author: BROSKY, Judge:

text:
    518 A.2d 833
    Walter N. TURNER and Beverly M. Turner, Husband and Wife v. Norman HOSTETLER, Jr. and Delories I. Hostetler, Husband and Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Dec. 2, 1986.

      Joseph B. Policicchio, Somerset, for appellants.
    William R. Carroll, Somerset, for appellees.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   BROSKY, Judge:

This appeal is from an Order denying appellants’ exceptions to a decree nisi, and making that decree final, which decree called for specific performance of a land sales contract entered into by appellants and appellees.

Appellants raise several issues on appeal which deal with the propriety of allowing the admission of parol evidence to explain circumstances before, during, and after the formation of the contract; the correctness of the findings of the trial court; and the propriety of entering specific performance in this case.

We have reviewed the record and briefs of counsel and find that no reversible error was committed in the entry of the contested order. Accordingly, we affirm the order of the trial court.

We note initially that there exists some disparity or conflict in the factual representations of the parties involved. However, certain facts are uncontested. Sometime prior to September 13, 1978, appellants, the Hostetlers, were approached by appellees, the Turners, in regard to purchasing property from them. The Hostetlers had been interested in selling a two acre tract which had been the subject of a survey for the purposes of such a sale. A land sales contract was drawn up by an attorney named Roy Ogburn, which set forth the terms of the purchase of the two acre tract, and which allowed an option to purchase eight additional acres at a price of $1,000 per acre payable in $2,000 yearly installments, starting two years after the signing of the contract.

The contract provided "[t]he said eight acres shall be contiguous to and shall lie generally south and west of the two acre parcel. The exact boundary lines of the said eight acres shall be determined by mutual agreement of the parties.” The Turners took possession of the two acre tract, which included a dwelling, and began making substantial improvements thereto. Later disputes arose regarding the extent of a right-of-way (which was also conveyed to the Turners), the location of the additional eight acres, and other obligations under the contract. The result of the disputes brought the parties to court in equity upon a request for specific performance of the contract.

Testimony at the non-jury trial was conflicting. Appel-lees’ testified that, after some discussion, appellant’s agreed to sell appellees 10 acres. Appellees further testified that the contract was drawn as it was to utilize the two acre survey which had already been completed; and that the so-called eight acre "option" was an extension of the two acre tract as defined by natural borders, such as fences, tree lines and the like. Appellees also testified that although some concern arose over the wording in the memorandum when it was presented to them, all the parties were in a hurry to close the deal and they chose not to have it redrafted, as it had taken several weeks to get the draft in question from Mr. Ogburn. According to appellees, in September, 1980, when the first $2,000 payment became due, Mr. Turner and Mr. Hostetler “walked the lines” of the eight acres to conclusively establish its borders. Appellants, Hostetlers, testified that the initial agreement was only firm on the two acres but that the Turners had desired an opportunity to purchase more if they later desired, hence the option was included. Hostetlers also testified that, although several proposals and counter-proposals were made regarding the borders of the eight acre tract, none were ever mutually agreed to.

The trial court chose to bifurcate the trial into two proceedings, the first encompassing the specific performance count, the second, if necessary, encompassing the claim for damages for failure to convey the property. Later, the court permitted appellees to amend their complaint to ask for reformation as well as specific performance. The trial court, after hearing testimony of the parties and the drafting attorney, found appellees’ testimony more credible. The trial court issued a decree nisi calling for specific performance of the land sales contract, setting the boundaries as per the testimony of appellees. Exceptions were taken by appellants which were subsequently denied, resulting in the instant appeal.

The general rule regarding specific performance of a land sales contract is that the courts will not compel specific performance of such a contract where the description of the subject land is not definite enough to determine that which was intended to be conveyed. In addition, it is not generally permissible to allow parol evidence to describe the land intended to be conveyed. Suchan v. Swope, 357 Pa. 16, 53 A.2d 116 (1947).

However, a large number of cases have allowed the admission of parol testimony to apply a written description to the land subject to sale. In this context has appeared the following statement:

Parol evidence to describe the land to be sold is one thing, and parol evidence to apply a written description to land is another and very different thing, and for that purpose is admissible.

Suchan v. Swope, supra, 357 Pa. at 20, 53 A.2d at 118. A review of the relevant decisions indicates the distinction is thus: where from the face of the contract, it appears that there was an agreement to convey some property, but it does not appear that the parties had a specific tract in mind, or that agreement was made as to what property was subject to conveyance, parol evidence will not be admissible to indicate that a specific tract was contemplated. However, where, from the face of the contract, it appears that a certain or specific tract was intended to be conveyed, but its description is ambiguous due to its wording, parol evidence will be admissible to allow a more precise description to be made, and specific performance will be a proper remedy.

Hence, when a contract was worded so as to transfer ten acres of a 45 acre farm upon the happening of a certain event, and further stipulated that no more than 50% of the ten acres would front either “Poor House” or “Dark Hollow” Road, this description was inadequate to allow specific performance. Pierro v. Pierro, 438 Pa. 119, 264 A.2d 692 (1970). Similarly, in The Safe Deposit & Trust Company of Pittsburg v. Diamond Coal & Coke Company, 234 Pa. 100, 83 A. 54 (1912), specific performance was unavailable when the memorandum in question referred only to the number of acres to be sold and left no definite or ascertainable boundary lines. Prager v. McAdam, 20 D. & C.2d 314 (1960), aff'd, 399 Pa. 405, 161 A.2d 39 (1960), found an agreement to sell 61 acres of a 63 acre farm unenforceable where the memorandum gave no indication of which two acres would be retained by the vendor.

In contrast, where a memorandum described the property subject to a proposed transfer simply as “my farm”, it was held sufficient to allow specific performance, as the individual only owned one farm. Suchan v. Swope, supra. A property settlement agreement which described property to be received by one party in such terms as “the big house and three apartments,” although vague, was found suffi-dent to allow spedfic performance, as it was capable of definition when one looked at the whole of what the parties owned. Powell v. Powell, 244 Pa.Super. 264, 367 A.2d 314 (1976). Another description which included language “bounded on the west by land of Duvall and others” was also found sufficiently descriptive to allow specific performance. Dale v. Crawford, 274 Pa.Super. 483, 418 A.2d 509 (1980).

The above approach serves the purpose behind both the doctrine of specific performance and the parol evidence rule. The parol evidence rule is concerned with preventing the addition to, or varying of, the terms of a written agreement by the introduction of evidence beyond the document itself. The doctrine of specific performance allows the court to compel performance of the contract when equity requires it, but necessarily requires that there be agreement as to the nature of the performance. When the performance required under the contract is uncertain, the court cannot define it for the parties or, in essence, write the contract for them.

Therefore, when the parties agree that the vendor will sell five acres to the vendee, but have no particular five acres in mind, the court cannot, in good conscience, compel the vendor to sell five acres which it arbitrarily chooses to specify. Nor can the court entertain, in the specific performance action, parol evidence to the effect that the parties did, in fact, have a particular five acre tract in mind, as that would result in varying the express terms of the contract. However, where it appears that the parties intended to convey a particular tract of land which was inadequately described in the memorandum, neither doctrine is compromised by allowing parol evidence to describe adequately the land in question and the subsequent ordering of specific performance. In so doing, the court is neither rewriting the agreement of the parties nor adding nor varying its terms; rather, it is only compelling one party to do that which it has previously agreed to do but, for whatever reason, now refuses to so do.

The present case is somewhat different from the examples set forth above in that it is not clear from the face of the contract, at least in our opinion, whether or not the parties had a specific tract of land in mind which was the subject of the “option.” The language of the “option” could be read simply as entitling the Turners to purchase an additional unspecified eight acres of land which would come from the land generally west and south and also be contiguous to the two acres containing the dwelling. The language of the option also could be read to refer to a specific eight acre tract which the parties already had in mind but which the parties had yet to precisely define or survey. In this sense alone, parol evidence would seem necessary to determine which of the two alternatives existed. If the parties had a specific tract in mind subject to the option provision, further parol evidence would be necessary to apply a more definite description of the land the parties had intended to transfer. However, if the parties had no specific tract in mind at the time of the agreement, the court would not be able to pick an eight acre tract itself and order conveyance of the same. Unfortunately, in this case, the parties’ testimony in this regard was in conflict.

As previously indicated, the Turners’ testified that the parties had always had a ten acre plot in mind. Hostetlers testified that only the two acre tract had been established and that no definite borders had been established or contemplated for the remaining eight acres. The testimony of Mr. Ogburn, who prepared the memorandum, was not much more conclusive, stating “I do think that they felt that they would not have any difficulty deciding where the location would be.” As the testimony was conflicting, the trial judge was required to determine credibility and find the facts accordingly. However, this case is different from the examples cited above in one other material respect, in that the memorandum allowed for the exact boundary lines to be mutually determined by the parties subsequent to the signing of the document.

As the previous discussion indicates, specific performance of a land sale contract is a valid remedy when the party with a duty to convey fails to do so, and when it is established that the parties intended that a specific tract of land be conveyed and the court can adequately determine its boundaries, thereby enabling the court to fashion the remedy. If, from the face of the memorandum, the description of the specific tract is ambiguous, parol evidence is available to show its boundaries. In the present case, as the parties allowed for the determination of the “exact boundaries” subject to the “option” subsequent to the signing of the memorandum, it would not be inconsistent with specifically enforcing the contract to order conveyance of the property as per the boundaries agreed to after the signing of the memorandum. Hence, if in fact the parties set boundaries after the date of signing, specific performance of this contract would be proper regardless of the parties’ intentions with regard to specific boundaries to the tract at the time of signing the memorandum or the ambiguity of the language utilized in that memorandum. In this respect, the taking of testimony regarding a subsequent determination of the boundaries of the eight acre tract did not violate the parol evidence rule, because the contract called for such an event to take place, and because such testimony did not add to or vary the terms of the contract.

