author: CIRILLO, Judge: SPAETH, President Judge,

text:
    474 A.2d 1142
    TARGET SPORTSWEAR, INC., Appellant, v. The CLEARFIELD FOUNDATION.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1983.
    Filed March 30, 1984.
    Petition for Allowance of Appeal Denied July 17, 1984.

      Leonard Dubin, Philadelphia, for appellant.
    Carl A. Belin, Jr., Clearfield, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

In this equity action seeking a decree for specific performance, the trial court denied relief. This appeal followed.

The case centers around a factory building and lot in Clearfield County known as the “Cleardon” property. Appellee, the Clearfield Foundation, holds and at all times pertinent to this appeal has held title to the premises. Appellant, Target Sportswear, Inc., occupied the building beginning on July 1, 1982, under an oral month-to-month lease. At the time Berg Electronics, a division of E.I. DuPont de Nemours and Company, held an option to buy the property, and had given its approval to Target’s month-to-month tenancy.

Berg’s option was due to expire on October 2, 1982. In early October Target expressed interest in buying the property. Negotiations with the Foundation ensued, and after expiration of Berg’s option to purchase, the Foundation offered the property to Target in a letter signed by Foundation president Ralph Kane and dated November 8, 1982. The letter, addressed to Mr. Morris DeMatteo, Vice President of Target Sportswear, stated:

Dear Mr. DeMatteo:

Following a meeting of the members of the Clearfield Foundation, I have been instructed to offer to you the “Cléardon” building and lot totalling 5.82 acres upon the following terms and conditions:
1. We will sell you the property for a sum of $350,000;
2. No repairs and/or changes will be made at the expense of the Clearfield Foundation;
3. We would propose that we would be willing to enter into an agreement of under the following financial arrangements:
A. Ten percent (10%) of the purchase price to be paid upon execution of the agreement by Target funds;
B. Sixty percent (60%) of the purchase price to be financed through P.I.D.A. for fifteen (15) years at an interest rate of three percent (3%). As you want to get into the building as soon as possible, and we want to sell, we propose the Clearfield Foundation receive the three percent (3%) interest payment until such time as the loan is approved with P.I.D.A. and the monies received from them. However, this time period would not extend beyond four (4) months from the agreement date.
C. The remaining thirty percent (30%) of the purchase price to be financed through our local banks for fifteen (15) years at an interest rate of fifteen (15) percent with five (5) points. This financing may be arranged by Target through banks of their preference;
4. That possession would pass upon execution of the agreement;
5. That the risk of loss, maintenance, and liability for municipal assessments and taxes would be the responsibility of the purchaser from and after the date of execution of the agreement; and
6. This proposal will expire on December 10, 1982.
If this proposal is acceptable to you, please sign the copy of this letter as it is enclosed and return it to the undersigned. The agreement will be prepared as soon as this acceptance is received.

DeMatteo signed the letter on the line provided and returned it to Kane on December 7, 1982. Next to the signature line, over DeMatteo’s initials, had been typed “Subject to finalizing terms and conditions of agreement of sale.” Also, paragraph 3.C. of the letter had been crossed out and initialed by DeMatteo.

Along with the returned Foundation letter, DeMatteo had sent the following cover letter:

Dear Mr. Kane:
On behalf of TARGET SPORTSWEAR, INC., it is my pleasure to inform you that a decision has been made to accept Clearfield Foundation’s proposal of sale of the “Cleardon” building and lot, as offered in your letter dated November 8, 1982. Enclosed find a signed copy of your proposal, as you requested.
I would like to arrange a date that would be convenient for you and your committee so that we can arrange to finalize the terms and conditions of the agreement of sale.
Based on our discussion, where in you agreed that financing of the non P.I.D.A. portion of this purchase can be arranged by us at any financial institution, at competitive rates, acceptable to us. [Sic] I have therefore, taken the liberty of crossing out paragraph 3C. of your November 8, letter.
Further, we were advised that, prior to passage of title from Clearfield Foundation, we have no insurable interest and, therefore, can not accept building risks that are normally insured. However, we are amiable to discussing interim costs for insurance that you may bear.
Pursuant to our letter dated August 19, you understand that purchase may be made by TARGET SPORTSWEAR, INC., or affiliate, or TARGET’S designee.
I want to express .my sincere appreciation to you and your committee for the cooperation and the efforts exerted by all of you in helping to conclude this transaction. And also, for allowing TARGET to continue to expand in the Clearfield area.

On December 9, 1982, the Clearfield Foundation board of directors held a meeting. In the official minutes of the meeting the following entry appears:

TARGET — Pres. Kane reported that a letter was received from Morris DeMatteo of Target, informing the Board that Target had made a decision to buy the Cleardon building at a price of $350,000. Financing will be PIDA, 60%, and Target to come up with the other 40%. Target is to pay the Foundation 10% down on completion of the PIDA loan, which will take 3 to 4 month.[Sic] The Foundation will pay the insurance on the building until Target is sole owner.

On December 10, 1982, the parties met with a PIDA official to discuss PIDA loan application procedures. Shortly thereafter the Foundation forwarded PIDA loan application forms to Target.

Target contacted a local bank about financing the nonPIDA portion of the purchase money to be borrowed, and on April 28, 1983 obtained a commitment letter from the bank for a loan of $105,000, or 30% of the purchase price. However, Target did not inform the Foundation of the bank commitment, nor did it apply for PIDA financing.

By letter dated May 20, 1983, the Foundation informed Target that unless negotiations were concluded and the transaction closed within thirty days, “the proposition will be withdrawn.”

Upon further discussion the Foundation learned that Target considered the deal to be conditioned on its ability to obtain PIDA financing. The parties failed to consummate the agreement within thirty days.

Meanwhile, the DuPont company had renewed its interest in the Cleardon building. On June 29, 1983, the Foundation agreed to sell the building to DuPont for $400,000.

Target commenced suit for specific performance and damages. The action was bifurcated, and the count for specific performance went to trial on September 30, 1983, before President Judge Paul Greiner of Elk County, specially presiding. At the close of the plaintiff’s evidence the defendant moved for a nonsuit. The plaintiff requested that the motion be reserved until after presentation of defense evidence. The request was granted, and the defendant put on its case on the express condition that the motion not be considered waived. After hearing all the evidence the court on November 14, 1983 granted the reserved motion for nonsuit, and later denied the plaintiff’s exceptions and motion to take off the nonsuit. In a well-reasoned and thorough opinion, the court held that the plaintiff’s evidence was insufficient to show a contract enforceable under the Statute of Frauds.

Preliminarily appellant Target argues that entry of a nonsuit after presentation of defense evidence was improper, and that in reviewing the trial court’s decision we should take into account all of the evidence.

A motion for nonsuit is a device to test the sufficiency of the plaintiff’s evidence and as a general rule may not be granted where the defendant has offered any evidence. Atlantic Richfield Co. v. Rasumic, 480 Pa. 366, 390 A.2d 736 (1978). Under ordinary circumstances it would have been error for the court to grant the nonsuit motion after hearing defense evidence. However, in this case the plaintiff clearly on the record waived operation of the general rule and countenanced the extraordinary procedure employed by the trial court. We will therefore consider whether the plaintiffs evidence alone was sufficient to establish its claim.

The plaintiff is still entitled to a very favorable standard of review. In determining whether an involuntary nonsuit should have been entered, we must give the plaintiff the benefit of every fact and reasonable inference arising from the evidence, and must resolve conflicting testimony in the plaintiffs favor. Entry of a nonsuit is proper only in a clear case where the facts and circumstances lead to absence of liability as their only conclusion. McNally v. Liebowitz, 498 Pa. 168, 445 A.2d 716 (1982).

There are three issues Target would have us decide: first, whether the evidence was sufficient to show that a contract for sale of the Cleardon building existed; second, whether the contract was adequately memorialized in writing as required by the applicable Statute of Frauds (Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1); third, if the written memoranda were not sufficient to satisfy the Statute of Frauds, was the statute waived?

We believe the case may be decided on the second two issues alone. That is, we agree with the trial court that the written memoranda in this case do not satisfy the statute; and as the statute was not waived, we cannot enforce any parol contract that might have existed. The order denying specific performance must therefore be affirmed.

The Statute of Frauds is a declaration of public policy requiring that contracts for the conveyance of real estate be supported by written evidence signed by the party to be charged. Burns v. Baumgardner, 303 Pa.Super. 85, 449 A.2d 590 (1982). The statute is not a mere rule of evidence, but a limitation on judicial power to order specific performance of a contract in the absence of a writing. Haskell v. Heathcote, 363 Pa. 184, 69 A.2d 71 (1949).

Here Target bases its action on three writings: the Foundation’s offer letter of November 8; Target’s return letter of December 7; and the Foundation’s board minutes of December 9. There is no doubt that the statute’s requirement of a written memorandum of the contract may be satisfied by more than one writing. Fleming v. Strayer, 163 Pa.Super. 607, 610, 63 A.2d 122, 124 (1949), enunciates the rule to be followed when more than one writing is relied on:

The genéral requisites of a memorandum are listed in Restatement, Contracts, § 207, and the rule governing the sufficiency of separate writings to constitute a memorandum is set forth in § 208:
“The memorandum may consist of several writings,
(a) if each writing is signed by the party to be charged and the writings indicate that they relate to the same transaction, or
(b) though one writing only is signed if
(i) the signed writing is physically annexed to the other writing by the party to be charged, or
(ii) the signed writing refers to the unsigned writing, or
(iii) it appears from examination of all the writings that the signed writing was signed with reference to the unsigned writings.”

