author: JOHNSON, Judge: POPOVICH, Judge,

text:
    467 A.2d 33
    Patricia YOUNG, Appellant, v. John M. YOUNG & Julie Young, his wife.
    Superior Court of Pennsylvania.
    Argued March 24, 1983.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Granted Feb. 27, 1984.

      Richard J. Shiroff, Easton, for appellant.
    Nicholas Noel, III, Bethlehem, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Pursuant to an order of the Superior Court, Chancery Division, Warren County, New Jersey, John and Patricia Young were divorced on July 13, 1977. Subsequently, that court entered an order distributing the assets of the marriage. Included in such distribution was a provision for Patricia Young to receive one half of the pension payments received by John Young from the Police Pension Fund of the City of Easton, Northampton County, Pennsylvania. John refused to pay over to Patricia her share of the pension payments and he was adjudged to be in contempt by the New Jersey court. He has since married Julie Young and has taken up residence in Florida.

Patricia instituted proceedings in Northampton County. After a hearing, the New Jersey orders were registered and adopted by the Court of Common Pleas. John was allowed leave to petition for a modification of such orders. His petition to modify was dismissed. After further legal maneuvering, appellant filed a petition under 23 P.S. 403 seeking, among other relief, to attach the pension payments. The court denied the petition finding such payments were exempt from attachment. Appellant perfected this appeal.

The sole issue before this court is whether appellee's vested pension, which is currently being paid, from the police department of Easton, may be subjected to attachment pursuant to, or as a result of, an order of equitable distribution. At issue is the interaction between the Divorce Code of 1980, 23 P.S. § 101 et seq. and the Judiciary Act of 1976, 42 Pa.C.S.A. § 101 et seq.

The City of Easton, by ordinance, established a police pension fund pursuant to the Third Class City Code, 53 P.S. § 39301. Ordinance 1402, section 147.10 of the City code provides:

Manner of benefit payments: Non-transferability.
No pension or relief or any portion thereof granted under this article, or by the bylaws of the Police Association as a consequence thereof, shall be subject to any attachment or execution, but shall be payable only to the person specified or the dependents in the manner and form as provided in the bylaws of the association. Nor shall such pension or relief be subject to any assignment or transfer, under penalty or [sic] forfeiture.

The City elected, by ordinance No. 2476, section 147.20 of the City Code, to participate in the Municipal Retirement Law system. See 53 P.S. § 881.101 et seq. The Judiciary Act, 42 Pa.C.S.A. § 8124(b)(l)(vi) provides that retirement funds established under the Municipal Retirement Law “shall be exempt from attachment or execution on a judgment.”

The hearing court relying on the Judiciary Act held that a police pension could not be attached for purposes of satisfying an order of equitable distribution. Appellant argues that the Divorce Code cannot be reconciled with the above exemption provision of the Judiciary Act. She contends that the Act must give way to, or provide for, an exception to the exemption for equitable distribution.

The legislature has declared it to be the policy of this Commonwealth to:

(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

23 P.S. § 102(a)(6). Section 401(d)(6) explicitly includes retirement benefits in determining the distribution of the marital property. In achieving the desired goals, the courts are to exercise a broad range of powers. Subsections 401(c), and (g) provide:

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against , any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.
(g) The court may impose a lien or charge upon the marital property assigned to a party as security for the payment of alimony or other award for the other party.

In short, appellant argues that the legislature has in effect bestowed the authority upon the trial court to attach municipal pensions, if necessary to effect economic justice.

While appellant relies on a number of cases from other jurisdictions, we must note that the majority of those cases predate Com. ex rel. Magrini v. Magrini, 263 Pa. Super. 366, 398 A.2d 179 (1979) and Com. ex rel. Cerminara v. Cerminara, 239 Pa.Super. 111, 362 A.2d 1011 (1976); both decided by this court. The trial court found Cerminara controlling and distinguished Magrini. We must first review such cases.

In Cerminara, supra, the wife sought to enforce a support order by attaching the City pension funds payable to her retired husband. Pension funds of cities of the second class were exempt from attachment. 53 P.S. § 23572. The trial court found that two later statutes “operated to amend and partially repeal” the exemption from attachment; the legislature had “changed its philosophy” concerning attachment for support of a spouse and children. This court disagreed, finding § 23572 was unambiguous. One of the later statutes was limited to trusts, and did not include pensions. The second statute reviewed, the Civil Procedure Support Law 62 P.S. § 2043.39 (now found at 42 Pa.C.S.A. 6701-6713) authorized the courts to enforce support orders by attaching earnings. It was held that such enactment was limited to earnings of one currently employed; a pension fund was not to be viewed as an employer. Relying on Commonwealth v. Mooney, 172 Pa.Super. 30, 92 A.2d 258 (1952), it was noted that such exemption provisions arose from the public policy that government should be free from the annoyances and uncertainties caused by private disputes over entitlement payment from public funds. Had the legislature intended to make such funds subjected to attachment, it could have provided so.

The issue in Magrini, supra, was whether the Civil Procedure Support Law, supra, could authorize the attachment of a private pension fund even though the fund agreement included a nonattachment clause. This court distinguished Cerminara finding that in Magrini the public policy behind the exemption coincided with that of the support laws. Both were intended to provide some assurance that the support of the family would not be endangered. The court noted that the private pension exemption was provided for by statute, 40 P.S. § 515, reenacted at 42 Pa.C.S.A. § 8124(b)(l)(vii), but that the purpose of protecting a private pension differed from that of a governmental pension. The exemption of governmental pensions was a means to avoid government involvement in a private dispute.

-The Magrini court did not overrule Cerminara, but limited its application to the facts of that case, finding that the legislature had created a specific exemption for municipal pensions. Familial support was subordinated to the policy of alleviating local governmental involvement in private suits. The current appeal, even though dealing with equitable distribution, clearly falls within the scope of Cer-minara and not Magrini, as a municipal pension is involved. We need only address the question of whether Cerminara continues to control under the new Divorce Code.

In interpreting the various statutes, we are assisted by the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. If we assumed, as appellant would have us assume, that a conflict exists between the two enactments, we must construe the two, if possible, so that both may be given effect. Id. § 1933; Appeal of Yerger, 460 Pa. 537, 543, 333 A.2d 902, 905 (1975). The courts of Pennsylvania do not favor the repeal of statutes by implication unless there is an irreconcilable conflict between statutes applying to the same matter. Consumers Ed. and Protective Ass’n. v. Schwartz, 495 Pa. 10, 23 n. 17, 432 A.2d 173, 180 n. 17 (1981).

Throughout this construction process, a court should attempt to determine and give effect to the intention of the General Assembly. 1 Pa.C.S.A. § 1921(a). To do so we may look to the law as it existed at the time the statute was passed, Id. § 1921(c)(5); Lisowski v. Mastromarco, 281 Pa.Super. 303, 309 n. 4, 422 A.2d 180, 183 n. 4 (1980). We must assume that the legislature intended preexisting law to continue unless otherwise indicated. Commonwealth v. Miller, 469 Pa. 24, 27-28, 364 A.2d 886, 887 (1976). One further rule of statutory interpretation of particular concern to this appeal, is that a specific statute should control over one that is general. 1 Pa.C.S.A. § 1933; Com. ex rel. Platt v. Platt, 266 Pa.Super. 276, 287, 404 A.2d 410, 415 (1979).

The municipal pension exemption from attachment is a vintage creation of the legislature; 53 P.S. § 764, which appellees rely on, see footnote 3 supra, and which is a predecessor to 42 Pa.C.S.A. § 8124(b)(l)(vi), was first enacted in 1893. This court has applied similar exemptions, in the context of support cases, in Mooney, (1952), supra and again in Cerminara (1976), supra. We may assume the legislature was aware of such precedent, of both statutory and judicial origin in 1980 when it passed the Divorce Code. Yet the Code does not specifically address this point. Instead it makes a general grant of “full equity powers and jurisdiction ... which are necessary ... to effectuate the purposes of this act____” 23 P.S. 401(c).