The trial judge found that the parties did subsequently determine the boundaries of the eight acres in question. At that time, giving effect to that factual finding, the obligation arose to convey the tract, as set by the parties, upon timely payment of the sales price which has been paid in full. Appellants’ failure to convey resulted in the bringing of an action for specific performance and, considering the trial judge’s finding, he was correct in ordering the tract to be conveyed. We realize that there was conflicting testimony as to whether the boundaries had been set, but the trial judge resolved this fact in appellees’ favor. We see no reason for disturbing this finding, as he was in the best position to determine such factual findings and such finding is supported by evidence of record. Accordingly, we affirm the order in question.

Order affirmed.

ROWLEY, J., concurs in the result.

      . However, this may be both admissible and highly relevant in an action for reformation which calls for the court to use its equitable powers, not to compel performance of the existing contract, but to reform the contractual memorandum to conform to the true intention of the parties, when, in fact, that memorandum does not accurately reflect the prior intent of the parties.

      . Appellants also argue that the trial court’s finding that a 50 foot right-of-way had been intended to be conveyed rather than a 10 foot right-of-way was erroneous. However, for similar reasons as those discussed above, we find there was no error. The survey which was utilized in the sale and which brought rise to the dispute over the width of the right-of-way was capable of either interpretation offered by the opposing parties. Hence, the trial court was required to resolve the issue based on the evidence, and parol evidence was properly allowed as the contractual provisions were not unambiguous. We see no reason to reverse the trial court as to this finding.


source: Caselaw Access Project

license: Public Domain

text:
    518 A.2d 838
    PISTNER BROTHERS, INC. and Henrietta Buerk, Appellants, v. Ali A. AGHELI and Rebecca A. Agheli.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Filed Dec. 1, 1986.

      Thomas G. Wagner, St. Marys, for appellants.
    David A. Whitney, Ridway, for appellees.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of the trial court giving title to approximately one-half of the disputed property to appellees.

Two issues have been presented for our consideration: (1) whether an owner of a lot in a subdivision may acquire adverse possession of an abutting, undedicated street in the subdivision by planting grass on the street and improving and maintaining a driveway within the bed of the street; and (2) whether the statute of limitations tolled when the adverse possessor made an offer to buy the property from the true owner.

The trial court determined that the township failed to accept the dedication of the disputed strip and that it could therefore be acquired by adverse possession. We agree with this finding. However, the trial court further ruled that the appellees’ acts satisfied the requirements of adverse possession. On this later determination we reverse. Appellees’ conduct does not entitle them to legal title.

The disputed land was originally part of the Henry Ruehl Subdivision and was identified as Anne Street, on a 1952 plan recorded in the Office of the Recorder of Deeds of Elk County. Lot No. 32, immediately south of Anne Street, was purchased from Henry Ruehl by John Green, appellees’ predecessor in 1956. Beginning in May of that year, Mr. Green began building his home and used Anne Street as an access to his lot and a parking area for his car. Between 1956 and 1967 Mr. Green began making improvements to the bed of Anne Street. This included planting grass, placing cinders and bricks on the surface to create a driveway and to facilitate travel, as well as parking his vehicles on the cindered roadway. At all times, Mr. Green knew that the disputed area had been laid out as a street. In 1967, he offered to purchase this parcel from the Henry Ruehl Estate. Instead, it was sold to appellants. After building a carport in 1968, Mr. Green used the strip less often for parking his cars but continued to use the cindered driveway. This driveway was also used by appellee’s neighbors, the Emmerts, and their visitors. The testimony revealed that Mr. Emmert removed snow from this portion with Mr. Green’s permission. There is conflicting testimony as to whether the public in general traveled on this area.

In July 1980, Mr. Green filed a notice of adverse claim to the strip and soon after began paying property taxes on it. Mr. Green’s tenants used the bed of Anne Street in a similar manner until 1983 when the house and his claim to the street were sold to appellees. In 1984, appellants sought to install a sewer line in this parcel. Appellees objected, claiming ownership of the property. This suit was filed by appellants to determine title.

The trial court determined that appellees established a claim of adverse possession to that portion of Anne Street comprising appellees’ lawn and the part of the driveway that extended northerly from the cindered roadway to the carport. This consisted of roughly one-half of the disputed area.

It is settled law in Pennsylvania that when an owner of land subdivides his property into lots for sale and lays out streets, he has dedicated those streets to public use. Rahn v. Hess, 378 Pa. 264, 268-69, 106 A.2d 461, 463-64 (1954). Once the property abutting a platted but unopened street is purchased, the landowner acquires an easement over the surface of the unopened street. Cole v. Philadelphia, 199 Pa. 464, 465, 49 A. 308 (1901). However, a twenty-one year time limit on the public’s right to accept the dedication offer has been imposed under the Act of May 9, 1889, 36 P.S. § 1961. After the expiration of this statutory period, the public’s right to accept lapses. Rahn, 378 Pa. at 268-69, 106 A.2d at 463-64. Private easements in the street remain unaffected by the termination of the public’s rights, supra. In Hogan v. Burneson, 44 Pa.Super. 409, 413 (1910), this Court determined that a public street is one that is dedicated and accepted by the public.

There is no question that Anne Street was dedicated to the public use but was not accepted within the twenty-one year period beginning in 1952. As a result, the public’s right to accept the dedication was foreclosed. Therefore, the disputed strip could be subject to a claim of adverse possession.

The requirements that must be satisfied to set forth a claim of adverse possession are clear. In Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949), our Supreme Court of Pennsylvania stated:

[ O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years (citations omitted). Each of these elements must exist, otherwise the possession will not confer title (citations omitted).

In addition, the adverse possessor must intend to hold the land for himself, and this intention must be manifested by his acts. Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 480, 352 A.2d 80, 81 (1975). The burden of proving title by adverse possession is borne by the one asserting the claim. Conneaut Lake, supra 362 Pa. at 594-95, 66 A.2d at 829.

In order for a claim of adverse possession of an unopened street to lie, there must be an unequivocal act which breaks the existing privity between the buyer and the developer. Cole, supra, 199 Pa. at 465, 49 A. at 308. In other words, the claimant must have infringed upon the uses to which the original owner was entitled to put the property after the grant of the easement over the street bed. Cole, Id. This has not been satisfied. The facts indicate that beginning in 1956, appellees’ predecessor Mr. Green, began making improvements to the surface of Anne Street. In Brodt v. Brown, 404 Pa. 391, 394, 172 A.2d 152, 154 (1961), the Supreme Court held that leveling and blacktopping were not inconsistent with the use of a strip as a street. In the present case, the improvements are indistinguishable. It cannot be said that the purpose for placing cinders and bricks on a roadway is any different from blacktopping. Both are to facilitate travel. Appellees’ other uses of the premises are not unequivocal acts of infringement. As appellee asserts, it is a matter of custom and common sense that property owners abutting a street will maintain the land to the edge of the roadway constructed within the street. The property owner will construct a driveway extending into the street. The maintenance of the lawn or driveway is consistent with the rights and expectations of the parties. As such, it is not an interference with the use of Anne Street. Others were still able to use Anne Street for its intended purpose. Furthermore, it is not contested that the Emmerts and their visitors used the driveway. Appellees have not demonstrated that these acts interferred with the use of the street.

It has been stated that an adverse possessor must “keep his flag flying and present a hostile front to all adverse pretentions.” Commonwealth v. Bierly, 37 Pa.Super. 496, 504 (1908). Therefore, only acts which signify a permanent occupation of the strip at issue for the requisite time period will confer title by adverse possession. Smith v. Peterman, 263 Pa.Super. 155, 161, 397 A.2d 793, 796 (1978). An offer to buy the property from the true owner runs afoul of these principles. It has been determined that a “recognition or acknowledgement of title in one against whom the adverse possession is claimed destroys the elements of ‘adverse and hostile’,” Crowe v. O’Hagan, 176 Pa.Super. 271, 275, 106 A.2d 872, 874 (1954), (Recital in mortgage eleven years after purchasing the property and acknowledging plaintiff’s right in property constituted definite breaking point in required continuity of defendant’s adverse possession), Truman v. Raybuck, 207 Pa. 357, 56 A. 944 (1904). (Attempt to obtain title, as well as an admission of subservience of right to title, all of which took place prior to the running of the twenty-one year period, eliminated the “hostile” requirement for adverse possession.) Mr. Green’s offer to purchase the property in 1967 from the Ruehl’s Estate, constituted an unequivocal recognition that his title was subservient. It also evidenced an acknowledgement that title to the premises remained in the true owners. The law is satisfied only upon a showing that there has been an open and explicit disavowal and disclaimer of holding under another’s title and the assertion of title in oneself which has been brought home to the other party. Sayre Land Co. v. Borough of Sayre, 384 Pa. 534, 121 A.2d 579, 582 (1956). The lowering of the hostile flag broke the required continuity of adverse possession. Since 1967, only seventeen years have elapsed until this lawsuit was filed. The adverse claim therefore fails.

Accordingly, we reverse the judgment of the trial court.

Judgment reversed. Jurisdiction relinquished.


author: DEL SOLE, Judge:

text:
    518 A.2d 841
    Thelma M. MILLER v. Clark E. MILLER and Ray Miller. Appeal of Clark E. MILLER.
    Superior Court of Pennsylvania.
    Submitted June 16, 1986.
    Filed Dec. 3, 1986.

