text:
    474 A.2d 333
    Regis J. JOHNSON, Appellant, v. Elizabeth J. BRINKER, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed April 13, 1984.

      Robert J. Wetzel, Uniontown, for appellant.
    Steve P. Leskinen, Uniontown, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

May the payment of the costs of court ordered blood grouping tests in an action for support of a child born out of wedlock be imposed upon an indigent defendant who denies paternity as a condition precedent to administration of the tests? The Common Pleas Court, after determining that both the appellee-mother and appellant-putative father were indigent and unable to make payment for the blood tests, concluded that the costs of blood grouping tests should be paid in advance by the requesting party, in this case, appellant. We reverse.

Appellee, shortly after the birth of her daughter, commenced an action for support on June 16, 1982, by filing a complaint against appellant, the alleged father of the child born out of wedlock. A solicitor for the domestic relations section of Fayette County, on behalf of appellee, then filed a motion for a non-jury paternity trial. Appellant, represented by the Southwestern Pennsylvania Legal Aid Society, Inc., thereafter filed, pursuant to the Uniform Act on Blood Tests to Determine Paternity, a petition in which he denied paternity and sought thereby to establish his non-paternity by requesting that the court:

(1) Appoint experts qualified as examiners of blood types;
(2) Order and Direct [appellee, the child and appellant], to submit to various blood grouping tests before these experts for the purpose of determining whether [appellant could] be excluded as being the father of the said minor child ...;
(3) Direct that compensation for these experts be paid by the County of Fayette in light of [appellant’s] indigency, or, in the alternative, that the said compensation be otherwise taxed as costs and/or allocated among the parties and the county in such manner as the Court deems most appropriate, as per 42 Pa.C.S.A. § 6135....

Appellant also alleged in his petition that he was “unemployed and without income or assets sufficient to pay for the costs of said tests” and included with the petition an “Application Form for Blood Test In Forma Pauperis.” The court, after concluding that both parties were indigent, on October 29, 1982, entered two orders, one of which granted the petition of appellant for blood testing and directed “[t]hat the costs of said blood grouping tests are to be paid by the defendant.” The other order denied the application of appellant to proceed in forma pauperis for blood tests, but stayed all proceedings so that appellant could file an interlocutory appeal by permission. The court then granted the application of appellant for leave to appeal in forma pauperis, and this court, by per curiam order, granted the petition of appellant for interlocutory review.

Initially we observe that “[t]here is no situation of more monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship.” Corra v. Coll, 305 Pa.Super. 179, 193, 194, 451 A.2d 480, 488 (1982). In Corra, this court declared “that denial of counsel for indigent defendants in civil paternity actions in Pennsylvania is inconsistent with due process”, id., 305 Pa.Superior Ct. at 185, 451 A.2d at 483, and emphasized the “need for procedural safeguards at a paternity hearing” since “[o]nce paternity is established, that finding is res judicata and cannot be relitigated in a subsequent proceeding.” Id., 305 Pa.Superior Ct. at 189, 451 A.2d at 486. Accordingly, the rights of indigent paternity defendants must be protected, otherwise the “ 'courts risk finding not the right man, but simply the poorest man to be the father of a child.’ ” Id., 305 Pa.Superior Ct. at 192, 451 A.2d at 487 quoting Salas v. Cortez, 24 Cal.3d 22, 31, 154 Cal.Rptr. 529, 535, 593 P.2d 226, 232 (1979), cert. denied, 444 U.S. 900, 100 S.Ct. 209, 62 L.Ed.2d 136 (1980).

Pennsylvania has long recognized the evidentiary value of blood grouping tests in paternity actions:

[T]he first of many thousands of reported cases in America on this subject (according to 163 A.L.R. 940) is Commonwealth v. Zammarelli, 1931, 17 Pa. Dist. & Co. R. 229, in which the late Judge Morrow, of Fayette County, granted the defendant a new trial in a bastardy case because the uncontradicted evidence of a medical expert called by the defendant was that blood tests showed the defendant could not have been the father of the child.

Commonwealth v. Coyle, 190 Pa.Super. 509, 512, 154 A.2d 412, 413 (1959) (citation omitted). See also Hummel v. Smith, 301 Pa.Super. 276, 286-87, 447 A.2d 965, 970 (1982) (Beck, J., concurring); Commonwealth v. Gromo, 190 Pa. Super. 519, 154 A.2d 417 (1959). The United States Supreme Court in Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), studied a Connecticut statute which charged the costs of blood grouping tests in a paternity action against the party requesting them, and held that the statute violated the due process guarantee of the Fourteenth Amendment when, in application, the statute operated to deny blood grouping tests to a defendant because of his lack of financial resources. Id. at 17, 101 S.Ct. at 2211, 68 L.Ed.2d 627. It is to be noted that the Court acknowledged “the unique quality of blood grouping tests as a source of exculpatory evidence”, and stated that while a blood grouping test cannot conclusively establish paternity, it can demonstrate non-paternity and thereby “scientifically exclude the paternity of a falsely accused putative father.” Id. at 7, 101 S.Ct. at 2206, 68 L.Ed.2d 627. Moreover, the Court stated:

The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. The joint report recommended the use of seven blood test ‘systems’ ABO, Rh, MNSs, Kell, Duffy, Kidd and HLA — when investigating questions of paternity. These systems were found to be ‘reasonable’ in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men.
The effectiveness of the seven systems attests the probative value of blood test evidence in paternity cases. The importance of that scientific evidence is heightened because ‘[tjhere are seldom accurate or reliable eyewitnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability.’ As Justice BRENNAN wrote while a member of the Appellate Division of the New Jersey Superior Court:
“[I]n the field of contested paternity... the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity. The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but ‘they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts’____”

Id. at 7-8, 101 S.Ct. at 2206-07, 68 L.Ed.2d 627 (citations omitted). The Court, in stressing the compelling interest in the accuracy of a paternity determination, found that “because of its recognized capacity to definitely exclude a high percentage of falsely accused putative fathers, the availability of scientific blood test evidence clearly would be a valuable procedural safeguard in such case.” Id. at 14, 101 S.Ct. at 2209, 68 L.Ed.2d 627. Since blood tests are highly accurate, reliable and dependable and, therefore, difficult to refute, the Court concluded that “access to blood grouping tests for indigent defendants... would help to ensure the correctness of paternity decisions____” Id.

The statute upon which we focus in this appeal provides:

§ 6135. Compensation of experts
The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. Subject to general rules, the court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the county and that after payment by the parties or the county, or both, all or part or none of it be taxed as costs in the action. Subject to general rules, the fee of an expert witness called by a party but not appointed by the court, shall be paid by the party calling him, but shall not be taxed as costs in the action.