The Divorce Code aims to foster economic justice; the Civil Procedure Support Law attempts to maintain the support of one’s spouse and children. We are unable to say that the former is of a greater public importance than the latter. In light of the preexisting attachment exemptions, we must presume the legislature did not intend to make pension funds held by a municipal government attachable for the purpose of equitable distribution. Had the legislators intended to do so, they could have so provided. See Cerminara, 239 Pa.Super. at 117, 362 A.2d at 1015. Instead we find that the Divorce Code was intended to allow the court of common pleas to invoke all existing practices, rules and procedures to effectuate the various stated purposes. The Code does not create new procedural devices (except those explicitly created), nor does it excuse divorce cases from adhering to present procedural and substantive rules. The Divorce Code of 1980 must be read in the context of the whole law and not independently of it.

We must conclude that a municipal pension may not be attached for purposes of satisfying an order of equitable distribution. Appellant must utilize other means, whether at law or in equity, to enforce such order.

The parties have also raised several other related points which we will dispose of summarily.

Appellee questions our jurisdiction contending that the res, the pension fund, is outside of this court’s jurisdiction. The fund is administered by a non-Pennsylvania concern. As the City of Easton has control over such fund we may exercise jurisdiction over it. Selig v. Selig, 217 Pa.Super. 7, 268 A.2d 215 (1970). The Commonwealth has a substantial and continuing relationship with the controversy as the fund was created under state law. Id.

Appellant argues that we must give full faith and credit to the New Jersey orders. U.S. Const, art. 4 § 1. In Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974) and Platt v. Platt, 227 Pa.Super. 423, 323 A.2d 29 (1974), the courts refused to give full faith and credit to an award of alimony. Under the old divorce law alimony or support was not permitted in Pennsylvania after the parties were divorced. In a like manner we refuse to give effect to an order of equitable distribution in a way which is inconsistent with the stated policy of this Commonwealth.

It is also contended that the police pension fund violates Pennsylvania’s Equal Rights Amendment, Const. Art. 1 § 28, as women had been denied the opportunity to join the police force and hence the pension plan. Appellant does not claim she was denied the opportunity to join the police but instead claims the pension through her former husband. She is not a proper party to attack the alleged discriminatory hiring practice and therefore we will not address such claim. Slater v. Rimar, Inc., 462 Pa. 138, 154, 338 A.2d 584, 592 (1975).

Finally, appellant contends that the policy behind the exemption is no longer valid as computerization and automation of pension plans have eliminated the annoyances and uncertainties the legislature wished to protect municipalities from. If the policy has so changed, it is up to the legislature to acknowledge such. See Stambaugh, 458 Pa. at 158, 329 A.2d at 489.

Order affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I disagree with the Majority that vested pension benefits derived from public funds in contradistinction to private funds are not accessible, i.e., subject to attachment, for purposes of equitable distribution under the Divorce Code of 1980. 23 Pa.S.A. § 101 et seq.

With the passage of the Divorce Code of 1980, the Legislature ushered in a new era in Pennsylvania regarding divorce. The vestiges of the prior divorce law, which made no provision for alimony and equitable distribution of property, were remedied. 23 Pa.S.A. §§ 401 & 504. Additionally, the Legislature delineated certain, specific objectives it sought to achieve with the enactment of the Divorce Code of 1980. See 23 Pa.S.A. § 102. Of the various objectives itemized in Section 102, the one that is of particular relevancy to the case at bar is paragraph (6) of subsection (a), wherein it provides that the policy of the Commonwealth of Pennsylvania is to “[e]ffectuate economic justice between parties who are divorced ... and insure a fair and just determination and settlement of their property rights.” (Emphasis added) We find further elaboration of the aforecited italicized, terms in Chapter 4, captioned “Decree of Court; Property Rights and Costs”. Therein, the Legislature set forth a plethora of factors to be weighed by a trial court proceeding to divide, distribute or assign “marital property” between the parties equitably. As is germane to the case sub judice, a trial court is required to consider, “The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.” (Emphasis added) 23 Pa.S.A. § 401(d)(6). It is interesting to note that in the “exceptions” portion of Section 401, the Legislature only exempted “[vjeterans’ benefits ... from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229 [38 U.S.C.A. § 3101]____” Id. at§ 401(e)(6). No other type of benefits were excluded, e.g., public (police) or private pension funds. Thus, to the extent that local municipalities pass ordinances to the contrary, they are rendered nugatory by means of legislative fiat. Cf. Turner v. May Corp., 285 Pa.Super. 241, 244 n. 1, 427 A.2d 203, 204 n. 1 (1981) (“... a local rule of court is subordinate to laws promulgated by our Legislature.”).

Therefore, based on my interpretation of the current state of the law as to the treatment of pension benefits (whether they be private or public), see generally Pietro v. Pietro, 183 N.J.Super. 69, 443 A.2d 244 (1982); Giovannoni v. Giovannoni, 122 Cal.App.3d 666, 176 Cal.Rptr. 154 (1981); Dean v. Dean, 131 P.L.J. 62 (Allegheny Cty. 1983); Paul W. v. Margaret W., 130 P.L.J. 6 (Allegheny Cty. 1982), appellant should be afforded the right to have appellee’s pension benefits attached for purposes of equitable distribution under the aegis of the Divorce Code of 1980. Since the Majority rules to the contrary, I must respectfully dissent.

      . All orders of court entered in New Jersey have been certified to the Court of Common Pleas of Northampton County.

      . Section 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void
      (a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal.

      . Both parties make various claims as to their respective financial situations. However, entitlement to the marital property and determination of what is marital property was properly before the New Jersey Court but is not before this court.

      . Appellee contends that exemption is provided by 53 P.S. § 764. However, that section pertains to retirement allowances provided by § 761. Section 761 was repealed as to third class cities in 1931; § 764 has not been repealed. Appellant contends that exemption is provided for by Id. § 39351. We find that that provision pertains to employees other than the police and firefighters.

      . Case name in Official Reporter: Pension Fund of the City of Pittsburgh Appeal.

      . The current case involves equitable distribution whereas Cerminara dealt with support. It is not our intention to imply that support and equitable distribution should necessarily be treated similarly in other contexts. However, as equitable distribution is relatively new to this Commonwealth, we find that support law can provide us with some guidance in the current appeal.

      . Appellant argues that had she foreseen this result she would have proceeded differently. See Kikkert v. Kikkert, 177 N.J.Super. 471, 427 A.2d 76 (1981). We do not wish to minimize the difficulty in providing for division of future payments, but we are controlled by Cermi-nara.

      . Furthermore, she may find that another jurisdiction is a more appropriate forum for any future attempts at enforcement.


source: Caselaw Access Project

author: WIEAND, Judge: HOFFMAN, Judge,

license: Public Domain

text:
    467 A.2d 324
    Thomas HALL v. MIDLAND INSURANCE COMPANY, Appellant. Thomas HALL v. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY. Appeal of MIDLAND INSURANCE COMPANY. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY v. MIDLAND INSURANCE COMPANY, Appellant. Thomas HALL, Appellant, v. MIDLAND INSURANCE COMPANY. Thomas HALL, Appellant, v. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 3, 1983.
    Filed Sept. 9, 1983.
    Reargument Denied Nov. 18, 1983.
    Petition for Allowance of Appeal Denied Mar. 12, 1984.

      Michael P. O’Connor, Philadelphia, for appellant (at Nos. 639, 640 and 641) and for appellee (at No. 788).
    James L. Womer, Philadelphia, for appellant (at Nos. 788 and 789) and for appellee (at Nos. 639 and 640).
    James J. Donohue, Philadelphia, for participating party (at No. 639) and for appellee (at Nos. 640, 641 and 789).
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Thomas Hall was injured as a result of an automobile accident which occurred while he was driving home from work in a vehicle owned by his employer. Midland Insurance Company, the insurance carrier providing no-fault coverage on the employer’s vehicle, contends that the accident occurred while Hall was within the scope of his employment and that his only claim against the employer is for workmen’s compensation benefits. If no-fault benefits are recoverable, it argues, the liability therefor must be as-, sumed by Pennsylvania Manufacturers Association Insurance Company, the no-fault carrier providing coverage for Hall’s personal automobile. Whether Hall was within the scope of his employment at the time of the accident was submitted to the trial court on cross motions for summary judgment after counsel had stipulated that the facts were not in dispute and had been developed fully during discovery. The trial court held that Hall had not been in the scope of his employment at the time of the accident and entered summary judgment directing the payment of no-fault benefits by Midland Insurance Company. This appeal followed.