      William F. Patterson, Johnstown, for appellant.
    R. Thomas Strayer, Johnstown, for appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   DEL SOLE, Judge:

This appeal follows an Order entering Judgment which held Appellant was required to return various sums of money to Appellee, his mother. The Order in question stems from an equity action filed by Appellee against Appellant in which she alleged that Appellant had taken possession of various items against her will, that no Trust agreement concerning these items existed, and that monies disbursed by Appellant to his siblings should be returned to her.

Appellant raises four issues on appeal: 1. whether a valid Trust ever existed; 2. if so, whether Appellee was able to unilaterally terminate it; 3. whether Appellee authorized the disbursements made to Appellant’s brothers and sisters; and 4. whether there existed a valid Family Settlement.

By her brief, Appellee aptly points out the absence of post-trial motions filed on behalf of Appellant following the trial court’s Order. Pursuant to Pa.R.C.P. 227.1, post-trial relief may not be granted unless the grounds in support of such motion are specified and filed within ten days after adjudication in the equity trial. Failure to comply with these provisions results in a waiver of all issues. Pa.R.C.P. 227.1(b)(1), (2), (c)(2).

However, upon a close examination of the record, we detect a procedural irregularity which foreclosed Appellant’s ability to comply with the mandates set out in Rule 227.1. The Order from which this appeal is taken is as follows:

AND NOW, this 5th day of February, 1986, in accordance with the findings of fact, conclusions of law, orders and directives hereinbefore set forth, JUDGMENT is ENTERED in FAVOR of the Plaintiff and AGAINST the Defendants, Clark Miller and Ray Miller. (Findings of Facts) (emphasis added).

This procedure was improper. It is well-established by our supreme court that a chancellor must first file a Decree Nisi. Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 359, 253 A.2d 256, 257 (1969). A Decree Nisi is a non-appealable interlocutory order which is filed so that the parties may object to and reargue the issues before the trial court. Bogosian v. Foerderer Tract Committee, 264 Pa.Super. 84, 88, 399 A.2d 408, 410 (1979). Only after reviewing the merits of these arguments may the chancellor enter a final Decree. Cooney at, 434 Pa. 360, 253 A.2d 257. “The right of appeal lies from the final decree entered by the court.” Bogosian at, 264 Pa.Superior Ct. 88, 399 A.2d 410.

In the instant case, the record shows that a hearing was held on December 17, 1985. On February 6, 1986 the trial court filed its Findings of Facts in which a thorough explication of the factual and legal premises of the case is found. Accompanying this document was the Order entering Judgment in favor of Appellee instead of the appropriate Decree Nisi. On March 3, 1986 Appellee filed praecipe for judgment and judgment was again indexed and entered. Notice of Appeal to the Superior Court was also filed in that Office.

It is apparent from this examination of the record, that Appellant was not given the opportunity to file post-trial motions. The only inroad to post-trial relief left to Appellant was in the form of a Direct Appeal to this court. In Patrick and Wilkins, Co. v. Adams, 456 Pa. 566, 568, 322 A.2d 341, 342 (1974), our Supreme Court was confronted with a similar scenario. In that case, it was determined that the chancellor’s Decree be vacated and the record remanded for the purpose of allowing Appellant to file appropriate exceptions to the chancellor’s Decree.

In keeping with the directives of the Pennsylvania Supreme Court, we vacate the Order entering judgment and remand to the trial court and grant leave to the Appellant to file a Motion for Post-Trial Relief within ten days pursuant to Pa.R.C.P. 227.1.

Judgment of trial court vacated. Case remanded to trial court for proceedings consistent with this Opinion. Jurisdiction relinquished.

      . We note that the Pennsylvania Rules of Civil Procedure have been amended subsequent to the disposition of Cooney. However, the changes do not evince a departure from the legal principle set out above.

      . The term “Order” is a misnomer when used to denote a Decree in Equity.

      . From a procedural perspective Appellee's Praecipe for Judgment was needless. Once the trial court’s Order was filed on February 6, 1986, judgment was entered. See docket entries. Pa.R.C.P. 227.4(2) provides that the prothonotary shall enter judgment on praecipe when the court does not enter judgment itself. In this case, judgment had effectively been entered on February 6, 1986. See Pa.R.C.P. 227.4(2).

      . The record reveals a contradiction in filing dates as supplied to us by the trial court Prothonotaiy. The General Index presents the Notice of Appeal as being filed on March 10, 1986. However, the time-clock stamp found on the document itself has March 3, 1986 as • the filing date. We are perplexed by this inconsistency. Although both dates lead us to the conclusion that the appeal was timely filed, we caution the Prothonotary’s Office on the importance of supplying this court with an accurate listing of docket entries.

      . The practice of filing exceptions has since been replaced with filing a Motion for Post-Trial Relief. See Pa.R.C.P. 227.1.


author: TAMILIA, Judge: ROWLEY, Judge,

text:
    518 A.2d 843
    Carol J. MOSIER, Appellant, v. Robert E. MOSIER.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1986.
    Filed Dec. 5, 1986.

      Joan D. Mason, Meadville, for appellant.
    John F. Spataro, Assistant District Attorney, Meadville, for appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

On October 11, 1984, after a hearing, an Order was entered granting bifurcation in the divorce action between the present parties. On November 2, 1984, upon praecipe of appellee, Robert Mosier, a divorce decree was entered. The decree reserved, for further order, all issues relating to alimony, alimony pendente lite, equitable distribution, counsel fees and costs.

Appellant, Carol Mosier, filed separate appeals challenging the bifurcation Order and the divorce decree. Subsequently, a Master’s report was filed dealing with the economic issues and both parties filed exceptions to that report. The lower court, on July 8, 1985, entered an Order indicating that under Pa.R.A.P. 1701, it no longer had jurisdiction to take further action until this Court relinquished jurisdiction, citing Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984) (Memorandum, Walker, J. filed July 17, 1985).

A review of the briefs and the record in this case reveals a number of procedural problems which we will discuss.

Initially, we must address the appealability of the Order granting the petition for bifurcation. In Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985), this Court determined that such an Order is not final and appealable.

An order which grants a bifurcation has no bearing on the parties status nor does it realistically affect them in any way. It is only upon entry of the actual decree of divorce when ramifications of the order became apparent and tangible. A party who opposes the grant of a petition for bifurcation is not necessarily acting in opposition to the divorce per se but is opposing the timing of the divorce vis a vis the parties economic claims.

Id., 341 Pa.Superior Ct. at 118, 491 A.2d at 178.

If this were the only Order appealed from, we would quash the appeal on that basis. However, an appeal has also been taken from the divorce decree. It is appropriate to raise the issue of bifurcation on such an appeal. Thill v. Lamer, 321 Pa.Super. 62, 467 A.2d 894 (1983); Mandia, supra.

Appellant contends the trial court was not authorized to consider the request for bifurcation prior to the filing of the Master’s report and a determination that the ancillary issues would not be disposed of within 30 days of the filing of the report. In support of this argument, appellant relies on 23 P.S. § 401(b) which provides in pertinent part:

Section 401. Decree of Court

(b) Any Decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining or disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment____

We do not agree that section 401(b) should be read so as to exclude from consideration for bifurcation, divorce proceedings which do not fall within its parameters. The section authorizes the court, after a Master’s report has been filed, to make an evaluation of whether it would be appropriate to enter a divorce decree prior to a final determination of the ancillary matters. This does not, however, restrict the court from making a determination on bifurcation before a Master’s report has been filed or in instances where a Master is not involved.

The rules provide specifically for bifurcation in Pa.R.C.P. 1920.52(c), which states:

(c) The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.

To allow bifurcation, only in situations where a Master’s report has been filed and a determination made as to the potential for quickly resolving the ancillary matters, would be unduly restrictive. The interests underlying the use of bifurcation include a speedy resolution of the divorce issue, and allowing the parties to restructure their lives while conflicts surrounding the others details are resolved. Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983).

We would thus allow the court to consider bifurcation upon motion of the parties or under section 401 sua sponte.

The second issue questions the adequacy of the statement made by the court when granting bifurcation.

The court is required to assemble adequate information, thoughtfully study it and explain the decision. Wolk, supra; Pastuszek v. Pastuszek, 346 Pa.Super. 416, 499 A.2d 1069 (1985); Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984); Mandia, supra. The requirement of a statement is analogous to that required under the Sentencing Code as illustrated in Commonwealth v. Wilson, 306 Pa.Super. 372, 452 A.2d 772 (1982). Wolk, supra.

The question of whether to grant bifurcation is one of judicial discretion. Wolk, supra; Mandia, supra; Pastuszek, supra. Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating should it grant the petition. Wolk, supra; Pastuszek, supra.

On appellate review, an abuse of discretion standard is applied in determining whether the court’s decision concerning bifurcation, as explained in the required statement, was appropriate. Wolk, supra.

In the present case, the court, while citing Wolk, supra, merely states, “After hearing, it is our opinion that the benefits of dissolving this marriage before the resolution of all of the economic problems greatly outweighs the benefits of maintaining a hollow, but legal, marital relationship.” (Memorandum, Walker, J., 10/12/84, p. 1).

