author: HOFFMAN, Judge:

text:
    485 A.2d 1199
    James Peter MICKEY and Helen Mickey, Appellants, v. Elwood AYERS and Irene E. Ayers.
    Superior Court of Pennsylvania.
    Argued April 26, 1984.
    Filed Dec. 14, 1984.

      Richard E. Santee, Jr., Bethlehem, for appellants.
    Thomas R. Elliott, Jr., Easton, for appellees.

      Before McEWEN, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the trial court committed reversible error in charging the jury on the “assured clear distance ahead” rule, 75 Pa.C.S.A. § 3361. Because we find appellants’ contention meritless, we affirm the lower court’s denial of appellants’ motion for new trial.

This case involves conflicting versions of a two-car, head-on collision that occurred on June 28, 1980, on Route 611, a winding road in Forks Township, Northampton County. Appellants, Mr. and Mrs. Mickey, allege that appellee, Mr. Ayers, driving north on the two-lane highway, went off the road to his right, struck a guardrail, and then ricocheted into the southbound lane, the lane in which appellants were traveling. Because of the emergency created by the sudden appearance of appellee’s automobile, appellants swerved into the northbound lane to avoid appellee, but there crashed head-on into appellee who had moved back into his proper lane of travel. Appellees, Mr. and Mrs. Ayers, allege that appellants crossed over into their lane, that appellee tried to maneuver his car as far to the right as possible so as to avoid the oncoming car, and that the cars thereupon collided head-on.

On February 4, 1981, appellants filed a complaint in trespass against appellees seeking damages for personal injuries sustained in the crash. Counsel for both sides agreed to bifurcate the trial, with only the issue of liability to be heard by the jury. After a June 21-22 trial, the jury returned a verdict in favor of appellees, finding that appellee had not been negligent. Thereafter, appellants timely filed a motion for new trial which was denied by the court on October 19, 1982. This appeal followed.

To constitute reversible error, a jury instruction must be shown not only to have been erroneous but also harmful to the party complaining. Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); see also Junk v. East End Fire Department, 262 Pa.Superior Ct. 473, 485, 396 A.2d 1269, 1275 (1978) (harmless errors in instructing the jury will not warrant the granting of a new trial). In determining whether error has been committed, the charge must be read in its entirety. James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690, 693 (1960); Harman et ux. v. Chambers, 358 Pa. 516, 519, 57 A.2d 842, 844 (1948); Murphy v. Dyer, 223 Pa. 18, 22, 72 A. 276, 277 (1909). Here, the pertinent parts of the charge are as follows:

[I]f you find that a party in this case violated any one or more of the provisions in the Vehicle Code, then you must find that party negligent as a matter of law. It is negligent to violate provisions of the Motor Vehicle Code.
Now, there are a number of provisions of the Vehicle Code which apply in this case. The first one is called the “Assured Clear Distance Rule,” and it provides as follows:
“No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.” [75 Pa.C.S.A. § 3361].
Now, another provision of the Vehicle Code which applies is that:
“Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.[...]” [Id. § 3301]. That means you keep to the right; you do not drive on the left side of the road.
A limiting factor to the Assured Clear Distance Rule has always been what is called the “Sudden and Clear Emergency Doctrine,” because a driver who is confronted with a sudden and clear emergency is not held to the same standard of conduct as one not in such circumstances. If, because of want of time to form the best judgment as to which of various alternative courses of action to take, he fails to act in the most judicious manner, he will not be held negligent provided that he has acted reasonably under all the circumstances. It does not matter that he may or would have acted differently had he time to deliberate; an honest exercise of judgment is all that is required.
* * * * * *
So, in summary, where a sudden, clear emergency arises within the range of the previously assured clear distance, the Assured Clear Distance Rule does not apply.
Now, ladies and gentlemen, if you do find under the rules that I have given to you that either the plaintiff or the defendant or both of them, you find that either or both of them was negligent, then you must go on to determine whether or not that negligence was a substantial factor in bringing about the accident.....
* * * * * *
Now, let me say this. I am going to outline the theories of the parties, as I understand them----
Now, as I understand the theories in this case, the plaintiff is saying to you that they were driving up the road; that they were within the speed limit; and that they were confronted with a sudden, clear emergency that they had not caused, and all of a sudden this car was heading for them. And to avoid the car, they swerved over into the other lane and came into contact with the car that was heading for them. The defendant’s car did the same thing. And they are saying, yes, it may be a violation of the Vehicle Code for us to be on the other side of the road; we are supposed to be on the right-hand side of the road. But we are excused, because there was a sudden, clear emergency, and we are not held to the same standard. We are held to the standard in the Sudden, Clear Emergency Rule, and we are not held to the same standard of conduct as one who is not in such circumstances and that the accident was caused by the negligence of the defendant in driving over there and forcing us to do that; that that is the cause; that they were negligent; and that was a substantial factor; that that was the factor that caused this accident.
Now, as I understand.it, the defendant is saying to you, look, that is not the way it was at all. I did not go over on the wrong side of the road. I was on my side of the road, and this car came over and hit me. It came on the wrong side of the road, and they were driving on the wrong side of the road, and they were violating the Vehicle Code, and they were negligent, and that is what was the substantial factor; it is what caused the accident.
He sfc s}: :js Jfc ^
If you find any evidence that any of the parties were exceeding the lawful speed limit then and there, and I believe the testimony was there was [sic] a 45 mile an hour limit posted for that area, I would bring to your attention that exceeding the lawful posted speed limit is a violation of the Motor Vehicle Code and that that would be negligence____ Section 3362 of the Vehicle Code requires ... that vehicles comply with any maximum speed limit established by the proper authorities.

(N.T., Court’s Charge to the Jury, June 22, 1982 at 13-15, 17-19, 28) (emphasis added). We think it is apparent from reading the above charge, especially the emphasized portions, that the lower court left it to the jury to decide which provisions of the Code, if any, either of the parties had violated.

Appellants contend, however, that (1) a court may not charge a jury as to the assured clear distance ahead rule when a sudden emergency arises, and (2) in any event, under the facts of this case, the rule does not apply. “[T]he rule requires that such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision." Unangst v. Whitehouse, 235 Pa.Superior Ct. 458, 463, 344 A.2d 695, 698 (emphasis added). “[I]t is entirely reasonable to say that one should not run into a stationary object on the road which is, and has been, in plain view for everyone to see____” Flick v. James Monfredo, Inc., 356 F.Supp. 1143, 1148 (E.D.Pa.1973).

This Court has held that when a sudden emergency arises, a court may not charge the jury as to the assured clear distance ahead rule. Brown v. Schriver, 254 Pa.Superior Ct. 468, 475, 386 A.2d 45, 48 (1978), citing Unangst v. Whitehouse, supra, 235 Pa.Superior Ct. at 465, 344 A.2d at 699 (1975). However, “[wjhere the facts do not conclusively establish the existence of a sudden emergency, it is proper to charge the jury on both the assured clear distance rule and the sudden emergency doctrine in order that the jury has the applicable law to apply the facts as they find them.” Potenburg v. Varner, 284 Pa.Superior Ct. 19, 22, 424 A.2d 1370, 1372 (1981); Stacy v. Thrower Trucking, Inc., 253 Pa.Superior Ct. 150, 156-60, 384 A.2d 1274, 1277-79 (1978). Here, however, there is no allegation that appellants violated the rule; instead, appellees argue simply that appellants were on the wrong side of the road. Thus, whether or not appellants were confronted with a sudden emergency, the assured clear distance ahead rule could not apply to them because there was no evidence that they collided with any fixed obstacle.

Therefore, in order for the court’s charge to be correct, the rule must be applicable to appellee’s conduct. Appellants correctly assert that the rule applies to static or essentially static objects but is inapplicable if it is found that the vehicles involved were moving in opposite directions toward one another. Adams v. Mackleer, 239 Pa.Superior Ct. 244, 250, 361 A.2d 439, 442 (1976); Turner v. Smith, 237 Pa.Superior Ct. 161, 165-69, 346 A.2d 806, 808-09 (1975). Under either party’s version of the accident, the instant case involved a head-on collision, and thus the rule would be inapplicable in that respect. We agree, however, with the lower court that the rule could still quite properly apply to appellee’s alleged striking of the guardrail. See Lower Court Opinion at 6. As appellant testified:

I don’t know the particular area out there, but around— by 3 p.m. I was approaching a curve, and I saw [appellee] coming around another curve. And as I saw him come around the curve, he went to the right and hit a guardrail. And he bounced off the guardrail into my lane, which would be the southbound lane. And as he did that, I just applied my brakes and tried to avoid him.

(N.T. June 22, 1982 at 7). See also Brown v. Schriver, supra, 254 Pa.Superior Ct. at 476, 386 A.2d at 49 (“court should have instructed the jury to consider whether appellee, paying due regard to the traffic surface, should have and could have seen the alleged loose gravel before slipping upon it”). In short, the jury could have found that appellee failed to exercise proper vehicular control “when approaching or going around a curve [and] when traveling upon any narrow or winding roadway.” 75 Pa.C.S.A. § 3361. Therefore, we disagree with appellants’ contention that the assured clear distance ahead rule does not apply to this case.

