author: TAMILIA, Judge:

text:
    626 A.2d 634
    Bernard V. DiGIACOMO and Rita M. DiGiacomo, H/W and Anthony P. Risi, Jr., Appellants, v. PHILADELPHIA SUBURBAN WATER CO.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed June 17, 1993.

      Edward A. Stern, Norristown, for appellants.
    Paul C. Troy, Norristown, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Bernard V. DiGiacomo, Rita M. DiGiacomo and Anthony P. Risi, Jr., appeal from the Order filed July 31, 1992 dismissing their petition to open judgment.

On March 19, 1981, appellants commenced the underlying action in trespass against Philadelphia Suburban Water Company for property damage to their building as a result of a fire which occurred on the property. They alleged that as a result of appellee’s failure to properly maintain its water supply system, there was insufficient water in the fire hydrants near the building to extinguish the fire.

On January 25, 1984, appellee noticed the depositions of John Fessler and Jack O’Hara, two of the firemen present when the fire occurred, and on March 6, 1984, defense counsel took Fessler’s deposition. O’Hara’s deposition was never taken or rescheduled.

On April 21, 1986 and May 26, 1988, appellants filed active status certificates requesting that the case not be terminated because discovery was allegedly continuing. However, to date, appellants have initiated no discovery.

On September 13, 1991, appellee filed a motion for entry of judgment of non pros for lack of prosecution. Appellants contended it was their strategy to wait for appellee to take the deposition of O’Hara before proceeding further. In granting appellee’s motion, by Order filed April 1, 1992, the trial court relied upon the following holding in Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992): “We now hold that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket.” Id. at 356, 603 A.2d at 1009.

On April 3, 1992, appellants filed a petition to open judgment following which, on May 19th, appellee filed an argument praecipe placing the petition to open on the argument list. Since no supporting brief was filed by appellant within thirty (30) days of the praecipe for argument, the trial court, on July 31, 1992, filed an Order dismissing appellants’ petition for not abiding by Montgomery County Local Rule of Civil Procedure 302(f).

While we are aware that Rule 302(f) may not be applied to result in dismissal of a complaint, see Murphy v. Armstrong, 424 Pa.Super. 424, 622 A.2d 992 (1993), we do not believe that holding is apposite here. Dismissal of a complaint by local rule which imposes a sanction for failing to file an argument brief within thirty (30) days is specifically prohibited by Pa.R.C.P. 239(f). Here, the complaint had already been non prossed pursuant to the holding in Penn Piping, supra, and the dismissal was of a petition or motion to open placed on the argument list by praecipe, when the petitioner failed to file a brief within 30 days of filing the praecipe as required by local Rule 302(f). Under these circumstances we do not believe the prohibition against Montgomery County local Rule 302(f), imposed by the Murphy interpretation of Rule 239(f), is applicable. The complaint had already been non prossed for cause and the petition to open is not subject to the strictures imposed on dismissal of a complaint by Rule 239(f).

Appellants argue the court erred in dismissing its petition to open judgment because the brief they proposed to use was the same brief they filed on February 4, 1992, in opposition to the entry of non pros. This argument lacks merit. We agree with the trial court that “[notwithstanding what they may have planned, at no time during the seventy-three (73) day period between the filing of the argument praecipe and the court’s instant order did they indicate that the prior brief was to be used in support of the instant petition.” (Slip Op., Lawrence, J., 9/22/92, p. 6.) Therefore, even though appellants planned to use the same arguments, the fact remains they still did not comply with local Rule 302(f).

Appellants contend the fact that the court addressed the merits of the case and concluded they had not adequately advanced a reasonable excuse for failing to prosecute their case shows that the court did consider appellants’ February 4, 1992 brief and arguments contained therein. This argument is irrelevant since the court only addressed the merits secondarily and most likely in the interest of judicial economy. Nonetheless, after a review of the record, we agree with the court’s finding appellants did not present a reasonable excuse for their delay in prosecuting the case.

Next, appellants argue Montgomery County Local Rule of Civil Procedure 302(f) is flawed because it fails to give a litigant the opportunity to defend himself against such harsh dispositions. Appellants also contend the court’s application of the rule violated the spirit of liberal construction set forth in Pa.R.C.P. 126, LIBERAL CONSTRUCTION AND APPLICATION OF RULES. We find the trial court’s dismissal was by no means automatic but by all means within its discretion under Rule 302(f). We agree with the well-reasoned analysis set forth by the court in addressing appellant’s arguments.

In the case of Byard F. Brogan Inc., v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983), the Pennsylvania Supreme Court indicated that it is the right and prerogative, indeed the duty, of the Common Pleas Courts of this Commonwealth to adopt rules for the orderly and expeditious conduct of the litigation before it. In Brogan, the Court held invalid a local rule mandating the automatic dismissal of an appeal for the late filing of a brief. Montgomery County Local Rule 302(f) survives a Brogan challenge in that it does not require an automatic dismissal for inactivity; it requires the exercise of discretion by the trial court. Appeal of Lynch Community Homes, Inc., 105 Pa.Commw. 29, 522 A.2d 716 (1987). In this case, the court did not abuse its discretion in dismissing the petition.
In Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), our Superior Court stated:
This court’s approach to the enforcement of procedural rules, whether local or state-wide, is dictated by the facts and circumstances in each individual case. To analyze otherwise would exalt procedural rules, which were created for efficiency and fairness, to a status far beyond their inherent power. “It has been our policy to overlook ... procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. ‘Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives.’ ”

Id. at 572, 517 A.2d at 1272.

In the instant case, there has been no substantial compliance with the requirement of the local rule. Plaintiffs commenced an action in 1981. They filed answers to interrogatories in 1982, but only after Defendant filed a motion to compel and a motion for sanctions. They also participated in the 1984 deposition of Fessler, which was taken at Defendant’s initiative. This meager initial activity on the case by Plaintiffs was followed by seven years of inaction, interrupted only by their perfunctory filing of two active status certificates. Subsequent to filing these certificates, Plaintiffs did absolutely nothing to prosecute the case.
At the time of the court’s order dismissing the petition, Plaintiffs’ brief was forty-three (43) days late which, in light of the lack of due diligence on their part that has marked the case from the start, cannot be viewed as a “nonprejudicial procedural mis-step.” See Brogan, supra at 240, 460 A.2d at 1096. Under all of the circumstances, we believe this is not a case where the dictates of justice require that the substantive merits should be addressed.

(Slip Op. at 4-7 (footnote omitted).)

Finally, appellants contend the argument praecipe filed by appellee on May 19, 1992 was premature and, therefore, invalid since the court Order sur petition to open judgment, filed May 4, 1992, stated that the argument praecipe was not to be filed until discovery was completed. We disagree and find the trial court adequately disposed of this argument:

Plaintiffs misread the order. It states that the praecipe is not to be filed until discovery is completed, if necessary. Where no discovery is needed, neither party must wait to file the argument praecipe.
Interestingly, Plaintiff does not allege that there was discovery that he wished to take on the petition to open. Plaintiffs petition cover sheet does not reflect a request for discovery. Nor did he ever notify the court, by letter or otherwise, that he required discovery. Absent notification that discovery was needed, the argument praecipe was timely filed.

(Slip Op. at 9-10.)

Having carefully reviewed and considered the record, tran-' scripts and briefs, we agree with the trial court that the judgment of non pros was properly entered and the petition to open said judgment properly denied.

Order affirmed.

      . Montgomery County Local Rule 302(f) states in relevant part:
      (f) Briefs. The brief of the moving party shall be filed within thirty (30) days of the date of filing of the praecipe for argument unless otherwise directed by the court. The brief of the respondent shall be filed within thirty (30) days of the date of the filing the moving party's brief---- If the brief of either the moving party or the respondent is not timely filed, the court may:
      (1) Dismiss the petition, motion or preliminary objection where the moving party has failed to comply.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    626 A.2d 637
    Jordan M. MILLER, T/A Bainbridge Animal Hospital v. Augustine PERAINO, Florence Peraino, Jamie L. Sacks, Edythe Barbara Harrison, and John Doe. Appeal of Augustine PERAINO and Florence Peraino.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed June 21, 1993.

      Nancy J. Winkler, Philadelphia, for appellants.
    Phillip B. Silverman, Philadelphia, for appellees.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Augustine and Florence Peraino [“Perainos”] appeal the order entered February 4, 1992, in the Court of Common Pleas of Philadelphia County which granted Dr. Jordan Miller’s [“Miller”] preliminary objections to the Perainos’ amended complaint. The incident generating this dispute began on July 14, 1990, when the Perainos took their pet Doberman, Nera, to Miller’s veterinary hospital for oral surgery.