Cf Restatement (Second) of Contracts, § 132 (1981) (somewhat liberalizing original section 208(b)).

The key to this case is that Target sought to enforce the contract as modified by its own letter of December 7, and not as it stood in the original offer letter of November 8. The Foundation did not sign Target’s letter, nor annex its letter to Target’s, nor refer in its letter to Target’s, nor sign its letter “with reference to” Target’s. Is the Foundation’s signature on the original offer letter itself sufficient to bind the Foundation under the Statute of Frauds?

A writing is insufficient as a memorandum unless all of the essential terms and conditions of the contract are stated. Swift & Company v. Meehan, 283 Pa. 429, 129 A. 324. Whether the memorandum relied upon is a single document or consists of several related or connected writings, the complete terms of a valid agreement must be ascertainable therefrom with certainty and must also disclose an intention to be bound. Brister & Koester Lumber Corporation v. American Lumber Corporation, 356 Pa. 33, 50 A.2d 672; Fleming v. Strayer, 163 Pa.Superior Ct. 607, 63 A.2d 122. A mere indication of the existence of an incomplete agreement is not sufficient. Franklin Sugar Refining Company v. John, 279 Pa. 104, 123 A. 685. A memorandum which omits or incompletely states the essential terms or which merely refers to a contract without stating its terms is insufficient. Stein v. Camden Fibre Mills, Inc., 148 Pa.Superior Ct. 348, 25 A.2d 741.

Williams v. Stewart, 194 Pa.Super. 601, 608, 168 A.2d 769, 771-72 (1961).

What is crucial to determine from the standpoint of the Statute of Frauds is, are “all the essential terms and conditions of the contract” stated in the memorandum signed by the Foundation? Are “the complete terms of a valid agreement ascertainable therefrom with certainty”?

We must answer these questions in the negative. Clearly certain “essential terms and conditions of the contract” are not stated in the Foundation’s original letter. Although Target signed and returned the letter within the deadline provided for acceptance, its own cover letter purportedly made the following three modifications to the contract: 1) the original provision in paragraph 3.C. that the non-PIDA portion of the financing was to be through a local bank at 15% interest over fifteen years was replaced with “the non P.I.D.A. portion of this purchase can be arranged by us at any financial institution, at competitive rates, acceptable to us”; 2) the original provision in paragraph 5 allocating the risk of loss to Target upon execution of the agreement was replaced with “prior to passage of title from Clearfield Foundation, we have no insurable interest and, therefore, can not accept building risks that are normally insured. However, we are amiable to discussing interim costs for insurance that you may bear”; 3) although the offer contained no assignee clause, the return letter stated that purchase could be made by Target, its affiliate, or its designee.

The modifications completely obliterate the financing guidelines of the original offer and replace them with terms “acceptable to [Target]”; reallocate the responsibility for insurance to the Foundation until passage of title; and introduce into the agreement an option for Target to designate a third-party purchaser. It cannot seriously be contended that these were “unessential” contract provisions.

Where a writing provides in detail for the manner of purchase financing, places the risk of loss on one party, and identifies a specific purchaser, an unsigned writing substantially reforming these provisions must be held to violate the Statute of Frauds. See Safe Deposit & Trust Co. of Pittsburg v. Diamond Coal & Coke Co., 234 Pa. 100, 83 A. 54 (1912); Grieber v. Scott, 315 Pa.Super. 30, 461 A.2d 619 (1983) (mode of mortgage payments essential). See also Zitzelberger v. Salvatore, 312 Pa.Super. 402, 458 A.2d 1021 (1983) (insurance risks generally are borne by purchaser upon agreement and before passage of title).

Appellant asserts that under the Statute of Frauds the signed writing or memorandum need not be a formal sales contract, and that the following “minimal requirements” are all that need be in writing for the contract to be enforceable: “The property must be adequately described, the consideration must be set forth, and the agreement must be signed by the party to be charged.” American Leasing v. Morrison Co., 308 Pa.Super. 318, 323, 454 A.2d 555, 557 (1982). Appellant’s citation to American Leasing, however, begs the question whether essential terms were missing from the writing signed by the Foundation. Undoubtedly its letter offering the property could have memorialized “an agreement” sufficiently under the statute; the problem is it was not a complete memorandum of “the agreement” on which specific performance was sought. See Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, 113 A. 202 (1921); 37 C.J.S. Statute of Frauds § 181 (1943).

In Statute of Frauds cases

“we should always be satisfied with 'some note or memorandum’ that is adequate ... to convince the court that there is no serious possibility of consummating fraud by enforcement. When the mind of the court has reached such a conviction as that, it neither promotes justice nor lends respect to the statute to refuse enforcement because of informality in the memorandum or its incompleteness in detail.” Beeruk Estate, 429 Pa. 415, 418-19, 241 A.2d 755, 758 (1968), quoting 2 Corbin, Contracts § 498 at 680-81 (1950).

Axler v. First Newport Realty Investors, 279 Pa.Super. 14, 17, 420 A.2d 720, 722 (1980). Cf. Harry Rubin & Sons, Inc. v. Consolidated Pipe Co. of America, 396 Pa. 506, 153 A.2d 472 (1959) (construing statute of frauds as revised in Uniform Commercial Code). But here we are prevented from enforcing a contract not because of the informality or incompleteness in detail of the signed memorandum, but because another memorandum containing different terms and provisions is not signed. See Northwestern Consolidated Milling Co. v. Allebach, 82 Pa.Super. 563 (1924); Southern Pine Sales Corp. v. Braddock Lumber Co., 81 Pa.Super. 309 (1923).

Target argues that it is clear that in fact the Foundation had agreed to all the modifications contained in the letter of December 7, and that in fact the modifications were of very little consequence to the Foundation. However, Target’s proof of these facts consisted of prior and subsequent oral admissions and conduct by Foundation officers. Clearly this parol evidence may not overcome the statute’s requirement of a signed writing.

[W]here a written agreement is varied by oral testimony the whole contract in legal contemplation becomes parol. If there is anything settled in our law that principle is firmly established. When therefore a party to an executory agreement in writing for the sale of lands succeeds in reforming it by oral testimony he reduces the whole agreement to a parol contract, and deprives himself of the right to have it specifically performed. He pulls down the house on his own head. When he converts the writing into an oral agreement, the statute declares it to 'be void.’ He has rectified the written contract and in its place has established an agreement which in contemplation of law is parol and therefore, by statutory mandate, absolutely invalid and without force. . . . The statute is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy.

Brown v. Aiken, 329 Pa. 566, 579-80, 198 A. 441, 447 (1938) (footnote omitted), quoting Safe Deposit & Trust Co. of Pittsburg v. Diamond Coal & Coke Co., supra 234 Pa. at 111, 83 A. at 58.

The fact that the alleged oral modifications to the contract were reduced to writing in the December 7 letter does not alter their character as parol.

The statute of frauds is not satisfied ... by a written offer and a written acceptance which annexes additional terms, conditions, or other variations which are not in turn accepted in writing by the party making the original offer. Even where oral modifications of a written offer or acceptance are agreed to by the other party, the contract, being partly in parole, is deemed to be an oral contract and insufficient under the statute.

37 C.J.S. Statute of Frauds § 180(c), pp. 664-65 (emphasis added, footnotes omitted).

Target contends that the missing link of a signed writing ratifying the parol modifications contained in the December 7 letter is supplied by the Foundation’s board minutes of December 9, 1982, which are signed by Foundation secretary Betty Lou Mack. Target relies on Peoples Trust Co. v. Consumers Ice & Coal Co., 283 Pa. 76, 128 A. 723 (1925), and Pirilla v. Bonucci, 320 Pa.Super. 496, 467 A.2d 821 (1983), for the proposition that board minutes signed by a corporate secretary are sufficient as written memoranda under the Statute of Frauds.

However, both cases must be distinguished. In each case the signed writing held to be sufficient under the statute contained a resolution by corporate stockholders to accept an offer to buy real estate (Peoples Trust) or securities (Pirilla; see 13 Pa.C.S. § 8319(1)). Each group of stockholders formally voted at their meeting to enter a contract, and the resolution embodying their formal action was spread upon the minutes of the meeting.

In comparison, the Foundation’s minutes simply state: “that Target had made a decision to buy the Cleardon building”; that “[financing will be PIDA, 60%, and Target to come up with the other 40%”; and that “[t]he Foundation will pay the insurance on the building until Target is sole owner.” From the minutes themselves we cannot determine whether they do anything more than paraphrase the contents of the Target letter. The minutes do not indicate that the Foundation board took any action, and certainly do not indicate that the parol modifications in the letter had been “ratified” by the board. See Ripple v. Pittsburgh Outdoor Advertising, 280 Pa.Super. 121, 421 A.2d 435 (1980) (endorsed rental checks could not serve as written ratifications of lease agreement).