Additionally, while the trial court could have more precisely limited the applicability of the rule to appellee’s conduct, we nonetheless find no prejudice to appellants so as to constitute grounds for reversal. Appellants contend that the trial court committed “clear and reversible” error in charging on the rule, but nowhere in their brief do they aver how they were prejudiced thereby. We also fail to see how the charge prejudiced appellants when the jury specifically found appellee non-negligent and, thus, did not even reach the question of appellants’ contributory negligence. Indeed, the charge could even have conceivably helped appellants if the jury believed that appellee had violated the rule by colliding with the guardrail. Cf. Sweeny v. Bonafiglia, 403 Pa. 217, 220-21, 169 A.2d 292, 293-94 (1961) (inaccurate portion of the charge hurt non-complaining party). Furthermore, the court’s charge expressly removed appellants from the operation of the rule in the event that the jury believed that a sudden and clear emergency existed: “So, in summary, where a sudden, clear emergency arises within the range of the previously assured clear distance, the Assured Clear Distance Rule does not apply.” (N.T., Court’s Charge to the Jury, June 22, 1982 at 15). We find no error, therefore, in the court’s charging as to the assured clear distance ahead rule. Accordingly, we affirm.

Affirmed.

       Mrs. Ayers was not with her husband at the time of the incident, but she was named as a defendant in the complaint because she and her husband were the owners of the car driven by Mr. Ayers.


source: Caselaw Access Project

author: HESTER, Judge: WIEAND, Judge,

license: Public Domain

text:
    485 A.2d 1204
    Vickie LOOKABILL v. Glenn Eugene MORELAND, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed Dec. 14, 1984.

      Horace M. Ehrgood, Lebanon, for appellant.
    Philip B. Ebersole, Lebanon, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an Order of the Court of Common Pleas of Lebanon County terminating appellant’s parental rights. Appellant alleges that the trial court abused its discretion by severing his right to his three children. For the following reasons, we affirm the Order of the court below.

Appellant and his former wife, appellee herein, were married on April 6, 1974, and thereafter resided in West Virginia. Three children were born to them, Glenn, Brian, and Sarah. In August of 1981, appellant left the marital home and discontinued supporting his wife and children. Appellee and her children therefore returned to her parents’ home in Pennsylvania. The parties were divorced in September of 1982, and on February 4, 1983, appellee married Thomas Lookabill. The couple now reside with appellee’s three children in Jonestown, Pennsylvania. Appellee’s husband desires to adopt the minor children whom he has supported since his marriage to appellee. Consequently, appellee instituted these proceedings to terminate appellant’s parental rights to said children.

The appropriate standard of review in cases involving the termination of parental rights has been recently delineated by this Court in In re Adoption of James J., 332 Pa.Super. 486, 481 A.2d 892 (1984). Our appellate function is limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. If our comprehensive review of the record does not reveal an abuse of discretion, an error of law, or insufficient evidentiary support for the lower court’s findings, the order must stand.

The burden of proving that parental rights should be terminated rests upon the party seeking to terminate another’s parental rights. To prevail, the petitioner must produce clear and convincing evidence which instills in the mind of the court a firm conviction or belief. Id., 332 Pa.Superior Ct. at 492, 481 A.2d at 896; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Through a showing of clear and convincing evidence, the petitioner may establish the following ground which warrants the termination of parental rights:

The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

Adoption Act, October 15, 1980, P.L. 934, No. 163, § 1, eff. Jan. 1, 1981, 23 Pa.C.S.A. § 2511(a)(1). The question of whether a parent has evinced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties for a period of six months must be analyzed in relation to the particular circumstances of the case. That is, the parent’s performance must be measured in light of what would be expected of an individual in similar circumstances to the parent under examination. Matter of M.L.W., 307 Pa.Super. 29, 452 A.2d 1021 (1982).

The Pennsylvania Supreme Court has often observed that parental obligations require a continuing interest in the child and rest affirmatively on the parents. Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978); In re W.M. III, 482 Pa. 123, 393 A.2d 410 (1978). The parent must exert a genuine, sincere effort to establish and maintain communication, association, and a place of importance in his or her child’s life. Matter of Adoption of David C., supra. Althoujgh favorable circumstances may enable some parents to achieve this goal with little effort, the pertinent inquiry is not the degree of success a parent may have had in reaching his or her child, but whether he or she has utilized all available resources to preserve the parental relationship. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981).

At the hearing on December 5, 1983, testimony revealed that appellant only saw his children once in 1981 following the parties’ separation, and four times in 1982. At various times throughout 1982, appellant spoke with the children by telephone. Appellee testified that appellant sent the children two letters during this period. Appellee also stated that appellant sought to take the children to West Virginia for extended visits in August, 1982, and again in May, 1983, however, appellee denied his requests due to the unsafe condition of his automobile. Appellee stated that she never refused him the right to visit the children in Pennsylvania. She also testified that many of appellant’s telephone calls appeared to be attempts to harass her, rather than to communicate with the children.

Appellant did not see his children from November, 1982, until November, 1983, when the first hearing was scheduled in this case. When questioned about why he failed to visit his children, appellant responded:

The reason was I didn’t know exactly where they were, and if I ever could get a hold of them, there was always— it was always a bad taste then. It was always we want to do this, or we want to do that, and lately since their marriage, its been we want to change their names. If you let us change their names, what we do is; we’ll make sure you get to see them.

Testimony regarding financial support revealed that appellant paid $1,100 from September, 1981, to June, 1982, which included a portion of the parties’ income tax refund. Apparently, from June, 1982, until November, 1983, appellant made no support payments to appellee. At the hearing, appellant explained, “I knew of no bills and I didn’t send any money, because I couldn’t afford to send any or I would have.” Appellant was receiving Y.A. benefits and attending school fulltime to become a welder immediately following the parties’ separation. From June of 1982, when his benefits expired, until sometime in 1983, appellant remained essentially unemployed. In 1983, he started his own business as a welder/mechanic. At the hearing, appellant conceded that he was currently seeking employment elsewhere. Appellee, when asked if she knew appellant was unemployed, responded that she did because appellant had informed her that he had “no desire or reason to work.”

Applying our standard of review as enunciated by In re James, we find that the lower court did not abuse its discretion, nor did it commit an error of law. Ample evidentiary support for its findings existed in the record. The trial court found that appellant deserted his wife and children in 1981 and has only provided meager support for them since his departure. For a period in excess of six months, appellant failed to provide that essential care, medical and dental attention, and clothing needed by small children. The court further found that appellant did not evince a desire to work and fulfill his obligations. Finally, the court rejected appellant’s argument that he attempted to maintain contact with the children. Rather, it ruled that appellant’s telephone calls, which often were made when the children were at school, constituted attempts to harass his former wife.

Herein, appellant admittedly did not see his children for almost a year, nor did he provide support for them during that time. Concededly, failure to provide support in and of itself is not grounds for terminating parental rights. In re Adoption of Faith M., 329 Pa.Super. 304, 478 A.2d 480 (1984). However, appellant’s failure to visit, write, or establish significant contact with his children during that time cannot be dismissed. His reason that “there was always a bad taste there” does not excuse his failure to visit his children. Parents must exercise a reasonable firmness in declining to yield to obstacles, In re Baby Boy P., 333 Pa.Super. 462, 470, 482 A.2d 660, 664 (1984) quoting Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975), and “must act affirmatively, with good faith intent and effort, to maintain the parent-child relationship to the best of his or her ability.” In re Burns, 474 Pa. 615, 626, 379 A.2d 535, 541 (1977).

An uncomfortable environment often exists between two parties who are subsequently divorced. We are not convinced appellant could not overcome this obstacle for the vitally important purpose of maintaining relationships with his three children. Consequently, we concur with the lower court in its conclusion that appellant refused or failed to perform his parental duties for a period in excess of six months and his rights in the minor subjects of these proceedings were properly terminated.

Order affirmed.

WIEAND, J., filed a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. The evidence in this case reveals the unhappy aftermath of a marital breakup, but it does not establish clearly and convincingly that the appellant-father intended to relinquish parental claim to his children or that he refused to perform his parental duties. See: In re Adoption of James P., 332 Pa.Super. 486, 492, 481 A.2d 892, 895 (1984); In re Adoption of Faith M., 329 Pa.Super. 304, 309, 478 A.2d 480, 482 (1984). If, at times, he failed to perform fully his parental duties, his failure must be examined in light of his financial circumstances and the roadblocks put in his way by appellee. The totality of these circumstances, in my judgment, does not support an order terminating appellant’s parental rights. Therefore, I would reverse.

      . Appellant testified that he only recalled three visits with his children in 1982.

      . As a result of appellant’s abusive calls, in August, 1983, appellee and her husband acquired an unlisted telephone number. However, appellant has always had his former mother-in-law’s telephone number, and appellee has promptly returned his calls upon receipt of his messages.

      . Appellee subsequently filed a complaint for support in West Virginia in July, 1983. An Order was entered in September of 1983, requiring appellant to pay $25 each month toward the support of his children.


author: PER CURIAM:

text:
    485 A.2d 1208
    Jane Louise WADDELL, Appellant, v. Richard B. TROSTEL, Donald E. Trostel, Richard Barry Trostel and Mountain View Fruit Farms, Inc.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Dec. 14, 1984.

      Kenneth L. Rotz, Gettysburg, for appellant.
    Henry O. Heiser, III, Gettysburg, for appellee.

      Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Plaintiff-appellant, Jane Louise Waddell, takes this appeal from the following order of the court of common pleas:

AND NOW, this 29th day of March, 1983, the demurrers are sustained and the complaint is dismissed. Plaintiff may file an amended complaint in assumpsit or an amendment to Count III within twenty (20) days of this date. The actions in equity are dismissed without further leave to amend.

Because we find this to be an interlocutory order, we quash this appeal.

Appellant’s complaint filed in the court below contained three counts: (1) a complaint for specific performance, (2) a petition for involuntary dissolution of a corporation, and (3) an action in assumpsit. Defendant-appellees filed demurrers to all counts. As is apparent from a reading of the court’s order, quoted above, the court sustained the demurrers as to all counts but allowed appellant leave to amend her count in assumpsit.

We note at the outset that we may address the question of appealability of the trial court’s order even though that issue has not been raised by the parties to this action, since it is fundamental that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Pullium v. Laurel School District, 316 Pa.Super. 339, 462 A.2d 1380 (1983).

It is settled law that an appeal will lie only from a final order unless otherwise permitted by statute; a final order is one which ends the litigation or disposes of the entire case. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Generally, an order which dismisses some but not all counts of a multi-count complaint is interlocutory and not appealable. Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980). As our supreme court wrote in J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 470-471, 350 A.2d 858, 861 (1976):

Were we to hold that the trial court’s ruling rejecting [two of plaintiff’s theories of recovery], while also requiring the parties to proceed to trial on a theory of contract arising out of the same transaction, is a final order from which an appeal must be taken, many potential problem areas would arise. If the time for filing an appeal would begin to run against a litigant whenever the trial court refused to consider a suggested legal theory of recovery, a litigant would need to file appeals at various stages of a law suit. Unless and until the rejection of a particular legal theory, or theories of recovery puts the plaintiff out of court on his cause of action against the ... defendant, no final order has been entered and no appeal may be filed.

(citations omitted) (emphasis supplied).

In the instant matter, the court allowed appellant leave to amend her complaint with regard to one of her counts. Therefore, appellant was not “out-of-court” on her cause of action.

Accordingly, we quash appellant’s appeal with direction to the lower court to allow appellant leave to amend her complaint.


text:
    485 A.2d 1209
    Janet TALLON, Appellant, v. LIBERTY HOSE COMPANY NO. 1.
    Superior Court of Pennsylvania.
    Argued Aug. 14, 1984.
    Filed Dec. 14, 1984.

      Rita Bernstein, Philadelphia, for appellant.
    James Ronca, Harrisburg, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Janet Tallón appeals from the order of the Court of Common Pleas of Dauphin County denying her motion for an award of counsel fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.

The litigation that ultimately resulted in this appeal commenced on July 31, 1980 when Janet Tallón, appellant herein, filed a complaint against appellee Liberty Hose Company, a volunteer fire company in the Borough of Williamstown, alleging that it had denied her application for membership solely on the basis of her sex. Plaintiff-appellant sought both declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution, as well as the Equal Rights Amendment to the Pennsylvania Constitution, Art. 1, section 28. More specifically, appellant asked that the court declare appellee’s rejection of her application a violation of 42 U.S.C. § 1983 and the Pennsylvania Equal Rights Amendment. Appellant also requested that the court order Liberty Hose to admit her to active membership and to adopt a procedure which would ensure that applicants are not rejected on the basis of their sex.

After some discovery, the parties negotiated a consent decree which was approved by the Honorable William W. Caldwell on March 8, 1982. The parties agreed, among other things, that appellant would be admitted as a probationary member of the hose company, and if she fulfilled the probationary requirements, which applied to all members, she would be admitted as a permanent member. The consent decree further stated that the constitution and by-laws of the hose company would be amended to specify that no person would be rejected from membership on the basis of gender. Liberty Hose made no admission that it had violated federal law.

Although appellant had requested an award of attorney’s fees in her original complaint, the consent decree made no mention of counsel fees. On July 7, 1982, appellant’s counsel contacted the hose company’s attorney in an effort to reach an agreement on the question of attorney’s fees. The negotiations were unsuccessful and in October of 1982, appellant filed a petition for award of counsel fees pursuant to the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. Liberty Hose filed a motion to quash appellant’s petition. A hearing was held on March 29, 1983 before the Honorable John C. Dowling and on June 13, 1983, Judge Dowling issued an order denying appellant’s motion for an award of counsel fees. This appeal timely followed.

Appellant presents us with five issues, all of which address the question of whether the lower court erred in refusing to grant her motion for an award of counsel fees pursuant to 42 U.S.C. § 1988. In her first issue, appellant asks whether she met all of the requirements for an award under that statute. Section 1988 provides in pertinent part:

In any action or proceeding to enforce a provision of sections ... 1983 ... of this title ... the court, in its discretion may allow the prevailing party, ... a reasonable attorney’s fee as part of the costs.

The lower court held, and we agree, that appellant met the requirements of the Act in that she was the prevailing party in a section 1983 cause of action.

Despite the fact that appellant met the requirements of the Act, the lower court held that the case presented “special circumstances” requiring a denial of an award. This standard was articulated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), in which the United States Supreme Court stated: “one who succeeds in obtaining an injunction under [section 1983] should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966, 19 L.Ed.2d at 1266.

The lower court found that the existence of a number of such “special circumstances” dictated the denial of an award of counsel fees in the instant case. The court first points to the fact that while the original complaint requested attorney’s fees, the consent decree made no provision for such an award.

In view of the fact that [appellee] gave up the right to challenge [appellant’s] charges in a court of law, for us to order an award of attorney’s fees would alter the consequences of that compromise \i.e., the consent decree]. Thus, the first special circumstance leading to a determination that attorney’s fees should be denied is [appellee’s] reasonable belief that by giving up its right to its day in court the issues raised by both parties ended by the Consent Decree.

Lower ct. op. at 4.

Similarly, the court found as a second special circumstance that appellant’s counsel deliberately refrained from discussing the matter of attorney’s fees throughout the settlement negotiations. Appellee argues that this tactic resulted in unfair surprise and prejudice to Liberty Hose, and thus counsel fees must be denied.

The issue embodied in these two “special circumstances” was recently addressed in El Club Del Barrio, Inc. v. United Community Corporations, Inc., 735 F.2d 98 (3d Cir.1984). In that case, the parties to a civil rights action negotiated a consent decree which settled the litigation. El Club Del Barrio, the prevailing plaintiff, then brought a suit for attorney’s fees under 42 U.S.C. § 1988. The defendants argued that the plaintiff had

waived its rights to attorneys fees by its conduct during settlement negotiations. Specifically, defendants argued that in an original draft of the settlement agreement plaintiff had provided that dismissal of its action would be without prejudice to its right to seek attorneys fees, but when defendants objected to this provision, the plaintiff withdrew it. The final settlement agreement and consent order thus simply provided for dismissal of the underlying action with prejudice and was silent on the issue of attorneys fees. In defendant’s submission, this silence, coupled with the conduct at the settlement negotiations, shows that the plaintiff waived its right to attorneys fees.

Id. at 99-100.

The Court of Appeals for the Third Circuit held that the failure of the parties to a civil rights suit to have provided for attorney’s fees in a written settlement agreement does not create a “special circumstance” depriving a prevailing plaintiff in the underlying action of its right to reasonable attorney’s fees under section 1988, even where the parties discussed but were unable to agree on attorney’s fees during settlement negotiations. “Rather, the burden is on the losing party to show that the settlement agreement clearly waived the statutory right to attorneys fees.” Id. at 99.

We agree with the El Club Del Barrio court that the failure to provide for fees in the consent decree is not a special circumstance which overcomes the Newman presumption that ordinarily a prevailing plaintiff should be awarded attorney’s fees. Applying El Club Del Barrio to the instant case, we find that appellant’s counsel’s failure to discuss attorney’s fees throughout the settlement negotiations, and the failure to provide for them in the written settlement agreement, does not bar recovery of such fees. The law and public policy favor an award of fees to the prevailing plaintiff. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Newman v. Piggie Park Enterprises, Inc., supra. Thus, it seems that the burden of foreclosing a suit under section 1988 should be placed upon the losing party in the underlying section 1983 action. El Club Del Barrio, supra. Instantly, there is no indication in the consent decree that appellant waived her statutory right to attorney’s fees.

Also, case law indicates that an award of attorney’s fees does mot “alter the consequences” of the consent decree, as stated by the lower court. Rather, a request for attorney’s fees under section 1988 is collateral to the main cause of action. “[A] motion for attorney’s fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment.” White v. New Hampshire Department of Employment Security, 455 U.S. 445, 452, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325, 331 (1982), quoting Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir.1980). Thus, an award of attorney’s fees in this case would not alter the consent decree.

Furthermore, given the holding in El Club Del Barrio, we are of the opinion that the fact that appellee may have been “surprised” by appellant’s request for counsel fees does not bar an award. The lower court intimated that the four month delay between the filing of the consent decree and the request for fees (together with counsel’s failure to discuss fees during negotiations) resulted in unfair surprise and prejudice to the appellee. The court distinguished White v. New Hampshire Department of Employment Security, 679 F.2d 283 (1st Cir.1982), in which the Court of Appeals for the First Circuit found no unfair surprise, on two bases: (1) White’s attorney notified the losing party within five days of the entry of the final order that attorney’s fees should be discussed; and (2) White did not seek fees as part of the original complaint. A fair reading of El Club Del Barrio indicates that whether or not fees are sought in the original complaint is not determinative. Furthermore, Pennsylvania has adopted no specific time limit for the filing of attorney’s fees petitions. In the case at bar, discussion of counsel fees began less than four months after the entry of the final decree. There is no indication in the record that appellee has been prejudiced by the delay. We find that while there was some delay, it was not so extreme, given the circumstances of the case, as to necessitate a finding that the request was untimely.

