felony of the third degree where:
(i) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

18 Pa.C.S. § 5121.

The sentencing court, in its Opinion dated May 7, 1990, correctly points out that a defendant cannot be sentenced for felony escape unless the facts fall within the statutory language of Section 5121(d)(1) set forth above. The court has not, however, informed us which subsection it found applicable on the facts existing in this case. We can readily eliminate subsection (d)(l)(ii) since Janis did not employ force, threat, deadly weapon or other dangerous instrumentality to effect his attempted escape. He simply removed a handcuff which had not been completely locked to his wrist by the attending detective. We can also eliminate subséction (d)(l)(iii) since there is no suggestion on the record that the failure of the detective to secure the handcuff was intentional nor was Janis convicted of crime at any time material to this appeal.

We turn then to subsection (d)(l)(i) which requires that the defendant either be under arrest for a felony charge, detained on a felony charge, or already convicted of any crime in order for the felony grading of § 5121(d) to be applied. Again, we can eliminate the third alternative contained within this subsection as a possibility, since Janis had not been convicted of any crime at the time he walked out of the Upper Merion Police Station. This leaves us to consider whether Janis was:

... under arrest for or detained on a charge of felony ... at the time he attempted his escape.

At the time Janis walked out of the Upper Merion Police Station, the police were unaware whether he had prior convictions for retail theft. At that time, he had not been placed under arrest for a felony nor was he being detained on a felony.

In Commonwealth v. Drawbaugh, 335 Pa.Super. 120, 483 A.2d 985 (1984), this court was faced with a similar situation. Drawbaugh had been arrested on several summary warrants and a bail process. While enroute to the police station, he was permitted to leave the police car to talk with a friend. Once out of the police car, Drawbaugh fled and was later apprehended and charged with escape. In vacating the felony sentence, this court said:

[S]ince the appellant was under arrest on various summary warrants and as the result of a bail process, his conduct does not fit into Subsection (i) grading escape as a felony. We note that if appellant had been arrested pursuant to a charge of "bail jumping”,____the result would be very different because under those circumstances, the arrest would have been for a felony____
However, the facts as they actually exist in this case do not bring it under the statutory provision grading escape as a felony.

335 Pa.Super. at 122, 483 A.2d at 986. (Boldness in original, underlining supplied).

Applying the analysis utilized in Drawbaugh, and construing the language contained in Section 5121(d)(l)(i), we conclude that, in grading the offense of escape, we must look to the conduct of the accused at the time the escape is attempted or realized together with only those facts which are known to the parties at that time. We find it significant that the statute speaks in the past tense: an offense is a felony if, and only if, the actor was under arrest for, or was detained on a charge of, felony. The past tense only makes sense if it is understood to relate back to the time at which the escape was attempted.

Both the trial court and the Commonwealth refer to cases which stand for the proposition that a defendant is entitled to notice, through the bill of information, that he is being charged with felony escape. Commonwealth v. Nixon, 328 Pa.Super. 250, 476 A.2d 1313 (1984); Commonwealth v. McNeill, 293 Pa.Super. 319, 439 A.2d 131 (1981); Commonwealth v. Jones, 279 Pa.Super. 93, 420 A.2d 1046 (1980); Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979). While it certainly is true that a defendant cannot be sentenced for felony escape unless he has been put on notice, the mere giving of notice cannot satisfy the concomitant requirement that the facts fall within the statutory language of Section 5121(d)(1). Thus, in the case before us, that Janis had entered a guilty plea to an open charge of escape, and that the bill of information, drawn up long after the escape attempt, set forth the felony escape charge, does not substitute for the lack of sufficient facts to establish that Janis was under arrest for a felony, or detained on a felony charge, at the moment he walked out the front door of the Upper Merion police station.

To similar effect is our decision in In re Wilson, 367 Pa.Super. 321, 532 A.2d 1167 (1987), where we reviewed the appellant’s status at the time of the offense alleged and concluded that a minor was not under arrest for or detained on a charge of felony. There, the Commonwealth unsuccessfully sought to argue that since a robbery offense was the basis for the adjudication of delinquency, the juvenile’s failure to return from home leave satisfied the statutory requirement that the actor be “under arrest for or detained on a charge of felony.”

In the case now before us, the Commonwealth urges us to use the grading section of the retail theft statute, which determines the sentence there to be applied, and bootstrap that grading section onto the grading section of the escape statute. This would result in our declaring it to be a felony when one walks away from a negligently attached handcuff while being held for shoplifting $38.96 worth of goods. We decline this invitation.

We recognize that Janis’ offense was determined to be a felony “at the time of sentencing.” We read Drawbaugh as directing that the defendant’s conduct be examined as of the time she or he removes herself or himself from official detention. When we apply the Drawbaugk analysis to the facts on this appeal, we conclude that Michael Janis can only be sentenced, on the escape charge, as a misdemeanor of the second degree. 18 Pa.C.S. § 5121(d)(2).

Accordingly, we vacate the judgment of sentence on the escape charge filed at No. 2117 of 1989 in the trial court. We leave undisturbed the judgment of sentence at No. 2094 of 1989 involving the retail theft charge. To the extent that Janis initially sought to appeal both sentences on the basis that they were harsh and excessive, we note that the Brief for Appellant only argues the claimed illegality of the sentence on the escape charge. We have reviewed the entire record, nevertheless, and find that the Opinion of the Honorable Stanley R. Ott filed May 7, 1990 adequately and correctly disposes of the claim that the sentences imposed are harsh and excessive. Based on that Opinion, we affirm the judgment of sentence at No. 2094 of 1989.