Finally, we turn to whether the Statute of Frauds was waived in this case. Indubitably, the party against whom enforcement of an oral contract is sought may waive the operation of the statute. Haskell v. Heathcote, supra; Bethlehem Steel Corp. v. Tri State Industries, Inc., 290 Pa.Super. 461, 434 A.2d 1236 (1981). Such a waiver occurs where the party fails to raise the statute in pleadings, Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965); Martin v. Wilson, 371 Pa. 529, 92 A.2d 193 (1952); Bethlehem Steel Corp., supra; or affirms the oral contract, Schuster v. Pennsylvania Turnpike Commission, 395 Pa. 441, 149 A.2d 447 (1959); or admits its existence in pleadings or testimony, Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946); Eastgate Enterprises, Inc. v. Bank & Trust Co. of Old York Road, 236 Pa.Super. 503, 345 A.2d 279 (1975); even by inadvertence, Martin v. Wilson, supra. Compare H.B. Alexander & Son, Inc. v. Miracle Recreation Equipment Co., 314 Pa.Super. 1, 460 A.2d 343 (1983) (statute of frauds as contained in UCC, 13 Pa.C.S. § 2201, waivable by agreement or course of dealing between the parties); Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 286 A.2d 658 (1971) (oral waiver of contract condition under Statute of Frauds).

Appellant finds a waiver of the statute in certain intramural statements by Foundation officers to the effect that Target had “agreed” to buy the Cleardon building or had “accepted” the Foundation offer to sell it. These statements, which the trial court permitted Target to introduce to prove the existence of a contract on the theory of post-contract conduct, cannot constitute a waiver of the Statute of Frauds. In the proper case, such statements perhaps could estop a party from denying the existence of a contract. However, the principle of estoppel is unavailing against the Statute of Frauds. Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Glasgow v. G.R.C. Coal Co., 295 Pa.Super. 498, 442 A.2d 249 (1982); cf. Burns v. Baumgardner, supra (although estoppel is contrary to policy of Statute of Frauds, oral promise will be enforced to extent of reasonable reliance).

The order of the tria,! court denying specific performance and refusing to take off nonsuit is affirmed.

SPAETH, President Judge, files a concurring opinion.

SPAETH, President Judge,

concurring:

I agree with the majority that the trial court’s order should be affirmed. However, I find it unnecessary to consider, as the majority considers, see its op. at 11-12 et seq., whether the memorandum signed by the Foundation satisfied the Statute of Frauds. Foundation’s letter was an offer. Target’s letter was a counter-offer because it materially altered the terms of Foundation’s offer; Target is trying to enforce its counter-offer. However, since the counter-offer is not signed by the party to be charged, enforcement of it is precluded by the Statute of Frauds.

       PIDA is an acronym for the Pennsylvania Industrial Development Authority; it provides low-interest loans for local industries under the auspices of local development authorities such as the Foundation.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    474 A.2d 1151
    COMMONWEALTH of Pennsylvania v. Martin R. GBUR, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed April 6, 1984.
    Petition for Allowance of Appeal Denied July 23, 1984.

      Harry Otto Falls, New Castle, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   ROWLEY, Judge:

This is a direct appeal from judgment of sentence entered on January 25, 1982, in the Court of Common Pleas of Mercer County. Following a trial by jury, appellant was convicted of involuntary manslaughter and homicide by vehicle. Post-trial motions were denied and appellant was sentenced to one to two years imprisonment.

On appeal, appellant claims that the trial court erred: 1) in allowing the introduction of evidence of intoxication at appellant’s trial on the charges of involuntary manslaughter and homicide by vehicle, after a charge of driving under the influence had been dismissed; and 2) in not granting a mistrial when evidence of the accused’s silence at the time of his arrest was admitted at trial. We find appellant’s allegations of error to be without merit and accordingly, we affirm the judgment of sentence.

I.

On March 31, 1980, appellant was involved in a two-vehicle collision on Route 58 in Mercer County. As a result of this incident, appellant was charged with driving under the influence. Upon the death of the driver of the other vehicle, appellant was additionally charged with involuntary manslaughter and homicide by vehicle. Subsequently, the charge of driving under the influence was dismissed because the Commonwealth failed to bring appellant to trial within the time prescribed by Pa.R.C.P. 1100.

During the trial of this case, State Trooper Edwin Surrena, a witness for the Commonwealth, testified that appellant appeared to be driving under the influence of alcohol at the time of the collision herein involved. Appellant’s objection to the introduction of evidence of intoxication was overruled by the trial judge. Subsequently, additional intoxication evidence was introduced by the Commonwealth. On appeal, appellant contends that the Commonwealth was precluded from introducing intoxication evidence at the trial on the charges of involuntary manslaughter and homicide by vehicle, since the charge of driving under the influence had been dismissed prior to trial pursuant to Rule 1100. This claim is without merit.

In order to establish that a person is guilty of homicide by vehicle under 75 Pa.C.S.A. § 3732 (1977), the Commonwealth must prove beyond a reasonable doubt that the defendant “engaged in the violation of any law ... or ... ordinance applying to the operation or use of a vehicle or to the regulation of traffic ...”. Under Pennsylvania law, the Commonwealth need not separately charge a person with a violation of the motor vehicle code in order to establish this element of the offense of homicide by vehicle. Commonwealth v. Wilkinson, 278 Pa.Super. 490, 495-96, 420 A.2d 647, 650 (1980). Thus, the Commonwealth properly attempted to prove that appellant violated a law in the operation of his vehicle by driving while intoxicated. Since the separate charge of driving under the influence was dismissed without a determination of appellant’s guilt or innocence, it had no bearing on the question whether appellant was guilty of homicide by vehicle.

II.

At trial, during the direct examination of State Trooper Paul Matie by the district attorney, the following exchange transpired:

Q. Did you see the Defendant later on at the Greenville Hospital?
A. Yes, I did. After we cleaned the accident scene up, we proceeded to the hospital to talk to Mr. Gbur. Q. Well, were you present when his rights were read to him?
A. Yes, sir, I read him his rights.
Q. Did you have any conversation with him after he was read his rights?
A. No. He said he wanted to talk to his attorney, and that he didn’t want to talk.

(N.T. 31-32, November 12-13, 1980)

Appellant’s counsel moved for a mistrial. After a side bar conference, the trial judge denied the motion and gave cautionary instructions to the jury. He explained that a person accused of a crime is entitled to be advised of his constitutional rights and, in addition, he said:

Now, what happened in this case, apparently, is because of the order in which the witnesses were called, Trooper Surrena testified that the Miranda Warnings were given and that the Defendant allegedly understood the Warnings, and that he did make some statements as to where he was going, you know, what route he may have been on prior to this occurrence. He apparently was on Interstate 80, although Trooper Surrena’s recollection was not real vivid concerning that. The District Attorney then with Trooper Matie asked Trooper Matie whether or not Mi: randa Rights — whether or not he was present when the Miranda Rights were given, and he stated, “Well, I gave the Miranda Rights.” He then was asked what occurred following that. Trooper Matie then responded as you recall that the Defendant said that he did not desire to speak and wanted to talk to an attorney. Now, that is an absolute Constitutional Right that the Defendant had to not talk to Trooper Matie or any other police officer further concerning this and to talk to Trooper Matie or any other police officer further concerning this and to talk to his own attorney. What the District Attorney apparently was wanting to get out of Trooper Matie at that moment was a repetition of what was allegedly said later by the Defendant concerning traveling down Interstate 80 and going to his or wanting to go to his in-laws’ home, and Trooper Matie inadvertently said that the man wanted to talk to his attorney and did not want to talk at that time. You must disregard then and strike from your recollection any refusal of the Defendant to testify or give a statement rather to the officer. As I said to you before, he has an absolute Constitutional Right not to talk to the officer. He has an absolute right to talk to his attorney and decide whether he will talk to the officer at any later time. And to penalize the Defendant in any way for exercising that Constitutional Right has the effect of taking the Constitutional Right away from him; and we certainly cannot do that. So, I’m cautioning you in the most strong language that you should disregard the last answer inadvertently given by Trooper Matie concerning what this man did after his Constitutional Rights were given to him while he was in the hospital ...

(N.T. 42-43, November 12, 13, 1980).

Appellant argues that his constitutional rights were violated by the testimonial reference to the exercise of his right to remain silent and that the court’s cautionary instructions were insufficient to cure the resulting prejudice.

It is a clear violation of the accused’s constitutional right against self-incrimination to make a reference at trial to his silence while in police custody. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624-25 n. 37, 16 L.Ed.2d 694, 720 n. 37 (1966); Commonwealth v. Single tary, 478 Pa. 610, 611, 387 A.2d 656 (1978). Not every such reference, however, requires a new trial. Commonwealth v. Maloney, 469 Pa. 342, 349, 365 A.2d 1237, 1241 (1976); Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978). Prompt and adequate cautionary instructions can cure what might otherwise be reversible error. Commonwealth v. Maloney, supra; Commonwealth v. Williams, 252 Pa.Super. 435, 446, 381 A.2d 1285, 1291 (1978). Initially, the question whether the harm can be removed by curative instructions is within the sound discretion of the trial judge. However, his determination is subject to appellate review. Commonwealth v. Maloney, 469 Pa. at 349, 365 A.2d at 1241. If the reference to the accused’s silence is of a nature that would seriously compromise the jury’s objectivity and is likely to deprive the accused of a fair trial, curative instructions are inadequate and a new trial is required. Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70, 76 (1980).