Whether an employee is in the scope of employment is a question of law to be decided upon all the facts in a particular case. Sylvester v. Peruso, 286 Pa.Super. 225, 227-228, 428 A.2d 653, 655 (1981); Bethlehem Steel Corporation v. Workmen’s Compensation Appeal Board, 56 Pa.Cmwlth. 438, 443, 425 A.2d 473, 475 (1981). The undisputed facts submitted to the trial court in this case established that Thomas Hall had been employed as a salesman by Peltex, Inc., which provided him with a leased car. Hall was permitted to use this vehicle for business as well as for personal travel. On Tuesday, December 13, 1977, Hall left his employer’s office at the end of the workday and was on his way home, driving his employer’s vehicle, when he was involved in the accident which caused his injuries.

Hall’s normal hours of work were from 9:00 a.m. to 5:00 p.m. He would generally leave from his home in the morning to see customers and would arrive at his employer’s office in the afternoon. He would work at the office until 5:00 p.m., frequently making telephone calls and arranging appointments for the following day. On some occasions, he would visit a customer after he had left the office at 5:00 p.m.; but on the evening of the accident, he had no calls to make and was on his way home. In fact, the samples, order forms, etc. which he carried with him during business hours had been left at the office because Hall intended to see no customers that evening and planned to go directly to the office on the following morning. He did not take any other work home. Hall did not have an office in his home and did not make telephone calls to customers from his home. Although Hall was permitted to use his employer’s vehicle for personal matters, he was reimbursed only for expenses incurred while using the car for business, and it was for that purpose that he had a company credit card.

“As a general rule the act of going to or returning from work does not constitute a furtherance of the employer’s business. As such, an employee so engaged is not engaged in the course of his employment. Susman v. Kaufmann’s Department Store, 182 Pa.Super. 467, 128 A.2d 173 (1957).” Sylvester v. Peruso, supra 286 Pa.Super. at 227, 428 A.2d at 655. Accord: Pittsburgh Hyatt House, Inc. v. Workmen’s Compensation Appeal Board, 62 Pa.Cmwlth. 556, 559, 437 A.2d 461, 463 (1981); LoPresti v. Workmen’s Compensation Appeal Board, 35 Pa.Cmwlth. 7, 11, 384 A.2d 1017, 1019 (1978); Workmen’s Compensation Appeal Board v. DelCimmuto, 23 Pa.Cmwlth. 43, 45-46, 350 A.2d 459, 460 (1976). See also: Plummer v. Wesner, 217 Pa.Super. 24, 26-27, 268 A.2d 144, 145 (1970) allocatur denied August 24, 1970. “This general rule is subject to an exception if the contract of employment includes transportation to and from work, or if the employe does not have a fixed place of work, or if he is on a special mission for the employer.” Schick v. Newspaper Guild of Greater Philadelphia, 25 Pa.Cmwlth. 108, 111, 358 A.2d 127, 129 (1976), quoting Newman v. Congregation of Mercy and Truth, 196 Pa.Super. 350, 353, 175 A.2d 160, 162 (1961). Accord: Setley v. Workmen’s Compensation Appeal Board, 69 Pa.Cmwlth. 241, 243-45, 451 A:2d 10, 11 (1982); Pittsburgh Hyatt House, Inc. v. Workmen’s Compensation Appeal Board, supra, 62 Pa.Cmwlth. at 559, 437 A.2d at 463; Davis v. Workmen’s Compensation Appeal Board, 41 Pa.Cmwlth. 262, 265, 398 A.2d 1105, 1106 (1979); North American Rockwell Corporation v. Workmen’s Compensation Appeal Board, 21 Pa.Cmwlth. 437, 442, 346 A.2d 379, 382 (1975). See also: Crouse v. Workmen’s Compensation Appeal Board, 57 Pa.Cmwlth. 430, 435, 426 A.2d 749, 751 (1981).

Hall’s oral contract of employment did not include transportation to and from work; he maintained his fixed place of work in his employer’s office; he did not conduct business from his home; and at the time of the accident he was not on a special mission for his employer or engaged in the furtherance of his employer’s business. Rather, he was returning home at the end of a normal working day. Under these circumstances, the fact that the automobile was owned by Hall’s employer was not sufficient, standing alone, to support a conclusion that Hall’s injuries occurred during the course of employment. See: Gradler v. Prudential Property and Casualty Insurance Company, 464 F.Supp. 575 (W.D.Pa.1979) cited in Augostine v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa.Super. 50, 52 n. 2, 437 A.2d 985, 986 n. 2 (1981). The trial court correctly held that Hall was not within the scope of his employment at the time of the accident.

Under the priority scheme for the payment of no-fault benefits, the first source of benefits is the employer’s no-fault insurer if an injured employee is the driver or occupant of a vehicle furnished by the employer. 40 P.S. § 1009.204(a). See: Wagner v. National Indemnity Co., 492 Pa. 154, 168, 422 A.2d 1061, 1068 (1980); Borrell v. Continental Casualty Co., 310 Pa.Super. 554, 557, 456 A.2d 1074, 1076 (1983); Augostine v. Pennsylvania National Mutual Casualty Insurance Co., supra 293 Pa.Super. at 53, 437 A.2d at 986. It is only when vehicular accidents occur within the scope of employment that the Workmen’s Compensation Act bars recovery by an employee from the employer’s no-fault carrier. See: Wagner v. National Indemnity Co., supra 492 Pa. at 165, 422 A.2d at 1067; Boothman v. Prudential Property and Casualty Insurance Co., 304 Pa.Super. 137, 141, 450 A.2d 139, 141 (1982); Augostine v. Pennsylvania National Mutual Casualty Insurance Co., supra 293 Pa.Super. at 54, 437 A.2d at 987; Adams v. Nationwide Insurance Co., 285 Pa.Super. 79, 83, 426 A.2d 1150, 1152 (1981). An employee “using his employer’s vehicle for private non-work related reasons ... [can] recover from his employer’s no-fault carrier.” Wagner v. National Indemnity Co., supra 492 Pa. at 168, 422 A.2d at 1068.

In the instant case, Hall was driving a vehicle furnished by his employer but was not within the scope of his employment when involved in the accident. Recovery against the employer’s no-fault carrier, therefore, was not barred. The trial court correctly determined that Midland Insurance Company was liable to Hall for no-fault benefits and also to reimburse Pennsylvania Manufacturers Association Insurance Company for no-fault benefits which it had mistakenly paid to Hall in an effort to insure prompt payment.

Midland Insurance Company also contends that the trial court erred when it awarded counsel fees to Hall’s attorney in the amount of $585.00. In a cross-appeal, Hall contends that the amount of counsel fees awarded was inadequate and that the trial court erred by failing to award interest at the statutory rate of 18% per annum.

An award of counsel fees is controlled by Section 107(3) of the No-fault Act, 40 P.S. § 1009.107(3), which provides:

“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.” (emphasis supplied)

This has been interpreted to require bad faith on the part of the insurer before an award of counsel fees is proper. See and compare: Hayes v. Erie Insurance Exchange, 493 Pa. 150, 154-155, 425 A.2d 419, 421 (1981); Shomper v. Aetna Life & Casualty Co., 309 Pa.Super. 97, 100, 454 A.2d 1101, 1102 (1982); Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 92, 454 A.2d 1092, 1098 (1982); Platts v. Government Employees Insurance Co., 301 Pa.Super. 379, 384, 447 A.2d 1017, 1019 (1982); Smith v. Harleysville Insurance Co., 275 Pa.Super. 246, 248, 418 A.2d 705, 706 (1980), aff'd, 494 Pa. 515, 431 A.2d 974 (1981).

In the instant case, the trial court did not find—indeed, Hall did not show—that Midland Insurance Company had been guilty of bad faith. Our own review of the record has disclosed an issue worthy of litigation and not one manufactured without reasonable foundation or in bad faith. Under these circumstances Hall was not entitled to recover counsel fees, and the trial court erred in making an award therefor. See: Hiers v. Keystone Insurance Co., 308 Pa.Super. 288, 292, 454 A.2d 134, 136 (1982).