42 Pa.C.S. § 6135. This section of the Act makes clear that the court must direct the manner by which appointed experts are to be paid and vests the court with the discretion to initially apportion the costs of blood testing between the parties and the county. In the instant case, the court correctly noted that the statute “does not require the Court to assess the costs to the County but permits the Court to assess the costs to the County”, but decided on the basis of potential economic hardship to the county as a result of the expense of blood grouping tests that “the costs should be assessed on the party requesting the tests and not on the County.” However valid and reasonable the social reasons the distinguished Judge Fred C. Adams advanced for his holding, we are compelled to the conclusion that a hearing court must, in these circumstances, order that the costs of the blood grouping tests first be advanced by the county.

While the issue of who should bear the costs of blood grouping tests is one of first impression in this Commonwealth, the United States Supreme Court, in Little v. Streater, supra, expressed approval of the cost allocation method contained in the Uniform Act on Blood Tests to Determine Paternity adopted in Pennsylvania (42 Pa.C.S. § 6135), and noted:

Other jurisdictions also have statutes by which blood grouping tests can be made available to indigents. See, e.g., Ala.Code § 26-12-5 (1977); D.C.Code § 16-2343 (Supp. V 1978); Haw.Rev.Stat. § 584-16 (1976); Md.Ann. Code § 16-68G (Supp.1980); Mich.Comp.Laws § 722.-716(c) (1970); Minn.Stat. § 257.69(2) (1980); N.D.Cent. Code § 14-17-15 (Supp.1977); Utah Code Ann. § 78-25-23 (1977); Wis.Stat.Ann. § 767.48(5) (West Supp.1980). In addition, the highest courts of Colorado, Massachusetts and West Virginia have held that putative fathers may not constitutionally be denied access to blood grouping tests on- the basis of indigency. See Franklin v. District Court, 194 Colo. 189, 571 P.2d 1072 (1977); Commonwealth v. Possehl, 355 Mass. 575, 246 N.E.2d 667 (1969); State ex rel. Graves v. Daugherty, 266 S.E.2d 142 (W.Va.1980).

Id. at 16 n. 11, 101 S.Ct. at 2210 n. 11, 68 L.Ed.2d 627. See also Commonwealth v. Tressler, 221 Pa.Super. 94, 289 A.2d 471 (1972) (Hoffman, J., dissenting).

We, therefore, hold that henceforth, an order for submission to blood grouping tests to determine paternity may not require any indigent party to pay any portion of the compensation of the appointed expert(s) as a condition precedent to the administration of the tests.

Order reversed and case remanded for disposition in accordance with this opinion. Jurisdiction is relinquished.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 6131-6137. Section 6133 of the Act provides, in part:
      In any matter subject to this subchapter in which paternity... is a relevant fact, the court... upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests.

      . We note that this order appears to also deny the petition of appellant for blood testing. Since the other order contemporaneously entered by the court clearly and expressly granted the petition of appellant for blood testing, and since the opinion of the court addresses only the issue of costs, we construe the combined effect of the two orders as (1) a grant of the motion for submission to blood tests, and (2) a denial of the request that the tests be paid for by the county or otherwise proportioned in a manner deemed appropriate by the court.

      . See Pa.R.A.P. 552.

      . The solicitor for the domestic relations section of Fayette County has neither briefed nor presented argument upon the merits of this appeal, but has submitted a formal statement which indicates that "the brief of appellant clearly summarizes the issues and such relevant case law as is in existence....”

      . Accord Michael B. v. The Superior Court of Stanislaus County, 86 Cal.App.3rd 1006, 1010, 150 Cal.Rptr. 586, 589 (5th Dist.1978) (court cannot order prepayment of blood tests by indigent defendant in a civil paternity suit, but rather, must order that compensation of experts conducting the tests be initially paid by the county subject to being later taxable to the parties as costs in the action); County of Ramsey v. S.M.F., Minn., 298 N.W.2d 40, 44 (1980) (preferable practice would be for county to ask putative father to take blood tests at county expense).

      . Due to our resolution of this issue, we need not address the further assertions of appellant that (1) "an indigent party defendant in a paternity proceeding has a statutory right to have blood tests performed upon request and without regard to his financial status"; and (2) “an effective denial of an indigent paternity defendant’s request for blood testing, by requiring that such indigent prepay testing costs which are beyond his financial means, is a violation of due process guarantees.”


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    474 A.2d 337
    MARRON’S WOODSTOVE AND FIREPLACE CENTER, INC., a Pennsylvania Corporation, Appellant v. ALASKA COMPANY, INC., a Pennsylvania Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1984.
    Filed April 13, 1984.

      Jon Michael King, Emlenton, for appellant.
    Solomon Lubin, Wilkes-Barre, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

The parties to this dispute had entered into an oral agreement for the exclusive distribution of coal heating stoves, fireplace inserts and boilers manufactured by Alaska Company, Inc. (Defendant) within a geographical area comprising eleven counties in southwestern Pennsylvania. On April 27,1981, Defendant sent a letter to Plaintiff which purported to cancel the distributorship.

Plaintiff then brought suit in assumpsit, seeking to recover:

(a) $689.00 representing alleged rebates due on certain factory direct sales; and
(b) an amount representing a commission of $10.00 per each unit sold factory direct from January 1, 1981 to March 31, 1981; and
(c) an amount representing lost profits on all sales from March 31, 1981 to April 27, 1981; and
(d) $125,000, being the alleged future value of the contract as of the date of termination.

Defendant filed preliminary objections in the nature of a demurrer asking for the dismissal of the complaint. The trial court examined the averment in the complaint alleging that the exclusive franchise “would continue as long as Plaintiff was adequately performing the terms and conditions thereof” and ruled that the agreement was only of an indefinite duration, and, hence, terminable at will.

Accordingly, the trial court sustained the preliminary objections as to so much of the one-count complaint (paragraphs 13 through 16 thereof) which dealt with future profits beyond the termination date. The order granting the demurrer in part expressly refused to dismiss those portions of the complaint dealing with Plaintiff’s requested items for relief (a), (b) and (c) above, which were set forth in paragraphs 1 through 12 of the complaint. Defendant’s Motion for a More Specific Pleading was also refused. Plaintiff then brought this appeal.

It is settled law that an order dismissing fewer than all counts of a multi-count complaint is interlocutory and unappealable because the appellant is not “out of court”. Pullium v. Laurel School District, 316 Pa.Super. 339, 348, 462 A.2d 1380, 1384 (1983); R.B. Equip. v. Williams, Shields, Snyder & Goas, 304 Pa.Super. 31, 33, 450 A.2d 85, 86 (1982). Although we are faced with an order which precludes the plaintiff from proceeding on merely a portion of the one-count complaint, we conclude that the rule is equally applicable on the facts presented here.

This court has jurisdiction over all appeals from final orders of the courts of common pleas. 42 Pa.C.S. § 742. In determining what constitutes a final order we look to a practical rather than technical construction of the order. A final order is an order which either ends the litigation or disposes of the entire case. Pullium v. Laurel School District, supra.