In Commonwealth v. Anderjack, 271 Pa.Super. 334, 413 A.2d 693 (1979), this court set forth the following four factors, to be considered in determining whether cautionary instructions can cure a reference to the accused’s silence: 1) the nature of the reference to the defendant’s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction. Id., 271 Pa.Superior Ct. at 344, 413 A.2d at 698. We will address these factors seriatim.

The improper reference to appellant’s silence in this case was State Trooper Matie’s testimony that after appellant was informed of his rights, appellant stated that he wanted an attorney and didn’t want to talk. It is evident that this testimony was prejudicial. We point out, however, that another witness, State Trooper Surrena, had already testified that after appellant was informed of his rights, he made statements to the police concerning the route he traveled on the night of the incident in question. (N.T. 21-22, November 12-13, 1980). Therefore, the degree of prejudice caused by the reference to appellant’s silence in this case was lessened somewhat by the fact that the jury had previously heard testimony that he did not remain silent. See Commonwealth v. Anderjack, 271 Pa.Super. at 345, 413 A.2d at 699.

Secondly, the reference to appellant’s silence was made in response to the district attorney’s inquiry whether State Trooper Matie had a conversation with appellant after he was read his rights. The prosecutor informed the trial judge at side bar that Trooper Matie’s answer was unexpected and that it was not purposely elicited. Rather, the prosecutor sought to elicit testimony referring to appellant’s statements concerning the route he traveled prior to the automobile collision. Trooper Surrena had previously testified that appellant made statements after he was advised of his constitutional rights, and the prosecutor expected Trooper Matie to give similar testimony. Upon a thorough review of the record in this case, we are persuaded that Trooper Matie’s answer was non-responsive and inadvertent.

We recognize that inadvertence does not lessen the prejudice caused by a reference to appellant’s exercise of his right to remain silent. See Commonwealth v. Greco, 227 Pa.Super. 19, 323 A.2d 132 (1974) aff'd 465 Pa. 400, 350 A.2d 826 (1976). Nevertheless, instantly, there was no misconduct on the part of the district attorney, since he did not refer to the defendant’s silence in any question directed to the officer or to any other witness. See Commonwealth v. Zellner, 268 Pa.Super. 59, 407 A.2d 436 (1979). See also Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976) (proper cautionary instructions cured an improper reference to the accused’s silence even though the district attorney referred to the accused’s silence in his question to the police officer). Furthermore, the prosecutor did not exploit the reference to the accused’s exercise of his right to remain silent by using it in his closing argument. Compare Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979).

Appellant maintains that the Supreme Court’s decision in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), controls the outcome of this case. In Turner, the Court held that a prejudicial reference to the accused’s silence constituted reversible error warranting a new trial. The accused’s silence referred to at trial in Turner, occurred prior to the giving of Miranda warnings. The United States Supreme Court has recently determined in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) that, as a matter of Federal Constitutional law, the use of pr e-Miranda silence is permissible to impeach the defendant's exculpatory trial testimony. In Turner, however, the Pennsylvania Supreme Court chose to adopt a more restrictive position in holding that an improper reference to the accused’s silence is impermissible, whether it occurs before or after Miranda warnings are given. Commonwealth v. Turner, 499 Pa. at 584, 454 A.2d at 540. Nevertheless, the Court said nothing to indicate that an improper pre-Miranda reference could not be cured by adequate cautionary instructions. Moreover, the facts in Turner are significantly different than those in the case at bar. In that case, the improper reference to the accused’s silence was made by the district attorney during cross-examination of the defendant. The prosecutor was purposely attempting to emphasize to the jury the purported inconsistency between the defendant’s silence at the time of arrest and his testimony at trial. Under these circumstances, the improper reference could have significantly influenced the jury’s objectivity, and thus, the Court determined that curative instructions did not render the error harmless. Id., 499 Pa. at 584-85, 454 A.2d at 540. In the instant case, the improper reference could not have seriously prejudiced appellant in the eyes of the jury since there was previous testimony at trial that appellant did not remain silent after he was read his rights. In addition, the reference was an inadvertent slip by the witness that was not purposely elicited or exploited by the prosecutor. In this situation, adequate cautionary instructions by the trial judge could effectively eradicate any prejudice resulting from the improper reference. Indeed, our review of the record in this case convinces us that the prompt and careful cautionary instructions given by Judge Acker minimized the impact of the reference to the accused’s silence so as to render it harmless. See Commonwealth v. Story, 476 Pa. 391, 410 n. 18, 383 A.2d 155, 165 n. 18 (1978).

Upon defense counsel’s objection to the improper reference to the accused’s silence at trial, the jury was immediately ushered out of the courtroom and a side bar conference was conducted at which Trooper Matie was questioned and counsel and the court discussed the effect of the improper statement. At the close of the conference, Judge Acker determined that the situation was governed by Commonwealth v. Anderjack, supra. Accordingly, the jury was recalled and Judge Acker immediately instructed them regarding the improper reference to appellant’s silence. Appellant’s counsel did not request that cautionary instructions be given. However, we find that the trial judge demonstrated prudent foresight in instructing the jury as he did. Commonwealth v. Zellner, 268 Pa. 59, 65, 407 A.2d 436, 439 (1979). The instructions were thorough, they were properly decisive and they were sufficient to overcome any prejudice that may have resulted from the improper remark. See Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978); Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976).

Judgment of sentence affirmed.

HESTER, J., concurs in the result.

      . In Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976), a plurality of the Supreme Court decided that adequate cautionary instructions could cure a reference to the accused’s silence. In analyzing the prejudice resulting from the reference, reviewing courts were directed to consider: 1) the nature of the reference; and 2) whether the accused’s silence was exploited by the district attorney. Id., 469 Pa. at 349, 365 A.2d at 1241. In Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978), however, a majority of the Court stated that Maloney did not necessarily rule the outcome of that case. In holding that the cautionary instructions in Singletary were insufficient to cure the error, the Court distinguished Maloney on its facts. Id., 478 Pa. at 612, 387 A.2d at 657. However, in Commonwealth v. Anderjack, 271 Pa.Super. 334, 413 A.2d 693 (1979), this court concluded that Singletary did not overrule the principles set forth in Maloney.
        Instead, this court stated that under certain circumstances, cautionary instructions could cure the prejudice resulting from a testimonial reference to the accused’s silence. See also, Commonwealth v. Zellner, 268 Pa.Super. 59, 407 A.2d 436 (1979).


author: HOFFMAN, Judge: JOHNSON, Judge,

text:
    474 A.2d 1156
    Robert K. STATES and Lucy P. States, Individually and as Administrators of the Estate of Robert Kenneth States, Jr., Deceased v. INSURANCE COMPANY OF NORTH AMERICA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1983.
    Filed April 13, 1984.
    Petition for Allowance of Appeal Denied Sept. 4, 1984.

      Randolph T. Borden, Hawley, for appellant.
    Joseph J. O’Brien, Jr., Scranton, for appellees.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal concerns appellant’s denial of appellees’ claims for survivor’s and work loss benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., (No-fault Act) arising from the untimely death of their son. Upon review, we find appellees’ $5,000 claim for survivor’s benefits barred by the applicable statute of limitations; however, we conclude that the work loss claim was timely filed and, accordingly, affirm the $15,000-work loss award.

The decedent, appellees’ son, was fatally injured in an automobile accident occurring on March 23, 1977. Decedent’s estate recovered $1,500 for funeral expenses from appellant, decedent’s insurer. On May 30, 1979, appellees, individually and as administrators of decedent’s estate, brought suit against appellant and on October 2, 1979, filed a complaint alleging entitlement to survivor’s and work loss benefits under the No-fault Act. Appellant filed on December 14, 1979 a motion for summary judgment based on the No-fault statute of limitations but, subsequent to a hearing, the lower court denied appellant’s motion. Following a non-jury trial, the lower court on June 26, 1981, awarded appellees $5,000 in survivor’s benefits and $15,000 in work loss benefits, plus interest. Appellant’s exceptions to the order were argued before and denied by the lower court en banc. This appeal followed.

Initially, appellant is correct in arguing, and appellees effectively concede, that appellees’ claim for survivor’s benefits is barred by § 106(c)(2) of the No-fault Act. In Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982), our Supreme Court held that “§ 106(c)(2) covers no-fault benefits, including funeral expenses which, like wrongful death damages, are designed to compensate the insured’s survivors for the loss they suffer by his death. . . .” Id., 500 Pa. at 174, 455 A.2d at 105. 40 P.S. § 1009.106(c)(2) provides, in pertinent part:

If survivor’s benefits have been paid to any survivor, an action for further survivor’s benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits.

In the instant case, appellees recovered $1,500 for funeral expenses by check dated April 21, 1977, and cashed on or about April 27, 1977. Appellees’ action for additional survivor’s benefits under the No-fault Act was not commenced until May 31, 1979, clearly more than two years after the estate’s recovery for funeral expenses. Accordingly, we agree with appellant that appellees’ current claim for survivor’s benefits is unquestionably barred by the No-fault statute of limitations.