We do not think this statement is one which is sufficient to allow appellate review. When the court fails to properly elaborate, we are unable to determine whether the advantages and disadvantages of bifurcation have been explored and analyzed. Hall, supra; Wolk, supra. This exploration must be done before the decision is rendered and explained when the Order is issued. It is not sufficient to do so only before exceptions are decided or when appeal is taken. Hall, supra. Illustrative of a more appropriate statement is the discussion of bifurcation in the Memorandum filed in response to the appeal which states:

This brings us to the merits of granting a decree dissolving the marriage on a bifurcated basis. It is abundantly clear from the testimony that this marriage is irretrievably broken. The husband has taken up residence with another woman whom he desires to marry and his intended bride testified that she also wanted to marry him and both are dissatisfied with the moral implications of their present situation.
Conversely, the wife, although she had an excellent job at the time of the separation, chose to leave that in favor of further post-baccalaureate education. We certainly have no quarrel with her decision to improve herself, but it has created an economic strain on her which may have in turn affected her decisions regarding the economic issues of this divorce. It is clear that her only objection to bifurcation and dissolution of the marriage is economic.
In Wolk, the court said:
Bifurcation separates the termination of the marriage from the distribution of property so that the marriage and each party’s personal life are not held hostage to economic demands.
At this juncture it is clear that the plaintiff is holding her husband hostage to the economics of the situation.
In Gordon, supra, the Superior Court made it clear in distinguishing between the Divorce Law of 1929 and the Divorce Code of 1980 that one of the evils to be corrected by the new Divorce Code was the economic coercion that often existed in connection with the grant or denial of a dissolution of the marriage. We believe that in the present case the parties have been given every opportunity to resolve the economic issues and not having done so, the defendant is entitled to have the marriage dissolved so that he may get on with his life.

(Memorandum, Walker, J., 7/17/85, pp. 5-6).

Although not raised by appellant, we also note the failure of the court to provide a statement when entering the divorce decree as required by Pa.R.C.P. 1920.52 which provides in pertinent part:

Rule 1920.52 Hearing by Court. Decision. Decree
(a) In claims involving
(1) marital property,
(2) enforcement of marital agreements,
(3) custody,
(4) alimony,
(5) paternity
(6) a contested action of divorce, or
(7) a contested action for annulment, the trial judge shall enter a decision which shall state the reasons therefor. The practice and procedure thereafter shall be in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive.

We do not think the reasons given, to comply with this Rule, need be as extensive as those required when granting bifurcation. Nevertheless, they must at least provide the basis for the decision of the court, referring to the appropriate section of the statute (23 P.S. § 201) and the findings which indicate compliance.

There is an additional procedural matter which dictates our final determination and prevents us from deciding this case on the merits of the issues discussed herein. Under Pa.R.C.P. 1920.52, it is necessary to follow post-trial procedures in accordance with Pa.R.C.P. 227.1 to 227.4. This requires the filing of post-trial motions where the matters complained of must be raised within ten days of the filing of the decision. Pa.R.C.P. 227.1(c)(2). Grounds not specified in post-trial motions are deemed waived. Pa.R.C.P. 227.1(b)(2).

Although this requirement has not been specifically held applicable to divorce decrees, it has been enforced in relation to various other claims under Pa.R.C.P. 1920.52. Szak-meister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1985) (alimony pendente lite and counsel fees); Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983) (alimony, fees, costs, alimony pendente lite); Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984) (alimony pendente lite); DeWalt v. DeWalt, 309 Pa.Super. 275, 455 A.2d 156 (1983) (alimony pendente lite).

Where a bifurcation Order and divorce decree are issued contemporaneously, post-trial motions may be filed from the divorce decree, raising the bifurcation issue therein. Similarly, if a bifurcation motion is denied earlier at that time, there must be an objection to the denial and the denial of that motion must be raised in timely filed post-trial motions after the entrance of the divorce decree to preserve the issue for appeal. Where, as here, an Order of bifurcation is opposed prior to the entrance of the divorce decree, opposition must be expressed in some fashion at the time the court granted bifurcation, and then, after the entrance of the divorce decree, post-trial motions must be filed, pursuant to Pa.R.C.P. 227.1, stating how the grounds were asserted in the earlier proceeding. Grounds not timely alleged at pretrial proceedings or at trial are waived. Dilli-plaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Because appellant has failed to file motions in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive, following the issuance of the divorce decree, she has not preserved any issues for review. The appeal, therefore, must be dismissed.

We do not find our holding affected by the recent Pennsylvania Supreme Court decision in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). Fried dealt specifically with the interlocutory nature of Orders dealing with alimony penden-te lite, counsel fees and expenses under 23 P.S. § 502. In applying the rationale of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as adopted in Pennsylvania in Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975), the court in Fried held that the Orders were interlocutory and quashed the appeal. The basis for this finding was a determination that the Orders did not meet the third prong of the Cohen test, that being whether the question presented is such that if review is postponed the claimed right will be irreparably lost.

Here, a divorce decree itself is called into question and particularly as it relates to the propriety of bifurcation. Failure to allow appeal on the divorce decree prior to determination of all economic factors would, for practical purposes, cause the right to be lost. One of the most important factors in opposing bifurcation is the economic result which will occur if the divorce decree is granted before the resolution of economic matters. The determination of whether bifurcation should be granted is discretionary based on whether the consequences of bifurcating will be of greater benefit than not bifurcating. Wolk, supra. To deny review of this discretion as it relates to the divorce decree until all matters are resolved, essentially eliminates any possibility of providing the necessary relief. The consequences of economic forces are eliminated as a factor in bifurcation if an appeal of the divorce decree cannot be taken until the resolution of the economic issues, which may not be until a year or more afterwards. If the decree is reversed because of the court’s abuse of discretion, the underlying reason for preserving a consolidated proceeding will be preserved.

Thus, had the rights of appeal been properly preserved, we would have quashed the appeal as to bifurcation as being interlocutory and we would have granted the appeal as to the divorce decree which would have required us to consider the propriety of bifurcation as it related to the divorce decree.

Since no issues were preserved by post-trial motions we, therefore, quash the appeals in this case for failure to preserve any issues by filing timely exceptions in the court below.

The appeals at 1468 Pittsburgh, 1984 and 1469 Pittsburgh, 1984 are hereby quashed and the Decree of Divorce is affirmed.

ROWLEY, J., files a concurring and dissenting opinion.

ROWLEY, Judge,

concurring and dissenting:

I agree with the majority that the bifurcation order from which the appeal at No. 1469 Pittsburgh, 1984 was taken is interlocutory and therefore not appealable. Therefore, I concur in the conclusion that the appeal at No. 1469 Pittsburgh, 1984 must be quashed. I also agree that a bifurcation issue may be properly raised in an appeal from a final divorce decree. Furthermore, I agree that the court may consider, and grant, a request by one of the parties for bifurcation prior to the filing of a Master’s report. Finally, I agree that the Decree of Divorce entered by the trial court should be affirmed. However, because my reasons for affirmance of the divorce decree differ from those expressed by the majority, I respectfully dissent from the remaining portions of the opinion and the order quashing the appeal at No. 1468 Pittsburgh, 1984.

As I understand it, the majority concludes that the bifurcation issue has not been properly preserved for appellate review. I do not agree. Therefore, I do not join in the majority’s discussion regarding the necessity of filing post-trial motions pursuant to Pa.R.C.P. 227.1-227.4 in this case. Although the issue of bifurcation must be preserved by contesting the bifurcation in an appropriate manner before the bifurcation order is entered, I do not think that post-trial motions raising the bifurcation issue must be filed to a subsequent uncontested divorce decree. I am of the opinion that Rules 227.1-227.4 do not apply to orders entered pursuant to Rule 1920.52(b). Because the divorce itself was uncontested, Rule 1920.52(a), which explicitly requires the filing of post-trial motions pursuant to Rules 227.1-227.4, is inapplicable. On the contrary, Rule 1920.52(b) governs the procedure in this case. Rule 1920.52(b) does not require the filing of post-trial motions. Considering that the filing of post-trial motions is specifically mandated by Rule 1920.-52(a) but the requirement is omitted from Rule 1920.52(b), I would not hold that post-trial motions must be filed to an order entered pursuant to Rule 1920.52(b).

I recognize that in Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1985), Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984), Carangelo v. Carange-lo, 321 Pa.Super. 219, 467 A.2d 1333 (1983), and DeWalt v. DeWalt, 309 Pa.Super. 275, 455 A.2d 156 (1983), our Court ruled that post-trial motions were required to be filed to some types of orders entered pursuant to Pa.R.C.P. 1920.-52(b). However, I think those cases are inapplicable for two reasons. First, none of those four cases involved a bifurcation order or an order granting an uncontested divorce; all involved orders regarding alimony pendente lite, counsel fees, or costs. Secondly, and more importantly, I think that the holding of those cases has been effectively overruled by the Supreme Court’s decision in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). In Fried, the Supreme Court held that orders relating to alimony penden-te lite, counsel fees and costs are interlocutory and not appealable. A corollary of this holding is that post-trial motions need not be filed to an interlocutory order made pursuant to Pa.R.C.P. 1920.52(b). I would hold that appellant was not required to file post-trial motions to the divorce decree in order to preserve its bifurcation issue for appellate review.

Having concluded that the merits of the issue raised by appellant are properly before us, I would affirm. First, I would not fault the trial court for its brief statement of October 12,1984, in support of bifurcation. I do not think it is necessary for the trial court to explicitly detail all its reasons for making a bifurcation order at the time the order is entered. In this case, the trial court’s post-appeal memorandum of July 17, 1985, adequately specifies the basis of the decision to bifurcate, and is sufficient to allow meaningful appellate review. My review of the record convinces me that the trial court did not abuse its discretion in ordering bifurcation. Therefore, since that is essentially the only issue raised on appeal, I agree that the divorce decree should be affirmed.

Secondly, I think it is unnecessary for the majority to raise the issue of the trial court’s failure to provide a statement of reasons for granting the divorce pursuant to Pa.R.C.P. 1920.52(a). That rule requires the trial court to state the reasons for granting the divorce where the action of divorce has been “contested.” Pa.R.C.P. 1920.52(a)(6). The divorce in this case was never contested. Appellant filed the complaint for divorce, averring that the marriage was irretrievably broken. Appellee filed an affidavit also stating that the marriage was irretrievably broken. Although appellant filed a counter-affidavit, she did not deny that the marriage was irretrievably broken, but only objected to the court granting the divorce prior to disposing of the economic claims. Thus, appellant did not contest the grounds for divorce, but only objected to “the timing of the divorce vis a vis the parties’ economic claims.” Mandia v. Mandia, 341 Pa.Super. 116, 118, 491 A.2d 177, 178 (1985). Because the divorce itself was not contested, Rule 1920.-52(a) is inapplicable. The divorce here was “uncontested” and no statement of reasons was required. See Pa.R.C.P. 1920.52(b)(5).