However, Hall was entitled to recover interest at the rate of 18% on benefits that were overdue. The payment of interest at the statutory rate does not depend upon the insurer’s denial of a claim in bad faith. Payment of interest at the rate of 18% is required whenever no-fault benefits are “overdue.” 40 P.S. § 1009.106. See: Hayes v. Erie Insurance Exchange, supra 493 Pa. at 153-155, 425 A.2d at 420-421; Smiley v. Ohio Casualty Insurance Co., 309 Pa.Super. 247, 258, 455 A.2d 142, 148 (1983); Baker v. Aetna Casualty & Surety Co., supra 309 Pa.Super. at 96, 454 A.2d at 1099-1100; Motley v. State Farm Mutual Automobile Insurance Co., 303 Pa.Super. 120, 129, 449 A.2d 607, 612 (1982). See also: Minier v. State Farm Mutual Automobile Insurance Co., 309 Pa.Super. 53, 62, 454 A.2d 1078, 1083 (1982).

Hall’s initial claim for work loss benefits was paid by Pennsylvania Manufacturers Association in a timely manner. It stopped making payments after approximately $4,000.00 had been paid to Hall when it learned of Midland’s coverage and determined that Midland’s coverage was the primary security for no-fault benefits. Hall is not entitled to recover interest on payments already received from his own insurance carrier. However, he is entitled to be paid interest at the rate of 18% on moneys payable to him by Midland Insurance Company and which are now overdue.

The order of the trial court, as modified herein, is affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Because the record is inadequate to support summary judgment, I dissent. All parties moved for summary judgment, but the facts of record remain in dispute. Accordingly, summary judgment is inappropriate, and we should reverse and remand.

An employee going to or from work is in the scope of employment under workmen’s compensation law if: (1) the express or implied contract of employment includes such transportation to and from work; (2) the employee does not have a fixed place of work; or (3) the employee is on a special mission for the employer. Davis v. Workmen’s Compensation Appeal Board, 41 Pa. Commonwealth Ct. 262, 398 A.2d 1105 (1979); Schick v. Newspaper Guild of Greater Philadelphia, 25 Pa. Commonwealth Ct. 108, 358 A.2d 127 (1976). Here, the record is consistent with either the first or second circumstance. In the mornings, Hall usually left his home to visit customers. On various evenings he also visited customers before returning home. Thus, although he had an office, his commuting was not between home and a fixed place of work, but rather was in furtherance of his employer’s affairs. Similarly, Hall’s employer paid for his business-related gasoline with, a company-supplied credit card. Hall’s deposition does not make clear whether, in practice, this payment included gasoline for commuting. The facts asserted in Hall’s deposition suggest, therefore, that Hall’s implied contract of employment included commuting and that he lacked a fixed place of work as relevant to this issue. Either proposition regarding his general contract of employment would render non-dispositive the facts relied upon by the majority that the accident occurred on an exceptional day when Hall was not bringing his sales kit home. The evidence to be gleaned from the correspondence showing the insurers’ conflicting conclusions on scope of employment fails to resolve the doubt. Moreover, the parties entered no stipulation of agreed facts. Thus, the facts are not only incomplete and inconclusive, but based upon oral testimony whose credibility and weight remains to be determined. Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Because the present is not among the “clearest of cases” which alone merit summary judgment, Amabile v. Auto-Kleen Car Wash, 249 Pa.Superior Ct. 240, 376 A.2d 247 (1977), we should reverse and remand for trial.

      . Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1601.

      . The writer of the dissenting opinion would find that the controlling facts are unclear and would remand for trial. None of the parties has requested a remand for trial. Instead, they have represented to this Court an agreement reached during a pre-trial conference that the facts were not in dispute and had been fully developed during discovery. Therefore, they agreed to submit to the court, via cross motions for summary judgment, the legal issue of which no-fault carrier was liable to the injured employee.

      . 40 P.S. § 1009.106(a)(2).

      . These are the payments which the trial court directed Midland Insurance Company to pay to Pennsylvania Manufacturers Association by way of reimbursement. No claim for interest on such amount is presently before this Court for review.

      . The trial court did not make a finding concerning the amount of payments which are overdue. We assume that the amount is not in dispute or, if a factual dispute exists, that it will be resolved by the trial court.


author: CIRILLO, Judge:

text:
    467 A.2d 330
    PENNSYLVANIA GAS & WATER CO., Appellant, v. NENNA & FRAIN, INC. v. BOROUGH OF DICKSON CITY.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1983.
    Filed Sept. 9, 1983.
    Reargument Denied Nov. 16, 1983.
    Petition for Allowance of Appeal Denied Mar. 29, 1984.

      Perry J. Shertz, Howard M. Levinson and Richard A. Russo, Wilkes-Barre, for appellant.
    John E. Freund, III, Allentown, for Nenna, appellee. John P. Pesota, Scranton, for Dickson, appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   CIRILLO, Judge:

This is an appeal from the order of the Court of Common Pleas of Lackawanna County dated January 7, 1982 which granted appellees’ motions for summary judgment and denied appellant’s motion for partial summary judgment.

The action underlying this appeal arises out of a storm sewer construction project in the Borough of Dickson City. The project was funded by a grant from the Federal Government. The Borough of Dickson City contracted with Nenna and Frain, Inc. for the construction of a portion of the project known as The Storrs Street Sewer Project. Paragraph 8 of the contract between Dickson City and Nenna and Frain provided:

8. Any and all utility relocation that shall be required to make room for the storm sewer system and appurtenances shall be the responsibility of the contractor. The contractor shall make all arrangements with the utility companies as to the scheduling, maintenance of traffic and payment. The contractor shall submit a certified copy of the utility company’s invoice for relocations, to the Borough of Dickson City and the contractor will be reimbursed for the amount of the utility company’s invoice.

As construction progressed, it frequently became necessary to have Pennsylvania Gas and Water Company (hereinafter PG & W) relocate certain of its utility lines and mains. Each time a relocation became necessary a representative of Nenna and Frain went to PG & W and executed a job order requesting the work to be done. PG & W often required Nenna and Frain to make deposits to cover the cost of the relocations. PG & W then relocated its lines and prepared an invoice detailing the costs incurred. PG & W sent the invoice to Nenna and Frain, who paid PG & W for the work and forwarded the invoice to Dickson City. The invoices were accepted by Dickson City, who in turn reimbursed Nenna and Frain for the amount of the invoice. This procedure was followed in each of the numerous relo-cations until at some point, Dickson City informed Nenna and Frain that no further payments for utility relocations would be made. Nenna and Frain subsequently refused to make any further payments to PG & W.

On August 8, 1980 PG & W filed a complaint in two counts, trespass and assumpsit, against Nenna and Frain. The trespass count has been settled. In the assumpsit count PG & W sought to recover $27,851.37, the balance of the cost of relocating its utility lines. Appellant based its claim on the job orders executed by Nenna and Frain. In its Answer, Nenna and Frain alleged that it had not made the requests for relocations on its own behalf but on behalf of Dickson City, and that PG & W was aware of that fact. As New Matter, Nenna and Frain alleged that it had never undertaken to bear the obligation of paying for the reloca-tions but was merely acting as a vehicle or agent of Dickson City. Nenna and Frain further alleged that PG & W was required as a matter of law to relocate its lines at its own expense and was not entitled to reimbursement. In the alternative, Nenna and Frain alleged that if anyone was obligated to pay the cost of the relocations, it was Dickson City. In its Reply, PG & W alleged that Nenna and Frain had undertaken to bear the obligation of paying PG & W for relocating its lines and that it was without sufficient knowledge or information to form a belief as to the truth of Nenna and Frain’s allegation that it was acting merely as an agent of Dickson City in requesting the relocations.

On December 4, 1980, Nenna and Frain joined Dickson City as an additional defendant. Nenna and Frain alleged that Dickson City was liable to PG & W for the cost of the relocations, and, in the alternative, if Nenna and Frain was liable to PG & W, Dickson City was liable over to it and it was entitled to reimbursement under paragraph 8 of the construction contract. In its Answer, Dickson City alleged that the project was closed, full payment had been made, and it was not responsible for any further invoices submitted by Nenna and Frain after the close of the project. As New Matter, Dickson City alleged that final payment having been made by it and accepted by Nenna and Frain, it was released from any further liability under a provision in the contract. In its Answer to Dickson City’s New Matter, Nenna and Frain alleged that Dickson City was aware that the invoices from PG & W, which Nenna and Frain had submitted to Dickson City, were only for deposits for advance payments which did not reflect the final bills for all work and that additional bills and final bills would be forthcoming from PG & W and would be submitted for payment when received.