Appellant contends also that appellees are similarly barred by the statute of limitations from collecting work loss benefits due to decedent’s estate. Section 106(c)(1) provides the applicable statute of limitations for actions seeking benefits intended to compensate the insured or his estate. Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., supra. Additionally, because only funeral benefits, arising from loss caused by death, have been paid in the instant case, the first sentence of § 106(c)(1) establishes the appropriate time limitation for appellees’ action:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knowing or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1) (emphasis added). We must next consider when the “loss” is suffered in order to determine the commencement of the two-year statute of limitations in a case seeking “post-mortem” work loss benefits. The Pennsylvania Supreme Court has recently addressed and answered this question in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983). In Kamperis, after receiving only funeral expenses from decedent’s employer’s insurer, plaintiffs commenced an action for work loss benefits against decedent’s own insurer. The Superior Court reversed the trial court’s $15,000 award, finding the action barred by § 106(c)(1) because it was filed more than two years after decedent’s fatal accident. Kamperis v. Nationwide Insurance Co., 313 Pa. 426, 459 A.2d 426 (1983), rev’d, 503 Pa. 536, 469 A.2d 1382 (1983). The Supreme Court reversed the Superior Court and concluded that:

The plain meaning of the Act is clear: work loss is economic detriment resulting from inability to work and earn a living, e.g., loss of a paycheck____ We hold the statute of limitations contemplates commencement of the period for bringing the action on the date the victim would next have expected to receive compensation for work he would have performed had the motor vehicle accident not occurred.

Kamperis v. Nationwide Insurance Co., 503 Pa. 536, at 541, 469 A.2d 1382, at 1384 (1983). However, noting that a victim sustains economic detriment every time he or she suffers the loss characterized above, the Court concluded that:

[W]here as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to have been caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years from any time the victim suffers work loss as a result of the accident... (b) within two years after the victim’s accrued work loss equals the amount recoverable under the Act for work loss, ... and (c) not. later than four years after the accident.

Id., 503 Pa. at 541, 469 A.2d at 1384. See Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 503 Pa. 547, 469 A.2d 1388 (1983) (reaffirms limitation period for work loss claims outlined in Kamperis). Further, our Supreme Court has consistently maintained that loss is suffered as it is sustained. See, e.g., Murphy v. Prudential Property and Casualty Insurance Co., 503 Pa. 528, 469 A.2d 1378 (1983) (loss suffered when covered medical service is rendered, not when benefits are denied). See also Platts v. Government Employees Insurance Co., 301 Pa.Superior Ct. 379, 447 A.2d 1017 (1982) (loss sustained when medical services rendered).

In Kamperis, because of an insufficient record, the Supreme Court felt compelled to remand for the trial court’s determination of when decedent would have received his next paycheck or would have suffered the maximum $15,000 work loss. In the case at bar, however, the parties have stipulated that decedent, had he lived, would have earned in excess of $15,000 during the course of his lifetime. Because of that stipulation, we find it unnecessary to remand and conclude that appellees’ action for “post-mortem” work loss benefits was timely filed. According to Kamperis, therefore, decedent’s estate suffered a loss each time a paycheck was not received. The record here indicates that decedent earned approximately $125 per week while alive. At that rate, his estate would continue to sustain loss for at least two years after the accident, or until the maximum loss had accrued. Because appellees are entitled to bring suit for work loss benefits up until two years after the accrual of the maximum recoverable loss, but no longer than four years after the accident, and because decedent’s death occurred on March 23, 1977, and the action for work loss benefits was commenced on May 30, 1979, slightly more than two years after the accident, appellees’ action was timely under the Kamperis Court’s interpretation of § 106(c)(1).

Appellant would argue, however, that notwithstanding our conclusion that appellees’ action was timely filed, appellees must prove their dependency on decedent to recover “post-mortem” work loss benefits. We hold that dependency need not be proven for a recovery of work loss benefits. In Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), our Supreme Court analogized no-fault work loss benefits to the tort Survival Acts, indicating that it is the estate of the deceased victim that is entitled to recover any benefits due. In Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., supra, 500 Pa. at 168, 455 A.2d at 103, the Court furthered its analysis and characterized work loss benefits not as “survivor’s benefits designed to compensate certain designated persons for the damages they suffer as a result of the insured’s death ... but simply [as] continuing work loss benefits designed to compensate the decedent’s estate for the loss the insured himself suffered by having his earning power cut off by death. . . .” See also Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983) (estate can collect work loss benefits due the insured). Thus, appellees effectively seek to collect decedent’s work loss benefits in their representative capacity as administrators of decedent’s estate, not as decedent’s statutory survivors. See also Kirsch v. Nationwide Insurance Co., 532 F.Supp. 766 (W.D.Pa.1982) (dependency does not have to be demonstrated to recover work loss benefits under the Pennsylvania No-fault Act) and Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Superior Ct. 336, 423 A.2d 1284 (1980) (court cited with apparent approval Hand v. State Farm Mutual Automobile Insurance Co., 2 Kan. App.2d 253, 577 P.2d 1202 (1978), wherein the court noted that Kansas statutory phrase, “ ‘loss of an injured person’s monthly earnings after his or her death’ refers to the loss of earning power occasioned by the death of the insured and is not measured by the actual loss of the survivors.”). We are, therefore, convinced that the distinction drawn by the Supreme Court in Heffner and Sachriz between the source of work loss and survivor’s benefits indicates that while dependency must be proven by a parent to recover survivor’s benefits, see Chesler v. Government Employees Insurance Co., 503 Pa. 292, 469 A.2d 560 (1983), it need not be proven to recover work loss benefits due to the decedent’s estate.

Accordingly, we find, in light of the parties’ stipulation, that the lower court correctly awarded the maximum amountof work loss benefits to decedent’s estate.

Affirmed in part and reversed in part.

JOHNSON, J. filed a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I join that portion of the majority opinion reversing the award of survivor’s benefits. However, as I believe the Supreme Court’s decision in Kamperis v. Nationwide Insurance Company, 503 Pa. 536, 459 A.2d 426 (1983) may result in some confusion, I must respectfully dissent to that portion of the majority opinion which affirms the award of work loss benefits.

The majority in Kamperis held that § 1009.106(c)(1) of the No-fault Act (the Act) controls an action brought to recover post-mortem work loss benefits where no-fault benefits have not been paid for loss arising otherwise than from death, citing Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982). I have no dispute with this conclusion. Section 106(c)(1) states, in pertinent part, that “an action ... may be commenced not later than two years after the victim suffers the loss ... or not later than four years from the accident, whichever is earlier.”

However, I do take issue with the Kamperis majority’s conclusion that the phrase “suffers the loss” should be interpreted, in a situation where the accident victim dies immediately as a result of the accident, as the date the victim “could next have expected to receive his regular pay for work he would ordinarily have performed in due course, but for the accident.” Kamperis, id.; 503 Pa. at 540, 469 A.2d at 1384. The Supreme Court went on to hold that the statute of limitations for post-mortem work loss claims runs for two years from that expected pay day, two years from the date the victim’s accrued work loss equals the $15,000 maximum, and in no event later than four years after the accident.

A problem with this determination arises in the situation where the victim is unemployed or retired. Clearly, a victim’s unemployment at the time of his death does not bar recovery of work loss benefits. 40 P.S. § 1009.205(c); Marryshow v. Nationwide Mutual Insurance Co., 306 Pa.Super. 233, 452 A.2d 530 (1982). Nor does the victim’s retirement from employment bar recovery. Minier v. State Farm Mutual Automobile Insurance Co., 309 Pa.Super. 53, 454 A.2d 1078 (1982). Therefore, if the victim was not receiving regular paychecks at the time of the accident and death, when does thé statute of limitations commence? Surely, the second part of the holding in Kamperis regarding commencement of the limitations period from the date the $15,000 maximum is accrued involves the same dilemma; that there is no practical way for a claimant to calculate when that maximum accrues.

I am aware of the Act’s definitions as found in § 1009.-205(d) for calculating probable annual income in these situations, but cannot agree that our legislature meant for claimants of work loss benefits on behalf of deceased victims to be required to make such calculations in order to determine the time by which suit must be commenced. To believe so would again expose the appellate courts of this Commonwealth to the complaint that we have added yet another unintended complication to the Act’s oft-litigated interpretation.

The Act defines “loss” as “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle... ”. The Act further defines “loss of income” as “gross income actually lost by a victim or that would have been lost but for any income continuation plan...”, (emphasis added). On the other hand, § 1009.-106(a)(1) suggests that loss does not accrue when injury occurs, but as work loss is sustained.

I do not believe the legislature intended section 106(a)(1) to be interpreted as applicable to work loss recovery for deceased victims, but merely to indicate that one cannot seek no-fault benefits for potential, yet unsustained, losses. This is evident from the inclusion in the section of not only work loss, but also of allowable expense, replacement services and survivor’s loss. It is a generalized provision not capable of narrow interpretation, as performed in Kamperis. I agree wholeheartedly with President Judge Spaeth’s statement in Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 341, 467 A.2d 345, 355 (1983):

We can think of only one reason for the requirement that work loss benefits are to be paid monthly, namely, that it is not known when, or whether, the victim will be able to return to work. But when an accident results in death, this reasoning is inapplicable. It is known that the victim will not return to work. The amount of work loss benefits is therefore certain, and there is no need to extend the payments up to a period of fifteen months. (Emphasis in original)

While Antanovich did not involve a statute of limitations issue, but whether post-mortem work loss benefits were to be paid monthly or in a lump sum, I find the reasoning persuasive in the instant circumstances. Any other interpretation ignores the obvious; once the victim dies, he or she cannot engage in further employment. Therefore, I believe the limitations period on post-mortem work loss benefits should commence as of the victim’s date of death, where the victim dies immediately as a result of the accident.