Because I think that appellant did not need to file post-trial motions to either the bifurcation order or the divorce decree entered pursuant to Pa.R.C.P. 1920.52(b), I would reach the merits of her appeal. Having thoroughly reviewed the record, I find no abuse of the trial court’s discretion in granting bifurcation, and I would affirm the trial court’s decree of November 2, 1984. I would quash the appeal from the bifurcation order dated October 11, 1984.

      . The dissent would hold that Pa.R.C.P. 227.1 to 227.4 inclusive do not apply to cases listed in 1920.52(b) — 1) child support, 2) alimony pendente lite, 3) counsel fees, costs and expenses, 4) uncontested action of divorce or 5) uncontested action for annulment. The only exception we would perceive to the procedures for review under 227.1-227.4 in the listing, is child support, which stands on an entirely different procedural and substantive basis than the others. Child support has traditionally been immediately appealable after entry of the Order because of possible hardship to the child and the need for accelerated resolution of those matters. While consolidation of child support matters in divorce actions is desirable for purpose of judicial efficiency, the unusual exigencies surrounding child support require that direct appeal from the Order should lie, and it not be subject to the limitations imposed by Fried, supra. Pa.R.C.P. 1910.11(h) provides no motion for post-trial relief may be filed to the final Order of support. As to the other actions, they are exclusively ancillary to the divorce action and inherent in the divorce proceeding under the Divorce Code of 1980. As such, they are governed by the Rules of Civil Procedure. Actions of Divorce or Annulment of Marriage, Pa.R.C.P. 1920.1 et seq., provides:
      Rule 1920.1. Definitions. Conformity to Civil Action
      (b) Except as otherwise provided in this chapter, the procedure in the action shall be in accordance with the rules relating to a civil action.
      We do not perceive any rules within the Divorce Rules which would except alimony, counsel fees, uncontested divorces or uncontested annulments from the appeal process of Rules 227.1-227.4.


author: TAMILIA, Judge: POPOVICH, J.,

text:
    518 A.2d 850
    Thomas S. GINTER v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. Appeal of Eric H. LUKE and Allstate Insurance Company, Petitioners for Intervention and Appellants.
    Superior Court of Pennsylvania.
    Argued June 5, 1986.
    Filed Dec. 4, 1986.

      Bruce H. Hoffman, Hollidaysburg, for appellants.
    Iliss A. Zimmerman, Altoona, for Ginter, appellee.
    Karen Pfeffer, Hollidaysburg, for Nationwide, appellee.
    Before CIRILLO, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

On March 30, 1984, appellee, Thomas S. Ginter, brought this action against his insurance carrier, appellee/Nation-wide Mutual Fire Insurance, for work loss and medical no-fault benefits based on an October 13,1982 motor vehicle accident. (Although it does not appear to be part of the record, on December 19, 1983, appellee/Ginter instituted a tort claim against appellant/Eric M. Luke, an operator of one of the vehicles involved in the collision. Luke was insured by Allstate Insurance Company. The trial ran from October 7, 1985 to October 16, 1985, and a jury verdict of $10,750 was entered against appellant, Luke.) At the time of trial for the negligence action, the instant no-fault action was also pending before the same lower court judge, Brum-baugh, J. Due to the fact that a recovery against appel-lee/Nationwide, in the case sub judice, could result in a double recovery to appellee/Ginter, by agreement of counsel and pursuant to an Order of the trial judge, the portion of the jury’s verdict representing past lost earnings was placed in an escrow account pending disposition of this no-fault action.

On October 21, 1985, appellants Luke and his carrier, Allstate Insurance, filed a petition to intervene in the instant action. Following a hearing, the trial court denied appellants’ petition to intervene on October 29, 1985. The Order denying the petition briefly states that the petition does not comply with Pa.R.C.P. 2327, 2328 and 2329, and further, the granting of the petition would lead to undue delay. This appeal followed.

Appellants contend it is impossible to determine from the language of the Order denying the petition to intervene, upon what specific basis the lower court found the petition in noncompliance with the rules. The only indication of which sections of the various rules were being relied upon comes from a reading of the transcript of the hearing on the petition. We most certainly would be aided in our deliberations by an Opinion of the trial judge explaining his decision. If the record is incomplete, we can remand for completion of the record under the authority of Maginley v. Elliott, Inc., 345 Pa.Super. 582, 498 A.2d 977 (1985). In Maginley, an appeal from the denial of the motion to intervene was remanded where the Superior Court was unable to determine from the record whether the trial court abused its discretion. Upon review of the record in the instant action, we find it sufficiently complete to enable us to determine whether the court abused its discretion.

From that record, we find that the Order denying appellants’ petition for intervention is not an appealable Order. As this Court stated in M. London, Inc. v. Fedders Corp., 306 Pa.Super. 103, 452 A.2d 236 (1982):

Although generally an appeal will not lie from an order refusing leave to intervene (see Boise Cascade Corporation v. East Stroudsburg Savings Associations, 300 Pa. Super. 279, 446 A.2d 614 (1982)), such an order is appeal-able if a contrary conclusion would effectively preclude much of the relief sought by the appellant. Marion Power Shovel Co. v. Fort Pitt Steel, 285 Pa.Super. 45, 48 n. 2, 426 A.2d 696, 697-98 n. 2 (1981).

M. London, Inc., 306 Pa.Superior Ct. at 106, 452 A.2d at 237.

In the case sub judice, petitioner/Allstate is not left without recourse if the denial of the petition to intervene is found unappealable. Allstate has an adequate remedy in the escrow account in that, upon resolution of the instant no-fault action, the escrow proceeds would be distributed to the parties as their interests would require. Therefore, appellants’ adequate remedy in the escrow account prevents us from finding that the Order denying intervention is appealable at this time.

As to the merits of this action, appellants argue the lower court abused its discretion in denying the petition to intervene as said petition fully complied with all the provisions of Pa.R.C.P. 2327, 2328 and 2329. Appellants further contend that granting the petition would not have led to undue delay.

Initially, we note that whether to permit intervention is a matter within the sound discretion of the trial court and the court’s determination will not be interfered with on appeal in the absence of a manifest abuse of discretion. Marion Power Shovel Co. v. Fort Pitt Steel, 285 Pa.Super. 45, 426 A.2d 696 (1981).

Additionally, we find that appellants have no standing to intervene under Pa.R.C.P. 2327. A party may intervene only if that party comes within one of the categories enumerated in Rule 2327:

Rule 2327. Who May Intervene
At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

None of the above requirements have been met. We note appellants have stated in their petition for intervention that they adopt appellee/Ginter’s complaint and his position as their own pursuant to Pa.R.C.P. 2328. While appellants’ actions are procedurally correct, Allstate and Luke cannot incorporate Ginter’s pleadings by reference as they do not give either party standing. An action by an insured against his carrier for no-fault benefits cannot be converted to a claim by a second carrier with no responsibility for such payments. Any possible liability claim against Allstate has already been determined in the action by Ginter against Luke and the limit of Luke’s liability has been established with Allstate’s interest being protected by the establishment of the escrow fund. To allege that Allstate must be given the right to intervene because of the possibility of a fraudulent settlement of the action between Ginter and Nationwide, is impertinent at best and assumes a possible impropriety without a scintilla of evidence to support such a belief. In any case, Allstate would have recourse should such appear to be the case.

Regardless of the petitioner’s qualification to intervene under Pa.R.C.P. 2327, the court may nevertheless refuse such a petition under authority of Pa.R.C.P. 2329:

Rule 2329. Action of Court on Petition
Upon the filing of the petition and after hearing, of which due notice shall be given to all parties, the court, if the allegations of the petition have been established and are found to be sufficient, shall enter an order allowing intervention; but an application for intervention may be refused, if
(1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; or
(2) the interest of the petitioner is already adequately represented; or
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties. (Emphasis added)

We have no doubt that intervention by Allstate and Luke at this time will unduly delay the proceedings. When appellants’ petition to intervene was filed, this action was already headed for settlement. At the end of the Ginter/Luke tort trial on October 16, 1985, appellee/Nationwide agreed to pay the no-fault benefits, which have been the subject of the instant action, based upon the testimony of Ginter’s treating physicians at trial. Although Ginter agreed to settle his case against Nationwide, appellants filed a petition to intervene on October 21, 1985 (See, Appellee Nationwide’s brief at p. 4). Appellants’ intervention will thus only further delay already protracted litigation.

For the above reasons, we quash the appeal, but had the matter been properly before us, we would have affirmed the Order of the lower court.

Appeal quashed.

POPOVICH, J., dissents.

POPOVICH, J.,

dissenting:

I would quash the appeal as being interlocutory, as made mention of by the Majority at page 203 of its opinion, since the appellants can secure relief by filing suit with regard to the escrow fund established by the trial court below. Thus, I see no need, as the Majority finds it necessary to do, to discuss the merits of the denial of the intervention petition any further. Accordingly, finding that the trial court was correct in denying the appellants’ request to intervene since its recourse is not limited at this stage of the case to the appellate route only, but they can seek redress by taking legal action against the escrow fund established below, I cannot join in the Majority’s opinion as written.


author: MONTEMURO, Judge: JOHNSON, Judge,

text:
    518 A.2d 853
    Jack MADDEN, Dick Bavetta, Joe Gushue, Paul Mihalak, Jake O’Donnell, Ed Rush, Joe Crawford, Jess Thompson, John Vanak, Jim Wishmeir and Richard G. Phillips v. NATIONAL ASSOCIATION OF BASKETBALL REFEREES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Dec. 12, 1986.