Miller performed the surgery and Mr. Peraino came to the animal hospital on July 16, 1990, to pick up Nera. Due to the large size of the dog, Mr. Peraino decided to return later with another person to help him carry her. Jamie Sacks and Edythe Harrison, two veterinary assistants, claim that Miller later viciously beat Nera to death because he was having difficulty getting the dog from the basement recovery room to the waiting area upstairs where the dog would be picked up. Sacks claims that Miller kicked Ñera and beat her with a pole until she fell backward. Harrison claims that she found the dog dead in a pool of blood in a cage. When the Perainos learned that the dog was dead, they met with Miller who told them that the dog had died of a heart attack. Subsequently, however, Sacks and Harrison, who by this time had quit their jobs because of Miller’s alleged treatment of Nera, told the Perainos what they witnessed.

In August of 1990, Sacks, Harrison and the Perainos began picketing the veterinary hospital. Miller sued all four for defamation, intentional interference with a business and contractual relationship, intentional infliction of emotional distress and negligence. The Perainos filed an answer, new matter, and a counterclaim on May 24, 1991. On September 11, 1991, Miller filed preliminary objections to the counterclaim. On September 23, 1991, the Perainos filed an amended answer, new matter, and counterclaim. On October 2, 1991, Miller filed preliminary objections in the nature of a demurrer. The lower court sustained the demurrer to Counts 1 and 5 of the Perainos’ complaint, which alleged that the Perainos suffered intentional infliction of emotional distress. This appeal followed.

We note that only part of the Perainos’ counterclaim has been dismissed as a result of the demurrer. Thus, it is necessary to inquire whether this appeal is interlocutory.

“A final order is one which ends the litigation or, alternatively, disposes of the entire case____ [A]n order is interlocutory and not final unless it effectively puts the litigant out of court.... The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.”

Praisner v. Stockner, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983). We have held that the dismissal of one or several counts from a multi-count complaint may be a final appealable order. Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). In Motheral, we found that if the count dismissed states a cause of action separate from the remaining counts, the order dismissing it is final and appealable. On the other hand, if the count dismissed states only an alternate theory of recovery, the order dismissing that count is interlocutory and not appealable. Id.

In this case, Counts I, V, VIII, and IX were dismissed. The Perainos appeal the dismissal of Counts I and V. Count I alleges that the Perainos suffered intentional infliction of emotional distress as a result of the extreme and outrageous conduct which allegedly led to Nera’s death. Count V alleges that Mr. Peraino suffered intentional infliction of emotional distress as a result of the same conduct complained of in Count I, but additionally alleges that Mr. Peraino suffered intentionally inflicted emotional distress directly resulting from Miller’s outrageous behavior during the picketing. The trial court found that these counts were based on injuries separate from those alleged in the remainder of the complaint. Trial court opinion, 2/4/92, at 5. Mr. Peraino is put out of court entirely as a result of the dismissal of Counts I and V. He has no other claims in the complaint. The dismissal of Count I, concerning Mrs. Peraino’s intentionally inflicted emotional distress, is based on Miller’s conduct toward Ñera. The other counts in the complaint concerning Mrs. Peraino involve battery, assault, and emotional distress intentionally inflicted upon her directly, rather than as to the dog. Therefore, the dismissal of Counts I and V satisfy the separate cause of action requirement of Praisner and Motheral. This appeal is properly before the Court.

The sole issue presented for our review is whether the lower court erred when it granted Miller’s preliminary objections and dismissed the claims for intentional infliction of emotional distress as to Florence and Augustine Peraino in Count 1, and as to Augustine Peraino in Count 5.

Our scope of review on an appeal from an order sustaining preliminary objections in the nature of a demurrer is that we must accept as true all well-pleaded facts and all reasonable inferences from the facts as set forth in- the pleadings. Kilmore v. Erie Ins. Co., 407 Pa.Super. 245, 595 A.2d 623 (1991). We will reverse the trial court’s decision only if there has been an error of law or a manifest abuse of discretion. Id.

Count 1 of the counterclaim alleges that the Perainos suffered intentional infliction of emotional distress as a result of the extreme and outrageous conduct which allegedly led to Nera’s death. Count 1 alleges that Mrs. Peraino sought medical treatment. Count 5 alleges that Mr. Peraino suffered intentional infliction of emotional distress as a result of the conduct which allegedly led to Nera’s death, but also alleges that Mr. Peraino suffered emotional distress as a result of Miller’s outrageous conduct while Peraino picketed. Miller allegedly physically intimidated Mr. Peraino and uttered obscene, disgusting, and outrageous statements about the physical characteristics of Mr. and Mrs. Peraino and Nera while they picketed the hospital. There is no allegation in Count 5 that Mr. Peraino sought medical treatment.

The Restatement (Second) of Torts defines the intentional infliction of emotional distress:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (Second) of Torts, § 46(1). The Pennsylvania Supreme Court has “acknowledged but has never had occasion to adopt Section 46 as the law in Pennsylvania.” Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). The Court, however, concluded that “if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Id. at 197, 527 A.2d at 995.

Count 1 of the Perainos’ complaint alleges that Mrs. Peraino sought medical attention. The outrageous conduct upon which Count 1 is based, however, is Miller’s.behavior toward Nera, which allegedly caused the dog’s death and the Perainos’ emotional distress. It is worth noting that the Restatement contemplates recovery for intentional infliction of emotional distress when a tortfeasor’s conduct is directed at a third party. Recovery, however, would appear to be limited:

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

Restatement (Second) of Torts, § 46(2)(a), (b). In Pennsylvania, dogs are legally considered to be property. 3 P.S. § 459-601(a) (“all dogs are hereby declared to be personal property ... ”). Therefore, they are not members of one’s family or persons, as contemplated by the Restatement § 46(2)(a) or (b). Moreover, this Court has held that intentional infliction of emotional distress cannot legally be founded upon a veterinarian’s behavior toward an animal. Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858, 864 (1988). In Daughen, we stated that plaintiffs’ complaint, which alleged intentional infliction of emotional distress as a result of a veterinarian’s treatment of their dog, did not set forth a cause of action. Our rationale was that the principal misconduct was focused upon appellants’ dog, and not upon appellants themselves. Id. We find the same rationale applies to Count 1 of the Perainos’ complaint. The demurrer as to Count 1 was properly granted.

As stated above, the Pennsylvania Supreme Court has held that as far as section 46 of the Restatement (Second) of Torts is accepted in Pennsylvania, competent medical evidence must be presented in support of a claim for intentional infliction of emotional distress. Kazatsky, supra. In addition, the Kazatsky Court noted the type of conduct contemplated by the Restatement’s drafters:

The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.

Id. at 201, 527 A.2d at 997, citing § 46 comment d, Restatement (Second) of Torts.

Unlike Count 1, Count 5 alleges conduct by Miller against Mr. Peraino. The lower court, however, found that neither the degree of outrageous conduct nor the nature and extent of the emotional injuries alleged in Count 5 justified a finding of damages for intentional infliction of emotional distress. Count 5 alleges that: Miller recorded Mr. Peraino’s truck license plate number and said “Nice truck, soon I’ll own it,” ¶ 48, Count 5 (R.R. at 68a); that Miller drove by the Perainos’ home and said “Nice porch on your house. Soon I’ll own your house,” Id.; that Miller attempted to lure Mr. Peraino into a fist fight by calling him stupid and a “really stupid guy,” Id.; that Miller said that Nera was “as fat as a horse,” Id.; that Miller said that Nera was “fat and ugly like [Mrs. Peraino],” Id: at 69a, and asked whether the Perainos had made a rug out of Nera, Id.; and that Miller placed the Perainos’ phone number on public phones with the notation that a good time could be had by calling “Flo,” Id. While we recognize that these alleged statements would be unkind and unpleasant, the lower court did not abuse its discretion by finding that these were not the type of statements that merit damages for conduct “beyond all possible bounds of decency, ... atrocious, and utterly intolerable in a civilized society.” Restatement (Second) of Torts, § 46, comment d.

For the reasons set forth above, the order of the court of common pleas is affirmed.

      . Counts VIII and IX were brought on behalf of Ms. Sacks and Ms. Harrison, Miller’s former veterinary assistants. The dismissal of those counts is not an issue on this appeal.