On October 8, 1981, Dickson City filed a motion for summary judgment against PG & W. Nenna and Frain later joined that motion. PG & W filed a cross-motion for partial summary judgment on the issue of liability against Nenna and Frain. These motions were supported by affidavits, depositions and admissions. The trial court found the common law rule regarding public utility relocations to be dispositive of the case and granted Dickson City’s and Nenna and Frain’s motions for summary judgment and denied PG & W’s motion for partial summary judgment. The common law rule provides that non-transportation public utilities can be ordered by a competent state or municipal agency to relocate their facilities at their own expense when the relocation is made necessary by highway improvements or other public works projects. Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 145 A.2d 172 (1958); Equitable Gas Co. v. Pennsylvania Public Utility Commission, 65 Pa.Cmwlth. 388, 442 A.2d 419 (1982); Pennsylvania Department of Transportation v. Pennsylvania Power & Light Company, 34 Pa.Cmwlth. 594, 383 A.2d 1314 (1978). The trial court found that Nenna and Frain was acting on behalf of Dickson City in requesting the relocations and that PG & W was aware of that fact. The court held that the common law rule required PG & W to bear the cost of relocating its mains and lines which conflicted with the sewer project.

As to Nenna and Frain’s liability on the job orders the trial court also found the common law rule to be dispositive. Again relying on its finding that Nenna and Frain was acting on behalf of Dickson City in executing the job orders, the trial court held that the common law rule constituted a pre-existing duty on the part of PG & W to relocate its lines at its own expense and therefore any promises by Nenna and Frain in the job orders to pay PG & W for the relocations were not supported by consideration and were nullities.

The principles governing a motion for summary judgment are well settled. Summary judgment should be granted;

“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 the moving party is entitled to judgment as a matter of law.”

Pa.R.C.P. 1035(b), 42 Pa.C.S.A.

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law;. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Thompson Coal Company v. Pike Coal Company, supra; Shacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Company v. Pike Coal Company, supra; Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Co., supra; Weiss v. Keystone Mack Sales, Inc., supra.

Applying these principles to the present case we hold that the trial court erred in granting summary judgment in favor of appellees. First, the trial court erred in finding that Nenna and Frain was acting on behalf of Dickson City in requesting the utility relocations. The trial court relied on the deposition and affidavit of Robert Bernosky, an engineer for Dickson City, and the job order applications as support for this finding. The trial court found that Mr. Bernosky’s evidence was not contradicted by the appellant.

In ruling on a motion for summary judgment it is not the court’s function to decide issues of fact but solely to determine whether there is a genuine issue of fact to be tried. Weiss v. Keystone Mack Truck Sales, Inc., supra; Schacter v. Albert, supra. Where the facts are in dispute, the questions of the existence of an agency relationship and the nature of that relationship are for the jury. Breslin v. Ridarelli, supra; Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981); Nonemaker v. County of York County, 62 Pa.Cmwlth. 200, 435 A.2d 675 (1981).

In the present case, the existence of an agency relationship was in dispute and summary judgment on that issue was inappropriate. In its Reply to Nenna and Frain’s Answer, PG & W specifically averred that Nenna and Frain undertook to bear the obligation of paying PG & W for relocating its lines. PG & W further alleged that it was without sufficient knowledge or information to form a belief as to the truth of Nenna and Frain’s allegation that it was acting merely as a vehicle or agent of Dickson City in requesting the relocations and demanded proof thereof. Under Pa.R.C.P. 1029(c) this is deemed to be a denial. It is well established that a non-moving party who does not oppose a properly supported motion for summary judgment with affidavits, depositions, or the like, may not rely on the allegations of his pleading to controvert the facts presented by the moving party’s depositions. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Pa.R.C.P. 1035(d). This, however, is not such a case. The existence of an agency relationship is controverted by the job orders which Dickson City and Nenna and Frain admitted to be genuine and authentic in their Replies to PG & W’s Request for Admissions. These job orders were signed by representatives of Nenna and Frain in their own names and do not disclose that they were signing as agents of Dickson City. Further, the job orders state that the relocation work was to be charged to the account of Nenna and Frain. That some of the job orders also bear the handwritten statement “sent details to Borough of Dickson City” does not establish an agency relationship between Nenna and Frain and Dickson City. As our Court said in Schacter v. Albert, supra, 212 Pa.Superior Ct. at 62, 239 A.2d at MS, quoting S.J. Groves and Sons Company v. Ohio Turnpike Commission, 315 F.2d 235, 237-38 (6th Cir.1963):

It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts. * * * Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.

In the present case, the question of existence of an agency relationship between Nenna and Frain and Dickson City was for the jury to decide.

Summary judgment on the question of agency was also improper for another reason. Credibility being a matter exclusively for the jury, summary judgment should not be granted where it requires the acceptance of the testimony of the moving party’s witness. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971). In the instant case, the trial court relied on the testimony of Robert Bernosky, an engineer for Dickson City, for its finding that Nenna and Frain was acting on behalf of Dickson City in requesting the utility relocations. Since both Nenna and Frain and Dickson City moved for summary judgment against PG & W alleging that Nenna and Frain was acting on behalf of Dickson City in requesting the utility relocations, Mr. Bernosky was the witness of both parties and his credibility was for the jury.

The trial court also erred in finding the common law rule to be dispositive under the circumstances of this case. The common law rule can be abrogated by a specific statutory mandate. Delaware River Port Authority v. Pennsylvania Public Utility Commission, supra. There is no statutory abrogation of the rule applicable to this case. However, the common law rule can also be waived by agreement, and such agreements are not void as against public policy. See Commonwealth Department of Transportation v. Pennsylvania Power and Light Company, supra. In Pennsylvania Power and Light Company, PennDOT and the City of Harrisburg brought an action in equity to compel PP & L to relocate its utility lines and poles so that a highway widening project could be completed. PP & L filed preliminary objections arguing that original jurisdiction in such an action was with the Pennsylvania Public Utility Commission under the Urban Redevelopment Law because the Harrisburg Redevelopment Authority was a necessary party to the litigation. In support of its contention that the Redevelopment Authority was a necessary party, PP & L relied on a clause in the contract between PennDOT and the Redevelopment Authority. That clause provided:

[A]ny costs required for the alteration, change, adjustment and relocation of all utilities and other facilities, including, but not limited to, gas, electric, telephone, water, drainage and sanitary sewer systems occasioned by the highway improvement projects will not be the responsibility of the Commonwealth.

Id., 34 Pa.Cmwlth.Ct. at 598, 383 A.2d 1317.

PP & L argued that this clause meant that the Redevelopment Authority was required to bear the cost of the utility relocations. The Commonwealth Court rejected this contention stating, “But, surely, the plain words of this clause do not lead inescapably to this conclusion, nor do the words indicate an intent to abrogate the general common law rule regarding relocation costs in a highway right of way.” Id., 34 Pa.Cmwlth.Ct. at 598-99, 383 A.2d at 1317. The Commonwealth Court therefore concluded that the Redevelopment Authority was not a necessary party.

In contrast to the vague language of the contract involved in Pennsylvania Power and Light Company, the plain words of paragraph 8 of the contract involved in the present matter reveal a clear intent to waive the common law rule. Paragraph 8 provides that the contractor will pay the utility for the relocations and that upon the submission of certified copies of the utility company’s invoices for the relocations the contractor will be reimbursed by Dickson City for the amount of the invoices. The intent to waive the common law rule is further evidenced by the conduct of Dickson City under the contract. Dickson City admitted in its Answer that it accepted bills for the utility relocations from Nenna and Frain and paid Nenna and Frain for those bills. Given the clear language of the contract and the conduct of the parties under the contract the trial court erred in finding the common law rule to be dispositive of this case.

However, Nenna and Frain and Dickson City argue that their promises to pay the cost of relocating the utility lines were the result of a mistake of law regarding PG & W’s entitlement to payment.

A mistake in a matter of law, or a mistake because of ignorance of law, not induced by the party seeking to take advantage of it, will not affect the validity of a contract executed on one side. On the other hand, a mistake of law when coupled with misrepresentations is a ground for avoiding a contract.

8 P.L.E. CONTRACTS, section 82 (footnotes omitted). Appellees contend that paragraph 8 was included in the contract at the insistence of PG & W, and that PG & W’s chief water engineer told them that- because there was federal money involved in the sewer project the City must pay for the utility relocations. Appellees’ claim therefore is that their mistake of law regarding PG & W’s right to payment for the relocations was induced by misrepresentations by PG & W. A resolution of this claim necessitates findings of fact and cannot be determined with the case in its present posture.