A second problem arises in Kamperis regarding the interest provision found in § 1009.106(a)(2), providing 18% annual interest on claims submitted but not paid within thirty days. If post-mortem work loss only accrues as each anticipated paycheck comes due, must the claimant submit a claim at each of those dates, with interest due thirty days thereafter if not paid? Or could an obligor argue that because the claimant’s action may not accrue until the $15,000 maximum is reached (according to Kamperis) that interest is not owed until thirty days following submission of the anticipated paycheck which would make the total work loss $15,000? Again, what about the situation of the unemployed or retired victim? These questions now remain undecided as a result of Kamperis. I believe post-mortem work loss benefits should be paid in a lump sum, Antanovich, supra¡ and with 18% annual interest if not paid within thirty days of the obligor’s initial receipt of reasonable proof of loss.

Finally, Kamperis needlessly complicates the situation where the claimant institutes an action upon the obligor’s failure to pay work loss benefits prior to the accrual of the maximum work loss. In such a situation, the claimant certainly cannot allege, as due, those anticipated paychecks which had not accrued at the time, suit is instituted, necessitating multiple actions. Even if a trial court were to consider those paychecks which had accrued after commencement of the action but prior to its determination, it certainly could not take into consideration future anticipated paychecks. Therefore, there would exist little incentive for an obligor to pay periodic work loss benefits as they accrue, absent the provisions of the Act for awarding interest and attorneys fees, as the claimant technically would have to institute a cause of action on each separate accrued paycheck on which work loss benefits remain unpaid.

Since I believe that the analysis and conclusion in Antanovich is sound, requiring a lump-sum payment of postmortem work loss benefits, and since I am unable to reconcile that conclusion with the suggestion in Kamperis that— in death cases — “the Act clearly looks to a continuing series of losses,” Kamperis, id., 503 Pa. at 540, 469 A.2d at 1384, I am compelled to dissent from that portion of the majority opinion in this case which would hold that the within decedent’s estate suffered a loss each time a paycheck was not received, thereby extending the statute of limitations to a date not specified in the majority opinion.

       In Chesler, supra, the Supreme Court held that "section 103 of the Act, 40 P.S. § 1009.103, requires a ‘child, parent, brother [or] sister’ of a deceased victim of an automobile accident to show dependency on the victim as a condition of eligibility for survivor’s benefits." Slip op. at 2 (emphasis added). The Court did not mention or imply that dependency must be similarly demonstrated to recover work loss benefits.

      . Petition for allowance of appeal filed 10/28/83, 269 W.D.Alloc.Doc. 1983.


author: WIEAND, Judge:

text:
    474 A.2d 1162
    Robert F. RUEHL, Trustee for Voest-Alpine International Corporation, Appellant, v. MAXWELL STEEL CO., INC. and Industrial Valley Bank and Trust Company, Garnishee, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1983.
    Filed April 19, 1984.

      Robert F. Ruehl, in propria persona.
    Edward N. Kurland and Michael S. Lubline, Philadelphia, for Maxwell, appellee.
    John D. Trainer, Doylestown, for Ind. Valley, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

This matter comes to us on appeal from an order striking a judgment entered against a garnishee because of admissions contained in answers to interrogatories. For the reasons hereinafter set forth, we affirm the striking of that part of the judgment which exceeds $7,026.77.

Litigation between the Voest-Alpine International Corporation and Maxwell Steel Company was settled when Maxwell Steel executed and delivered to Voest-Alpine a judgment note for $28,060.33. On November 7, 1980, after Maxwell Steel had defaulted in making payments required by the terms of the note, Voest-Alpine confessed judgment on the note for $19,386.69. On the same date, a writ of execution was issued, together with a set of interrogatories, and served on Industrial Valley Bank and Trust Co. (I.V.B.) as garnishee. I.V.B. caused timely answers to interrogatories to be filed which stated the following:

At the time of service of the Writ, the defendants maintained with Garnishee a Regular Checking Account No. 883-457-1 in the name of Maxwell Steel Co., Inc., which had a collected balance of $2,869.12 and a current balance of $61,469.62.

There was also New Matter as follows:

Since the time the Writ was served, a $20,000.00 Deposited Check was returned for the reason “Payment Stopped”. A payment of $35,000.00 was set aside for a loan payment due from Maxwell Steel Co. Deposits of $167.15 and $390.00 were made on November 13 and 17 of 1980. The results of these transactions had left Account No. 883-457-1 with a collected balance of $7,026.77.

Voest-Alpine immediately filed a praecipe directing the prothonotary to enter judgment against I.V.B. for $19,470.24, the full amount of its judgment against Maxwell Steel plus interest and costs. On December 15, 1980, I.V.B. filed a petition to strike or open the judgment. The court ordered the judgment stricken and, therefore, did not determine the petition to open the judgment.

It is settled beyond peradventure that a petition to strike may be granted only for defects appearing on the face of the record. Parliament Industries, Inc. v. William H. Vaughan & Co., 501 Pa. 1, 7, 459 A.2d 720, 724 (1983); Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d 819, 821 (1972); Podolak v. Artisan’s Valve Repair, Inc., 323 Pa.Super. 232, 234, 470 A.2d 567 (1983); Osttowski v. Smith, 315 Pa.Super. 321, 324, 461 A.2d 1301, 1303 (1983). “ ‘If the record is self-sustaining, the judgment cannot be stricken.'” Podolak v. Artisan’s Valve Repair, Inc., supra, 323 Pa.Super. at 232, 470 A.2d at 567, quoting Advance Building Services Co. v. F & M Schaefer Brewing Co., 252 Pa.Super. 579, 582, 384 A.2d 931, 932 (1978). The unauthorized entry of a judgment by the prothonotary, however, renders a judgment void; and a judgment must be stricken if its defectiveness is apparent from the face of the record. See: Jones v. Seymour, 321 Pa.Super. 32, 35, 467 A.2d 878, 880 (1983), citing Romberger v. Romberger, 290 Pa. 454, 139 A. 159 (1927). It is apparent from the face of the record in the instant case that the prothonotary was not authorized to enter judgment for any amount in excess of $7,026.77.

Authority to enter judgment against a garnishee based on admissions contained in Answers to interrogatories is established by Pa.R.C.P. 3146(b), which provides:

(b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the garnishee for the property of the defendant admitted in the answer to interrogatories to be in the garnishee’s possession, subject to any right therein claimed by the garnishee, but no money judgment entered against the garnishee shall exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs. The entry of judgment shall not bar the right of the plaintiff to proceed against the garnishee as to any further property or to contest any right in the property claimed by the garnishee.

Admissions of a garnishee in answers to a judgment creditor’s interrogatories will support the entry of a judgment thereon “only in a clear case, where there is a distinct admission of liability by the garnishee to the defendant.” Bartram Building and Loan Association v. Eggleston, 335 Pa. 42, 46, 6 A.2d 508, 510 (1939). Accord: Hagy v. Hardin, 186 Pa. 428, 430, 40 A. 804, 804 (1898); McCallum v. Lockhart, 179 Pa. 427, 429, 36 A. 231, 231-232 (1897); Greco v. Rainal, 134 Pa.Super. 99, 101, 4 A.2d 232, 233 (1939); Stewart v. Stewart, 132 Pa.Super. 290, 294, 200 A. 901, 903 (1938); Edward G. Budd Building & Loan Association v. Kinsella, 102 Pa.Super. 248, 257, 156 A. 577, 580 (1931); Stern & Co. v. Harrod, 90 Pa.Super. 327, 330 (1927); Dunn v. Brown, 89 Pa.Super. 370, 372 (1926); Wanamaker & Brown v. Muldoon, 47 Pa.Super. 114, 119 (1911); McGeary v. Huff, 31 Pa.Super. 401, 404 (1906). See: Collins v. O'Donnell, 325 Pa. 366, 191 A. 22 (1937); 3 P.L.E. Attachment § 27. In commenting upon this principle, Goodrich-Amram 2d § 3146(b):1.1 has observed:

Certainly if there is any doubt regarding the garnishee’s admission, the prothonotary cannot and should not enter judgment on the plaintiff’s praecipe. The prothonotary, who acts in this regard in a purely ministerial capacity, can enter judgment only if the answers are clear and unequivocal; to analyze or interpret the garnishee’s answers would be in effect to exercise a judicial function, which is in excess of his powers. The prothonotary should be guided by the usual practice in assumpsit actions. Conformity to that practice is in fact dictated by Rule 3145(a). In assumpsit, judgment on admissions in the pleadings — perhaps the closest analogue to judgment against the garnishee on the basis of admissions in his answer — cannot be entered unless some part of the plaintiff’s claim is “unequivocally and unqualifiedly admitted to be due by the defendant’s answer.” (emphasis added) (footnotes omitted).

Where judgment against a garnishee is improperly entered on the basis of admissions in the garnishee’s answers to interrogatories, the judgment may be stricken. 9 Goodrich-Amram 2d, § 3146(b):3, citing Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d 423 (1949). See: Collins v. O’Donnell, supra (where a defense on the merits is averred in the answers, judgment against the garnishee on the basis of those answers cannot be sustained). See also: Hanchey v. Elliott Truck Brokerage Co., 421 Pa. 131, 218 A.2d 743 (1966). Where judgment has been entered for an amount in excess of the amount clearly admitted, the judgment may be stricken as to such excess. Dunn v. Brown, supra.