Thus, the lower court erred in denying the request for counsel fees on the ground that it resulted in unfair surprise and prejudice to the appellee.

The third “special circumstance” cited by the lower court was appellee’s inability to pay. A number of district and appellate courts have discussed whether a lack of funds on the part of the losing party bars the prevailing party from recovering an award of attorney’s fees. In Sharrock v. Harris, 489 F.Supp. 913 (S.D.N.Y.1980), the court stated:

Although the award of attorneys’ fees is expressly discretionary, Congress clearly intended that section 1988 be construed liberally and that successful plaintiffs be awarded attorneys’ fees except under “special circumstances” (citations omitted). Lack of funds on the part of a public agency would not seem to be one of the “special circumstances” Congress had in mind, since Congress clearly contemplated that governmental bodies, which are usually short of funds, would often be the defendants against which attorneys’ fees would be assessed.

Id. at 915.

Another district court stated: “[A] prevailing plaintiff should not have to shoulder the cost of obtaining his civil rights because the discriminating public body is poor.” Stanwood v. Green, 559 F.Supp. 196, 201 (D.Ore.1983).

In Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 506 (2d Cir.1980) and Vulcan Society of Westchester County, Inc. v. Fire Department, 533 F.Supp. 1054, 1060 (S.D.N.Y.1982), the courts seemed to indicate that while lack of funds may be one factor to be considered in determining the proper amount of attorney’s fees to be awarded, the court should not focus exclusively on the financial condition of the losing party “unless that party appeared to be in extremis.” Cohen, supra at 506. Furthermore, it would seem that the court should compare the relative wealth of the losing party to that of the prevailing plaintiff. Faraci v. Hickey-Freeman Co., 607 F.2d 1025 (2d Cir.1979).

In the instant case, we are of the opinion that an award of fees cannot be denied on the basis of appellee’s perceived inability to pay. While appellee’s financial condition may be a factor for the court to examine in determining the amount of fees to be awarded, it does not serve as an absolute bar to such an award.

Because we feel that the lower court erred in denying appellant’s motion for counsel fees, we must remand the case for a determination of the proper amount of fees to be awarded.

Order reversed and case remanded to the lower court for proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . Appellee argues that under Pa.R.C.P. 1518, appellant was required to file exceptions to Judge Dowling’s opinion of June 13, 1982 and that her failure to do so results in a waiver of all the issues raised in this appeal. We note, however, that the trial court’s order from which the instant appeal was filed did not comply with the Pa.R.C.P. 1517 requirements of an adjudication. While the court wrote an extensive opinion, neither the opinion nor the accompanying order contained any language which would indicate that the order was a decree nisi, or that the parties were required to file exceptions to perfect a right of appeal. Barton v. Penco, 292 Pa.Super. 202, 204, 436 A.2d 1222, 1223 (1981). "Where an order neither comports with the requirements of Pa.R.C.P. 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused.” Storti v. Minn. Mut. Life Ins. Co., 331 Pa.Super. 26, 28, 479 A.2d 1061, 1062 (1984).

      . It is clear that attorney’s fees can be awarded pursuant to section 1988 despite the fact that this case was brought in state court. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the United States Supreme Court affirmed a decision by the Supreme Judicial Court of Maine which concluded that prevailing parties were entitled to attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976 even though there was no specific state authorization for payment of legal fees. Additionally, the Court’s opinion refers to comments in the Congressional Record by Representative Drinan describing the purpose of the Act as “ ‘authorizing] the award of a reasonable attorney’s fee in actions brought in State or Federal Courts.’ 122 Cong.Rec. 35122 (1976)." Id. at 11, 100 S.Ct. at 2508, 65 L.Ed.2d at 563.

      . Appellee avers that appellant’s claim against appellee did not involve any right guaranteed by the Constitution or laws of the United States and therefore she cannot recover counsel fees under 42 U.S.C. § 1988. We find this argument to be meritless. The lower court found, and we agree, that appellant stated a § 1983 claim in her complaint. More specifically, she alleged that appellee’s actions denied her due process and equal protection of the laws of the United States. The fact that appellant based much of her claim on state law does not mitigate her simultaneous reliance on the protection of 42 U.S.C. § 1983. Since the litigation resulted in a decree in her favor, she is eligible for an award of attorney’s fees pursuant to § 1988.

      . As appellant points out in issue three of her brief, not only should counsel’s failure to discuss fees at settlement negotiations not bar recovery of an award of fees, but, more importantly, it would have been improper for counsel to negotiate fees while attempting to settle the case. See Prandini v. Nat’l Tea Co., 557 F.2d 1015 (3d Cir.1977), in which the Court of Appeals for the Third Circuit held that, because of the conflict of interest between the plaintiff and counsel that would otherwise result, simultaneous negotiations of disposition on the merits and of attorney's fees is impermissible.

      . We recognize that the lower court did not have the benefit of the Third Circuit Court’s El Club Del Barrio decision when it considered this case.


author: POPOVICH, Judge:

text:
    486 A.2d 396
    FIRST NATIONAL CONSUMER DISCOUNT COMPANY v. Gerald McCROSSAN and Linda L. McCrossan, his wife. Appeal of UNIVERSAL GUARDIAN CORPORATION. UNIVERSAL GUARDIAN CORPORATION, Appellant, v. Gerald McCROSSAN and Linda L. McCrossan, his wife. UNIVERSAL GUARDIAN CORPORATION, Appellant v. Paul BRUTSCHE and Janet Brutsche, his wife.
    Superior Court of Pennsylvania.
    Argued June 26, 1984.
    Filed Nov. 9, 1984.
    Reargument Denied Jan. 22, 1985.
    Petition for Allowance of Appeal Denied May 20, 1985.

      Howard M. Holmes, Philadelphia, for appellant.
    Thomas L. Kelly, Media, for McCrossan.
    James L. Shea, Upper Darby, for Brutsche, appellees.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Delaware County, later reduced to judgment, entered against the mortgagee/Universal Guardian Corporation in foreclosure actions against the mortgagors/McCrossans and Brutsches. We reverse.

The record reveals that on June 27, 1973, Gerald McCrossan and Paul Brutsche, t/d/b/a McCrossan’s Pharmacy, Inc., obtained a loan (principal plus interest) in the amount of $72,480.00 from First National Consumer Discount Co., the predecessor to Universal Guardian Corp., which is presently known as Credico Financial, Inc. Payments were to be made in 120 consecutive monthly installments of $604.00, the first of which was payable August 20, 1973.

In an abundance of caution, the creditor secured home mortgages, a “Guaranty” and a judgment note from the debtors. Thereafter, the mortgages and a financing statement were duly filed with the prothonotary of Delaware County. A similar filing was made with the Secretary of the Commonwealth as to “[a]ll inventory, fixtures and equipment of the pharmacy and drug store.” See 12A P.S. § 9-401 repealed; as amended at 13 Pa.C.S.A. § 9401.

On April 19, 1974, the pharmacy, needing operating capital, obtained another loan from First National for $13,-890.00. At this point; $8,432.00 had been repaid on the initial loan. To secure the new advance, the creditor obtained a second mortgage on the McCrossans’ residence. As with the first loan, a judgment note and a resolution of the board of directors authorizing the loan were also executed. However, this time these documents were signed by Gerald McCrossan as president and Linda McCrossan, who became a corporate officer in 1974, as secretary. Likewise, the “Guaranty” was signed only by the McCrossans in their corporate capacity.

It was not long before the $926.00 monthly payment on the second loan proved to be too much for the pharmacy, and it defaulted. In an effort to preserve the business, First National suggested that the pharmacy extend its payments and refinance the 1974 loan. To that end, a judgment note for $10,800.00 was signed on August 7, 1975, by the McCrossans in their corporate and individual capacities. A similarly dated “Agreement To Extend Mortgage Loan” was signed by the McCrossans, this time as individuals only. However, the document neglected to detail the prior loans of the McCrossans and the documents executed in securement thereof.

An additional item with the legend “First National Fund, Inc. — Settlement Sheet” was signed by the McCrossans. .It reflected the amount of the loan, the cash advance ($646.00), the balance due ($6,323.00) on the 1974 loan and the manner of repayment.

As noted earlier, the McCrossans were not alone in this business venture. Paul Brutsche, who owned 12% of the stock, co-signed the resolution of the board of directors and the “Guaranty”, as did his wife, in regard to the 1973 loan. The Brutsch'es also mortgaged their home. In fact, when they changed residences, a new mortgage was drafted on July 19, 1976, at their request to memorialize the continuing mortgagor/mortgagee relationship with First National.

Despite the efforts of the pharmacy to meet its financial obligations, the last reported payments on the 1973 and 1975 loans occurred in April and September of 1976, respectively. It will be recalled that the 1974 loan was satisfied with a refinancing that produced the 1975 indenture.