The trial court also held that the common law rule constituted a pre-existing legal duty of PG & W to relocate its mains and lines at its own expense and therefore the job orders executed by Nenna and Frain were not supported by consideration and were nullities. It is axiomatic that performance of an act which one is legally bound to render to another is not legal consideration for an agreement. Chatham Communications Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975). However, the common law rule is not self-executing; it must be invoked. The rule states that a non-transportation public utility can be ordered to relocate its facilities at its own expense, not that a non-transportation public utility must relocate its facilities at its own expense. The duty does not arise until it is invoked. The utility does not have a duty to relocate its facilities at its own expense until it is ordered to do so by a competent state or municipal agency. In the instant case PG & W was never ordered to relocate its lines at its own expense. On the contrary Nenna and Frain and Dickson City agreed that PG & W would be paid for the relocations. If Dickson City’s agreement to waive the common law rule was not the result of a valid mistake of law induced by PG & W, then there was no pre-existing duty on the part of PG & W to relocate its lines at its own expense and the job orders executed by Nenna and Frain are supported by consideration.

PG & W claims that the trial court erred in denying its motion for partial summary judgment on the issue of liability irrespective of any agency relationship between Nenna and Frain and Dickson City. A person contracting as an agent is personally liable, whether he is known to be an agent or not, where he makes a contract in his own name or voluntarily incurs a personal responsibility, Kiska v. Rosen, 181 Pa.Super. 506, 124 A.2d 468 (1956). PG & W argues that representatives of Nenna and Frain executed the job orders in their own names and therefore bound Nenna and Frain. Further, PG & W contends that paragraph 8 of the construction contract and the statement in the job orders that the work is for account of Nenna and Frain establish an unequivocal acceptance by Nenna and Frain of personal responsibility for the relocation costs. However, because there are unresolved questions of fact the trial court properly denied PG & W’s motion for partial summary judgment on the questions of liability against Nenna and Frain. There remains the question of whether Nenna and Frain’s promises in the job orders to pay the costs of the utility relocations were the result of a valid mistake of law regarding PG & W’s entitlement to reimbursement. There is also the question of whether PG & W delayed submitting the bills for the relocations to Nenna and Frain.

We therefore reverse and remand for a trial on all issues, including whether Nenna and Frain was acting as an agent of Dickson City in requesting the utility relocations; whether Dickson City’s agreement to waive the common law rule was the result of a mistake of law induced by misrepresentation made by PG & W; whether there were delays in the submitting and forwarding of the bills for relocation costs and, if so, who bears responsibility for those delays; whether the costs of the relocations are reasonable; and whether Dickson City has been released from further liability to Nenna and Frain under the provisions of the construction contract regarding release by acceptance of final payment.

Reversed and Remanded. Jurisdiction is relinquished.


author: CAVANAUGH, Judge:

text:
    467 A.2d 336
    COMMONWEALTH of Pennsylvania, Appellant, v. Cecelia MARKMAN.
    Superior Court of Pennsylvania.
    Argued March 3, 1983.
    Filed Sept. 16, 1983.
    Reargument Denied Nov. 18, 1983.
    Petition for Allowance of Appeal Denied Mar. 5, 1984.

      Franklin L. Noel, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jeffrey M. Miller, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This case involves an appeal from an order of the court below suppressing all evidence obtained as a result of a search on March 6, 1981, of a premises damaged by fire, and searches subsequent thereto, and suppressing statements made by the appellee, Cecelia Markman, on the date of the fire and on subsequent dates prior to her arrest. Appellee was charged with risking a catastrophe and arson. The Commonwealth has appealed from the suppression order by the hearing judge.

When we review an order suppressing evidence we are not bound by the lower court’s conclusions of law. “We are bound, however, by the court’s findings of fact, if the findings are supported by the evidence.” Commonwealth v. Chandler, 312 Pa.Super. 1, 3, 458 A.2d 204, 205 (1983). The court below made findings of fact which fall into two main categories, those dealing with the search of the premises at 1408 Snyder Avenue, Philadelphia, Pennsylvania, where the fire occurred on the early morning of March 6, 1981 and those dealing with statements by Ms. Markman, who operated C. Markman’s Jewelers, a small jewelry shop at that location. At about 12:10 a.m. on March 6, 1981, a fire was reported at 1408 Snyder Avenue. This was a one alarm fire which was extinguished at about 1:00 o’clock. Ms. Markman who rented the store had left the premises a short time before the fire. The owner of the property, Mr. Rothschild, arrived at the scene at about 2:00 a.m. and inspected the premises. Ms. Markman also arrived at the scene of the fire shortly after it was extinguished and she called Russell Glass Company to have the doors and windows boarded up where they were broken. The building was secured by 3:30 a.m.

At about 8:00 a.m. on March 6, 1981, Lt. Caldwell of the Philadelphia Fire Department and Lt. Baxter, who was a trainee in fire investigation, went to the scene of the fire to investigate and found the building completely boarded up and secured. They inquired at a nearby drugstore where the proprietor stated that he knew the tenant and indicated that she would be back at about noon. The fire officials returned to their office and at about 9:30 a.m. Lt. Caldwell received a call from Mr. Rothschild concerning the fire. He requested that the fire be investigated and indicated that Ms. Markman may have been involved with the fire. Lt. Caldwell and Lt. Baxter returned to the drugstore at about 12:30 p.m. where they located the appellee and proceeded to the fire scene to commence the investigation. Ms. Markman testified that since the premises were boarded up she went around the corner to obtain a hammer to remove some mails and that the nails were removed by Lt. Caldwell as she “couldn’t reach”. Once inside the building Ms. Markman answered questions concerning the placement of certain items in the building the night before. Lt. Caldwell took several photographs of the fire scene and also removed samples of carpet, a laminated desk top and some liquid. The purpose of the inspection was to determine the cause and the origin of the fire. In order to visualize the premises before the fire Lt. Caldwell asked Ms. Markman various questions and she “responded freely”. Ms. Markman’s conversations with Lt. Caldwell took place in the premises where the fire occurred, at the nearby drugstore, and at Ms. Markman’s property at 2124 South Broad Street.

The first issue is whether there was a proper entry into the premises on March 6th in the absence of a search warrant. The court below concluded that the appellee did not voluntarily consent to the entry as her consent was obtained by trickery and deceit. The court stated in its discussion: “Therefore, the withholding by Caldwell of his affiliation with the arson strike force, his belief that arson occurred, his belief that the defendant perpetrated the arson and his failure to advise the defendant of her right to deny him entry absent a search warrant, renders the consent defective for fraud and deceit.” We note that there was no evidence at all that Lt. Caldwell believed that arson had occurred or that the appellee had perpetrated the arson. In fact, the only evidence concerning Lt. Caldwell’s belief prior to entry into the building was that he had no idea at all whether the fire was the result of arson or that appellee was involved until he had an opportunity to inspect the burned premises. There is no evidence that the appellee gave her consent to enter the building as a result of trickery and deceit. Appellee was aware that the two officers of the fire department were present to investigate the fire. She testified that she wanted to cooperate in finding the cause of the fire. The court below vitiated the consent to enter the premises because Lt. Caldwell stated to her, according to Ms. Markman, that “he had to get in and that he was doing a routine fire inspection.” The fact is that Lt. Caldwell did have to make an inspection of the building and if Ms. Markman had refused entry he would have followed the procedure necessary to obtain a search warrant. Lt. Caldwell knew that there were administrative procedures to be followed to obtain a search warrant although he had never been refused entry to conduct a fire investigation.

The court below relied on Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) and stated that “the [United States Supreme] Court held that every entry into a fire scene to investigate its cause after the scene had been secured is unconstitutional unless preceded by a search warrant.” In Michigan v. Tyler, supra, the search was made on several occasions after the fire and at no time was consent obtained from the owner or the tenant of the building. We agree in the matter before us that if the appellee had not consented to the search that the entry by the fire officials into the building would have been improper. However, Ms. Markman did agree to the entry and procured a hammer so that the boards which had been nailed up on the morning of March 6th could be removed. The evidence does not support the conclusion of the court below that Ms. Markman’s consent was defective since it was based on “fraud and deceit.” The fire marshall’s office had the obligation to investigate the fire which had occurred a short time before. The only way this could be done was to examine the premises, and appellee admittedly wanted to cooperate with the fire marshall’s office. The fact that Lt. Caldwell did not state that he was a member of the arson strike force does not rise to the level of fraud and deceit.