Judgment of sentence at No. 2094 of 1989 AFFIRMED. Judgment of sentence at No. 2117 of 1989 VACATED. Case remanded for resentencing at No. 2117 of 1989. Jurisdiction relinquished.


author: CAVANAUGH, Judge:

text:
    583 A.2d 498
    Morton SHAPIRO and Edith Shapiro, Appellants, v. KEYSTONE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1990.
    Filed Dec. 17, 1990.

      Lee Albert, Philadelphia, for appellants.
    Dennis Veneziale, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   CAVANAUGH, Judge:

The question on appeal is whether a Pennsylvania court should be required to order an arbitration proceeding which must take place in another state.

Morton A. Shapiro, a resident of Cherry Hill, New Jersey, was involved in a motor vehicle accident on November 22, 1985 on Route 75 near Interstate Route 295 in Camden County, New Jersey. At the time Shapiro had in force a motor vehicle insurance policy issued by appellee, Keystone Insurance Company, issued by Keystone to Shapiro through its New Jersey office. The policy contained underinsured motorist coverage.

After Shapiro was paid the limit of coverage ($15,000) by the carrier for the motorist alleged to be responsible for the accident, appellant sought, through the offices of his Philadelphia attorneys, to arbitrate the underinsured motorist claim. When Keystone would not agree to a Philadelphia arbitration, appellant filed a petition in the Philadelphia courts to compel appointment of arbitrators. Arbitrators were appointed and eventually entered an award of $104,-000.00. Keystone appeared during the proceedings only to oppose the jurisdiction of the arbitration proceedings in Pennsylvania. Following post arbitration proceedings the Philadelphia court affirmed the award and Keystone appealed to this court. Our court vacated the arbitrators’ award and remanded “so that arbitration can proceed in accordance with the parties’ agreement.” Shapiro v. Keystone, 384 Pa.Super. 397, 558 A.2d 891 at 894 (1989). On remand, Shapiro again sought an order to compel arbitration. The court, per D’Alessandro, J., refused to compel arbitration and this appeal by Shapiro follows.

In our previous decision, we excerpted the controlling portion of the parties’ insurance contract:

If we and a covered person do not agree:

1. Whether that person is legally entitled to recover damages under this endorsement; or
2. As to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction....
Unless both parties agree otherwise, arbitration will take place in the county in which the covered person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to:
1. Whether the covered person is legally entitled to recover damages; and
2. The amount of damages.

Id., 384 Pa.Superior Ct. at 399-400, 558 A.2d at 892.

After reviewing the pertinent cases which unquestionably severely circumscribe the power of courts to intervene in the arbitration proceedings and the broad powers of arbitrators acting under common law arbitration, Shapiro I nevertheless concluded that the prior arbitration proceedings in Philadelphia were improper. Noting that where the site of arbitration proceedings is determined by the insurance contract our court concluded:

In the instant case, the Court of Common Pleas of Philadelphia County had jurisdiction of appellant’s person and could compel it to arbitrate Shapiro’s claim. The court could enforce arbitration, however, only in accordance with the terms of the parties’ agreement. Here, the parties had agreed to arbitrate only in Camden County, New Jersey, where the claimants resided and where, also, the policy had been sold and the accident had occurred. Arbitration in Philadelphia was in violation of the agreement to arbitrate. When the trial court declined to enforce the parties agreement and confirmed an award of arbitration held in violation of the agreement to arbitrate, it erred.

Id., 384 Pa.Superior Ct. at 403, 558 A.2d at 894.

We believe that on remand, the trial court correctly refused to compel arbitration. Under Shapiro’s reading of his contract and the Superior Court decision, the Philadelphia court is required to appoint (presumably, Philadelphia) arbitrators who would then journey to Camden County, New Jersey and there proceed with the arbitration. It is important to note that at the present juncture we are not dealing with the power of arbitrators or the power of a court, but rather which court is the appropriate forum under the governing arbitration agreement to enforce the agreement to arbitrate.

It has already been established in this matter that the arbitration must take place in the county where the covered person (Mr. Shapiro) lives. The applicable provision of the policy also provided that “local law as to procedure and evidence [apply]”. Thus, it is clear that even if the Pennsylvania court would order the arbitration and in accordance with our prior decision direct that the proceedings take place in New Jersey, enforcement of the award would necessarily be a matter for the New Jersey courts. Our supreme court has appropriately stated:

The authority of a court cannot extend beyond the territorial limits of the state by which it was created. Any attempt on its part to enforce its decrees and judgments beyond such limits constitutes an illegitimate assumption of power.

Giampalo v. Taylor, 335 Pa. 121, 128-129, 6 A.2d 499, 503 (1939).

We are constrained to agree with the trial court which denied appellant’s second petition to compel arbitration to appoint Philadelphia arbitrators to proceed to arbitration in Camden County, New Jersey. The court “declined”, to so proceed and cited “principles of comity”. There is clear authority for such a disposition, and we believe that the grant of appellant’s petition would lead to an untoward result where the Pennsylvania courts were intruding in what, from a reading of the policy provision, appears to be a matter which the parties intended for the courts of the insured’s domicile. Although not relied upon by the trial court, there is clear authority for his declination of jurisdiction. The Uniform Interstate and International Procedures Act provides:

(e) Inconvenient forum.—When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

42 Pa.C.S. § 5322(e).

We conclude that the court acted properly in declining to grant appellant’s petition to appoint arbitrators.

Order affirmed.