In the instant case, although preliminary objections were sustained to the claim for future profits, the claims for alleged rebates, commissions and profits earned to date of termination remain to be determined. Plaintiffs claims for these items remain viable; he has not been placed “out of court”. Under these circumstances, the order sustaining preliminary objections as to future profits is clearly interlocutory and unappealable.

The appeal is quashed.


author: MONTGOMERY, Judge:

text:
    474 A.2d 339
    VISION SERVICE PLAN OF PENNSYLVANIA, a Not-For-Profit Corporation, v. PENNSYLVANIA AFSCME HEALTH AND WELFARE FUND; Gerald W. McEntee, Trustee; Jesse C. Newcomer, Trustee and Administrator, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed April 13, 1984.

      Jonathan Walters, Pittsburgh, for appellants.
    John J.B. Jones, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from a lower court order denying a petition to strike or open a judgment. Plaintiff-Appellee, Vision Service Plan of Pennsylvania, instituted this action in the lower court against Defendant-Appellants, Pennsylvania AFSCME Health and Welfare Fund, Gerald W. McEntee, Trustee, and Jesse C. Newcomer, Trustee and Administrator, seeking damages for breach of contract.

Plaintiffs Complaint was served on Defendants on September 29, 1981. On October 14, 1981, Defendants’ counsel telephoned Plaintiff’s counsel and requested an extension of time in which to respond to the Complaint. Plaintiff’s counsel agreed to an extension of twenty days from the date of the telephone call. By letter dated October 20, 1981, Defendants’ counsel confirmed the oral agreement and stated that a response would be filed on or before November 3, 1981. On November 4, 1981, counsel for Defendants mailed preliminary objections to the Prothonotary and to Plaintiffs counsel, which were received by both on November 6, 1981. However, the Prothonotary’s office refused to docket Defendants’ preliminary objections because they were not accompanied by a brief, as was required by Administrative Order No. 43 of the Court of Common Pleas of Allegheny County, dated October 17, 1979. On November 13, 1981, Plaintiff’s counsel filed a praecipe for entry of default judgment and judgment was entered that day by the Prothonotary.

On November 23, 1981, Defendants filed a petition to strike, or, in the alternative, to open the default judgment. On January 26, 1982, after submission of briefs and oral argument, the lower court denied Defendants’ petition. A request for reconsideration was submitted on February 8, 1982, and was denied on February 10, 1982. This appeal followed.

In support of their contention that the lower court committed an error of law, the Appellants point out the long-established rule that although the filing of a responsive pleading may be late, if it is filed before the filing of a praecipe for judgment, it will nevertheless bar a default judgment. See Fuel City Manufacturing Co. v. Waynesburg Products Corp., 268 Pa. 441, 112 A. 145 (1920); Von Schirach v. Vance, 239 Pa. 300, 86 A. 856 (1913); Borden- town Banking Co. v. Restein, 214 Pa. 30, 63 A. 451 (1906); Barndollar v. Fogarty, 203 Pa. 617, 53 A. 492 (1902); Metz v. Hoffman, 131 Pa.Super. 303, 200 A. 132 (1938). The rationale of these decisions is that once a responsive pleading is filed a default judgment cannot thereafter be entered because the responding party is no longer in default. In denying Appellants’ petition to open or strike the default judgment, the lower court held that the above-stated rule of law has been abrogated by the adoption of Pennsylvania Rule of Civil Procedure 237.1(a), which provides:

No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. (Emphasis added.)

We conclude that the lower court erred in so holding. Rule 237.1 merely provides the notice requirements mandated prior to the entry of default judgments and, in our opinion, does not in any way alter the long-existing rule clearly enunciated in the cases cited above. The common law rule and Rule 237.1 are not inconsistent, and each can exist without offending the other. We must hold that the lower court erred in reaching a contrary conclusion.

Unfortunately, our resolution of that issue does not, standing alone, permit us to dispose of this appeal. In its opinion, the lower court stated that the Prothonotary’s office should not have refused to accept Appellants’ preliminary objections and, further, that the preliminary objections were deemed to have been filed when they were received by the Prothonotary on November 6, 1981. In light of our finding that the filing of preliminary objections would inhibit the valid subsequent entry of a default judgment, the lower court’s conclusion that the preliminary objections were properly filed is crucial to the issue of the validity of the default judgment entered on November 18, 1981.

Obviously, the lower court did not require strict adherence to Administrative Order No. 43, which provided that “No Preliminary Objections shall be accepted for filing by the Prothonotary unless it is accompanied with a brief.” Ordinarily, the application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and our Court will not interfere unless that court commits an abuse of discretion. Commonwealth v. Prisznyak, 306 Pa.Super. 137, 452 A.2d 253 (1982). Unfortunately, the lower court gives no rationale in its opinion for its declaration that the Prothonotary should not have refused to accept Defendants’ preliminary objections. Thus, we have no meaningful basis for review of this issue in the case.

We could simply remand this case to the lower court for further proceedings, beginning with the consideration of the Preliminary Objections filed by the Defendant-Appellants. The issue of whether or not the lower court was correct in its holding that the Prothonotary should have accepted the Defendants’ Preliminary Objections would then only come before us if the Plaintiff was dissatisfied with the outcome of the litigation in the lower court, and elected to include that issue in any subsequent appeal it might file to our Court. However, it would not be fair to the parties, nor serve the interests of judicial economy, to require that the parties proceed through substantial additional litigation, if we would ultimately disagree with the lower court’s holding that the Preliminary Objections should have been considered to have been filed on the date they were received but rejected by the Prothonotary. Further, it is evident that the issue of whether the Appellants’ Preliminary Objections were properly filed is critical to the resolution of the questions presently before us in this case. In light of such factors, we conclude that it would be preferable to remand this matter to the lower court for a prompt clarification of the rationale for its decision on this point, so as to permit us to expeditiously dispose of all of the issues necessary in the resolution of the instant appeal.

The order of the lower court is temporarily vacated, and this case is remanded to the lower court with directions to prepare a supplemental opinion clarifying the reasons for its conclusion that the Preliminary Objections of the Defendants were to be considered as having been filed on November 6, 1981, when they were rejected by the Prothonotary. The lower court is requested to complete this task and submit its supplemental opinion to us within thirty days of the date of the filing of this Opinion. Jurisdiction of this appeal is retained by our Court.

      . The Appellants contend that their preliminary objections were filed within the twenty day extension period which had been agreed upon by the parties. They assert that the period must be considered to run from the date their response was originally due, rather than twenty days from the date of the telephone conversation between counsel in which the extension was discussed. We must agree with the lower court, which rejected such an assertion. The letter from defense counsel dated October 20, 1981 makes it absolutely clear that the parties had agreed to an extension of time only until November 3, 1981 for Defendants’ response to the Complaint to be filed. We find Appellants’ contentions as to any other due date to be implausible.