In March of 1977, the pharmacy sold its operation for $49,188.32. On August 22, 1977, an interpleader action (In ré: McCrossan’s Pharmacy, Inc. at No. 77-12129) was filed in the Court of Common Pleas of Delaware County, and the money generated from the sale was placed in the court’s custody for ultimate distribution to secured and unsecured creditors. Notice of the interpleader action was served upon all known creditors directing each, pursuant to Pa.R. Civ.P. 2309, to file a Statement of Claim.

On January 23, 1978, counsel for the then successor to First National, i.e., Universal Guardian, filed the required statement and sought $67,414.00 from the fund. The claim was predicated upon the June 27, 1973, loan to the pharmacy totaling $72,480.00, the validity of which counsel attempted to establish through a judgment note of even date and purportedly signed by Gerald McCrossan and Paul Brutsche, as president and secretary/treasurer of the pharmacy. Counsel further claimed that his client had “priority over all liens, except [for] that of the Commonwealth of Pennsylvania, Department of Revenue,” by filing the financing statement with the prothonotary and the Secretary of the Commonwealth. By doing so, he argued, Universal Guardian was a secured creditor.

By order of Judge Reed dated May 3, 1978, Universal Guardian, having failed to appear in court with the other creditors in interest, was directed to:

... present to the Court not later than twelve noon Monday, May 15, 1978, such document or instrument, if any they have, to establish a valid secured interest in the fund presently deposited in this Court and created from the sale or transfer of the property of McCrossan’s Pharmacy, Incorporated.
Failure to so produce such document shall forever bar them from asserting a secured claim to the said fund.

When the order entered was not complied with, the court, on May 30th, barred, with prejudice, Universal Guardian “from asserting a secured claim to the said fund and ... relegat[ed it] to the status of an unsecured creditorf.]” Thereafter, the fund was distributed, and, of the $51,984.57, Universal Guardian received only $3,584.47.

On August 14, 1978, counsel for Universal Guardian filed exceptions to the distribution. A hearing was scheduled for August 28th. However, for want of prosecution by counsel, the exceptions were dismissed. No appeal was taken therefrom.

Universal Guardian, undeterred by the turn of events surrounding the distribution, instituted actions in mortgage foreclosure in February of 1982 to recoup its losses, i.e., 1) First National Consumer Discount v. Gerald McCrossan and Linda L. McCrossan, No. 76-17329; 2) Universal Guardian Corporation v. Paul Brutsche and Janet Brutsche, No. 80-2397; and 3) Universal Guardian Corporation v. Gerald McCrossan and Linda L. McCrossan, No. 80-8075. The first suit involved foreclosure on McCrossans’ April 19, 1974, mortgage (which was evidence of a $13,890.00 loan to the pharmacy, the balance of which then owed ($6,323.00) was paid off by an indebtedness ($10,800.00) contracted by the McCrossans on August 7, 1975), the second dealt with the Brutsches’ July 9, 1975 (redrafted) mortgage (which was security for the pharmacy’s 1973 loan) and the third concerned the McCrossans’ June 27, 1973, mortgage (which also was security for the pharmacy’s loan of even date).

In February, a hearing was held and resulted in a determination by the court that the relationship created by the documents, in particular the concluding paragraph in the “Guaranty” reading “that the undersigned are sureties”, was one of principal debtor, creditor and surety. As such, the court opined that the creditor had a duty not to impair the collateral in its control which may have provided the means to satisfy the debt. Under surety law, the court continued, the creditor’s failure to verify its “secured” status in the interpleader action prejudiced the sureties’ right to subrogation and, thus, discharged the mortgagors/sureties to the amount injured — in this case, total extinguishment of the indebtedness accompanied by dismissal of the complaints in mortgage foreclosure. Exceptions were filed, denied and judgment was entered. This appeal followed.

Of the nine issues raised by the appellant/creditor, we only need concern ourselves with whether the court below erred in finding that the appellant’s failure to assert a claim in the interpleader action (i.e., by not filing or maintaining a security interest in the pharmacy’s assets), precluded it from seeking recoupment of monies owed through mortgage foreclosure. (See Judge Keeler’s “Findings of Fact” and “Conclusions of Law” at page 11)

We start our discussion by noting the preoccupation of the parties and the court below with whether a surety-ship or guaranty was created herein. Suffice it to say, based on the record before us, the appellees appear to be sureties rather than guarantors. Further, as stated quite aptly by our Supreme Court,

whatever [t]he[y] may be termed, the point in hand is covered by citing Campbell v. Baker, 46 Pa. 243, where [it was] held that “A guaranty of the payment of a note ‘when due’ is broken by nonpayment at maturity, and the guarantors are] then liable upon [their] contract to the creditor, who is not bound either to pursue the principal or show his insolvency.” In other words, when one warrants payment at a particular time, it means just that, and not payment after pursuit and insolvency of the principal debtor, even though the word “guarantee,”— which usually imports the necessity for the latter course, —may be used: see also Homewood People’s Bk. v. Hastings, [263 Pa. 260, 106 A. 308], and authorities cited in connection therewith.

Miners State Bank v. Auksztokalnis, 283 Pa. 18, 27-28, 128 A. 726 (1925); see also Behlen Mfg. Co. v. First National Bank of Englewood, 28 Colo.App. 300, 472 P.2d 703, 706 (1970) (“... sections [109 and 118] of [50] AmJur. [, Suretyship,] accurately state the law as to suretyship and this law is equally applicable to an unconditional guaranty. The guarantor has a right of subrogation to the security upon payment of the obligation____”).

We do not take issue with the general propositions espoused by the court below that under surety law:

... the [creditor] had the duty not to impair the security in its control which- may have provided the means of satisfying the debt. Fegley v. McDonald, 89 Pa. 128, 130 (1879). The creditor in such a situation must not prejudice the right of the surety to resort to the security when the surety pays the debt and becomes entitled to subrogation. Franklin Savings & Trust Co. v. Clark, 283 Pa. 212, 129 A. 56 (1925). Impairment of the collateral discharges the surety to the extent that the unimpaired security would have paid the principal debt or to the extent of the surety’s injury. First Nat. Bank v. Foster, 291 Pa. 72, 75, 139 A. 609 (1927) (payment of debt); Robbins v. Robinson, 176 Pa. 341, 35 A. 337 (1896) (extent of injury); Girard Trust Bank v. O’Neill, 219 Pa.Super.Ct. 363, 367, 281 A.2d 670, 672 (1971) (extent of injury). This principle applies even when the surety was not in a position to enforce its subrogation rights when the impairment occurred. First Nat. Bank & Trust Co. v. Stolar, 130 Pa.Super.Ct. 480, 488, 197 A. 499 (1938).
Here, [creditor] perfected its security interest in the property of McCrossan’s Pharmacy, Inc., on July 2, 1973. See 13 Pa.C.S.A. §§ 9302 & 9303 (1981) (Uniform Commercial Code—Secured Transactions).

(See Judge Keeler’s “Findings of Fact” and “Conclusions of Law” at 11-12); see also 72 C.J.S., Principal and Surety, § 197.

However, the court below considered de minimus the language in the documents captioned “Guaranty”, which, in effect, neutralized the precepts just recited.

To explicate, the two “Guaranty” documents signed here, one by all four defendants/appellees for the 1973 loan (Exhibit P-3) and the other only by the McCrossans as to the 1974 loan (Exhibit P-10), were identical in form. For instance, the language read that the signators “guarantee[d] ... full, prompt and unconditional payment of all moneys ... due or which m[ight] become due” from the debtor/pharmacy to the creditor. Their liability was not to be “affected, impaired or discharged, in whole or in part, by ... the fact that any money,” payment of which was guaranteed thereunder, might “become due or payable ... in connection with, or by reason of, any agreement, document or transaction which m[ight] be irregular or unenforceable for any reason.”

Further, in paragraphs 3 and 5 of the “Guaranty”, the creditor reserved to itself certain rights, e.g., to proceed against the signators, upon default by the debtor/pharmacy, without'first having to take action of any kind against the debtor/pharmacy; and “to compromise, release, substitute, exercise, enforce or fail or refuse to exercise or enforce any claims, rights, or remedies of any kind which [creditor] m[ight] have, at any time, against Debtor or any guarantor, endorser, or other party liable for Debtor’s debts or any portion thereof, or with respect to any security held by [creditor], and to release, substitute or surrender and to enforce, collect or liquidate, or to fail to refuse to enforce, collect or liquidate, any security of any kind held by [creditor] at any time.”

We are persuaded that the waiver provision of the “Guaranty” is an unconditional one whereby the sureties (McCrossans and Brutsches) agreed to pay on default of the principal debtor/pharmacy without limitation. See Continental Leasing Corp. v. Lebo, 217 Pa.Super. 356, 272 A.2d 193 (1970). Thus, the appellees-Brutsches’ defense of impairment of collateral, although firmly embedded in Pennsylvania common law, must give way to the equally entrenched “proposition that an explicit waiver precludes a guarantor [or a surety] from asserting them in an action to recover under the guaranty.” Ford Motor Credit Co. v. Lototsky, 549 F.Supp. 996, 999 (E.D.Pa.1982).