      . A panel of this Court has recently held that medical evidence is not necessary to establish a claim for intentional infliction of emotional distress. Hackney v. Woodring, 424 Pa.Super. 96, 622 A.2d 286 (1993) (Tamilia, J., dissenting). In Hackney, the plaintiff, a young woman, suffered a pattern of egregious physical and sexual abuse and emotional distress at the hands of her employer. The Hackney panel reasoned that to impose the requirement that the plaintiff have sought medical help before permitting recovery would have only compounded her psychological distress. The panel found this to be unacceptable as a matter of public policy and remanded with instructions to reinstate the jury verdict in favor of the plaintiff. Hackney, however, is factually and procedurally different from this case. The facts of the case at bar do not warrant a departure from the well-settled rule of Kazatsky.


author: BECK, Judge.

text:
    626 A.2d 1162
    Andrew COLLINS, Individually and on Behalf of a Class of All Those Similarly Situated v. ALLSTATE INDEMNITY COMPANY, Appellant. Albert COOPERSMITH, Individually and on Behalf of a Class of All Those Similarly Situated v. COLONIAL PENN INSURANCE COMPANY, Appellant. Lucinda CONYERS, Individually and on Behalf of a Class of All Those Similarly Situated v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant. Clayre ABRAMSON, Individually and on Behalf of a Class of All Those Similar Situated v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant. Albert COOPERSMITH, Ind. and on Behalf of a Class of All Those Similarly Situated v. COLONIAL PENN INSURANCE COMPANY, Appellant. Lucinda CONYERS, Individually and on Behalf of a Class of All Those Similarly Situated v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant. Jean PERSON, Administratrix of the Estate of Andrew Collins, Individually and on Behalf of a Class of All Those Similarly Situated, Appellant, v. ALLSTATE INSURANCE COMPANY. Clayre ABRAMSON, Individually and on Behalf of a Class of All Those Similar Situated v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant. Ann BYRNE and Jane Nole, Executrices of the Estate of Ann Alkins, Individually and on Behalf of a Class of All Those Similarly Situated v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant. Ann BYRNE and Jane Nole, Executrices of the Estate of Ann Alkins, Individually and on Behalf of a Class of All Those Similarly Situated v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant. Elizabeth TUCKER, Ind. and on Behalf of Class of All Those Similarly Situated v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant. Elizabeth TUCKER, Ind. and on Behalf of Class of All Those Similarly Situated, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1992.
    Filed May 5, 1993.
    Reargument Denied July 12, 1993.

      William T. Barker, Chicago, IL, for appellant (at 69).
    Morris M. Shuster, Haverford, for appellants (at 330, 331, 333, 338, 443 and 2257) and appellees (at 69, 125, 146, 185, 332 and 2256).
    James T. Moughan, Philadelphia, for appellants (at 125 and 146) and appellee (at 330 and 331).
    Alan D. Windt, Philadelphia, for appellee (at 338).
    William C. Foster, Philadelphia, for appellee (at 443).
    James R. Kahn, Philadelphia, for appellant (at 2256) and appellees (at 2257).
    James C. Haggerty, Philadelphia, for appellants (at 332) and appellees (at 333).
    Gerard F. Lipsky, Philadelphia, for appellant (at 185).
    Before McEWEN, BECK and HESTER, JJ.
   BECK, Judge.

The issue in these combined appeals is whether plaintiffsappellees are entitled to recover no-fault insurance benefits for medical expenses previously paid by Medicare, interest accrued on the unpaid benefits, and attorneys’ fees. We affirm the trial court and conclude that plaintiffs-appellees are entitled to the benefits and interest, but not attorneys’ fees.

FACTS AND BACKGROUND

Individuals representing classes of similarly situated insureds brought these actions against appellants Allstate Insurance Company (“Allstate”), Liberty Mutual Insurance Company, Colonial Penn Insurance Company (“Colonial Penn”), State Farm Mutual Automobile Insurance Company, Southeastern Pennsylvania Transportation Authority (“SEPTA”), and Nationwide Mutual Insurance Company (“Nationwide”). The cases were submitted to the trial court on cross-motions for summary judgment with stipulated facts.

Each plaintiff was injured in a motor vehicle accident after December 5, 1980, and incurred certain medical expenses as a result. Each was eligible to receive basic loss benefits for medical treatment under a no-fault insurance policy, pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act (“No-Fault Act”), 40 P.S. §§ 1009.101 et seq, since repealed. In addition, each plaintiff was eligible to receive Medicare benefits, under 42 U.S.C. § 1395. It was agreed by the parties that all medical expenses submitted by the plaintiffs were reasonable and necessary and were for services provided by “participating” providers under Medicare who were “accredited” under the No-Fault Act.

All of the plaintiffs’ medical and other accident-related expenses have been paid. Although the defendant insurers reimbursed plaintiffs for excess medical and non-medical “basic loss” expenses, they argue that Medicare was the primary insurer for the medical expenses. Consequently, the insurers made no payment for medical expenses until a Medicare disposition was received, and then only to the extent that Medicare had not paid. Plaintiffs brought these actions to recover the unpaid no-fault medical benefits, interest accrued thereon, and attorneys' fees.

Prior to December 5, 1980, no-fault benefits were indeed secondary to Medicare payments. Section 206 of the No-Fault Act provided, in pertinent part, as follows:

(a) General. — Except as provided in section 108(a)(3) of this act, all- benefits or advantages ... that an individual receives or is entitled to receive from Social Security, ... workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits ... received by or available to an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.

40 P.S. § 1009.206 (repealed) (emphasis added). This cost-cutting measure expressly provided for an automatic adjustment in the payment priority scheme if the law relating to government benefits were to change.

On December 5, 1980, the federal government did make a change in the existing priority scheme when it enacted the Omnibus Reconciliation Act (“ORA”). Certain amendments enacted through the ORA made Medicare secondary or excess to no-fault benefits:

(1) Payment under this subchapter may not be made with respect to any item or service to the extent that payment has been made, or can reasonably be expected to be made (as determined in accordance with regulations), with respect to such item or service, under a workmen’s compensation law or plan or the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Any payment under this subchapter with respect to any item or service shall be conditioned on reimbursement to the appropriate Trust Fund established by this subchapter when notice or other information is received that payment for such item or service has been made under such a law, policy, plan, or insurance....

42 U.S.C. § 1395y(b)(l) (additions underlined). The effective date of the ORA was the date of enactment, December 5,1980, and its stated purpose was to effectuate “substantial savings in Fiscal Year 1981.” 1980 U.S. Code Cong. & Ad. News 5526, at 5528.

The trial court, through the Honorable Bernard J. Goodheart, granted summary judgment in favor of the plaintiffs, and held that, inter alia: plaintiffs have standing to bring these actions; the ORA’s changes in the priority of Medicare benefits were effective on December 5, 1980 and no later; the coordination of benefits clauses in the Allstate and Nationwide policies did not negate the effect of this federal statute; and the plaintiffs were entitled to interest on the overdue no-fault benefits. Judge Goodheart also held that plaintiffs were not entitled to attorneys’ fees as a matter of law, although the parties did not raise this issue on their cross-motions for summary judgment. These timely appeals followed.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1085(b). Because the parties stipulated to the relevant facts, this matter was ripe for summary judgment. With the exception of the trial court’s conclusion that the federal government does not have a right of subrogation against the plaintiffs for the interest awarded, we affirm the order below.

ISSUES ON APPEAL

The issues raised on appeal may be summarized as follows:

1. Are plaintiffs proper parties to maintain this action for no-fault benefits when:

(a) it is undisputed that all benefits allegedly due would belong to the United States, which paid Medicare benefits for the same expenses, and the United States also claims an interest in any ancillary amounts due;
(b) the United States is not a party to the action, has not authorized plaintiffs to maintain the action on its behalf, and has not agreed to be bound by the adjudication in this action; and
(c) plaintiffs are not aggrieved by defendants’ failure to pay no-fault benefits because plaintiffs would be no better off had no-fault benefits, instead of Medicare benefits, been paid for the medical expenses in question?

2. Did defendants properly subtract Medicare benefits from medical expenses to compute the loss payable to plaintiffs?

3. Are defendants liable for interest on overdue no-fault benefits where the accident victims did not suffer any delay in payment because Medicare paid the expenses in question?

4. Where a coordination of benefits endorsement was included in a policy, was the insurer required to pay no-fault benefits after Medicare, a collateral source, paid the medical expenses?

5. Is defendant SEPTA liable for interest under the Sovereign Immunity Act and Tort Claims Act?

6. Did the trial court err in deciding that attorneys’ fees were not recoverable as a matter of law?

STANDING

The insurers initially argue that this court need not reach the merits of this case because plaintiffs have no standing to bring the actions for benefits. This argument has several layers, but is grounded in the fact that plaintiffs must reimburse the federal government if they recover benefits from the no-fault insurers.