      Richard H. Harkowitz, Philadelphia, for appellant.
    James J. Gillespie, Jr., Philadelphia, for appellees.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   MONTEMURO, Judge:

The National Association of Basketball Referees (NABR), a labor organization and collective bargaining unit, brings this appeal from two orders of May 14, 1985, entered in the Court of Common Pleas of Philadelphia County. The first of these denies appellant’s motion for summary judgment; the other denies appellant’s motion to dismiss. On the same date the court reaffirmed a prior order (April 5, 1985) granting injunctive and declaratory relief.

The genesis of this case was a meeting of the NABR membership held March 12, 1984, at which a majority of the members voted (18 to 10) to discharge from his position as retained counsel for the union, Richard G. Phillips, Esq., involuntary plaintiff/appellee herein. Thereafter, on March 19, ten individual members filed a complaint in equity seeking injunctive and declaratory relief, claiming Phillips’ dismissal to have been violative of certain employment agreements with the union. It was asserted that because of acceleration clauses in these contracts, the breach would occasion such significant money damages as to adversely affect both the future of the union as a whole, and its membership as individuals whose employment would be jeopardized. The court acceded to appellees’ requests, by issuing a temporary restraining order, and after a series of hearings, continued operation of the injunction. An Overseer was appointed to arrange for and conduct a reprise of the disputed election. This meeting was never convened, as, after a series of attempts at negotiations, the court rescinded its order for a vote on Phillips’ employment until after a trial on the merits of the underlying complaint. Appellants filed subsequent motions for summary judgment (December 18,1984) and to dismiss (January 29, 1985), both of which were denied on May 14, 1985, precipitating this appeal.

Appellant claims that the court erred with respect to all of these orders, positing as its sole supporting theory the impropriety of a declaratory judgment action under the circumstances of this case.

Specifically, it is argued that the outcome of a trial on the merits, that is, whether and to whom liability would accrue from breach of Phillips’ contracts, would, in view of the trial court’s finding that the original vote was illegal, constitute an advisory opinion only, since there is no discharge unless and until a re-vote on termination is taken. Based on the premise that no controversy exists because Phillips was not in fact fired, appellant suggests that the court has only the alternatives of reinstating the results of the original vote, or vacating prior orders enjoining a new election.

Appellant’s argument must fail.

The Declaratory Judgment Act, 42 Pa.C.S.A. § 7533, reads as follows:

§ 7533. Construction of documents
Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder.

The prophylactic nature of the statute is further elucidated by § 7534, which provides that the declaration may be made in advance of an actual breach of contract. What is required as a condition precedent to declaratory relief is a justiciable controversy which will be terminated once the declaration issues. See 11 Standard Pennsylvania Practice, 2d § 66:18-27 (1982 ed.).

To support its claim that there is no live controversy, appellant relies upon the holding in Chester Upland School Dist. v. Commonwealth, 90 Pa.Cmwlth. 464, 495 A.2d 981 (1985). There the school district sought a declaratory judgment as to the constitutionality and application of an amendment to a certain section of the Public School Code 1949, 24 P.S. § 11-1106. However, the court found the requested relief to be inappropriate because the “events which could give rise to an actual controversy, have not yet, and may never occur.” Id. at 468, 495 A.2d at 983.

Appellant also relies upon Hendrix v. Poonai, 662 F.2d 719 (11th Cir.1981), a case based on the Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201, which also found no justiciable controversy where the action for which declaratory relief was sought had not yet been performed. The court found that there, too, the complaint was “based upon the possibility of a factual situation that may never develop.” Id. at 722.

In neither case is the equation made an accurate one. The events giving rise to the controversy herein have taken place, regardless of appellant’s attempts to erase them and begin again. There is not, nor can there be, a sense of latency or anticipation analogous to the authorities cited, since it is a disputed action which has itself motivated this litigation. In this regard, appellant has neglected to mention in insisting upon the employment contracts as the only pivotal question, that there are two necessary components herein, both involving the construction of documents and each inextricably entwined with the other; the first is the union constitution and the question of legality surrounding the election; the second is the employment contracts.

The Declaratory Judgment Act is a remedial statute and as such must be construed liberally. § 7541(a). Under this principle, the simultaneous resolution of both facets of the underlying cause seems to us not only proper but necessary. The dispute necessary to invoke declaratory relief has already dragged on for more than two years in our courts.

Appellant’s continuing efforts to forestall the inevitable render his position ludicrous, albeit consistent. Because the relief sought is entirely within the ambit of the statute, we will allow no further delay.

Case remanded for trial on the merits. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I believe that the orders from which appeal is taken are interlocutory and not properly appealable. Accordingly, I dissent and would quash this appeal.

One of the orders from which appeal is taken denies a motion for summary judgment. As Judge Montemuro has noted, the law is clear that such an order is interlocutory and unappealable. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). The other order from which appeal is taken denies a motion to dismiss and to disqualify involuntary plaintiff Phillips from representing the NABR. This order concludes with the language “It is further ORDERED that this Court’s Order of April 5, 1984, shall remain in effect.” Order dated 5/14/85, filed 5/16/85.

The order of April 5, to which the May order refers, states that:

it is hereby ORDERED and DECREED that the injunction order issued by Judge White on March 19, 1984, is continued herein as the Order of this Court and the defendant NABR and its officers, agents, servants and/or employees, are enjoined and restrained, temporarily until decision, or further Order of this Court, from notifying plaintiff Phillips that his contracts and agreements with defendant NABR are terminated; and further that the said defendant, National Association of Basketball Referees, and its officers, agents and employees are hereby enjoined and restrained, temporarily until decision, or further Order of this Court, from terminating plaintiff Phillips as General Counsel for the NABR.

The April 5,1984 Order by its express language continues a prior injunction order. The court explains in detail the substantive content of the injunction. The sole purpose of the April 5 order is to continue an earlier injunction order. By comparison, the court in its May 14, 1985 order rules on a defense motion to dismiss and to disqualify involuntary plaintiff Phillips from representing the NABR. The court refers to the April 5, 1984 order and states that it shall remain in effect. The court does not detail the substantive aspects of the injunction, as it does on April 5, 1984 when it explicitly continues the injunction. I do not believe that the mere reference to the April 5 order converts the May 14 order into an order continuing an injunction order under Pa.R.A.P. 311(a)(4). In my view, such a reference does not render appealable, this otherwise unappealable order. Accordingly, I would quash this appeal as interlocutory.

      . Appellee argues that this appeal should be quashed as interlocutory. Insofar as the appeal from the order of summary judgment is concerned, appellee is correct, Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), and that aspect of the appeal is quashed. However, Pa.R.A.P. 311(a)(4) states that appeals as of right may be taken from:
      An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.

      . All but two of the original ten plaintiffs have since withdrawn.

      . The fees due the Overseer are the subject of a companion appeal at 1876 Philadelphia 1985, J. 42005/86.

      . § 7S34. Before breach of contract
      A contract may be construed either before or after there has been a breach thereof.

      . There have been at least three attempts to transfer this action to federal court. Additionally, trial on the merits was initially scheduled for December 3, 1984.


author: CIRILLO, President Judge:

text:
    518 A.2d 856
    Warren G. LIPPIN and Elaine Lippin, his wife v. Victor J. ALIPRANDO, Individually, and t/d/b/a VJA Associates, Appellants.
    Superior Court of Pennsylvania.
    Submitted Aug. 18, 1986.
    Filed Dec. 12, 1986.

      Marshall E. Anders, Stroudsburg, for appellants.
    Matthew D. Blumberg, Milford, for appellees.
    Before CIRILLO, President Judge, MONTGOMERY and CERCONE, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Pike County denying appellant’s petition to strike or open a judgment.

On December 12, 1984, appellees, Warren G. Lippin and Elaine Lippin, filed suit against appellant, Victor J. Alipran-do, alleging breach of a construction contract. The Sheriff of Pike County served the complaint upon the appellant on December 20, 1984. On January 8, 1985, a notice was issued to appellant, informing him that since he had not answered the Lippins’ complaint, a default judgment would be entered against him if he did not respond within ten days. Aliprando filed a pro se answer on January 18,1985. He failed to serve his answer upon the Lippins and on January 30, they filed a praecipe for entry of default judgment. The prothonotary entered such a judgment against Aliprando in the amount of $10,354.78. On March 4, Aliprando, now represented by counsel, filed a petition to strike and open the judgment. That same day the court held a hearing and denied Aliprando’s petition. The court stated that the default judgment was properly entered because of Aliprando’s failure to serve his answer upon the Lippins. Aliprando has appealed the trial court’s refusal to open the judgment.

The sole issue presented for our review is whether this refusal was improper. We find that it was, and reverse.

An appellate court may only reverse a trial court’s decision not to open a default judgment if that decision is an abuse of discretion or is clearly an error of law. Roberts v. Roberts, 298 Pa.Super. 307, 309, 444 A.2d 1188, 1189 (1982). The party seeking to open the judgment must demonstrate: (1) that the petition to open was timely filed; (2) the default was reasonably excused or explained; and (3) the existence of a meritorious defense. Maruccio v. Houdaille Industries Inc., 254 Pa.Super. 560, 562-63, 386 A.2d 91, 93 (1978).