Stated otherwise, the appellees and the court below are correct in remarking that under certain circumstances if the creditor has not exercised reasonable (due) diligence in preserving the security, then the obligation of the appellees would be reduced to the extent that they were injured. Restatement of Security, § 132 (1941); see also 72 C.J.S., Principal and Surety, § 197; 38 C.J.S., Guaranty, §§ 7, 61. However, because the guaranty agreement in the instant case is an absolute and unconditional one, and because the contract of guaranty did not require the creditor to take such action, the foregoing rule of law has no applicability. See The Paul Revere Protective Life Insurance Co. v. Weis, 535 F.Supp. 379 (E.D.Pa.1981); Continental Leasing Corp. v. Lebo, supra.

The Third Circuit Court of Appeals, in a strikingly similar procedural mis-step case, considered “... a creditor who [was] a party to an unconditional guaranty contract and who additionally [held] a security interest, ... not [to be] under an affirmative duty to preserve the collateral.” Fireman’s Fund Insurance Co. v. Joseph J. Biafore, Inc., 526 F.2d 170, 175 (3rd Cir.1975). In the case sub judice, there is an absence of any element of reliance on the part of the appellees, and, therefore, the creditor was not under any duty to preserve or protect the collateral. The Paul Revere Protective Life Insurance Co., supra. The case of Girard Trust Bank v. O’Neill, 219 Pa.Super. 363, 281 A.2d 670 (1971), which is cited by both the court below and the appellees in support of this argument, is inapposite because Girard “does not at all address itself to the issue of unconditional suretyship agreements” as is present in the case at bar. The Paul Revere Protective Life Insurance Co., supra, 535 F.Supp. at 385, citing Massaro v. Industrial Valley Bank, 16 Pa.D. & C.3d 499, 502 (C.P.Phila.1980).

Since the court’s ruling dismissing the appellant’s complaints in mortgage foreclosure was premised in large part upon the erroneous belief that the appellant had an obligation to perfect its security interest in the pharmacy’s collateral as a condition precedent to instituting suit, we reverse and remand for a recalculation of the amount due the appellant/mortgagee in light of our ruling.

Judgment and order reversed. Jurisdiction relinquished.

      . At the February 18, 1982, foreclosure hearing, both men denied having either seen or affixing their signatures to such a note.

      . Quoting from 38 C.J.S., Guaranty, § 6c,
      [although the nomenclature used by the parties is entitled to due consideration, whether the contract is that of suretyship or guaranty does not depend on the use of particular or technical words such as "security,” "surety,” "guaranty," or "guarantee." It is the nature of the obligation which the parties intended should be created, gleaned from all the language of the instrument as construed in its setting, that determines whether the contract is one of guaranty or surety-ship. So, although an agreement to stand as “surety” or become "security” indicates the undertaking of a surety,' if the substance and effect of the instrument is that of a guaranty it will be so construed, notwithstanding the word “surety” or “security" is used throughout the contract. On the other hand if the obligation is direct and primary, the contract will be that of suretyship, and not of guaranty, although the word "guaranty” or "guarantee” is employed. A promise to be "responsible” for the contract of another has been held to be a contract of suretyship and not of guaranty, although the circumstances may be such as to constitute it a guaranty.

       Pa.—Allegheny County Light Co. v. Reinhold, 7 Pa.Dist. 385, 21 Pa.Co. 118.
      In Pennsylvania, the task of ferreting out the intent of the parties to a contractual-debt-obligating-instrument, i.e., whether they intended to establish a suretyship or guaranty, is ameliorated by the Act of July 24, 1913, P.L. 971, § 1, 8 P.S. § 1. Under the Act a written agreement made by one person'to answer for the default of another subjects such person to the liabilities of suretyship unless the agreement contains in substance the words “this is not intended to be a suretyship.” Plummer v. Wilson, 322 Pa. 118, 121, 185 A. 311 (1936). Such a statement was not in the "Guaranty” at bar. ■

      . The Restatement of Security, § 132 (1941) summarizes the defense as follows:
      Where the creditor has security from the principal and knows of the surety’s obligation, the surety’s obligation is reduced pro tanto if the creditor
      (a) surrenders or releases the security, or
      (b) wilfully or negligently harms it, or
      (c) fails to take reasonable action to preserve its value at a time when the surety does not have an opportunity to take such action.

      . This determination is based upon the fact that the appellees waived their right to rely on the principal debtor’s collateral in paragraph 5, subpart (c) of the "Guaranty”. (Reproduced supra) See also Ford Motor Credit Co. v. Lototsky, 549 F.Supp. 996, 1000 n. 9 (E.D.Pa.1982).

      . We leave it to the discretion of the court on remand whether additional evidence need be taken on this issue. It will be recalled that a hearing in February of 1982 was conducted to rule on the propriety of the actions in mortgage foreclosure. Thus, we deem it prudent to avail the court and parties the opportunity to assess and recalculate the amount due and owing the mortgagee. This we believe can be accomplished by the court below, which has evidenced an appreciation of the facts that should not be curtailed by our substitution for as of yet unannounced new findings of fact and conclusions of law.
      However, we will mention that our review of the testimony given at the February, 1982, hearing is sufficient to establish the existence of liability on the part of the appellees.
      Gerald McCrossan and Paul Brutsche admitted signing, along with their wives, all but the 1973 judgment note. Albeit Gerald and Paul stated they had not read the "Guaranty” closely, this would be no defense to their obligation to repay Universal Guardian.
      The documents, read in toto, leave little doubt that the McCrossans ■and Brutsches are indebted to the creditor. All but the amount owed requires to be decided.


author: WICKERSHAM, Judge:

text:
    486 A.2d 401
    Shirley F. MADDEN v. Raymond L. MADDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 14, 1984.
    Filed Nov. 16, 1984.
    Reargument Denied Jan. 29, 1985.
    Petition for Allowance of Appeal Denied July 22, 1985.

      Frederic G. Antoun, Harrisburg, for appellant.
    Samuel L. Andes, Lemoyne, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of Cumberland County which, inter alia, awarded alimony to appellee and classified and divided a certificate of deposit as marital property.

Raymond L. Madden, appellant, was sued for divorce by his wife Shirley F. Madden, appellee, in May of 1981. They had been married approximately twenty-five (25) years and had one minor child still left at home, David, then aged 9. Appellee also requested child support for David, alimony pendente lite, alimony, counsel fees, and equitable distribution of the marital property. Appellant consented to the divorce and to appellee’s custody of David, but he disputed the economic issues. The lower court entered an order requiring appellee to pay appellant $70.00 per week child support. Thereafter, the court entered another order directing appellee to pay an additional $55.00 per week alimony pendente lite and $500 in counsel fees.

The lower court appointed a Master, before whom the parties, their attorneys, and witnesses appeared in July of 1982. On September 28, 1982, the Master issued his report, to which both parties filed exceptions. On June 17, 1983, the lower court en banc, after argument on the exceptions to the master’s report, handed down its opinion and the following order:

ORDER OF COURT
AND NOW, this 17th day of June, 1983, it is ordered, adjudged and decreed that
1. The certificate of deposit is marital property and is to be distributed one-half to the plaintiff in the amount of $13,500 and one-half to the defendant in the amount of $13,500.
2. The defendant shall pay to the plaintiff alimony at the rate of $25.00 per week for a period of five (5) years. The above sum shall be payable through the Domestic Relations Office of Cumberland County.
3. There is awarded to Shirley L. Madden the following marital property:
[A list of seven items of property distributed to appellee followed].
4. Custody of David Madden, minor child of the parties, shall remain in Shirley L. Madden until further order of the court.
5. There is awarded to Raymond L. Madden the following marital property:
[A list of thirteen items of property distributed to appellant followed].
6. The award to the plaintiff of additional counsel fees of $1,000 is reversed. Each party to pay his or her own appraisal costs and one-half of the master’s fee.

It was from the above order that appellant filed this timely appeal.

Appellant raises two issues on appeal:

1. Does a gift of bonds to the husband from his mother ever cease to be a gift and become marital property to ' be divided and awarded to the wife?
2. Is any award of alimony to a wife who is operating and has operated her own beauty salon as a licensed cosmotologist for over twenty years proper?

Brief for Appellant at 5.

Generally, an abuse of discretion standard of review applies in cases concerning the economic awards of alimony, counsel fees, and property distribution under the Divorce Code, 23 P.S. § 101 et seq. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). Equitable distribution is within the discretion of the trial court and its decision will not be disturbed absent an abuse of that discretion. Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). In reviewing such awards, we must remember that the master and the trial’ court were free to accept or reject the parties’ testimony. Estep v. Estep, supra; Gee v. Gee, supra. Similarly, a trial court’s order concerning an alimony award should be reviewed only for an abuse of discretion. Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825 (1984); Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984); Ruth v. Ruth, supra; Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

With these considerations in mind, we now turn to appellant’s issue. Appellant first questions the lower court’s classification of the certificate of deposit as marital property. During the parties’ marriage, appellant’s mother purchased a number of United States savings bonds with her own funds and placed them in the joint names of herself and appellant. Following her death in 1978, ownership of these bonds vested entirely in appellant. Thereupon, appellant cashed in the bonds and used the cash proceeds to purchase new savings bonds, which he placed in the joint names of himself and appellee. He brought the new savings bonds home, showed them to appellee, and placed them in a safe which the parties kept in the house and to which both parties had access. Thereafter, when problems arose between the parties, appellant removed appellee’s name from the bonds, cashed them in, and purchased a certificate of deposit in his name only. The amount involved is approximately $27,000.00. The lower court determined that the certificate of deposit was marital property and thus, subject to equitable distribution.