The relevant section of the ORA states that any Medicare payment for the covered medical treatment “shall be conditioned on reimbursement to the appropriate Trust Fund ... when notice or other information is received that payment for such item or service has been made under” no-fault insurance. 42 U.S.C. § 1395y(b)(l). The plaintiffs have acknowledged and stipulated that if they recover no-fault benefits for the expenses previously paid by Medicare they will remit any such net recovery to Medicare. The defendant insurers take this to mean that the cause of action for the no-fault benefits actually belongs to the federal government, not the plaintiffs, and that since plaintiffs’ medical bills were timely paid by someone, i.e., Medicare, they have not been “aggrieved” by the non-payment of no-fault benefits.

At first blush, this argument has appeal. However, the fact that the plaintiffs have certain statutory obligations vis a vis the federal government does not alter the fact that this actually is a contract action, based on a relationship between the plaintiffs and the defendant insurers. The plaintiffs paid money to the defendants in exchange for certain insurance coverage, including coverage for medical expenses incurred in a covered motor vehicle accident. The defendants failed to pay for such expenses, although they admit that the expenses incurred were “covered” under the policies. Therefore, plaintiffs argue that the insurance contracts were breached, and there arose a cause of action.

Where an insured has paid premiums to a no-fault insurer, the possibility of a “double recovery” by the insured does not preclude the viability of an action for benefits.

[T]he fact that a claimant under the No-Fault Act has received compensation from a source other than the no-fault insurer is without relevancy in a suit brought by the claimant against the insurer to recover basic loss benefits for which the full premium has been paid.

Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515, 521 (1984). See also Hauck v. Ohio Casualty Grp., 361 Pa.Super. 370, 522 A.2d 628 (1987).

Nonetheless, the insurers argue that the plaintiffs have no pecuniary stake in the outcome of this matter since they have no outstanding medical bills and they have agreed that Medicare is entitled to reimbursement for payments made. However, the plaintiffs allege a contractual right to the benefits owed, regardless of any independent claim to those benefits asserted by the United States. Moreover, the plaintiffs claim entitlement to interest on the overdue benefits as well as attorneys’ fees. Their claim is direct and pecuniary, and therefore it is sufficient to establish standing. William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) (standing is established if the plaintiffs claim is “substantial,” or direct and pecuniary).

The insurers’ next argument on this issue is that these actions have not been prosecuted in the name of the real party in interest, the United States. Pa.R.Civ.P. 2002. The real party in interest “has the power to discharge the claim upon which suit is brought and to control the prosecution of the action brought to enforce rights arising under the claim.” Standard Pa.Prac.2d § 14.17 (1981). See also Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 58, 70 A.2d 828, 831 (1950), overruled on other grounds, Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). In arguing that plaintiffs are not the real parties in interest, the insurers evidently are concerned that, regardless of the outcome here, they may be subject to a second action brought by the United States based on its alleged rights to the benefits and interest at issue. However, since the right to benefits and interest is derived from a contract between the plaintiffs and the insurers, this argument is meritless. The fact that a federal statute gives the United States an independent right of reimbursement against the plaintiffs does not make it the real party in interest in this contract action. See Spires, supra (the real party in interest is not necessarily the person who ultimately may be entitled to the benefits of any recovery obtained).

Finally, the insurers argue that the plaintiffs, “rather than simply seeking to pursue any interest of their own, effectively seek to represent the United States and procure a judgment binding it.” Joint Brief of Defendants at 20. The insurers assert that this “representation” is without the United States’ consent and thus violates the doctrine of sovereign immunity. However, as we have already stated, the plaintiffs brought these actions based on their contractual relationship with the defendant insurers. The fact that the United States has an interest in the action, founded upon a federal statute which gives it a right to pursue reimbursement from the plaintiffs, does not implicate the doctrine of sovereign immunity. Therefore, we need not reach the tangential question of whether the United States has consented to this action.

The trial court properly held that plaintiffs have standing to prosecute these actions.

EFFECTIVE DATE OF THE ORA PROVISION

Before the ORA effected changes in the priority scheme for Medicare and other medical benefits plans, Pennsylvania’s No-Fault Act clearly made Medicare payments primary to no-fault basic loss benefits. 40 Pa.C.S.A. § 1009.-206 (repealed). The insurers argue that they continued to subtract Medicare payments from the total medical expenses incurred by plaintiffs until the new priority scheme became effective. Although the effective date of the ORA was December 5, 1980, the insurers assert that Medicare payments did not actually become secondary to no-fault benefits until certain related regulations were promulgated on June 6, 1983. This is despite the fact that the regulations, by their terms, apply to “accidents that occurred on or after December 5, 1980.” 42 C.F.R. § 405.322(a). As a result, the insurers did not follow the priority scheme outlined in Section 1395y(b)(l) until June 6, 1983.

In holding that Medicare payments became secondary to no-fault benefits as of December 5, 1980, we refer to Judge Goodheart’s thorough analysis:

Throughout the voluminous history of the 1980 Act [ORA], a repeated aim was to effectuate immediate savings by making Medicare secondary to automobile insurance, including no-fault insurance. This goal is enunciated in the House, Senate and Conference versions of the bill as well as the various Committee Reports from which the versions of the bill arose. See, e.g., H.R. 3990, § 825, 1980 U.S. Code Cong. & Ad. News 5752; House Conference Report No. 96-1479, page 133, at 1980 U.S. Code Cong. & Ad. News 5924; Committee on Ways and Means Report, 1980 U.S. Code Cong. & Ad. News 5616, 5717; Congressional Budget Office Cost Estimate, 1980 U.S. Code Cong. & Ad. News 5885. Indeed, the Budget Office’s projection of savings resulting from the amendment includes a projected savings of eight million dollars in Fiscal 1981. Clearly, through this amendment Congress sought to save money immediately.

Tr. Ct. Opinion at 13.

The insurers argue that, although the aim of the federal amendments was to make Medicare benefits secondary to automobile insurance, their enactment alone did not accomplish that goal; rather, the ORA merely established a framework for regulations which eventually would effectuate the proposed changes. In support of their contention, the insurers point to the parenthetical phrase in § 1395y(b)(l): “as determined in accordance with regulations.” At most, this qualifying phrase applies to payments not yet made by Medicare for items covered under private insurance. The instant matters, in contrast, deal with the relative priority of Medicare benefits and automobile insurance coverage where Medicare has already paid. Specifically, the issue is whether automobile insurers can avoid paying claims by delaying payment until Medicare has acted on a claim, and then refusing payments to the extent of the Medicare payment. To accept the defendants’ position would be to override the clear intent of Congress to make Medicare secondary to automobile insurance.

Congress specifically included language in the ORA to preserve Medicare’s right to reimbursement when and if medical benefits are paid by a private insurer. Although the rules governing such reimbursement and other conditional payments were elaborated upon in the regulations promulgated thereafter, the 1980 amendments immediately reversed the priority of payments between Medicare and private insurers. See, e.g., Colonial Penn Insurance Co. v. Heckler, 721 F.2d 431, 441 (3d Cir.1983) (regulations promulgated under ORA are retroactive to December 5, 1980). In Colonial Penn, the Third Circuit Court of Appeals upheld the regulations promulgated under the ORA, and in doing so noted that the defendant insurer “knew as of December 5, 1980 that Congress had changed the pre-existing priority of payments.” Id. at 441. If such a change affects state insurance law, then it does so as permissible congressional pre-emption of state law under the McCarran-Ferguson Act, 15 U.S.C. § 1012. Id. at 442, n. 6.

Colonial Penn was decided after the promulgation of the relevant regulations. We note that another court reached the same conclusion before they became effective. In American Risk Assurance Company v. Benrube, 407 So.2d 993 (Fla.Dist.Ct.App.1981), the court held that “[a] private insurer may not refuse to pay benefits for which it is primarily liable for the reason that those expenses have been paid by Medicare.” Id. at 994-95. In American Risk, as in the case at hand, Medicare had paid a substantial portion of the claimant’s medical expenses and the insurer had a policy of not paying for anything until a Medicare disposition was received. The insurer then would pay benefits only to the extent that Medicare had not paid. The court found that such a non-duplication policy could not be applied to Medicare benefits because of the clear language of the ORA. Id. See also Smith v. Travelers Indemnity Co., 763 F.Supp. 554 (M.D.Fla.1989) (Medicare is secondary to private insurance covering accident which occurred on March 1, 1983).