There is no doubt that Lt. Caldwell went to investigate the cause of the fire on the morning of March 6, 1981, and he did not have a search warrant with him. However, he needed a search warrant only if he was denied access to the premises. We must look at the totality of the circumstances surrounding Ms. Markman’s consent to determine if it was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041, 2047 (1973); Commonwealth v. Woods, 240 Pa.Super. 72, 368 A.2d 304 (1976); Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979). Some of the circumstances to be considered in determining voluntariness of consent are whether the accused has assisted in the search, and the education, intelligence and experience of the person giving consent. Commonwealth v. Dressner, 232 Pa.Super. 154, 336 A.2d 414 (1975). In addition, the Commonwealth need not establish that Ms. Markman was aware of her right to refuse consent to the search. Commonwealth v. Woods, supra; Commonwealth v. Costigan, 272 Pa.Super. 520, 416 A.2d 1018 (1979). Consent may be deemed voluntary even when procured by a police officer who misrepresents both his identity and purpose in making the search. Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), certiorari denied Morrison v. Pennsylvania, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1980).

In the case before us, appellee was a business woman who was under no compulsion when she consented to the search of the premises on March 6, 1981. The fire officials were courteous and she was not coerced in any way. Her own testimony at the suppression hearing established that she wanted to cooperate and was anxious to learn the cause of the fire and wanted to help with the investigation. There was nothing to indicate that she would have denied access to the fire officials even if she knew that she did not have to give consent. The court below erroneously concluded that in order to have a valid search of a premises shortly after a fire that the fire officials must have either a search warrant or a signed consent form. Under the law, the requirement is that the consent to a search be voluntary, and there is not an additional requirement that it be manifested by a signed written consent. As pointed out in Commonwealth v. Morrison, supra, 275 Pa.Super. at 460, 418 A.2d at 1380: “Therefore, the volun-tariness of a defendant’s consent to search is determined by whether the consent was procured through force or other coercion.” No one factor is determinative in concluding whether consent is voluntary. Commonwealth v. Lowry, 305 Pa.Super. 66, 451 A.2d 245 (1982).

Subsequent to his investigation of March 6th, Lt. Caldwell determined that the fire was caused by arson and continued with his investigation. On March 10, 1981 he met the appellee at her property on South Broad Street pursuant to an appointment that he had with her, and he was provided with more details about the fire. The two then went to the premises on Snyder Avenue where again the appellee assisted in gaining access and more pictures were taken. On March 14 or 15, 1981, the appellee admitted Lt. Bitto of the Fire Department who had gone to the scene to investigate together with Mr. Fricke, whose firm had installed a burglar alarm at the premises. Finally, on March 27, 1981, Lt. Fry of the Fire Department went to the fire scene where he was admitted by the appellee and took additional pictures. After he took the pictures he requested the appellee to sign a consent form which she did. At no time did a fire official tell the appellee that she did not have to consent to admitting the officials to the premises that she rented, nor was she warned of her rights under the Fourth or Fifth Amendment of the United States Constitution. As pointed out in Schneckloth v. Bustamonte, 412 U.S. 218, 231-32, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854, 865 (1976):

For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.

We find that in the circumstances of this case the appellee’s consent to the searches was voluntarily given notwithstanding that she was not told that she did not have to consent.

The second issue was whether the statements given by the appellee to Lt. Caldwell and other fire officials and police officials were properly suppressed. We agree with the court below that the appellee was at no time given Miranda warnings (as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) before she spoke to the fire officials or the police detectives on various occasions. Her initial contact with Lt. Caldwell was on March 6, 1981. Subsequently, she met with Lt. Caldwell on March 10, 1981 at the Snyder Avenue property. Detective McCabe of the Philadelphia Police Department was also working on the case because arson was suspected and he made an appointment with the appellee to come to the fire marshall’s office which she did on March 17, 1981. Since Detective McCabe could not keep the appointment, Detectives Hogan and Fox, who were assigned to the fire marshall’s arson strike force .interviewed the appellee, and took a statement from her. The meeting lasted about two hours. At the conclusion of the meeting the appellee refused to take a lie detector test and she then was free to leave and did so.

The court below concluded that from 12:30 p.m. on March 6, 1981 the appellee was in custody and entitled to Miranda warnings at that point. Since such warnings were not given the court below suppressed the appellee’s statements given on March 6, and subsequent statements. On appeal, the Commonwealth contends that the appellee was not in custody when the statements were made and therefore Miranda warnings were not required. We agree with this contention. As stated by the United States Supreme Court in Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977):

In the present case, however, there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a lk hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

See also Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977) and Pennsylvania cases cited therein.

In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), a taxpayer was being investigated for federal income tax evasion. Two agents questioned him in a private home and Miranda warnings were not given. The United States Supreme Court held that notwithstanding that the defendant was the “focus” of a criminal investigation when he was questioned that Miranda warnings were not required as the defendant was not in custody, or otherwise deprived of his freedom in any significant way. As stated in United States v. Caiello, 420 F.2d 471, 473 (2d Cir.1969), and quoted in Beckwith v. United States, supra: “It was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning was conducted, which led the court to impose Miranda requirements with regard to custodial questioning. ” (Emphasis added).

In Commonwealth v. Anderson, 253 Pa.Super. 334, 385 A.2d 365 (1978) the coroner suspected a mother of causing her child’s death by abuse. On two occasions the coroner asked the appellant to come to his office to discuss her child’s death. At the second meeting she admitted striking the child with her fists. She was not given Miranda warnings nor any warnings prior to the statement that she made. This court held that Miranda warnings were not required as she was not in custody. The court stated at 253 Pa.Super. 341, 385 A.2d 368:

For purposes of determining when the Miranda warnings must be given, the relevant compulsion stems not from the suspect’s perceived need to attend a police-suggested interview, but from indicia of custody which lead a suspect to believe that the police will not release the interviewee until they have elicited a confession. (Emphasis added).

In Commonwealth v. Brodo, 262 Pa.Super. 375, 396 A.2d 802 (1979) the police suspected the defendant of burglary and went to his home to question him about the burglary. While waiting for him to appear they noticed several items matching the description of items taken in the burglary. When the defendant came downstairs they asked him whether the items were his and where he obtained them. He then made a statement. Prior to questioning no warnings were given to him and this Court held that none were required. “[T]he mere fact that the police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person.” Commonwealth v. Brodo, supra, 262 Pa.Super. at 378, 396 A.2d at 804. In the instant case there is nothing to substantiate the conclusion of the lower court that the appellee was in custody at anytime on March 6, 1981, nor was she in custody at any subsequent time thereto prior to her arrest. She was not deprived of freedom of action in any significant way nor was she placed in a situation where she could reasonably believe that her freedom was restricted. None of the interviews occurred in a police station, but rather took place in the burned premises, a nearby drug store, the appellee’s own property on Broad Street or the fire administration building. She described the interview with Detectives Hogan and Fox as courteous and friendly. She was aware that she did not have to comply with the requests of the persons interviewing her. At the end of the interview with Detectives Fox and Hogan they requested that she take a polygraph examination and she refused because she had taken a polygraph examination in another matter and she did not want to go through it again. She also told the interviewers that she was in a hurry with the interview as her mother was in the hospital, and at the conclusion she left the fire administration building in her own car.

The record does not substantiate that appellee was suspected of committing arson before Lt. Caldwell and Lt. Baxter entered the burned premises on March 6, 1981. There could not even be a preliminary determination by the fire department that arson occurred until the department personnel examined the scene of the fire. After making a preliminary investigation on March 6, 1981, the appellee was suspected of being guilty of the crime of arson as she had been on the property shortly before the fire broke out and the landlord, Mr. Rothschild, told Lt. Caldwell in the telephone conversation on the morning of March 6th that someone told him that Ms. Markman threatened to leave the place in a shambles. Notwithstanding that the fire and police departments may have been suspicious of Ms. Mark-man in connection with possible arson after the preliminary investigation of March 6, 1981, this did not require that Miranda warnings be given to her prior to the interviews, in the absence of the compulsive aspect of custodial interrogation. The record does not support the conclusion that Ms. Markman made any statements as the result of compulsion or intimidation or that they were not of her own free will, and the court below erred in suppressing the statements.