        . Administrative Order No. 43, which is apparently still in effect, provides, in pertinent part: "No Preliminary Objection shall be accepted for filing by the Prothonotary unless it is accompanied with a brief. Failure to file a brief with the Preliminary Objections shall be cause for dismissal of said Preliminary Objections.”

      . We reject summarily the Appellants’ contention that the judgment was defective because of Appellee’s alleged failure to file an affidavit of non-military service. See 50 U.S.C.App. § 520. Only a defendant actually in the military service of the United States may take advantage of a plaintiffs failure to file such an affidavit. Tabas v. Robert Development Company, 223 Pa.Super. 290, 297 A.2d 481 (1972). The Appellants do not fall into the protected category.

      . On appeal, a lower court’s refusal to open a default judgment will not be reversed unless the lower court either erred regarding the law or abused its discretion. Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982).

      . That type of disposition has some appeal because, in normal circumstances, lower court orders regarding preliminary objections are considered interlocutory, unless they raise a question of jurisdiction. See Bassaro v. Barns & Tucker Co., 303 Pa.Super. 323, 449 A.2d 710 (1982).

      . In making that statement, we do not mean to imply any disagreement with the lower court’s conclusion on this issue. We merely point out a possible result in this litigation.


author: HOFFMAN, Judge:

text:
    474 A.2d 343
    Phillip A. SPORKIN v. Henry J. AFFINITO and David Meyers, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 23, 1983.
    Filed April 13, 1984.

      Jeffrey L. Pettit, Philadelphia, for appellants.
    S. Lawrence Pauker, Norristown, for appellee.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants challenge the lower court’s entering judgment in favor of appellee, alleging that appellee’s action had been properly dismissed pursuant to Montgomery County Civil Rule 407. We find no merit in this contention and, accordingly, affirm the order entered below.

The underlying action to this appeal concerns appellee’s February, 1975 claim that appellants, his fellow shareholders in a corporation formed to establish a Puerto Rican water ice business, had attempted to sever him from the business and deprive him of profits. Following the denial of appellants’ preliminary objections and argument on November 9, 1976, the lower court granted appellee’s motion for the production of certain documents within 45 days. On June 7, 1978, because appellants had failed to produce the documents, appellee filed a motion for sanctions against appellants requesting the court to enter a judgment of liability and to direct a trial solely on the issue of damages for failure to produce the requested documents. In late August, 1980, an application for an extension of time to file a praecipe for trial was signed by the lower court and counsel, extending the time for trial until February 28, 1981. In early February, 1981, appellee prepared, but appellants’ counsel failed to sign, a praecipe to place the case on a trial list. Appellee’s brief supporting his motion for sanctions was filed on February 10, 1981. On March 6, 1981, however, pursuant to Montgomery County Civil Rule 407, the prothonotary summarily dismissed the action, after having received no praecipe for trial. Despite this dismissal, of which counsel and the lower court were not aware, and subsequent to oral argument, the lower court, on April 15, 1981, granted appellee’s motion for sanctions, entering a default judgment against appellants and directing a trial for the determination of damages. In late October, 1981, appellee’s counsel learned of the prothonotary’s dismissal and requested the lower court to strike the dismissal from the docket. On November 12, 1981, the lower court struck the docket entry, but, in response to appellants’ protests, entertained petitions and argument on the validity of the March 6 dismissal. On March 24, 1982, the lower court affirmed its November 12, 1981 order striking the dismissal from the docket, prompting this appeal.

Appellant contends first that Montgomery County Civil Rule 407 did not conflict with the Pennsylvania Supreme Court’s November 19, 1979 order and therefore, that the March 6, 1981 dismissal by the prothonotary was valid. We disagree. On November 19, 1979, the Supreme Court ordered, in pertinent part that:

I. Prompt Certification for Trial
(a) In all civil actions commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August 31, 1980. In civil actions commenced on or after January 1, 1980, such documents must be filed not more than 240 days after the action is commenced.
(b) Prior to the expiration of the period limited in Paragraph (a), any party may apply for extension of such period. The application must be served on all other parties and must set forth the grounds for the request and the length of extension required. The court may grant the extension only upon finding good cause ... (c) If the documents are not filed within the time limits above, the court, with or without motion by any party, shall require that good cause be shown why the case should not be dismissed for want of prosecution.

(emphasis added). In response to this order, Montgomery County promulgated Civil Rule 407 which provides, in pertinent part that:

(a) Pursuant to the Order of the Supreme Court of Pennsylvania dated November 19, 1979, in all civil actions commenced on or before December 31, 1979, a praecipe certifying that there are no outstanding motions, all discovery has been completed and that the case is in all respects ready for trial must be filed on or before August 31, 1980. In all civil actions commenced after January, 1980, such praecipe to list for trial must be filed not more than 240 days after the action is commenced.
(b) All civil actions shall be dismissed by the Prothonotary for want of prosecution where neither the appropriate praecipe for trial listing or an application for extension has been filed within 20 days after commencement of the action.
(2) In all civil actions commenced on or before December 31, 1979, the Prothonotary will dismiss without further notification all civil cases where neither the appropriate praecipe for trial listing or an application for extension has been filed by August 31, 1980.

(emphasis added).

It is well-settled that “[although the several Courts of Common Pleas may properly adopt local rules, such rules are invalid to the extent that they conflict with or are inconsistent with the Pennsylvania Rules of Civil Procedure.” Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Superior Ct. 245, 249, 407 A.2d 1338, 1340 (1978); Acri v. Wintermeyer, 285 Pa.Superior Ct. 486, 488, 428 A.2d 150, 151 (1981). In Gonzales, supra, the court determined that Philadelphia Local Rule 145, authorizing the prothonotary to enter a judgment of non pros where the plaintiff failed to answer interrogatories, conflicted with Pa.R.Civ.P. 4019, which required the court, in its discretion, to mold the sanction to the particular case. The court stated:

The imposition of specific sanctions ... is largely within the discretion of the court ... This responsibility cannot be delegated to a ministerial officer such as a prothonotary. Although he acts as clerk for the court of common' pleas, the Prothonotary possesses no judicial powers.

Gonzales v. Procaccio Brothers Trucking Co., supra, 268 Pa.Superior Ct. at 251, 407 A.2d at 1341. See also Newsome v. Braswell, 267 Pa.Superior Ct. 83, 406 A.2d 347 (1979) (because prothonotary cannot issue sanctions, judgment considered null and without legal effect). We agree with the lower court’s reliance on Gonzales and conclude that Montgomery County Rule 407 conflicts with the Supreme Court order. The Supreme Court order specifically stated that if the documents required for readying a case for trial were not timely filed, the court “shall require that good cause be shown why the case should not be dismissed. ..” This language clearly indicates that a judge, not a court clerk, must make the final decision on dismissal. Montgomery County Rule 407, however, permits the prothonotary to make the final determination. Accordingly, we cannot agree with appellants’ contention that Rule 407 does not conflict because “it merely permitted the Prothonotary to dismiss the case if the parties failed to advance any justification at all through an application for extension.” (Appellants’ Brief at 12).