We hold that on December 5, 1980, the effective date of the ORA, Congress made Medicare benefits secondary to no-fault basic loss benefits. The defendant insurers are liable to the plaintiffs for the full amount of the expenses paid by Medicare on behalf of the plaintiffs, to their respective policy limits. Pursuant to the federal statute and the plaintiffs’ own stipulations, the plaintiffs shall reimburse the appropriate Medicare Trust Fund for these amounts upon receipt of payment.

COORDINATION OF BENEFITS CLAUSES

In addition to claiming that the new priority scheme of the ORA did not become effective until after June 6, 1983, defendants Nationwide and Allstate argue that their insureds’ policies included coordination of benefits (“COB”) clauses which made no-fault benefits secondary to other insurance plans. Neither insurer’s contention has merit.

Plaintiff Tucker’s husband had the option of designating other personal insurance as primary medical coverage in return for a reduced premium charged by Nationwide. The language of the COB endorsement states that Nationwide:

will pay benefits for professional medical treatment and care only over and above all amounts paid or payable to or for you or your relatives under the following: any other disclosed insurance, service, benefits, or reimbursement plans that provide similar direct benefits for motor vehicle accidents without regard to fault.

The only insurance “disclosed” on the policy as primary was Tucker’s group health insurance, provided by his employer. Medicare is not listed as the primary insurance, and therefore any argument that the COB clause makes Medicare primary must fail.

Even if Medicare were listed as the primary insurer for purposes of obtaining a reduced premium, the supremacy of the federal priority scheme enacted by the ORA would make this clause ineffectual.

The COB clause in the Allstate insurance policy issued to plaintiff Collins mirrors the language in § 206 of the No-Fault Act. The clause provides that amounts payable under Allstate’s policy shall be reduced by the amount the claimant receives or is entitled to receive under government benefit programs, except that “[b]enefits excess or secondary by law to the benefits provided by this coverage shall not reduce the amount payable ” by Allstate. (Emphasis added.) Since December 5, 1980, and at the time relevant to these actions, Medicare benefits were “secondary by law” to no-fault benefits, and Allstate’s COB argument cannot prevail. The COB clauses relied upon by defendants Allstate and Nationwide do not support their non-payment of basic loss benefits.

INTEREST

In addition to no-fault benefits, the plaintiffs seek interest on the benefits which remain unpaid. The No-Fault Act provides, in pertinent part:

No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained .. Overdue payments bear interest at the rate of eighteen percent (18%) per annum....

40 P.S. § 1009.106(a)(2) (repealed).

The language of the statute is clear and unambiguous. The only condition precedent to the accrual of interest is that the payment of benefits be overdue. The reason for the late payment is irrelevant. Hayes v. Erie Exchange, 493 Pa. 150, 153-55, 425 A.2d 419, 420-21 (1981). See also Steppling, 328 Pa.Super. at 431, 477 A.2d at 521; Kintz v. Nationwide Mutual Insurance Co., 323 Pa.Super. 3, 469 A.2d 1131, 1134 (1983); Hall v. Midland Insurance Co., 320 Pa.Super. 281, 467 A.2d 324 (1983). This is so even where collateral benefits were timely received. Steppling, supra.

It is clear that the defendant insurers owe interest on the unpaid no-fault benefits. The question remains as to whom the interest must be paid. Plaintiffs argue that they are entitled to the interest on the overdue benefits. Defendants assert that if interest is owed, it is owed to the United States government, which actually lost the use of the money paid for the plaintiffs’ medical expenses. We hold that the plaintiffs may recover the interest on the benefits owed them, but we do not decide whether or not plaintiffs have an obligation to pay the interest over to the United States, which is not a party to this action.

As we discussed previously, the plaintiffs have sued the insurers based on the contractual relationship between them. It is the plaintiffs who own the right to the unpaid benefits, i.e., the principal of the debt. Any interest which has accrued on the overdue principal also belongs, at least initially, to the plaintiffs. See, e.g., Roos v. Fairy Silk Mills, 342 Pa. 81, 19 A.2d 137 (1941) (interest is not a separate form of damages but is a substantive part of the debt as much as the principal is); Watson v. McManus, 223 Pa. 583, 72 A. 1066 (1909) (same).

However, the trial court went further and decided that the United States government has a right to reimbursement for the benefits only, rather than a broader right of subrogation to the entire bundle of rights belonging to the plaintiffs, including the interest owed. We need not and cannot decide this issue, as one of the interested parties is not before us. We therefore do not address the question of whether the United States may pursue an action against the plaintiffs for the interest, and the trial court’s ruling on this isolated issue is vacated.

We affirm the award of interest to the plaintiffs, in accordance with § 106(a)(2) of the No-Fault Act.

ATTORNEYS’ FEES

Plaintiffs have made a claim for attorneys’ fees pursuant to the No-Fault Act. They rely upon two sections of the law in their arguments.

Section 107(3)

The No-Fault Act authorizes an award of attorneys’ fees where the insurer has acted unreasonably, or in “bad faith”:

(3) If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

40 P.S. § 1009.107(3) (repealed). Unlike § 106, which mandates an award of interest where benefits are overdue, § 107(3) leaves the issue of attorneys’ fees to the court’s discretion. Our supreme court has interpreted the section’s language to require a finding of “bad faith” on the part of the insurer. Hayes, 493 Pa. at 154, 425 A.2d at 421. Where an insurer’s arguments for denial of a claim are not frivolous, attorneys’ fees need not be awarded, although interest must be charged. Id. at 160, 425 A.2d at 424.

In this case, “[o]ur own review of the record has disclosed an issue worthy of litigation and not manufactured without reasonable foundation or in bad faith.” Hall, 320 Pa.Super. at 289, 467 A.2d at 328. Here, the defendant insurers litigated a non-frivolous issue involving federal statutes and regulations, and presented authority to support their theories. Although their interpretations were incorrect, their arguments apparently were made in good faith. An award of attorneys’ fees under § 107(3) is not warranted. Cf. Johnson v. State Farm Mutual Automobile Insurance Co., 339 Pa.Super. 112, 488 A.2d 335 (1985) (defendant insurer liable for counsel fees under § 107(3) where it cited no case law or other authority to support its position).

Section 107(1)

The plaintiffs claim that they are entitled to attorneys’ fees under § 107(1) of the No-Fault Act. That section provides:

(1) If any overdue benefits are paid by the obligor after receipt by the obligor of notice of representation of a claimant in connection with a claim or action for the payment of no-fault benefits, a reasonable attorney’s fee (based on actual time expended) shall be paid by the obligor to such attorney.

40 P.S. § 1009.107(1) (repealed). Plaintiffs argue that, since any payment of benefits in these cases will necessarily come “after receipt by the obligor of notice of representation” of the plaintiffs by attorneys, counsel fees must be paid. However, plaintiffs’ contention is undermined by our recent decision in Freeze v. Donegal Mutual Insurance Co., 412 Pa.Super. 305, 603 A.2d 595 (1992).

In Freeze, a panel of this court held that a no-fault insurer’s potential liability under § 107(1) ends upon timely rejection of a no-fault claim. Once such a rejection is made, claimants must look to § 107(3) for recovery of counsel fees. Id. at 315, 603 A.2d at 600. See also Lee v. Safeguard Mutual Insurance Co., 379 Pa.Super. 104, 549 A.2d 927 (1988) (when a claimant is not timely notified of the rejection of a claim the legislature has provided for recovery of counsel fees). If we were to interpret § 107(1) as mandating the imposition of attorneys’ fees whenever benefits are overdue, § 107(3) would become meaningless; claimants no longer would be required to show unreasonable conduct by the insurer to recover counsel fees. Freeze, 412 Pa.Super. at 315, 603 A.2d at 600. When construing a statute, we must attempt to give effect to every word, thereby avoiding the creation of surplusage. Id., citing Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 471, 445 A.2d 1222, 1226 (1982).

In Freeze and Lee, this court set forth certain factors which must exist before a fee award under § 107(1) can be made:

(1) On a particular date, [plaintiffs] provided reasonable proof of the fact of loss and amount of loss incurred;
(2) [Plaintiffs were] not paid no-fault benefits by [defendants] prior to the filing of a notice of representation by [plaintiffs’] counsel;
(3) A notice of representation was filed when payments were overdue pursuant to section 106; and
(4) [Defendants] did not notify [plaintiffs] within thirty days “after the receipt of reasonable proof of loss” of any denial of benefits.

Freeze, 412 Pa.Super. at 314, 603 A.2d at 599, citing Lee, supra.

We have analyzed the record and stipulated facts in light of these requirements. First, plaintiffs did provide reasonable proof of the fact and amount of loss to the insurers. Second, certain no-fault benefits were not paid to the plaintiffs. However, the remaining factors are not present here.