Order reversed and case remanded for proceedings consistent with this opinion.

This court does not retain jurisdiction in this matter.

      . The Commonwealth's appeal is properly before this Court. In Commonwealth v. Lapia, 311 Pa.Super. 264, 277, 457 A.2d 877, 884 (1983), we held that "[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must first determine for ourselves whether the order is appealable—whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone." See also Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743 (1983). Applying the above test to our case, we conclude that the suppression order is appealable. In the instant case the appellee was charged with risking catastrophe and arson. Suppression of the various statements by appellee which placed her at the scene of the fire shortly before its occurrence, and her description of where various items were located in the building before the fire, would clearly hamper the prosecution. Arson is frequently proven only by circumstantial evidence and appellant’s statements are most important in this regard.

      . Mr. Rothschild testified concerning the telephone call as follows: Q. For what purpose did you call the Fire Marshall’s Office on March 6th?
      A. On the advice of my attorney I called the fire marshall; asked the Fire Marshall’s Department to perform an investigation of the fire at 14—I think that is 1401 Snyder Avenue, Markman’s Jewelry store.
      Q. So you believed that arson had been responsible for the fire?
      A. At that time I didn’t know. I don’t claim to be an arson investigator, but I could see that the fire was not electrical, and I—as I said, I wanted a proper investigation to be performed. Lt. Caldwell testified concerning the telephone with Mr. Rothschild:

        Q. Mr. Rothschild told you, did he not, that he believed the fire had been set by Ms. Markman?
      A. He did not say he believed the fire had been set. He believed she was responsible.
      Q. He believed she was responsible for the fire?
      A. Yes.
      Q. At the very least, then, upon receipt of that information you then had some suspicion that the fire might have been of some unnatural origin; is that correct?
      A. I had no idea at all.
      Q. You didn’t even have a suspicion that there might have been a setting of a fire as a result of information obtained from Mr. Rothschild?
      A. I cannot suspect anything until I look at it and see it for myself.
      Q. You are telling me, sir, that the receipt of the phone call from Mr. .Rothschild has no bearing whatsoever on your investigation?
      A. That’s correct.

      . With respect to this Ms. Markman testified:
      Q. What if anything did Lieutenant Caldwell say when you had your first communications with him?
      A. Lieutenant Caldwell said he was from the fire department, and he was there to investigate the fire. He said, "And I have to get in to see the premises.”
      Q. Why did you allow him entry?
      A. Because he said he had to get in and that he was doing a routine fire investigation.
      Lt. Caldwell testified with respect to his conversation with Ms. Markman concerning entry into the building which had been secured as follows:
      Q. After identifying yourself to the defendant, what if anything did you say to her?
      A. I introduced myself and Lieutenant Baxter as men from the Philadelphia Fire Marshall's Office and we were there to look at the fire at 1408 West Snyder.
      Q. Did you ask her if you could get into the building 1408 West Snyder?

        A. Yes, I did.
      Q. What was her response?
      A. "Sure."

      . Lt. Caldwell testified that it "is our responsibility to investigate every fire within the City of Philadelphia.” The statement is in accordance with the Act of June 8, 1911, P.L. 705, Section 6, 53 P.S. § 14526, which provides:
      § 14526. Investigation of cause of fires; report
      The Fire Marshal of every city of the first class of this Commonwealth shall make, or cause to be made, an investigation of the cause, origin, and circumstances of every fire occurring in such city, by which property has been destroyed or damaged, and shall especially make investigation as to whether such fire was the result of carelessness or design. Such investigations shall be begun immediately after the occurrence of such fire, and the Fire Marshal shall have the right to supervise and direct such investigation whenever he deems it expedient or necessary____

      . In this respect the court below stated:
      There were no exigencies to justify the warrantless search made more than nine hours after the building had been secured and eleven hours after the fire had been extinguished. Having failed to secure a search warrant, the next best thing he could have done was to have the defendant execute the Fire Department's consent form (allowing a search of the premises) before the inspection and investigation commenced.

      . Ms. Markman testified concerning her statements to Lt. Caldwell on March 6, 1981 as follows:
      Q. When you were inside you responded freely to Lieutenant Caldwell’s questions concerning the placement of certain items the night before; didn’t you?
      A. Yes, I did.
      Q. In fact, you wanted to cooperate in finding out the cause of the fire, didn’t you?
      A. I certainly did.
      Q. He told you he wanted to take a formal statement or a formal interview with you; is that correct?
      A. He said, "I have to take a statement from you.”
      Q. You wanted to give it to him, didn’t you, so that you could help determine and cooperate in finding out the cause of the fire, didn’t you?

        A. That’s correct.
      Q. Indeed, wouldn’t you describe your entire encounter with Lieutenant Caldwell on March 6th—up through and including until the time he left on March the 6th, wouldn’t you describe your encounter with him as being friendly, congenial and courteous?
      A. Yes.
      Q. Before Lieutenant Caldwell left on March the 6th, you had given him two phone numbers where he could reach you, hadn’t you?
      A. Yes, I did.

      . Appellee testified concerning the request for polygraph examination as follows:
      Q. In fact, after completing the interview they asked you if you would take a polygraph examination, didn’t they?
      A. Yes, they did. And I asked them couíd I give them the reason why I was turning them down, and they said yes, I could.
      Q. I’m sorry. You asked them—
      A. I said, “I’m turning you down, and may I give you the reason why,” and they said, "Yes, you may.”
      Q. What was the reason?
      A. I said I had a burglary the year before. I had to go and take a polygraph test, which I passed, and it was not admissible in court. I said I’m not going to put myself through that again.
      Q. So you had had previous encounters with police in criminal investigations, hadn’t you?
      A. Criminal investigations?
      Q. Well, you testified you had been burglarized.
      A. I was burglarized. I didn’t do any of the investigations. The police did.
      Q. You had had contact and encounters with police in connection with their conducting of criminal investigations?
      A. That's correct.

        Q. You had been interviewed by police officers and police detectives before, hadn’t you?
      A. When the—yes, when we had the burglary.
      Q. Had you ever been read what is called your Miranda warnings in the conduct or the course of that prior investigation?
      A. No.

      . Appellee contends in the appellate brief that an individual must be given Miranda warnings if he is being questioned while in custody "or while the object of an investigation of which he is the focus." As noted in Commonwealth v. McLaughlin, infra, 475 Pa. at 101, 379 A.2d at 1057-1058 (1977):
      In Pennsylvania “custodial interrogation" has been interpreted to mean either questioning ... ‘while in custody or while the object of an investigation of which he is the focus, ...' Commonwealth v. Feldman, 432 Pa. 428, 432-33, 248 A.2d 1, 3 (1968).” Commonwealth v. D’Nicuola, 448 Pa. 54, 57, 292 A.2d 333, 335 (1972) (Emphasis added).3 Subsequent to these Pennsylvania cases, the United States Supreme Court in Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) explained that the Miranda Court “specifically defined focus, ’ [of an investigation] for its purposes, as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his action in any significant way.’ 384 U.S. at 444, 86 S.Ct. [1602] at ’ 1612, 16 L.Ed.2d at 706 (emphasis supplied).” Id. at 347, 96 S.Ct. at 1616. See also, Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). (Emphasis added).

      . This court recently held in Commonwealth v. Schoellhammer, 308 Pa.Super. 360, 454 A.2d 576 (1982) that "the test for custodial interrogation is whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom is restricted by the interrogation.” (Emphasis in original). For a complete annotation of what constitutes "custodial interrogation” within the rule of Miranda v. Arizona, See 31 A.L.R.3rd 565 to 696.

      . Concerning custody the lower court considered the events of March 6, 1981 and stated in its opinion:
      Under these circumstances we conclude that the defendant was in custody and entitled to Miranda warnings at that point. Having failed to give such warnings, the March 6, 1981 statement must be suppressed, together with all fruits derived therefrom, including the statement of March 17, 1981.

      . At the suppression hearing Ms. Markman testified that when she and Lt. Caldwell entered the premises in the early afternoon of March 6, 1981, that "it was dark, and it was all soaking wet. Everything was in shambles.” (Emphasis added).