We find little merit in appellants’ argument that Montgomery County could have promulgated Rule 407 without the directive from the Supreme Court, thus minimizing the effect of the conflict. We do not dispute that local courts may promulgate rules. See Gonzales, supra. In the instant case, however, it is obvious that Rule 407 was promulgated as a direct response to the Supreme Court order. See Montgomery County Civil Rule 407(a) (“Pursuant to the Order of the Supreme Court of Pennsylvania dated November 19, 1979 ...”). Because the Montgomery County rule clearly conflicts with the Supreme Court order, we conclude that the lower court correctly struck the dismissal erroneously entered by the prothonotary.

Appellant next alleges that notwithstanding the invalidity of the prothonotary’s dismissal of the action, the lower court erroneously struck the dismissal because on November 12, 1981, the underlying action was barred by the statute of limitations. There is no basis for this argument. Because the dismissal was invalid, and unknown to all parties, including the court, the judgment entered pursuant to that dismissal was never recognized. Throughout the past eight years appellee has maintained just one cause of action. Appellants’ attempt to claim that the dismissal terminated an initial cause of action, causing appellee to raise a second cause of action outside of the limitations period, is meritless.

Similarly, we cannot accept appellants’ averment that the judgment entered in appellee’s favor on April 15, determining appellants’ liability and directing a trial on damages, was void when entered. We have already determined that the case was improperly dismissed and hence remained active and within the lower court’s jurisdiction. Therefore, contrary to appellants’ allegation, the court did have the authority to enter judgment favorable to appellee.

Having found no merit in appellants’ several contentions, we affirm the order of the court below.

Affirmed.

      . We find the lower court’s order appealable pursuant to Pa.R.A.P. 311(a)(1).

      . The Supreme Court order was repealed on March 6, 1981.

      . Appellants’ reliance on Doner v. Jowitt and Rodgers Co., 299 Pa.Superior Ct. 492, 445 A.2d 1237 (1982) is misplaced because of the procedural differences between Doner and the instant case. In Doner, the initial action was dismissed under the now invalid Philadelphia Civil Rule 145. After the plaintiff’s motion to open and/or strike the judgment was denied, the case was unsuccessfully appealed to both the Superior and Supreme Courts. A second action was brought by plaintiff and his wife, who was not part of the first action, less than three weeks after the Supreme Court affirmed the denial of plaintiffs petition to open. The second action, however, was barred by the statute of limitations. In Doner, the initial case was clearly terminated, the dismissal was affirmed in both appellate courts, and the second action was brought outside of the limitations period. In the instant case, however, the dismissal of appellee’s action was not only erroneous but, because of the proceedings, never resulted in the final termination of the case. The lower court’s action in effectively reconsidering the dismissal was similar to the granting of a motion for reconsideration where a demurrer to the evidence is sustained and the dismissal is reversed.

      . Appellant avers further that the prothonotary's summary dismissal was not invalid simply because the Supreme Court vacated the “240-day” rule. Having found the dismissal already invalid, we need not address this issue.


author: PER CURIAM:

text:
    474 A.2d 346
    Lloyd Eugene BROWN and Nancy P. Brown, Individually and as Administrators of the Estate of Douglas P. Brown, Deceased v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant. Dale F. JAMES and S. Jean James, as Natural Parents of Vincent Robert James, and Administrators of the Estate of Vincent Robert James, Deceased v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant. Lloyd Eugene BROWN and Nancy P. Brown, Individually and as Administrators of the Estate of Douglas P. Brown, Deceased, Appellants v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Dale F. JAMES and S. Jean James as Natural Parents of Vincent Robert James, and Administrators of the Estate of Vincent Robert James, Deceased, Appellants v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1984.
    Filed April 13, 1984.

      Fredric D. Rubin, Morrisville, for appellant (at 2146 & 2147) and appellee (at 1297 & 1298).
    Anita Frankel Alberts, Doylestown, for appellants (at 1297 & 1298) and for appellees (at No. 2146 & 2147).
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   PER CURIAM:

This case involves four appeals from orders entered in two separate No-Fault actions. Lloyd and Nancy Brown (hereinafter “Brown”) and Dale and Jean James (hereinafter “James”), plaintiffs below, each brought a separate unrelated suit seeking work loss and survivor’s loss benefits for the death of their child. Each brought suit individually and as administrators of the child’s estate.

By order dated May 28, 1982, the trial court granted summary judgment for State Farm on the issue of surviv- or’s loss and granted summary judgment for James and Brown for work loss benefits. State Farm appealed the order granting summary judgment for James and Brown for work loss benefits at Nos. 2146 and 2147 Philadelphia 1982. Pursuant to leave granted by the trial court, James and Brown appealed nunc pro tunc from the order granting summary judgment for State Farm on the issue of surviv- or’s loss at Nos. 1297 and 1298 Philadelphia 1983.

Appeal Nos. 2146 and 2147 are quashed because they were taken from interlocutory orders granting summary judgment for Brown and James on the issue of liability for work loss benefits without awarding damages. See Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 408, 435 A.2d 1290, 1291 (1981) (“Rule 1035(b) of the Rules of Civil Procedure permits a court to grant summary judgment with respect to liability only: ‘A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.’ ... Such an order is, by definition, ‘interlocutory in character’ and clearly nonappealable.” (footnote and citations omitted).

On Appeal Nos. 1297 and 1298 we affirm the order of the trial court granting summary judgment for State Farm with respect to the survivor’s loss claims. Under Chesler v. Government Employees Insurance Co., No. 101 E.D. Appeal Dkt. 1982, 503 Pa. 292, 469 A.2d 560 (1983), survivor’s loss benefits are recoverable only upon proof of dependency and James and Brown have admitted that they were not dependent. See Plaintiffs’ Motion for Summary Judgment If 2.

Appeal Nos. 2146 and 2147 Philadelphia 1982: quashed. Appeal Nos. 1297 and 1298 Philadelphia 1983: affirmed. Jurisdiction relinquished.


text:
    474 A.2d 348
    COMMONWEALTH of Pennsylvania, v. George WALTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed April 13, 1984.

      Joseph F. Sklarosky, First Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   PER CURIAM:

George Walton, having entered pleas of guilty to fifteen burglaries in Luzerne County, was sentenced to serve a term of imprisonment for not less than three nor more than six years, with credit for time served, after which he was to be on probation for twenty-five years. He was also ordered to make restitution. He filed a petition to modify sentence in six cases. In this petition he alleged that the sentences imposed, including the orders of restitution, were excessive. His petition was denied without hearing, and this appeal followed.