Section 107(1) is designed to penalize untimely action by insurers, whose untimeliness requires retention of counsel. See Lee, supra. See also Labrador v. City of Philadelphia, 134 Pa.Cmmwlth. 427, 578 A.2d 634 (1990). Here, plaintiffs already had retained counsel before or during the initial presentation of their claims to the insurers; thus, the retention of counsel was not the result of unreasonable delay by the defendants.

Moreover, the penalty authorized by § 107(1) is designed to ensure that the claimant is timely notified of the rejection of a claim and the reasons for the rejection, and that the claimant is informed of her right to obtain an attorney. 40 P.S. § 1009.106(a)(5) (repealed). In these cases, the insurers made certain payments within thirty days of the receipt of proof of loss, and denied other payments within that time period by explaining that Medicare was the primary obligor for the loss. Obviously, since the plaintiffs already were represented by counsel at the relevant times, there was no need formally to notify them of the “terms and conditions of [their] right to obtain an attorney.” Id. Under these circumstances, plaintiffs are not entitled to attorneys’ fees under § 107(1).

CONCLUSION

We affirm the trial court’s orders granting summary judgment in favor of the plaintiffs on the issues of no-fault benefits and interest, and in favor of the defendants on the issue of attorneys’ fees.

Order affirmed.

      . Although not an insurance company, defendant SEPTA is a self-insured entity which, pursuant to 40 P.S. § 1009.103 (repealed), is an “obligor” under the No-Fault Act and has the same rights and responsibilities as the private insurers. The term "insurers" will be used to refer to all defendants, including SEPTA.

      . As is discussed below, the issue of the United States’ right to the interest awarded the plaintiffs is not properly before us, as the federal government was not a party to these actions. We therefore do not express an opinion on this matter.

      . In SEPTA’s case, the No-Fault Act imposes the same obligation to pay medical expenses incurred by victims of accidents involving SEPTA's self-insured vehicles. 40 P.S. § 1009.103 (repealed).

      . The Rule provides:
      RULE 2002. PROSECUTION OF ACTIONS BY REAL PARTIES IN INTEREST. EXCEPTIONS.
      (a) Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.
      (b) A plaintiff may sue in his own name without joining as a plaintiff or use-plaintiff any person beneficially interested when such plaintiff
      (1) is acting in a fiduciary or representative capacity, which capacity is disclosed in the caption and in the plaintiffs initial pleading; or
      (2) is a person with whom or in whose name a contract has been made for the benefit of another.
      (c) Clause (a) of this rule shall not apply to actions where a statute or ordinance provides otherwise.
      (d) Clause (a) of this rule shall not be mandatory where a subrogee is the real party in interest.

      . The defendants have argued elsewhere in their briefs that the United States is subrogated to the interests of the plaintiffs, and thus Rule 2002(d) would be applicable to allow plaintiffs to maintain these actions. Obviously, to prevail on the subrogation argument would mean that defendants lose on their claim that plaintiffs are not the real parties in interest. Nevertheless, as is discussed in more detail below, we do not reach the merits of the subrogation issue.

      . The trial court found that the United States had impliedly consented to plaintiffs' maintaining these actions through a letter that stated that it had "no objection” thereto. We note that the United States filed an amicus brief in this court which expressly states that it has consented to these actions. Brief of Louis W. Sullivan, M.D., Secretary, United States Dept, of Health and Human Services at 14, n. 6.

      . The insurers’ argument is based on language in 42 C.F.R. § 405.-323(a)'which states that the regulations apply to services furnished after June 6, 1983 where payments "can reasonably be expected” under no-fault insurance. In these cases, the no-fault insurers denied payment, and therefore this later effective date is inapplicable.

      . All of the benefits at issue in these cases accrued between December 5, 1980 and June 6, 1983.

      . The Colonial Penn case involved the interaction of Pennsylvania law with the ORA. Another federal court has reached similar conclusions when dealing with state automobile insurance law in relation to Medicare. In Abrams v. Heckler, 582 F.Supp. 1155 (S.D.N.Y.1984), the court held that, notwithstanding the Medicare-offset provision of New York’s state motor vehicle insurance law, under the ORA Medicare is secondary to auto insurance benefits. “Although Congress did not, in so many words, declare its awareness that in passing [the amendments] it would supersede state Medicare-offset laws, the Court must infer that Congress intended to do so when such would plainly be the result of effectuating the statute’s clearly articulated purpose.” Id. at 1165. Certainly, if the federal law preempts Medicare set-off provisions explicitly embodied in state laws, then it also overrides any such internal policy unilaterally adopted by individual insurers.

      . Tucker made her claim against Nationwide through her husband’s policy.

      . Although Tucker’s policy did not present such a situation, other class members who did list Medicare as their primary insurer and received a premium discount from the insurer shall have the amount of the discount deducted from any recovery from the insurer.

      . This is true for defendant SEPTA as well, despite the fact that it is a commonwealth agency. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986) (SEPTA is "commonwealth agency”). See Hill v. Port Authority Transit System, 137 Pa.Cmwlth. 132, 585 A.2d 1129 (1991) (claimant entitled to award of interest from self-insured commonwealth agency for late payment of no-fault benefits). Although SEPTA's liability is limited under 42 Pa.C.S.A. § 8528 to a total damages award of $250,000, that statute does not preclude an award of interest. Hill, supra.

      . We recognize that this award appears to be a windfall to the plaintiffs. However, they are entitled to the money under the No-Fault Act. Not to impose an obligation for interest on the defendant insurers would be to give a windfall to them.

      . The parties agree that this issue was not raised in their cross-motions for summary judgment, and that the trial court addressed the question of attorneys’ fees sua sponte. After our review of the record, we find no reversible error in the trial court’s decision to dispose of the entire matter on the undisputed facts stipulated by the parties. We hold that there is no genuine issue of fact material to the attorneys’ fees question, and decide it as a matter of law.

      . The trial court did not address this particular section of the No-Fault Act in its discussion of attorneys' fees.

      . Section 106(a)(5) states in relevant part:
      An [insurer] who rejects a claim for basic loss benefits shall give to the claimant written notice of the rejection promptly, but in no event more than thirty days after the receipt of reasonable proof of the loss. Such notice shall specify the reason for such rejection and inform the claimant of the terms and conditions of his right to obtain an attorney.
      40 P.S. § 1009.106(a)(5) (repealed).

      . Our review of the record reveals that the Byrne claim was submitted to SEPTA on August 11, 1983 and SEPTA acted on the claim 22 days later, on September 2, 1983, paying amounts not covered by Medicare. The Conyers and Abramson claims first were submitted to their no-fault insurers after Medicare acted, and their respective attorneys were given written notice within 30 days that payment was being limited to amounts not paid by Medicare. Coopersmith's lawyer was advised of Liberty Mutual’s position on COB by letter before any bills had been submitted. Allstate received the first bill relating to Collins’ claim directly from the provider on August 3, 1981 and responded with a letter, stating that it believed Medicare was primary; on August 19, 1981 the same information was orally conveyed to counsel for Collins. Tucker was also timely notified that her husband’s COB election made Medicare primary and no-fault excess.
      Moreover, the parties stipulated to the fact that ”[p]rior to June 6, 1983, [the insurers] generally would, in response to inquiries and/or as a matter of course during the handling of a claim, notify a Medicare-eligible claimant and/or providers that [they] believed that Medicare coverage was primary to No-Fault coverage, that applicable bills should be submitted to Medicare first, and that [the insurers] would await Medicare action on the claim.”


author: POPOVICH, Judge:

text:
    626 A.2d 1173
    COMMONWEALTH of Pennsylvania, Appellee, v. Stephen John DARKOW, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1993.
    Filed May 11, 1993.
    Reargument Denied July 16, 1993.

      Michael P. Dignazio, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before BECK, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the judgment of sentence for driving under the influence of alcohol (DUI) by the defendant/appellant, Stephen John Darkow. We affirm.

After a non-jury trial, the appellant was found guilty of DUI and sentenced to 48 hours to 23 months imprisonment. On appeal, the appellant challenges the District Attorney’s refusal to admit him to Delaware County’s Accelerated Rehabilitative Disposition (ARD) program. He argues that the District Attorney’s reasons for refusing him access to ARD (his prior (1983) entry into an ARD program for DUI and his acquittal of DUI charges following a trial in 1988) are violative of his due process rights by visiting upon him, by collateral means, his 1988 acquittal for DUI and formulating conditions for entry into ARD contrary to legislatively mandated state-wide conditions. See Appellant’s Brief at 6.