Aliprando asserts that the default judgment should never have been entered since he had filed an answer to the Lippins’ complaint. He claims that a prothonotary may not enter a default judgment if a defendant has filed an answer. We agree. The Pennsylvania Rules of Civil Procedure require that an answer must be “served upon every party to the action____” Pa.R.C.P. 440. Appellant filed an answer but he admits that he failed to serve the Lippins as required by the above rule.

Rule 1037 provides two procedures whereby a default judgment may be entered. The court may do so upon motion of a party. Pa.R.C.P. 1037(c). The Lippins made no such motion in the instant case. Also, the “prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint____” Pa.R.C.P. 1037(b). The rule specifies that a prothonotary may only enter a default judgment if no answer has been filed. The rule does not empower the prothonotary to take any action because of a defendant’s failure to serve the answer upon the plaintiff. Mr. Aliprando filed an answer on January 18, therefore the prothonotary wrongfully entered the default judgment on January 30. If the Lippins wished to secure a default judgment because of Aliprando’s lack of service, their only recourse was to request that the court so move under 1037(c). Instead, they proceeded under 1037(b). A default judgment must be in strict compliance with the law. See Phillips v. Evans, 164 Pa.Super. 410, 412, 65 A.2d 423, 424 (1949). In the instant case, the judgment was entered in clear violation of the letter of the law. Therefore, we find that Aliprando’s default has been reasonably explained.

We also note that the petition to open was timely filed only a few short weeks after the judgment was entered. Aliprando also alleges a meritorious defense to the underlying breach of contract action. In his petition, he claimed that he substantially performed the work contracted for and that it was the Lippins who breached the contract.

Aliprando has satisfied all of the requirements necessary to open a default judgment and he has demonstrated that the hearing court erred as a matter of law. Therefore, we reverse.

Order reversed.


author: TAMILIA, Judge: DEL SOLE, Judge,

text:
    518 A.2d 858
    COMMONWEALTH of Pennsylvania v. Mark A. COOK. Appeal of COMMONWEALTH of Pennsylvania, PENNSYLVANIA STATE POLICE.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1986.
    Filed Dec. 16, 1986.

      Joanna N. Reynolds, Harrisburg, for appellants.
    Dina M. Eagan, Willow Grove, for Cook, appellee.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order of the trial court which denied appellant’s Petition for Reconsideration and Rescission of the Expungement Order. On September 12, 1978, appellee Mark A. Cook pled guilty to a charge of criminal conspiracy to commit burglary and was sentenced to five (5) years probation.

On January 12, 1983, the lower court, having been advised that appellee had fully complied with the conditions of his probation, granted appellee’s petition for early termination of probation. On October 2, 1985, appellee filed a petition to expunge the fingerprints, photographs, photographic plates and record of arrest pertaining to the prior criminal action. The same day, a copy of appellee’s petition to expunge was served on the District Attorney’s office and the court then entered a rule upon the Commonwealth to show cause why appellee’s petition to expunge should not be granted. A Rule Returnable date was set for October 29, 1985.

The District Attorney’s office did not oppose appellee’s petition and no answer was filed as of the return date. On October 31, 1985, the court entered an Order granting appellee’s petition to expunge, copies of which were sent to appellee’s counsel and the District Attorney’s office. The Commonwealth took no appeal from this Order.

On December 27, 1985, appellant, the Pennsylvania State Police, filed a Petition for Reconsideration and Rescission of the Expungement Order. A hearing was held on the matter, and on March 4, 1986, the court entered an Order denying appellant’s petition. This appeal followed.

Appellant now contends that the appellee was required to notify the Pennsylvania State Police of his petition for expungement of criminal records. Appellant further argues that the court did not have the authority to expunge appellee’s record of conviction even if the district attorney did not oppose the expungement.

Initially, we find no legal authority to support the lower court’s Order granting expungement of appellee’s conviction record. The Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq., specifically section 9122, authorizes expungement in limited circumstances:

§ 9122. Expungement
(a) Specific proceedings. — Criminal history record information shall be expunged in a specific criminal proceeding when:
(1) No disposition has been received or, upon request for criminal history record information, no disposition has been recorded in the repository within 18 months after the date of arrest and the court of proper jurisdiction certifies to the director of the repository that no disposition is available and no action is pending. Ex-pungement shall not occur until the certification from the court is received and the director of the repository authorizes such expungement; or
(2) A court order requires that such nonconviction data be expunged.
(b) Generally. — Criminal history record information may be expunged when:
(1) An individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision; or
(2) An individual who is the subject of the information has been dead for three years.

The definitional section, 18 Pa.C.S.A. § 9102, elaborates on the term “criminal history record information” as:

Information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, infor-mations or other formal criminal charges and any dispositions arising therefrom. The term does not include intelligence information, investigative information or treatment information, including medical and psychological information, or information and records specified in section 9104 (relating to scope), (emphasis added)

The term “dispositions” is also defined in 18 Pa.C.S.A. § 9102, and includes: “... acquittal, acquittal by reason of insanity, pretrial probation or diversion, charge dismissed, guilty plea____” (emphasis added).

A fair reading of the expungement statute indicates that section 9122(a) applies to the expungement of non-conviction data contained in the criminal history record, while section 9122(b) applies to the expungement of the entire criminal history record, despite the disposition of the case. In the instant action, appellee pled guilty to the charge against him, therefore, any right to expungement must be found in section 9122(b)(1) or (b)(2). Appellant does not fall within either enumerated section as he is not seventy years of age or older nor has he been dead for three years.

Furthermore, this Court, in Commonwealth v. Magdon, 310 Pa.Super. 84, 456 A.2d 194 (1983), determined that there is no authority for granting expungement of criminal records for an individual who has been arrested and convicted of a crime, regardless of his subsequent progress and rehabilitation. While acknowledging a due process right to a hearing on expungement of an arrest record of someone who was not ultimately convicted, for whatever reason, of a crime, the court stated:

This due process right to be heard is not abridged by denying an expungement hearing to one actually convicted of a crime because the conviction itself is based upon a hearing in which the accused was adjudged guilty beyond a reasonable doubt, or upon a plea of guilty which waives many of the formalities of such a hearing____

Magdon, supra, 310 Pa.Superior Ct. at 89, 456 A.2d at 196.

Based upon the following authority, we find appellee, who pled guilty and on that basis was found guilty by the lower court, is not entitled to expungement of his record. This is true despite the failure of the District Attorney’s office to oppose the expungement. When the lower court ordered the expunging of appellee’s arrest record, it was acting ^without a statutory or common law basis. See Commonwealth v. Zimmerman, 215 Pa.Super. 534, 258 A.2d 695 (1969).

The instant action must be distinguished from cases where a special legislative policy exists to provide for expungement of records after completion of specific programs. In Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981), the Supreme Court held that a person who successfully completed an Accelerated Rehabilitative Disposition (ARD) program was entitled to have his or her record expunged. Similarly, in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), the court found that a juvenile who entered into a consent decree, pursuant to the Juvenile Act, was entitled to expungement. Both of these areas involve special programs with specific rehabilitative goals. See Magdon, supra.

Likewise, our Uniform Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. § 780-118 and § 780-119, provides for expungement in certain circumstances of any records of arrest or prosecution for a criminal offense arising under the Act. Section 780-119(a) provides for expungement of these records when the criminal charges have been withdrawn, dismissed or result in an acquittal. In conjunction therewith, section 780-118 provides ways for the court to withdraw criminal charges against a person charged with a nonviolent crime who claims to be drug dependent or a drug abuser, in order for the person to receive treatment and rehabilitation. It must be kept in mind, however, that these provisions apply only in very limited circumstances; none of which are even remotely applicable to the appellee’s situation herein.

An abuse of discretion will be found if the lower court has overridden or misapplied the law. Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983). There is no question that the trial court in the case sub judice committed an error of law.

Moreover, the lower court was without the power to reconsider the October 31, 1985 Order beyond a thirty-day period. 42 Pa.C.S.A. § 5505 provides for the following:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

The Order granting the expungement petition was handed down on October 31, 1985, and appellant filed a Petition for Reconsideration and Rescission of the Expungement Order on December 27, 1985. A reconsideration hearing was held on February 13, 1986, and the Order denying appellant’s petition was handed down on March 4, 1986. Because the trial court was without authority to reconsider the petition beyond a thirty-day period, we must vacate the March 4, 1986 Order. See Ondulich v. District Attorney of West-moreland County, 517 A.2d 208.

Therefore, we are compelled to find that appellant has failed to appeal the original expungement Order in a timely fashion. Pa.R.A.P. 903 provides that an appeal must be filed within thirty days after entry of the Order from which the appeal is taken. In the instant action, appellant did not file an appeal from the October 31, 1985 Order and thus we have no jurisdiction to review appellant’s contentions. Commonwealth v. Jones, 307 Pa.Super. 558, 453 A.2d 1028 (1982). It appears that appellant’s failure to file a timely appeal is a direct result of not receiving notice of the expungement Order until the appeal period had passed.

While we can find no authority to support a contention that either the appellee or the District Attorney’s office has a statutory or common law duty to provide notice of ex-pungement proceedings to the State Police, we are concerned with the lack of communication between the District Attorney’s office and the State Police. There is need for a policy formulation between the two departments which will bridge the communication gap between them. We have no doubt that the District Attorney’s office should have raised the appropriate issues in opposition to the expungement of appellee’s record and vigorously defended against it.

Today we are only passing on the issue of the timeliness of appellant’s appeal, therefore leaving open the question of whether the State Police could refuse to comply with the expungement Order as it is patently improper, based on their statutory duty to maintain the criminal records of individuals convicted of crimes in this Commonwealth as outlined in 61 P.S. § 2171 and 18 Pa.C.S.A. § 9111.

Accordingly, while we find the lower court improperly granted appellee’s petition to expunge, we are without jurisdiction to consider this appeal.