In view of the fact that appellant admitted his participation in fifteen burglaries, we cannot say that the term of imprisonment or the terms of probation were excessive. However, appellant is on more solid ground when he argues inadequacy of the record to support the court’s several orders of restitution. Not only was there no evidence demonstrating appellant’s ability to pay the sums ordered, but, in fact, there was no evidence to support a finding that a loss had been sustained in the amount which appellant was ordered to pay.

An order of restitution is a part of the sentence, and it must be supported by the record. Commonwealth v. Galloway, 302 Pa.Super. 145, 161, 448 A.2d 568, 576-577 (1982); Commonwealth v. Fuqua, 267 Pa.Super. 504, 510, 407 A.2d 24, 27 (1979).

“[I]t is incumbent upon a sentencing court, before it enters an order of restitution, to consider on the record (1) the amount of the loss suffered by a victim; (2) the fact that such loss was caused by conduct of the defendant; (3) that the amount awarded does not exceed the defendant’s ability to pay; and (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant.”

Commonwealth v. Katz, 318 Pa.Super. 282, 287-88, 464 A.2d 1343, 1346 (1983), quoting Commonwealth v. Wood, 300 Pa.Super. 463, 467, 446 A.2d 948, 949-950 (1982). See: 18 Pa.C.S. § 1106(c).

Because the record does not support the sentences imposed by the court, the sentences appealed from must be vacated and the case remanded for resentencing.

It is so ordered. Jurisdiction is not retained.

      . The only sentencing orders sought to be modified and the only sentences from which appeals were filed had been entered in Criminal Actions 1214, 1213, 1411, 1414, 1415 and 1417. In No. 1214, appellant had been sentenced to prison for not less than three nor more than six years. In each of the other cases, he had been placed on probation for consecutive five year periods. In all instances he had been ordered to make restitution.

      . In No. 1214, appellant was ordered to make restitution to Salvatore and Kathryn Mariana for $416.67.
      In No. 1213, appellant was ordered to make restitution to Leo and Dorothy Smereski for $187.50.
      In No. 1411, appellant was ordered to make restitution to Natalie Miles for $880.00.
      In No. 1414, appellant was ordered to make restitution to William Hughes for $500.00.
      In No. 1415, appellant was ordered to make restitution to the Estate of Ruth Evans for $1,667.67.
      In No. 1417, appellant was ordered to make restitution to Joseph Parker for $250.00.


text:
    474 A.2d 349
    COMMONWEALTH of Pennsylvania v. John Ellis RALPH, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 21, 1984.
    Filed April 19, 1984.
    John J. Szajna, Uwchland, for appellant.
    F. Ned Hand, Assistant District Attorney, West Chester, for appellee Commonwealth.
    Before WI.CKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM:

On June 22, 1982, appellant was sentenced to serve an aggregate of ten (10) to twenty (20) years imprisonment on charges of arson and related offenses. On June 29, 1982, defense counsel was permitted to withdraw and the Public Defender’s Office of Chester County was notified that appellant sought representation. Neither post-trial motions nor a motion for reconsideration of sentence were ever filed on appellant’s behalf. On July 22, 1982, the public defender’s office filed this appeal. Appellant then filed with this court a Petition for Remand to Trial Court for Determination of Ineffective Assistance of Counsel, Resentencing or Reconsideration of Sentence. This court issued the following order:

AND NOW, October 21, 1982, Appellant’s Petition for Remand for Appointment of Counsel Outside of the P.D.’s Office is GRANTED, otherwise the Petition is DENIED. Jurisdiction is retained.
s/Per Curiam

New counsel was appointed and since jurisdiction was retained by this court, this appeal is again before us. However, since no post-trial motions or motion for reconsideration of sentence was filed, there are no issues preserved for our review. Thus, we must remand in order to allow new counsel to file a petition for reconsideration of sentence and post-trial motions nunc pro tunc.

Case remanded in order to allow new counsel to file a petition for reconsideration of sentence and post-trial motions nunc pro tunc. Jurisdiction is relinquished.


author: CAVANAUGH, Judge: BECK, Judge,

text:
    474 A.2d 599
    Gregory SUTLIFF v. Carlene SUTLIFF, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1983.
    Filed March 16, 1984.
    Reargument Denied May 29, 1984.
    Petition for Allowance of. Appeal Granted Sept. 5, 1984.

      Ronald Katzman, Harrisburg, for appellant.
    Bonnie D. Menaker, Harrisburg, for appellee.

      Before SPAETH, President Judge, and CAVANAUGH, McEWEN, BECK, MONTEMURO, MONTGOMERY and CERCONE, JJ.
   CAVANAUGH, Judge:

This appeal is from an order of the lower court in a divorce proceeding, denying the request of appellant-wife (hereinafter “Wife”) for alimony pendente lite, interim counsel fees and expenses from appellee-husband (hereinafter “Husband”). Wife contends (1) that an order denying such interim relief is final and appealable; and (2) that the lower court erred in various ways in its denial. We agree with Wife’s first contention but must affirm the order of the lower court since she has failed to preserve other issues for appeal.

We are first presented with the threshold question, whether an order denying alimony pendente lite, counsel fees and expenses is appealable. It is settled law that an order granting such interim relief is final and appealable, insofar as the money to be paid under the order is involved, since once paid the money is likely unrecoverable. Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943); Lynn v. Lynn, 68 Pa.Super. 324 (1917). On the other hand, an order such as we have here, denying this interim relief has been held interlocutory and unappealable. Paul v. Paul, 281 Pa.Super. 202, 421 A.2d 1219 (1980). Hanson v. Hanson, 177 Pa.Super. 384, 110 A.2d 750 (1955); Boerio v. Boerio, 134 Pa.Super. 501, 4 A.2d 614 (1939). Although recognizing this distinction, Wife asks us to change the rule and hold both grants and denials final and appealable orders.

We begin our inquiry by recognizing the basic principle that with limited exceptions not relevant here, only an order which is final is appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Gasper v. Gasper, 288 Pa.Super. 478, 432 A.2d 613 (1981). See also Boyd’s Estate, 299 Pa. 291, 149 A. 319 (1930); Pa.R.A.P. 341(a). Our Supreme Court has recently stated:

A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to “a practical rather than technical construction” of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 544-45.

Turning now to the order in the instant appeal, we find that the first requirement, that the order must be separate from and collateral to the main cause of action, is clearly satisfied. The right to alimony pendente lite, counsel fees or expenses is in no way an ingredient of the merits of the main cause of action, that being the divorce and property settlement. See In re Estate of Georgiana, 312 Pa.Super. 339, 458 A.2d 989 (1983); Malenfant v. Ruland, 274 Pa.Super. 506, 418 A.2d 521 (1980).