In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), our Supreme Court addressed the question of whether the Commonwealth could be ordered to admit a defendant to ARD. The Lutz Court ruled that the District Attorney retained sole discretion in deciding whether a defendant was eligible for entry into an ARD program, and, as herein relevant, indicated what limitations could be affixed to a District Attorney’s authority in submitting a case for ARD; to-wit:

Although the procedural posture of the cases consolidated herein is such that no challenge has been made to the district attorneys’ exercise of discretion in not submitting these cases for ARD, we address the issue of the prosecutor’s discretion because of language in the trial courts’ opinions indicating that prior convictions are relevant to submission for ARD only if they are related to drunk driving. The implication is that if a district attorney refuses to submit a case for ARD because of a prior conviction unrelated to drunk driving, he may have abused his discretion.
Contrary to the view of the trial courts, we do not believe that only prior offenses related to drunk driving are relevant to admission to an AED program. What is relevant in moving a particular defendant’s admission to AED is whether he is the type of person who can benefit from the treatment offered by an AED program, not whether he has been in trouble with alcohol and an automobile before.
This judgment, in turn, rests in the sound discretion of the district attorney. Such discretion, of course, is not without limitations.
In all of the cases consolidated herein, the prosecutors have openly specified their reasons for not submitting the cases for AED, and those reasons, while they may be subject to disagreement as to their wisdom, do not amount to an abuse of discretion.
Since the judgment about who can benefit from ARD is subjective, and since society may be seriously damaged by a wrong judgment, the district attorney is not to be faulted if he errs on the side of caution. After all, the offenses with which the accused are charged in these cases involved the risking of the lives of themselves and others, and it may well be that some offenders are better rehabilitated by a mandatory jail sentence and a temporary loss of their license than a program of treatment and instruction.
In any event, the decision to submit the case for AED rests in the sound discretion of the district attorney, and absent an abuse of discretion involving some criteria for admission to AED wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

508 Pa. at 308 & n. 3, 495 A.2d at 933, 934-35 & n. 3 (Emphasis added in part; citation omitted).

It is the appellant’s contention that his exclusion from the ARD program because of a 1988 acquittal on a DUI charge and an 8-year-old conviction for DUI fall within Lutz’s “other such obviously prohibited considerations” in making an ARD decision as to render the District Attorney’s decision an abuse of discretion. Moreover, the appellant argues that the District Attorney’s action violated his due process guarantee against wholly arbitrary and capricious conduct infringing upon his rights and liberties. See Appellant’s Brief at 8, citing Commonwealth v. Schaffer, 447 Pa. 91, 288 A.2d 727 (1972).

Lutz instructs us that the Rules of Criminal Procedure 175-185, as modified by 75 Pa.C.S.A, § 3731(d) (prohibiting the attorney for the Commonwealth from moving certain cases to ARD, one being where the defendant has been in an ARD program within 7 years of his present efforts to seek ARD admission), are the sole applicable procedures by which a person charged with drunk driving may be admitted to ARD.

Further, before we may find an abuse of discretion, we must conclude that the criteria relied upon by the District Attorney was “wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation.” Id. 508 Pa. at 310, 495 A.2d at 935 (Emphasis in original).

In Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986), a panel of this Court concluded that the District Attorney of Allegheny County had not abused his discretion in denying the defendant access to ARD. It appears that while awaiting trial on the first DUI charge, the defendant was arrested on a second DUI offense. The fact that the defendant was acquitted in a separate trial of the second DUI offense was of no moment in refusing him ARD. In affirming the exclusion from ARD, we wrote:

The pre-trial decision of the district attorney to withhold ARD for appellant does not appear to have been based upon improper considerations. It appears, rather, to have been based upon considerations of public protection and an unlikelihood that appellant would benefit from participation in the ARD program. Not only was there evidence of a second arrest while appellant was awaiting trial, but there was also a suggestion, contained in a pre-sentence investigation and referred to at sentencing, that appellant had once before been admitted to the ARD program. Under these circumstances, it cannot be said that the District Attorney’s decision was subject to reversal for abuse of discretion.

350 Pa.Super. at 456, 504 A.2d at 929 (Emphasis added).

Interestingly, in Brown, supra, the date of the prior admission to ARD was not mentioned. Similarly, in Lutz, supra, the Court did not cite the dates of the various defendants’ prior convictions or the length of time which elapsed between participation in an ARD program and one’s most recent efforts to seek ARD.

Under 75 Pa.C.S.A. § 3731(d), a defendant is precluded from obtaining ARD status if he or she has been admitted to the same or similar type program within seven (7) years of his or her most immediate efforts to attain admission into ARD. However, the 7-year statute of limitations does not foreclose the Commonwealth from examining conduct of the defendant which falls outside the perimeters of the established time period. See, e.g., Lutz, supra; Commonwealth v. Ebert, 369 Pa.Super. 318, 535 A.2d 178 (1987) (Adjudication of delinquency can be looked to in assessing one’s admission to ARD); Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1986) (No abuse of discretion for District Attorney to look to 13-year-old felony conviction to keep the defendant out of ARD program); Brown, supra.

Paramount to the proper implementation of any ARD program is to assure that inclusion/exclusion promotes one or both of the objectives sought to be achieved by the program’s existence: protection of the public and/or the rehabilitation of the defendant. Lutz, supra.

From our examination of the Rules of Criminal Procedure governing ARD, the applicable provisions of the Motor Vehicle Code and the case law interpreting the objective(s) sought to be achieved under its auspices, we find it proper for the District Attorney to have looked to a prior ARD admission (notwithstanding its 8-year-old status) as a basis for refusing the appellant entry into the Delaware County ARD program. See Lutz, supra; Brown, supra; Roeder, supra.

As noted by Lutz, supra:

Society has no interest in blindly maximizing the number of ARD’s passing through the criminal justice system.... Rather, society, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society’s representative in the case, the district attorney, acting in conjunction with the court, and subject always to the restrictions set out in Section 3731(d) (concerning persons who may not be admitted to A.R.D.) determines that A.R.D. is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an A.R.D. program.

508 Pa. at 307, 495 A.2d at 933. Additionally:

Since the judgment about who can benefit from ARD is subjective, and since society may be seriously damaged by a wrong judgment, the district attorney is not to be faulted if he errs on the side of caution....

508 Pa. at 310, 495 A.2d at 935.

Accordingly, with the preceding in mind, we have no hesitation in affirming the District Attorney’s exclusion of the appellant from ARD because of his 1983 completion of an ARD program for DUI.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3731(a).

      . The trial court permitted the appellant to remain on bail pending appeal.

      . The district attorneys refused to move for these defendants' admission[s] to the ARD programs for the following reasons:
      * No. 60 (Lutz): defendant had a prior ARD for receiving stolen property;
      * No. 61 (Nester): defendant had prior convictions of criminal trespass and theft;
      * No. 62 (Cline): defendant was charged within drunk driving in the present case within six months of being released from supervision under a prior ARD program for drunk driving;
      * No. 63 (Frick): defendant was charged with other motor vehicle offenses (fleeing a police officer and 5 counts of disobeying traffic signals) as part of the same drunk driving transaction;

      * No. 64 (Conway): defendant was charged with other motor vehicle offenses (driving while license was suspended or revoked) as part of the same drunk driving transaction;

      * No. 66 (Giamp): defendant had a prior conviction of pool selling and bookmaking;
      * No. 75 (Faust): defendant was charged with another motor vehicle offense (driving while his license was suspended or revoked) as part of the same drunk driving transaction;
      * No. 76 (Emert): defendant had participated in an ARD program in 1977 for a drunk driving offense.

      * No. 77 (MacAllister): defendant had prior convictions of robbery, attempted theft, criminal mischief and simple assault.

      . We would note, however, that had the District Attorney relied solely upon the appellant's acquittal of a 1988 DUI charge as the basis for his exclusion from ARD, we would hold that such a decision constitutes an abuse of discretion. Contrast Lutz, supra; Brown, supra.
      In all of the cases examined, nowhere is it stated (expressly or impliedly) that a verdict of not guilty is to be ignored and permission is granted to look to the underlying charge to assess one's receptiveness into the ARD program. To allow such a factor to impact on the decision-making process, we believe, violates fundamental due process. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). A tenet which has been inextricably intertwined therein is the notion that a finding of not guilty is an exoneration of the accused and not an albatross which should follow an individual throughout the remainder of his life.
      Even in the context of an expungement proceeding, absent the Commonwealth’s proffering a reason for retention of one’s arrest record short of a technical error or dismissal of the charge(s) at the district justice level, a defendant is to be granted exoneration of his record. See Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983). We would not expect any less of an "exoneration” of a defendant in a DUI context.
      However, because, as stated earlier, there was sufficient justification for the district attorney to seek to disallow the appellant into the ARD program — prior admission to ARD — we need not remand to allow the appellant inclusion into the Delaware County’s ARD program.


author: CAVANAUGH, Judge.

text:
    626 A.2d 1177
    Luis M. SANTOS and Frances Santos, His Wife, Appellants, v. INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1992.
    Filed May 20, 1993.
    Reargument Denied July 16, 1993.