23 P.S. § 401(d) allows the court to equitably divide or distribute marital property. 23 P.S. § 401(e) and (f) discuss the concept of marital property and state, in applicable part:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
* Sjí s¡c * * *
(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

Thus, despite the fact that the certificate of deposit was titled in appellant’s name only, it is presumed to be marital property, unless it was acquired by one of the seven methods listed in section (e). Appellant argues that the certificate of deposit was a gift from his mother and thus excludable under 23 P.S. § 401(e)(3).

Upon a careful review of the record, we agree with appellant that the savings bonds were originally acquired by appellant as a gift from his mother when she transferred them from her name to joint ownership with her son. As the lower court noted, this “gift” status continued when the bonds passed to appellant upon his mother’s death. However, when appellant cashed in those bonds and used the proceeds to purchase new bonds held in the joint names of “Raymond L. Madden or Shirley F. Madden,” the bonds lost their “gift” status and took on the status of property by the entireties, owned by both parties and not amenable to appropriation or termination by either party for his own benefit.

[W]here [property] is purchased by a husband and the certificates are made out in the names of both the husband and wife, even though the certificates are delivered to the husband and retained by him, the gift to the wife is complete. The gift is presumed by reason of the nature of the joint tenancy with is peculiar to the husband and wife relationship and delivery to the husband is considered to be delivery to both the husband and the wife____ Where property or an account is placed in the names of a husband and wife, a gift and the creation of an estate by the entireties is presumed even though the funds used to acquire the property or to establish the account were exclusively those of the husband____ The placing of the property in both names, without more, creates an estate by the entireties____ In order to overcome the presumption that an estate by the entireties exists and that a complete gift ensued therefrom, there must be clear and convincing evidence to the contrary____ Even where a husband places the property in both names without his wife’s knowledge or consent, a valid gift occurs.

In re Holmes Estate, 414 Pa. 403, 406, 200 A.2d 745, 747 (1964) (citations omitted). See also Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968); Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); In re: Cochran’s Estate, 398 Pa. 506, 159 A.2d 514 (1960); Margarite v. Ewald, 252 Pa.Super. 244, 381 A.2d 480 (1977).

Not only were the new savings bonds property by the entireties, but more to the point, they took on the additional status of marital property. The bonds were “property acquired by either party during the marriage” and were not excludable under any of the exclusions listed in 23 P.S. § 401(e). As such, they were subject to equitable distribution rather than mere partition. Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982).

Appellant argues that appellee’s evidence concerning joint ownership of the bonds was so inconclusive as to be incredible. We disagree. Appellee testified that appellant obtained the original bonds upon his mother’s death; that he “changed” them to their joint names; that he brought them home and showed them to her; that he put them in their home safe; that she had equal access to that safe; and that he removed them in June of 1980, cashed them in and turned them into a certificate of deposit in his name only. Appellant never contradicted appellee’s testimony on the bonds, or offered any testimony denying that he transferred the bonds into joint names or that he made a gift of the bonds to appellee in 1979. No clear and convincing evidence was offered to overcome the presumption that an entireties estate was created when appellant bought new bonds and put them in both parties’ names. Nor did the estate change simply because appellant changed the form of the estate from savings bonds to a certificate of deposit. 23 P.S. § 401(f). Furthermore, since these bonds were acquired by the parties during their marriage, the bonds were also marital property and thus subject to equitable distribution. We find no reason to disturb the lower court’s decision regarding the certificate of deposit.

Appellant also argues that the award of alimony to appellee is “unjust, unconscionable, [punitive] and confiscatory.” Brief for Appellant at 20. He claims that the award of $25.00 weekly to appellee is excessive because appellee has sufficient income or potential income with which to support herself. We find appellant’s arguments to be 'unsupported by the record.

23 P.S. § 501(a) allows the award of alimony only if the receiving party (1) lacks sufficient property to provide for his/her reasonable needs and (2) is unable to support himself/herself through appropriate employment. Section 501(b) sets forth various factors to be considered in making an alimony decision. The Master herein recommended that appellee receive $30.00 weekly for an indefinite period. The lower court, however, in view of its award to appellee of half the certificate of deposit, set the alimony at $25.00 weekly for five years. The lower court explained:

[Appellee] operates a beauty salon in her home, which allows her to work and, at the same time, raise her son, care for the home, and cook dinner for her family. It also saves her the time and expense of commuting to work, and the expense of child care. She works approximately forty hours each week, and has built up a steady clinetelle [sic] over the past twenty years. Her only formal training for this occupation was in 1955, and she has testified that she has no training or experience in fashioning the newer hairstyles required in professional beauty salons. (N.T. 26-27, 46-49). We find that [appellee’s] employment is more than appropriate for her training and ability, and that it does not alone provide a reasonable amount of support for her. Testimony regarding [appellee’s] 1982 income shows an approximate net annual income of only $4,000, while net income in 1980 was only little more than $2,000. Taking into account the fact that some of the expenses of the beauty shop cover the expenses of the rest of the home and have already been netted out of [appellee’s] income, and the fact that her son’s expenses will be covered by child support, we find that alimony should be set at $25.00 each week to allow [appellee] to pay her expenses. [Appellant] at this time is gainfully employed with a large corporation, enjoys net weekly income of $266.00, and is covered by an employee benefit plan which includes retirement and death benefits; the alimony payments will not be an unreasonable burden upon him.

Lower ct. op. at 6-7. At the time the alimony order was entered by the trial court, the court had already conducted three separate hearings into the income and expenses of the parties, and had the evidence produced at the master’s hearing before it as well. Our review of the record supports the findings in these various opinions and reports. Further, we find no real substance to appellant's claims of abuse of discretion by the lower court in determining the necessity for and/or amount of alimony. He does not cite to us any relevant case law, but instead relies on generalizations in his attempt to persuade us that the lower court abused its discretion. We are not so persuaded.

Accordingly, the order of the court below is affirmed.

      . In March of 1983, appellant filed a complaint for partial custody and visitation following difficulties with appellant’s visitations with David. The record does not show the result, if any, of that complaint.

      . An examination of the record shows that a number of other petitions were filed by the parties in this litigation, but none are directly, involved in the appeal.

      . We note appellant's reliance on Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984). However, we do not feel that Estep supports appellant’s position that the bonds never became marital property. In Estep, the husband placed into a joint account $2,500 representing the proceeds from a sale of property which he had owned prior to the marriage. Despite the presence of the money in the joint account, this court held that the money was not marital property because it was excludable as "property acquired in exchange for property acquired prior to the marriage” under 23 P.S. § 401(e)(1). Such is not the situation in the instant case. There is no testimony in the record that appellant owned the bonds before his marriage, or that he came into the marriage with $29,000.00 worth of bonds. Rather, both parties testified that he came into the marriage with a car and some money ($3000 according to appellant’s testimony) for a down payment on their house.

      . On October 29, 1981, the lower court held a hearing concerning appellee’s request for alimony pendente lite. On November 9, 1981, it issued a five-page opinion examining the economic circumstances of the parties. Thereafter, at appellant’s request, the court conducted another hearing into the incomes and expenses of the parties and, by order dated March 17, 1982, refused to reduce the amount of alimony pendente lite previously ordered. A third hearing concerning ■ the incomes and expenses of the parties was held in April of 1983.


author: BROSKY, Judge: SPAETH, President Judge,

text:
    486 A.2d 406
    The PHILADELPHIA NATIONAL BANK v. John W. CALDWELL and Nancy C. Caldwell, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 1, 1984.
    Filed Nov. 23, 1984.
    Reargument Denied Jan. 22, 1985.
    Petition for Allowance of Appeal Denied July 9, 1985.

      Joseph F. Mulcahy, Jr., Chester, for appellants.
    Matthew S. Donaldson, Jr., Media, for appellee.
    Before SPAETH, President Judge, and BROSKY and CIRILLO, JJ.
   BROSKY, Judge:

This appeal is from the dismissal of appellants’ counterclaim in a civil action. Appellants argue only that it was error for the trial court to treat on the merits, at that early stage of the proceedings, the preliminary objections to the counterclaim. As a general proposition of law, appellants are correct. However, due to the type of preliminary objection which was considered by the trial court — a demurrer — we conclude that the general rule is not applicable sub judice. Affirmed.

The relevant procedural history of this case can be briefly summarized. Appellants obtained a credit card from appellee and subsequently received bills for charges which they denied having incurred. Appellants did not pay this bill. Upon notification appellee is alleged to have agreed to drop the charges in question from appellants’ bill but subsequently they reinstated the charges. Eventually appellee brought an action seeking to recover the unpaid sum in question and appellants counterclaimed. The counterclaim sought compensation for impairment to appellants’ credit rating and mental anguish caused by harassing phone calls received at home and at work. In addition appellants stated that they were entitled to payment for the legal expenses incurred in the defense of appellee’s suit. Appellee responded to the counterclaim by filing a preliminary objection, claiming that appellants had not stated a cause of action; which the trial court sustained by dismissing appellants’ counterclaim. This appeal is taken from that dismissal.

Appellants argue that the trial court committed reversible error in ruling on appellee’s preliminary objection at that stage of the case. They rely upon the Pennsylvania Supreme Court case of Broido v. Kinneman, 375 Pa. 568, 101 A.2d 647 (1954). Broido held that when a case contains a counterclaim, preliminary objections should not be decided against one of the parties before the case has gone to the fact finder and only one judgment disposing of all the claims should be entered.