With regard to the second requirement, that the right involved must be too important to be denied review, we first look to the traditional reasons underlying alimony pendente lite, counsel fees and expenses. The purpose of such relief is to promote the fair and impartial administration of justice by enabling the dependent spouse to maintain or defend the principal action in divorce without being placed at a financial disadvantage. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983); Jack v. Jack, 253 Pa.Super. 538, 385 A.2d 469 (1978); Moore v. Moore, 198 Pa.Super. 349, 181 A.2d 714 (1962). The simple fact that one spouse earns more than the other does not automatically entitle him or her to alimony pendente lite, counsel fees or expenses. Rather, there must be a showing that the spouse earning less needs the relief sought in order to adequately defend his or her rights in the principal litigation. Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981).

The statutory authority for alimony pendente lite, counsel fees and expenses which existed for many years under the Divorce Law, Act of May 29, 1929, P.L. 1237, § 46, 23 P.S. § 46, was recently continued under the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 502, 23 P.S. § 502 (Supp. 1983). However, the 1980 enactment of the Divorce Code has greatly complicated divorce litigation by drawing a multitude of difficult economic questions into the arena. The fair treatment of these economic questions by the courts is of utmost importance, not only to the parties, but also to society as a whole. Indeed, the declared policy of the Commonwealth is to “[ejffectuate economic justice between the parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.” The Divorce Code, supra, § 102, 23 P.S. § 102 (Supp.1983).

Thus, in light of the important functions traditionally played by alimony pendente lite, counsel fees and expenses in divorce litigation, magnified by the increased complexity occasioned by the 1980 Divorce Code, as well as the expressions of public policy articulated by the General Assembly, we find the second requirement also met.

The final requirement is that the question must be such that if review were postponed, the right claimed may be irreparably lost. In determining this, we look to the practical consequences of the order in question. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff’d, 498 Pa. 570, 449 A.2d 1378 (1982). Although it may be said that the question of interim relief may be postponed until the final outcome of the divorce, as one commentator has cogently noted:

[T]he lower court, by improperly refusing alimony or awarding it in an inadequate amount, may postpone its actual or full payment until after final decree in the divorce proceeding. But it is during the period of litigation, while the suit is pending in the lower court that the need for alimony, counsel fees and expenses is greatest and, indeed, vital. It is a belated remedy to award [him or] her a lump sum in case of reversal on appeal of the order denying ... alimony or awarding ... an inadequate amount. Then the record in the divorce suit has been made in the Common Pleas with all the damage to [his or] her case which the temporary denial of alimony, counsel fees and expenses may have caused.

Freedman, Law of Marriage and Divorce in Pennsylvania, Vol. 2, § 469, Page 990. In our view, the improper denial of alimony pendente lite, counsel fees and expenses may result in a loss of the dependent spouse’s rights no less permanent and no less valuable than the money which may be paid by an independent spouse under an order granting such relief.

In light of the foregoing, we hold that an order denying alimony pendente lite, counsel fees or expenses meets the three part test set forth in Pugar v. Greco, supra, and is thus a final and appealable order. For purposes of their appealability, we see no reason to distinguish between alimony pendente lite, counsel fees and expenses. The underlying purposes and factors considered in granting or denying these are the same, regardless of which form of interim relief is sought. Wiegand v. Wiegand, 242 Pa.Super. 170, 363 A.2d 1215 (1976).

In so holding, we recognize that some delay in the principal litigation may result because the general rule is that an appeal removes jurisdiction from the lower court, see Pa.R. A.P. 1701, but feel that that is necessary to insure the fair and impartial administration of justice, and protection of the rights of the dependent spouse. At the same time, we specifically recognize the special character of domestic relations cases, and our obligation to decide them as expeditiously as is reasonably possible.

Unfortunately, we cannot reach the merits of this appeal since Wife failed to file exceptions to the order of the lower court and, therefore, the issues raised with respect to the merits of this order have been waived. Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983); Dewalt v. Dewalt, 309 Pa.Super. 275, 455 A.2d 156 (1983). Accordingly we affirm the order of the lower court.

Order affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s holding on the appealability issue. I would quash this appeal. The appeal-ability of orders granting or denying alimony pendente lite, counsel fees and costs needs to be reappraised in light of the Divorce Code of 1980. Such reappraisal leads me to conclude that except in rare circumstances, such orders are interlocutory and unappealable. I believe this position is most consistent with fairness and justice to both parties, judicial economy, and the goals and policies behind the Divorce Code of 1980. Since I would quash the appeal on jurisdictional grounds alone, I would not reach the issue of waiver due to failure to file exceptions.

The majority accurately states that Pennsylvania courts have in the past held an order granting alimony pendente lite or interim counsel fees to be immediately appealable, but the denial of such interim relief has been held to be unappealable. I agree with the majority that stare decisis must give way when the demands of justice require us to discard outmoded rules of law. “[T]he doctrine of stare decisis is not a vehicle for perpetuating error.” Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 406, 388 A.2d 709, 720 (1978) (quoting Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 606, 305 A.2d 877, 888 (1973)). The cases cited by the majority were decided under the Divorce Law of 1929 and its predecessors. The comprehensive overhaul of our divorce statutes accomplished by the Divorce Code of 1980 requires us to reexamine these decisions in light of the new enactment. See Commonwealth ex rel Piggins v. Kifer, 285 Pa.Super. 206, 427 A.2d 185 (1981) (custody cases decided before the enactment of the Uniform Child Custody Jurisdiction Act are no longer good law to the extent that they are inconsistent with the Act). In Fadgen v. Lenkner, 469 Pa. 272, 282, 365 A.2d 147, 152 (1976), our Supreme Court specifically held that when “the rationale justifying the old rule no longer finds support,” the rule should be abandoned.

In reexamining our case law in light of the Divorce Code, I agree with the majority that appellate jurisdiction attaches only to “final orders,” 42 Pa.C.S. § 742, and that in determining what constitutes a final order we may look for guidance to the principles set forth by the United States Supreme Court and by our Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); and Piltzer v. Independence Federal Savings and Loan, 456 Pa. 402, 319 A.2d 677 (1974).

Applying the standards of these cases and of Mayle, Piggins, and Fadgen, I conclude that this Court should reevaluate its holdings in cases relating to alimony pendente lite, counsel fees and costs decided before the 1980 Divorce Code became effective and should hold that neither the grant nor the denial of alimony pendente lite or interim counsel fees or costs should be subject to immediate appellate review.

As to orders awarding such interim economic relief, the new provisions of the Divorce Code authorizing equitable distribution of marital property and permanent alimony have taken away any reason to fear that funds once paid out pursuant to an interim award are unrecoverable. Denying appealability also avoids unnecessary delays in the proceedings. An appeal of an interim order stays the entire action. The delay occasioned by allowing appeals from orders awarding alimony pendente lite or interim counsel fees is particularly harmful because it would permit the party with greater resources to exhaust the resources of the party with less by taking repeated appeals. Justice is best served and harm to both parties is minimized by proceeding directly and expeditiously to a final disposition of the entire case at which a complete and fair resolution of all the economic issues may be made.