      Harry P. Begier, Jr., Philadelphia, for appellants.
    Christopher Leise, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   CAVANAUGH, Judge.

This is an appeal from the entry of summary judgment in favor of the Insurance Placement Facility of Pennsylvania (Fair Plan.) Judgment in favor of the Fair Plan was ordered because the lower court concluded that appellants-Santos had not complied with a condition of the fire insurance policy between themselves and Fair Plan. On appeal, Santos argue that the condition, i.e., appraisal of disputed amounts of loss, may not be asserted by Fair Plan because it breached its duty of fair dealing by reason of delay in handling Santos’ claim. We find no error by the lower court and affirm.

The Fair Plan had issued a fire insurance policy to Santos for their residence and contents in an aggregate amount of $62,000. Included in the policy were the following clauses:

Appraisal. In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.
Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.

On April 26,1991, the Santos’ property suffered a fire which damaged the dwelling and its contents. Notice of the fire was sent to Fair Plan on or about April 29, 1991 and an adjuster for Fair Plan, Herbert Bailey, inspected the premises on May 3, 1991. The proof of loss submitted by Santos was received on May 31, 1991 by Fair Plan. Fair Plan acknowledged receipt of the notice of proof of loss on June 14, 1991 and informed Santos that it did not accept the amount of loss claimed by Santos, $48,972.

In July and August, Fair Plan, through Mr. Bailey, offered to settle the claim in full for $22,173.49. This was not accepted by Santos. Suit was begun on September 16, 1991. After commencement of suit, Fair Plan issued a check for $20,518.54 on October 16, 1991. This check was accepted by Santos and they reduced their demand for damages to $26,953.46. Santos then sought to preclude Fair Plan from disputing the remainder of the claim for its failure to timely respond to Santos’ proof of loss with a counter-amount. The court denied Santos’ motion for summary judgment on March 3, 1992. It granted Fair Plan’s motion for summary judgment and dismissed the complaint on June 17, 1992. This appeal has been taken from the order of June 17, 1992.

The supreme court has recently articulated the principles regarding entry of summary judgment:

Summary judgment shall be entered:

... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). “The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, [135], 589 A.2d 205, 206 (1991). Summary judgment may be entered only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989).

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992).

The lower court, the Honorable John W. Herron, granted Fair Plan summary judgment because the requirement in the insurance policy that disputes as to amount of loss be submitted to appraisal had not been satisfied. Judge Herron found that the suit was “intemperately” brought since the appraisal requirement had been violated.

On appeal, Santos argue, as they had before Judge Herron, that they do not have an obligation to submit the claim to appraisal. They contend that Fair Plan has lost the benefit of the appraisal clause because it breached the policy. The claims of breach are based on the alleged incorporation into the policy of the terms of the Unfair Insurance Practices Act, 40 P.S. § 1171.1 et seq. (UIPA), and the regulations issued under it, 31 Pa.Code § 146.1 et seq.. The argument is that failure to follow the time-frame set out in the regulations issued by the insurance commissioner under UIPA, is a failure to use the “utmost fair dealing”, and, therefore, the appraisal clause is unenforceable by Fair Plan. After review of the record and briefs and after thorough analysis of the law, we find appellants’ arguments to be without merit.

There is no question that the insurance policy calls for appraisal where either party demands it. Fair Plan has demanded appraisal. Appellants seek to avoid application of the contractual term on the basis that Fair Plan has forfeited the right to compel appraisal and the right to contest the amount demanded by Santos, i.e., $26,953.46. Relying upon caselaw which has held that clauses which limit an insured’s ability to bring suit are unenforceable where the insurer did not act with utmost fair dealing, Santos argue that Fair Plan’s non-compliance with the aforementioned regulations amounts to unfair dealing. See Fedas v. Insurance Company of State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930) and Diamon v. Penn Mutual Fire Insurance Company, 247 Pa.Super. 534, 372 A.2d 1218 (1977). Fair Plan counters that because there is no private right of action under the Unfair Insurance Practices Act, see D’Ambrosio v. Penna. Nat’l Mut. Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981), Santos may not rely upon it to make out a breach of the policy by Fair Plan. The lower court did not discuss this issue in its opinion, but rather, applied the contractual provision that an appraisal be conducted before suit could be commenced.

We agree with Santos that pertinent statutory provisions of Pennsylvania insurance law are deemed incorporated into insurance policies. Neel v. Williams, 158 Pa.Super. 478, 45 A.2d 375 (1945); Clairton City School District v. Mary, 116 Pa.Cmwlth. 376, 541 A.2d 849 (1988). The substantive laws in effect when the parties enter into a contract are implicitly incorporated into it. First National Bank of Pennsylvania v. Flanagan, 515 Pa. 263, 270, 528 A.2d 134, 137 (1987) (mortgage law). However, none of these cases specifically provides that regulations issued pursuant to a statute are within the terms of the insurance policy. Nor has this court’s research discovered any jurisdiction which has held that regulations promulgated pursuant to a version of the model unfair practices legislation are incorporated into property, fire and casualty insurance policies. Santos have failed to carry their burden to establish that the law requires that regulations, like the terms of an insurance statute itself, are incorporated into the policy of insurance.

The lack of authority addressing the issue of the incorporation of regulations into an insurance contract convinces us that to hold that the regulations are incorporated in the policy would be unwise. The insurance industry is highly regulated by both statutes passed by the legislature and regulations promulgated by the insurance commissioner. As is evident in the instant case, the legislature has mandated that all policies of certain types of insurance contain designated provisions. Where a policy complies with all aspects of the statutory mandate, we do not believe that regulations adopted pursuant to the UIPA may be the basis for a judicially created expansion of an insured’s ability to abrogate portions of the policy.

The timing of payment of a loss is fixed by 40 P.S. § 636 as follows:

The amount of loss for which this Company may be hable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.

In accordance with this requirement, the policy provided for loss payment:

We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss and:
a. reach agreement with you; or
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.

Santos admit that Fair Plan made the offer to settle within 54 days of receipt of proof of loss. They argue, however, that it would not be possible to reach agreement within 60 days. We do not accept their position that it would be unreasonable for Fair Plan’s offer to be acted upon by them within the 60-day period specified by the policy and statute. The insureds had adequate opportunity to accept or reject the offer by Fair Plan. Fair Plan did not prevent Santos from taking advantage of one of the ways by which payment of loss would be required.

Santos never sought to invoke the appraisal process. Instead, they filed suit one month after the second offer from Fair Plan seeking to preclude Fair Plan from exercising its contractual right to appraisal. The terms of the policy may not be so easily nullified by appellants. Nothing within the Unfair Insurance Practices Act itself would require a finding that Fair Plan acted with such a lack of promptness that it breached its duty of utmost fair dealing. Rather, we find that Fair Plan was in compliance with the terms of the policy and all relevant statutory provisions pertaining to its relationship with the insureds.

We affirm the judgment of the lower court that appraisal is the proper avenue for determining the amount of loss.

Judgment affirmed.

BECK, J., concurs in the result.

      . Pursuant to 40 P.S. § 1600.101 et seq., the Fair Plan was created in 1968 to make available basic property insurance against fire and other perils, in part, in order to encourage improvement in urban areas. 40 P.S. § 1600.102(3). The Fair Plan’s purpose is to assure fair access to insurance requirements in order that no property shall be denied basic property insurance except on the basis of individual underwriting characteristics. 40 P.S. § 1600.102(4); 31 Pa.Code § 111.1.

      . These policy terms are mandated by statute at 40 P.S. § 636.

      . No appeal was taken from the March 3d order denying Santos' motion for summary judgment. The only order before us for review is the order granting Fair Plan’s motion for summary judgment.

      . Appellant also cites A & E Supply Company, Inc. v. Nationwide Mutual Fire Insurance Company, 798 F.2d 669 (4th Cir.1986) where the United States Court of Appeals for the Fourth Circuit, applying Virginia law, found that its Uniform Insurance Practices Act (which is substantially similar to that of Pennsylvania) was incorporated into a fire insurance contract.