In a case such as this, where the claim and counterclaim both grow out of one and the same contract or transaction, it is inexpedient for a court to pass preliminarily with finality upon the claim of one of the parties before disposing of the case as a whole by the entry of one all-conclusive final judgment. To proceed otherwise would be likely to bring about a piecemeal disposition of reciprocal claims involved in one action with an extension of the litigation through added arguments and appeals, attendant postponement of the ultimate final result and consequent increased expense to the parties. It could, moreover, produce an unfair situation by implication when the remaining issue comes up for determination.
There is a still further reason why the preliminary objections should not have been entertained by the court below. Orderly procedure requires that a court not treat with a question of law unless and until its solution is essential to the proper disposition of the matters litigated. In short, questions decided prematurely may become moot or otherwise unimportant. Thus, if, upon a trial of this case, both the claim and the counterclaim are submitted to the jury and a verdict for the plaintiffs results, it will render immaterial the question whether the defendants retained a right to sue for their loss upon a resale of the property. The time for the decision of that question will properly arise on the plaintiffs’ appropriate motions if and when the defendants obtain a jury’s verdict.

Id., 375 Pa. at 572, 101 A.2d at 649.

Appellee argues in response that Broido is inapplicable here because appellants do not allege a breach of the contract, the credit card agreement. This overlooks the language of Broido quoted above, “... where the claim and counterclaim both grow out of one and the same contract or transaction ..(emphasis supplied). It is apparent that the counterclaim did grow out of the same transaction, namely the non-payment of the purported credit charges. The question of the validity of this debt was central to both the claim and the counterclaim.

Further, we conclude that the two-part rationale of Broido is applicable sub judice. The piecemeal disposition of the reciprocal claims would, indeed, have been avoided had Broido been followed. In fact, the instant appeal would not now be before this Court. In addition, the potential for mootness was quite real if the case had gone to the fact finder prior to the disposition of questions of law. If the fact finder had decided that appellants did owe appellee the sum in question, the counterclaim would have been decided on that ground alone, obviating the need for the trial court to rule on legal questions.

Thus it would appear that appellant prevails and the rule in Broido should be applied here. Looking ahead, however, certain insuperable difficulties are apparent. Namely, if the issue raised in the preliminary objection in the form of a demurrer is correct, if appellants have not stated a cause of action — how would the trial court charge the jury? The trial court must, of course, decide what the applicable law is before instructing the jury on it. In making that decision he must, in effect, rule on the demurrer. Should the trial court conclude that there is no applicable cause of action based on the facts of the case, how would he charge the jury? Obviously, he could not direct them to deliberate and he would thereby be working a violation of Broido’s rule.

A convoluted procedure would allow for the application of Broido’s rule while avoiding this impasse. The trial court could postpone ruling on the demurrer and let the case go to the jury initially only on the central factual questions involved. Here, for example, the court could instruct the jury to determine as a matter of fact whether or not appellant had incurred the debt in question. Then, if the jury concluded that appellants had incurred the debt, there would be no need to rule on the demurrer to the counterclaim. If, on the other hand, the jury found that appellants had not incurred the debt, the trial court would then rule on the demurrer. Should the trial court hold, as a matter of law, that the demurrer be sustained, the case would be concluded. If, to the contrary, the trial court found that the demurrer should not be sustained, that appellant had stated a cause of action, he would then charge the jury on damages.

We decline to impose this procedure on the Courts of Common Pleas. The awkwardness of implementing this unwieldy mechanism would appear to outweigh the advantages to be gained by Broido’s rule. Also, we are loath to promulgate such extensive procedures without explicit authorization in the Rules of Civil Procedure or from this Commonwealth’s high court.

With these considerations in mind, it appears that the preferable course of action is to hold that Broido is not applicable to a preliminary objection in the form of a demurrer. Accordingly, we so hold.

Having concluded that Broido does not apply to the case before us, it follows that appellants’ argument fails.

Order affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I am not persuaded that a demurrer is different in any relevant way from the preliminary objection in Broido v. Kinneman, 375 Pa. 568, 101 A.2d 647 (1954). Nor am I convinced that application of the rule in Broido to a demurrer would require the Courts of Common Pleas to use “convoluted procedure[s]” or “unwieldy mechanism[s]”. See majority op. at —, —. I am therefore unwilling to join the majority in what appears to me to be a departure from precedent established by our Supreme Court; rather, I believe that in reliance on Broido, we should reverse the order of the trial court.

The majority’s opinion states that there would be certain “insuperable difficulties” if we were to follow Broido where the preliminary objection to the counterclaim is a demurrer. Majority op. at —. The difficulty perceived by the majority is that if the preliminary objection is well taken, and the counterclaim does in fact fail to state a cause of action, how would the court charge the jury? Id. I suggest, however, that this overlooks the fact that in Broido the same “difficulty]” was present but the Supreme Court did not view it as “insuperable”. There the plaintiff’s preliminary objection to the counterclaim claimed that a provision of the contract between the parties precluded the defendant’s counterclaim. If in fact the plaintiff’s argument had been correct, the same “insuperable” difficulty would have been present. It would have been impossible to allow the jury to decide a claim that was, as a matter of law, insufficient.

The majority, mistakenly, I believe, interprets Broido as requiring that a counterclaim must always be decided by the jury. See majority op. at —. However, Broido does not require that all counterclaims be decided by a jury but only that one final judgment be entered on all claims arising out of the same contract or transaction. The Supreme Court’s concern in Broido was that sustaining preliminary objections to a counterclaim at the beginning of an action “would be likely to bring about a piecemeal disposition of reciprocal claims with an extension of the litigation through added arguments and appeals, attendant postponement of the ultimate and final result and consequent increased expense to the parties.” Broido v. Kinneman, supra, 375 Pa. at 572, 101 A.2d at 649. This concern is wholly applicable to this case. The trial court’s docket entries disclose that the complaint in this case was filed in October 1981, and that plaintiff’s preliminary objections to defendant’s counterclaim were sustained on November 8, 1982. An appeal from that order was filed on December 3, 1982; it is now late 1984. By departing from Broido, and allowing trial courts to sustain a demurrer to a counterclaim at the outset of a case, the majority encourages piecemeal disposition of reciprocal claims. The result here is that a case that should have been decided in 1982 will not be decided until, at the earliest, 1985, with further appeals, delay, and expense to follow.

The solution to the “insuperable difficulty]” seen by the majority is, I suggest, quite simple. Since, contrary to the majority’s belief, Broido does not require íhat all counterclaims be decided by a jury, but only that one final judgment on all claims be entered, the trial court should defer decision on the preliminary objection until both the plaintiff and the defendant have presented their evidence. Th¡en, if the preliminary objection is well taken, the court, upon motion, should dismiss the objected-to claim, and the remaining claim should proceed in its normal course to the jury. A final judgment could then be entered and an appeal, including a challenge to the granting of the motion for dismissal, could be taken.

The order of the trial court should be reversed.

      . Appellants raise no issues regarding the validity of the trial court’s conclusions of law in granting the demurrer. Appellant only argues the impropriety of the trial court having ruled upon the preliminary objection at that stage of the proceedings. Consequently, we do not review the trial court’s conclusions of law, only the procedural propriety of its having ruled at all.

      . The rationale for the dismissal, contained in the trial court opinion, was the insufficiency of the facts alleged by appellants to entitle them at law to damages. As noted above, those conclusions are not before us due to the manner in which appellants framed the issues for our review.

      . While questions of law presented by preliminary objections are normally to be disposed of promptly, Municipal Water & Sewer Auth. of Center Twp. v. Northvue Water Co., 7 Pa.Cmwlth. 141 at 146, 298 A.2d 677 at 680 (1972), that norm is not applicable where a counterclaim has been added. The rationale for this is obvious. If a claim, which is not accompanied by a counterclaim, is dismissed, or if both the claim and the counterclaim are dismissed, preliminarily on a matter of law, that is the end of the case in the trial court. But, where only either the claim or counterclaim is dismissed the remaining cause of action must still proceed to the fact finder. That being the case, it is expedient to allow both claims to reach the fact finder. No extra litigation ensues and much fragmentation of the case may thus be prevented.

      . When the preliminary objections involve issues other than demurrers, Broido is, absent other developing case law, still applicable.

      . We have the ability to so restrict the application of Broido since that case did not involve a demurrer, but a question of contract interpretation — whether one party had waived his right to that cause of action through a provision of a contract. (Nor have later cases applied Broido in a demurrer context.) Broido, like all case law, is limited to its underlying facts.
      "General expressions in an opinion must be considered in the light of and cannot be dissevered from the facts of that case; what is actually decided and controlling is the law applicable to the particular facts of that particular case and while all other statements and conclusions therein are entitled to great consideration they are not controlling.”

        In re Trust Estate of Pew, 411 Pa. 96 at 105, 191 A.2d 399 at 404 (1963). The broad language of the above-quoted paragraphs from Broido is, thus, strictly speaking, obiter dicta. More precisely, the paragraphs in question are the ratio decidendi of the decision and, as such, are dicta. See R. Aldisert, The Judicial Process, 1976 at 799. While we quite properly endeavor to implement even the dicta of our state Supreme Court, we must use our judgment to decide when the gymnastics involved in such implementation are so grotesque that it is reasonable to conclude that court handing down the opinion could not have intended them.