I would adopt in this Court the excellent reasoning on this issue of the Court of Common Pleas of Montgomery County' in an opinion by the distinguished Judge Anita B. Brody:

Historically Pennsylvania courts have held that an award of counsel fees made during the pendency of a divorce action was a final order and appealable. Lynn v. Lynn, 68 Pa.Super. 324 (1917); Gould v. Gould, 95 Pa.Super. 387 (1928); Murray v. Murray, 80 Pa.Super. 573 (1923); Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943); Brady v. Brady, 168 Pa.Super. 538, 79 A.2d 803 (1951); Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974); Paul v. Paul, [281] Pa.Super. [202], 421 A.2d 1219 (1980). The reasoning of the cases is based on the theory that any money paid out was gone and irretrievable. Lynn, supra, 68 Pa.Superior Ct. 327, Gould, supra, 95 Pa.Superior Ct. 388. This rationale was developed in the early cases and has not been reevaluated in the more recent ones. See Henderson, supra, 458 Pa. 96, 327 A.2d 62 and Paul, supra, 281 Pa.Superior Ct. 207-208, 421 A.2d 1223.
However reasonable this argument may have been when it was developed, the Divorce Code of 1980 negates it. The Divorce Code now provides, inter alia, for equitable distribution of marital property, permanent alimony and final counsel fees and costs. Thus the court now has the power to adjust the financial settlement after an award of interim counsel fees. The fact that such an award has been made will be reflected in the final order on equitable division of marital property, the alimony and the final attorneys fees and costs. Therefore money paid as interim counsel fee is not gone and irretrievable, it is essentially an advance of monies which allows both parties to proceed on an equal footing.
Applying the Piltzer test it is clear that an award for interim counsel fees while the issues of divorce, alimony and equitable distribution of marital property are pending is not an order terminating the litigation or disposing of the case. Applying the three Cohen case criteria to an award of interim counsel fees, one and two are arguably satisfied but the third is not; because in the context of the Divorce Code of 1980, the claimed right is not irreparably lost. As previously pointed out, the trial court may consider any prior awards in making a final property distribution and any unfairness can be adjusted at that point. An appeal from the final disposition of the economic issues involved in the divorce would necessarily incorporate a review of the interim counsel fee award. Delay in review is not fatal when it does not entail loss of review.
This analysis leads to the conclusion that an award of interim counsel fees is neither a final order ending the litigation nor an exception to the final order requirement and therefore the appeal should be quashed. The equitable division of marital property and other provisions in the new Divorce Code makes inapplicable the prior theory that interim counsel fees were final because irretrievable, since an award of interim counsel fees may bé reflected in the final disposition of the case. With the plethora of issues to be litigated under the Divorce Code and the concomitant increase in petitions for interim counsel fees, a contrary result would lead to delay in resolving the main issues and an undue number of piecemeal appeals from a single case.

Walters v. Walters, 109 Montg.Co.L.R. 465, 469-470 (1981) (appeal to Superior Court discontinued).

The courts of our sister states are badly divided over the question of the appealability of orders granting or denying interim economic relief in divorce cases. See, e.g., Annot., 167 A.L.R. 360 (collecting cases). Among these many decisions, though, I am most persuaded by the holding of the Supreme Court of Delaware in Husband, de v. Wife, de, 367 A.2d 636 (Del.1976). The Delaware court held an award of temporary alimony (comparable to alimony pendente lite), travel expenses, and counsel fees interlocutory and unappealable for several reasons which are equally applicable to proceedings in our courts under the Divorce Code of 1980:

First, temporary alimony is, by its nature and purpose, subject to modification as the circumstances of the parties change and each change would thus create a new right of appeal. And, second, in the disposition of marital property under 13 Del.C. § 1513 the Trial Court, at final hearing, can consider amounts awarded to a spouse on an interim basis. Under these circumstances, we decline to say that an order which merely directs the payment of moneys on an interim basis, and the consequences of which are subject to later consideration, determines a substantial question between the parties within the meaning of the law governing appealability. In addition, marital and domestic relations litigation should proceed to prompt disposition, and an interlocutory appeal would, in most cases, thwart that objective.

Id. at 637-38 (footnote omitted).

The reasoning of the Montgomery County court and of the Delaware Supreme Court may be extended to orders which deny alimony pendente lite and/or interim counsel fees. Therefore, we should continue to hold such orders unappealable. Final awards of equitable distribution, permanent alimony, and counsel fees under the Divorce Code can compensate a party for any deficiency in the interim awards. Review is not denied but merely postponed to a more appropriate time.

Delays which would only serve to protract the litigation and increase the costs to both parties are avoided. As I have discussed above, delay in general tends to work to the advantage of the party with the greater resources. Moreover, the decision whether to award alimony pendente lite is within the sound discretion of the trial court, so our review of such interim orders is limited and we would grant relief only in those rare cases where the lower court abused its discretion. See Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). This means that an appeal will in most cases be a futile exercise and can be used as a delaying and pressuring tactic. I add that barring immediate appeals by parties who have been denied pendente lite or other interim economic relief may encourage the parties to settle the case rather than attempt to prolong the litigation endlessly at the other party’s expense.

I recognize, though, that a spouse may be so lacking in resources that in the absence of an award of alimony pendente lite or interim counsel fees he or she would find it very difficult to support himself or herself and maintain or defend the divorce action. It is conceivable that in a very extreme case, the practical effect of an order denying interim relief would be to put that spouse “out of court.” Pugar suggests that an order with such a practical effect should be appealable. See 483 Pa. at 73, 394 A.2d at 545. I may be willing to entertain an immediate appeal where the aggrieved spouse is able to demonstrate that such is the case. I will not attempt to delineate the boundaries of this exception precisely in this opinion. I do emphasize, though, that I envision allowing an interlocutory appeal only when necessary to remedy a manifest abuse of discretion where one spouse is forced to become a public charge or where the legal services available to the indigent spouse are so inadequate that basic notions of due process are offended (remembering these are civil proceedings). Outside of such extreme cases, I would refuse all interlocutory appeals from orders granting or denying alimony pendente lite and interim counsel fees.

      . An en banc panel of the Superior Court may overrule a three-judge panel of the same court. Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982); as well as a prior en banc decision, where such prior decision is inconsistent with settled law, Evans v. Blimpie Base, Inc., 284 Pa.Super. 256, 425 A.2d 801 (1981). Moreover, we have a duty to reappraise court-made rules which are found to be obsolete and out-of-step with the realities of contemporary life. Pugh v. Holmes, 253 Pa.Super. 76, 384 A.2d 1234 (1978), modified, 486 Pa. 272, 405 A.2d 897 (1979).

      . The 1980 Divorce Code provides for equitable distribution of marital property and rehabilitative, post-divorce alimony, both of which are new to Pennsylvania Law.