I.V.B.’s answers to Voest-Alpine’s interrogatories admitted that the account of Maxwell Steel had in it a collected balance of $7,026.77. This was the only amount then subject to attachment. Although instruments having face amounts in excess of $7,026.77 had been deposited in the account, they had not been collected. Moreover, I.V.B. had set aside $35,000.00, against which it asserted a claim because of a loan previously made to its depositor. It seems clear, therefore, that the only amount admittedly being held by I.V.B. for Maxwell Steel was $7,026.77. The prothonotary had no authority to enter judgment against the garnishee for an amount in excess of that which had been admitted. To the extent that the prothonotary attempted to do so, the trial court properly caused the judgment to be stricken.

The Bank’s petition to open judgment for $7,026.77 remains undecided. Under normal circumstances, the trial court, upon remand, would be able to consider and decide whether the judgment should be opened to permit the bank to assert a claim against the moneys in this account. The parties have stipulated, however, that Maxwell Steel filed a voluntary petition under the Bankruptcy Act on January 19, 1981. Appellee also suggests, although the record in this case does not confirm it, that the bankruptcy court, on or about January 15, 1982, set aside as preferential the judgment for $19,386.69 held by Voest-Alpine against Maxwell Steel. If this latter fact is correct, Voest-Alpine’s attempted execution on the judgment will have been rendered moot. In any event, further proceedings in the state court have been stayed. It is now for the bankruptcy court to determine which party or parties are entitled to receive the moneys which were on deposit in the account maintained by Maxwell Steel of I.V.B. on the date when the bankruptcy petition was filed.

On the record presently before this Court, the judgment was properly stricken to the extent that the amount thereof exceeded $7,026.77. To that extent the order is affirmed. The order striking the judgment for the first $7,026.77, however, was in error and must be reversed. With respect to the judgment for $7,026.77, and appellee’s petition to open the same, the proceedings are remanded. Jurisdiction is relinquished.

      . On January 8, 1981, after judgment had been entered, I.V.B. filed amended answers and new matter in which it alleged that it had a prior security interest in the bank account of Maxwell Steel which entitled it to set off the balance in the account against a note held by the bank against Maxwell Steel. The amended answers, filed after judgment had been entered, did not affect the facial validity of the judgment at the time it was entered. See: Linett v. Linett, 434 Pa. 441, 445-446, 254 A.2d 7, 10 (1969); Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 384 n. 1, 465 A.2d 5, 7 n. 1 (1983); Conti v. Shapiro, Eisenstat, etc., 293 Pa.Super. 301, 305 n. *, 439 A.2d 122, 124 n. * (1981); Link v. House of Fulmer, Inc., 262 Pa.Super. 275, 278, 396 A.2d 752, 753 (1978).


author: DEL SOLE, Judge:

text:
    474 A.2d 1165
    James D. MILLER, Appellant, v. Barbara E. Wright MILLER, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed April 19, 1984.

      William J. Fulton, Harrisburg, for appellant.
    Arthur K. Dils, Harrisburg, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

Appellant and Appellee were married on February 15, 1979, but prior to their marriage, a son, McKenzie, was born to them on October 30, 1977.

Appellee also has another son, approximately eleven years of age, who has not resided with her since he was three years of age. He resides with Appellee’s parents. This arrangement began when Appellee decided to live with the Appellant who expressed a lack of desire to live with Appellee and her first child.

The parties resided in the Harrisburg area and began to encounter marital difficulties. On October 6, 1981, they executed a Postnuptial Separation Agreement and Property Settlement. In that Agreement primary custody of McKenzie was given to Appellant with temporary custody and visitation rights to Appellee. Following the separation, the Appellant remained in the family home in West Hanover Township, Dauphin County, Pennsylvania and Appellee moved to the State College area where she secured employment as a waitress. McKenzie continued to live with his father at the family residence and the father was and continues to be employed by the Commonwealth of Pennsylvania. From October, 1981, until the early part of 1983, the parties generally complied with the custody arrangement specified in the Separation Agreement. However, in the Spring of 1983, some problems arose which prompted Appellant to file a Petition to Confirm Custody in the Court of Common Pleas of Dauphin County, Pennsylvania. A hearing was held on the Petition to Confirm Custody on June 17, 1983, and at that hearing both parties presented extensive testimony in support of each’s claim for primary custody of their son, McKenzie.

The trial court determined that the Postnuptial Agreement was not valid as it affected custody. Therefore, a full and complete hearing was held in order to determine what would be in the best interests of the child. Following the hearing, the trial court entered an Order granting primary custody to the Appellee-Mother and temporary custody and visitation to Appellant. This was a change in the existing custody arrangement.

While it is well-settled that in a child custody case the scope of review is broad, we must accept the trial court’s findings of fact if supported in the record. However, we are not bound by the trial court’s inferences and can make an independent review of the evidence to reach our own conclusions on the award of custody. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). Appeal of Marilyn W., 325 Pa.Superior 39, 472 A.2d 635 (1984). Based upon our review we reverse the decision of the trial court and remand this matter for further proceedings consistent with this opinion. In analyzing the trial court’s actions we will first begin by examining the trial court’s reason for removing McKenzie Miller from Appellant’s custody and awarding custody to the Appellee. At the close of testimony the trial court determined that this would be a perfect case for joint custody if both parties lived in the same school district (N.T. 111-112). In addition, the trial court stated on page 112 of the record:

“I am going to have to make a decision. While I recognize that the tender years doctrine is out of existence, I still have a feeling that a boy of five years’ old who lives both his mother and father and indicates that he likes to live with both of them, in fact, he says that he wants to live with both of them, he likes the house in West Hanover Township because it’s better than the apartment because he does not like an apartment. On the other hand, he seems to like State College better than he likes West Hanover Township, so I am between the devil and the deep blue sea on that.
But getting back to my original thought, I still feel that the best interest of the child, and that is the only guiding light that I should use, is with the mother. And that is the way I intend to make the decision, although I am going to give rights to the father.” (Emphasis added)

It is evident from reading the trial court’s announced decision at the end of the hearing and reviewing the Memorandum Opinion filed by the trial judge, the trial judge impermissively awarded custody to the Appellee by applying the discredited and rejected “tender years doctrine”.

While we have determined that the trial judge applied the wrong doctrine, we must further look to the record to determine whether or not the record justifies the award of primary custody to the mother. Our review of this record reveals it does not.

Here, we have a young child who has been residing with his father since birth. Following the separation between the parents, the child continued to reside with Appellant. The only testimony from a disinterested witness, came from Mrs. Ruth Benner a Director of the Discovery School located in Harrisburg, Pennsylvania which the minor child attends. Mrs. Benner’s testimony, found on pages 6, 7 and 8 of the record, clearly reveals that McKenzie was brought to school every morning by his father, that he was well cared for when he arrived at school, was properly fed, that he was well adjusted and performed well, that he was not a discipline problem, he played well with other children. Also, the school never had any problems with his behavior. Further, Mrs. Benner testified that the Appellant conducted himself as a concerned and loving parent who was involved with his child and the activities of his child at school.

In addition, the record reflects that Mr. Miller made proper arrangements for the care of his son at home in the event he had to be at work. Mr. Miller’s aunt occupies a separate apartment in the home and she is available to care for McKenzie when the situation requires. In addition, it is not unusual for the child to go with his father to visit his paternal grandparents and the child attends church both when visiting with the paternal grandparents and at home.

Mrs. Miller presented testimony that indicates that the Appellant was doing well in raising the child. Question to Mrs. Miller found on page 90 of the record:

“Q. So in that sense he needs a father’s care and a father’s attention almost as much as he needs a mother, doesn’t he?
A. Yes, I feel he needs a father.
Q. You would not deny the fact that Jim Miller is a loving and caring father that generally tries to do his best by the boy, would you?
A. No.”

The only reason advanced by Mrs. Miller for a change of custody is found on page 89 of the record where she states in answer to the question as follows:

“Q. Is there anything more you can give McKenzie besides an elusive concept of motherly love?
A. I don’t feel that I need to give any more. I feel giving the motherly love is the most important thing. I am the only person that can love McKenzie like a mother. I am his only mother. There is no one that can take care of him as a mother when he is sick as I can because I am his mother.
I am the only person that can do that. I am the only person that can teach him as a mother. I don’t want to be selfish in any way with him, but I don’t feel that McKenzie — I feel right now McKenzie needs a mother. I feel McKenzie needs a mother’s touch, the feelings that a mother has that a male can not have. I feel McKenzie needs this.”

There is nothing in the record presented on behalf of the Appellee to indicate that the Appellant was in any way not serving the best interests of the child. Further, there is sufficient evidence in the record to question Appellee’s ability to raise the child and to provide a better environment. While the trial judge stated in his opinion “the mother evidenced a willingness to devote her time and life to the child and that the father, at best, would only be able to devote part of his time to the raising of the child” the testimony does not support that finding. Rather, when asked, the Appellee stated “if I have to, I’ll — I’ll give my notice and I’ll quit my job, but I will spend my time with McKenzie”. In addition, the mother is living with a gentleman who she hopes to marry following her divorce but these plans have not been finalized. (N.T. 93)

In addition, the court did not discuss the fact that the Appellee when faced with a situation involving her personal desires and her responsibilities as a parent, with regard to her first child, chose to abrogate those responsibilities and allow the first child be raised by her parents. While she now has a desire at some unknown time in the future to establish a home for both of her children, the court should not have moved this child from a healthy, happy environment, where the child is well adjusted and well cared for, to one of untested value. As an old sage once said “If it ain’t broke, don’t fix it”.

We find that the trial court erred in awarding primary custody to the Appellee and, therefore, we will reverse. We will remand the matter to the trial court with directions to enter an Order of primary custody on behalf of the Appellant and to establish such visitation times and partial custody to the Appellee as the trial court deems appropriate.

Jurisdiction shall be relinquished.

MONTEMURO, J., concurred in the result.


author: TAMILIA, Judge:

text:
    474 A.2d 1168
    Robert BROWN, Jr. v. Robert BROWN, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1984.
    Filed April 19, 1984.
    Petition for Allowance of Appeal Denied Sept. 26, 1984.

      Robert X. Medonis, Pittsburgh, for appellant.

      James G. Groninger, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County, requiring appellant, Robert Kevin Brown, Sr., to pay support for his son, appellee, Robert Kevin Brown, Jr., in the amount of $150 per month, as well as to provide medical insurance coverage for appellee, a 22 year old student at Duquesne University School of Law. We reverse.

The sole issue with which we are here concerned is whether the lower court committed reversible error in concluding that a duty of financial contribution to the expenses of a legal education is owed by appellant to his adult son.

The scope of appellate review in support cases is confined to a determination of whether there has been abuse of discretion by the court below. Commonwealth ex rel Grallnick v. Grallnick, 279 Pa.Super. 347, 421 A.2d 232 (1980). Here we find that the trial court has misapplied existing law to include professional training of an emancipated adult child among the obligations of a divorced parent, thereby formulating policy which extends beyond the boundaries mandated by precedent.

The Pennsylvania Courts have acknowledged, in cases where no undue hardship would be occasioned, a parental obligation to support a child through college assuming the child’s aptitude and desire to participate. Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981); Grallnick, supra; Deiley v. Deiley, 281 Pa.Super. 288, 422 A.2d 172 (1980); Commonwealth ex rel Schmidt v. Schmidt, 223 Pa.Super. 20, 296 A.2d 855 (1972); Commonwealth ex rel Rice v. Rice, 206 Pa.Super. 393, 213 A.2d 179 (1965). Appellant has fulfilled his responsibility in this regard as appellee graduated from Carnegie-Mellon University in 1979.

However, it is a further principle of law in this Commonwealth that upon a child’s attainment of his majority the obligation of a parent to support him ends, at least presumptively, and that the presumption must be rebutted by the child, demonstrating some defect, mental or physical, rendering self-support unfeasible or employment impossible. Verna v. Verna, 288 Pa.Super. 511, 432 A.2d 630 (1981); Commonwealth ex rel Schulberg v. Hirsch, 236 Pa.Super. 179, 344 A.2d 530 (1975).

The only Pennsylvania case dealing directly with the point at issue here, Colantoni v. Colantoni, 220 Pa.Super. 46, 281 A.2d 662 (1971) relies on the majority and emancipation of the medical student son to deny him support from his physician father. Although Colantoni, supra, is sufficiently dissimilar factually to offer by itself no decisive support in the instant case, it is at least instructive in the consistency with which it applies the thrust of the case law to a graduate student situation. The age of majority, whether 18 or 21, is not one to conjure with in support cases, but it does, absent exceptional circumstances, offer a reliable indicium of the potential autonomy of the child. It is from that point that the required inquiry into specifics must proceed.

Appellee contends that the facts and circumstances this case serve to counter the presumption of discharged duty raised by his having reached legal adulthood. The trial court found the crucial elements to be the demands of a law school curriculum, appellee’s family and financial obligations, appellant’s undisputed ability to make monetary contributions, and a familial norm of erudition evidenced by appellant’s advanced degrees. The lower court, in further developing its rationale, finds validity for its conclusions in the assumption that at least one case, Hirsch, supra, equates the status of student, for purposes of support, with physical or mental incapacity (Slip Op. at 13). We must disagree with this analysis.

In the first instance the disadvantages under which appellee labors are those of an adult and are being borne by an adult; the fact of appellant’s substantial financial resources is irrelevant. And, while Hirsch, supra, might buttress the notion of appellee’s putative dependency were his age or educational attainments less, here the equation of student status and physical or mental incapacity is inapposite. Even the scarce authority for the theory that a full-time student is a dependent adult [see, e.g., In Re: Locke, 3 Fam.L.Rep. 2097 (1976)] has not been extended to a child beyond age 22.

The ancillary question then arises as to whether the term college is meant to include within its ambit post-graduate and professional level training. The absence of authority in Pennsylvania requires us to consider the definition used elsewhere. The New Jersey Superior Court and the New York Court of Appeals both adopt the definition of “college” which limits its meaning to undergraduate study leading to a bachelor’s degree, finding this to be the meaning in customary usage. See Epstein v. Kuvin, 25 N.J.Super. 210, 95 A.2d 753 (1955); In Re Kelly’s Estate, 285 N.Y. 139, 33 N.E.2d 62 (1941). We find this in conformity with the intent of the Pennsylvania child support rules.

Although, as the lower court implies, citing Commonwealth ex rel Grossman v. Grossman, 188 Pa.Super. 236, 146 A.2d 315 (1958), it is the obligation of the courts to ensure that the disadvantages visited upon children by the divorce of their parents are minimized, there must be a terminus beyond which the obligation to support does not extend. It is not necessarily the case, for example, that were the parents’ marriage intact they would wish to support an adult child capable of self-reliance through professional training even were support economically practical. In this instance not only the marriage ties but those with the son are considered to be“severed and irrevocable” (H.T. 12).

Case law sets the limits of parental obligation at college or majority, absent some dysfunction on the child’s part warranting extension, and provides flexibility such as to accommodate, where necessary, other exceptions. However, to expand these boundaries to the extent contemplated here extends responsibility in perpetuity. We find, therefore, that no duty of support is owed appellee by his father as no showing of dependency has been made, nor does law school qualify as college such as to continue appellant’s obligation to support his son.

The Order of the Lower Court is reversed.

Jurisdiction is relinquished.

      . Appellant had been separated from his wife, with whom appellee and his younger sister reside, for four years as of January 1983.

      . In Re: Earnshaw, 6 Ches.Co.Rep. 274 (1954), presents a case in which the 23 year old daughter of an incompetent petitioner was awarded payments from her father’s estate for the purpose of obtaining a graduate education to qualify her for gainful employment as a librarian. No appellate court has followed this line of reasoning in a case involving a normally functioning adult child. Compare: Commonwealth ex rel Groff v. Groff, 173 Pa.Super. 535, 98 A.2d 449 (1953).

      . In this case the appellate court reversed the court below which had included medical school within the definition of college.


author: PER CURIAM:

text:
    474 A.2d 1171
    ERIE INSURANCE EXCHANGE and Michael L. Brenneman v. Stanley S. McGEE and Lorraine L. McGee, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1983.
    Filed April 27, 1984.
    Petition for Allowance of Appeal Denied Oct. 15, 1984.

      Terry S. Hyman, Harrisburg, for appellants.
    Clyde S. McIntyre, Harrisburg, for appellees.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   PER CURIAM:

Appellants, Stanley S. and Lorraine L. McGee appeal from the trial court’s denial of their request for delay damages under Pa.R.C.P. 238 in their uninsured motorist arbitration award against appellee Erie Insurance Exchange hereinafter Erie. The trial court held only that the Supreme Court did not intend to award prejudgment delay damages to be awarded to successful plaintiffs under arbitration clauses such as that found in Erie’s uninsured motorist policy. Pursuant to Erie’s request that the trial court modify the arbitrator’s award, the court held that the arbitration clause was governed by common law principles. Appellants do not contest that characterization on appeal. However, appellants contend that to interpret Rule 238 as not applying to uninsured motorist arbitration awards impermissibly segregates plaintiffs injured by uninsured motorists from all other plaintiffs in personal injury cases. Thus, they urge Rule 238’s applicability to them.

Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 471 A.2d 856 (1984) is dispositive of this case. By that decision, common law arbitration decisions which are not attacked as resulting from an irregularity James D. Morrisey, Inc. v. Gross Construction Co., 297 Pa.Super. 151, 443 A.2d 344 (1982) or as unconstitutional or against public policy, United Services Automobile Association Appeal, 227 Pa.Super. 508, 323 A.2d 737 (1974), may not be modified or corrected by another tribunal.

This Court in Greenspan refused, acknowledging the Supreme Court’s constitutionally created rule-making power, to include common law arbitration within the ambit of Rule 238.

“If the Supreme Court had . desired a court of common pleas to have the authority to modify a common law arbitration award so as to affix ‘damages for delay,’ it could have made provisions for such a practice in the Rules of Civil Procedure.” Greenspan, supra, 324 Pa. Super. 315, 471 A.2d 856.

Thus, the order of the lower court, denying appellant McGee’s motion to modify the arbitrators’ award to include delay damages is affirmed.