Appeal quashed.

DEL SOLE, J., concurring opinion.

DEL SOLE, Judge,

concurring:

I join in the majority opinion to the extent that it holds this appeal must be quashed as no appeal was filed within thirty days after entry of the final order of October 31, 1985. See Pa.R.App.P. 903. Having found we are without jurisdiction to review Appellant’s contentions, (Majority Opinion at 222), I disassociate myself from that aspect of the opinion which then reviews those contentions. Neither do I believe it prudent to comment upon the quality of communication between the District Attorney’s Office and the State Police with regard to a matter we are without jurisdiction to review at present.


author: BECK, Judge:

text:
    518 A.2d 861
    Alfred MANHEIM, Personal Representative and Administrator of the Estate of Ida Rosin, Deceased, and Marcia Abramsohn and Sara-Jane Rosin, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed Dec. 17, 1986.

      Miriam M. Reimel, Bristol, for appellants.
    Fredric O. Rubin, Morrisville, for appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

This is an action in assumpsit against an insurance company for denial of benefits claimed under an automobile insurance policy. On May 17, 1981, Ida Rosin, a domiciliary of Florida, was killed in an automobile accident in Pennsylvania while riding in a car driven by her daughter, Marcia Abramsohn. Abramsohn, the driver, was covered by an insurance policy with appellee State Farm Mutual Automobile Insurance Company (State Farm).

Ida Rosin’s estate submitted to State Farm claims for payment of various bills under Marcia Abramsohn’s policy. State Farm paid Ida Rosin’s medical and funeral expenses but denied a claim for work loss benefits. The estate and two heirs (appellants) filed a complaint in assumpsit alleging that State Farm is contractually obligated to pay work loss benefits to Ida Rosin’s estate. Both parties filed motions for summary judgment, which the trial court denied.

An arbitration panel found in favor of State Farm, and appellants appealed to the court of common pleas, which heard argument on legal issues. The court found that, because Abramsohn’s policy referred to the Pennsylvania No-Fault Act and the decedent was a domiciliary of Florida, the Florida No-Fault Law controlled by application of the choice-of-law provision of the Pennsylvania statute. The Florida No-Fault Law does not permit work loss benefits when the victim dies as a result of the accident. Thus, the trial court issued an order that “the plaintiff is not entitled to work loss benefits and we find in favor of defendant.” The court denied post-trial relief. Judgment was entered, and this timely appeal followed. We reverse and remand for trial.

On appeal, appellants have preserved two issues: (1) whether the trial court erred in considering State Farm’s defense that was based on Ida Rosin’s Florida domicile when that defense was not included in State Farm’s denial letter; and (2) whether the trial court erred by failing to find that the insurance contract, rather than the Pennsylvania and Florida no-fault statutes, controlled and allowed work loss benefits.

Both of appellants’ issues on appeal relate to State Farm’s single basis for denying work loss benefits. State Farm’s basis is that because Ida Rosin was a domiciliary of Florida, the Pennsylvania courts must apply the Florida Motor Vehicle No-Fault Law, which, as interpreted by the Florida courts, does not provide for work loss benefits when a victim dies as a result of the accident. Florida Motor Vehicle No-Fault Law, ch. 71, 1971 Fla.Laws 252 § 7 (codified as amended at Fla.Stat.Ann. § 627.736 (West 1984)); Griffin v. Travelers Indemnity Co., 328 So.2d 207 (Fla.Dist.Ct.App.1976).

First, appellants contend that State Farm is precluded from raising this defense because it was not stated in its “denial letter,” the letter to appellant Alfred Manheim of May 4, 1983, stating that State Farm was rejecting appellants’ claim for work loss benefits. We do not agree with appellants.

Section 106(a)(5) of the Pennsylvania No-fault Motor Vehicle Insurance Act provides, in relevant part:

(5) An obligor 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____

Act of July 19, 1974, Pa.Laws No. 489, § 106 (codified at Pa.Stat.Ann. tit. 40, § 1009.106(a)(5) (Purdon 1984-1985)) (repealed 1984). Appellants argue that this provision was held to be mandatory in Wingeart v. State Farm Mutual Automobile Insurance Company, 340 Pa.Super. 420, 490 A.2d 849 (1985). A careful reading of Wingeart does not support this conclusion. In Wingeart, the company’s defense to the claim (likewise based on the applicability of another state’s no-fault statute) was first raised in its appellate brief, three and one-half years after the claim was filed. The Wingeart court specifically noted that if the trial court had not sustained the company’s preliminary objections in the nature of a demurrer, the company could have raised the conflict of laws defense in its answer as new matter. Id., 340 Pa.Superior Ct. at 423, 490 A.2d at 851 (citing Pa.R.Civ.P. 1030).

By implication the Wingeart court holds that it is permissible to raise a defense in a pleading even though it was not stated in the rejection letter. Although it is better practice for an insurance company to state all of its reasons for rejection in its rejection letter, failure to do so does not bar the insurance company from raising the defense in its pleadings. A careful reading of the No-fault Act reveals that the sanction for not giving reasonable explanation for rejection is payment of the insured’s counsel fees and not a bar to raising a defense. Pa.Stat.Ann. tit. 40, § 1009.107(3) (Purdon 1984-1985).

In the instant case, State Farm alleged in New Matter that decedent Ida Rosin was a Florida resident, although without specifically raising the defense that the Florida No-Fault Law thereby applied. State Farm then raised that defense more specifically in its memoranda in support of its motion for summary judgment.

Thus, we conclude that Wingeart does not support the principle for which appellant cites it.

Having concluded that the court did not err in reaching the issue, we next address appellant’s second contention: that the trial court erred in resolving the issue. The trial court concluded that since Ida Rosin was a domiciliary of Florida, that a Pennsylvania court must interpret the Abramsohn’s insurance policy in light of the Florida No-Fault Law, which denies work loss benefits under the instant facts. Appellant contends that no reference to any no-fault statute is necessary because the policy language controls and provides for work loss benefits for a deceased insured. We agree.

If we examine Section II of Abramsohn’s State Farm policy, under the heading “What We Pay”, we find: “We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the maintenance or use of a motor vehicle as vehicle.” (emphasis in original indicates terms defined in the policy).

The issue of whether Ida Rosin’s estate is entitled to work loss benefits raises two questions under the policy: to what benefits is an insured entitled, and who is an insured? As to the first question, the policy lists, after the above-quoted language, the various types of payments that State Farm will make under the policy: medical expenses, work loss, replacement services loss, funeral expense, and surviv- or’s loss. Thus, work loss benefits are payable to an insured. As to the second question, State Farm concedes that Ida Rosin was an “insured” under Marcia Abramsohn’s policy.

State Farm contends, however, that the sentence quoted above, “We will pay ...,” must be read to exclude out-of-state domiciliaries from the policy language and to refer instead to their own state’s no-fault statute.

The quoted language closely tracks that of the “Basic Personal Injury Protection Endorsement” form in the Pennsylvania Insurance Department Regulations. 31 Pa.Code § 66.102(e) (1980). State Farm argues that the regulations required them to use this form. State Farm contends that the significant phrase is “in accordance with the No-[f]ault Act” and that the policy cannot be read to provide more coverage than that provided by application of the Act.

This argument represents a misreading of the Regulations. The Regulations do not require the precise language used in State Farm’s policy. Section 66.101 of 31 Pa.Code states:

The private passenger personal injury protection endorsement forms set forth in this chapter meet the mini mum standards required by the Insurance Commissioner. Companies wishing to use them may do so by filing copies in the form in which they intend to use them,

(emphasis added). This court, moreover, has previously ruled on this question:

[t]he Regulations, while affording a minimum standard for a No-Fault insurance policy, do not put a ceiling on specified amount or type of coverage. 31 Pa.Code § 66.101. “An insurance company is free, out of motives of altruism, generosity or naked commercial advantage, to provide broader coverage than the No-Fault Act, and if it does so, the policy language controls.” Drake v. Donegal Mutual Insurance Company, 422 F.Supp. 272, 274 (W.D.Pa.1976); 7 Blashfield Automobile Law and Practice, Section 2715, pp. 7-8 (3d ed. 1966).

Gallo v. J.C. Penney Casualty Insurance Company, 328 Pa.Super. 267, 275, 476 A.2d 1322, 1326 (1984).

We also note that § 66.102, which provides the form used in State Farm’s policy, states that it is designed to “meet the minimum requirements.” 31 Pa.Code § 66.102(a) (1980). The form itself appears in subsection (e) after this statement: “The following is an example of a basic loss benefits endorsement.” (emphasis added).

Hence, State Farm was not required to use the language printed in the policy it issued to Marcia Abramsohn. That the policy language, in providing for work loss benefits to a deceased insured without excluding domiciliaries of another state, provides for more benefits than the minimum required by the Pennsylvania No-fault Act is not a violation of the Act. We find that the language of the policy controls and provides for work loss benefits. Thus, we conclude that the trial court erred in denying appellants’ motion for post-trial relief. We remand for trial on the remaining factual issues.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appellants also raise issues as to the proper calculation of work loss benefits and whether appellants are entitled to interest and attorney’s fees. These issues were not raised in appellants’ exceptions to the lower court, and are therefore waived. Pa.R.Civ.P. 227.1; Pa.R.A.P. 302(a); Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 480 A.2d 281 (1984).

      . The choice-of-law provision of the Pennsylvania No-fault Act, Pa. Stat.Ann. tit. 40, § 1009.110(c)(1), provides in pertinent part:
      (c) Applicable law.—
      (1) The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs.

      . This is a survival action. See 42 Pa.Cons.Stat.Ann. § 8302 (Purdon 1982); Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982).

      . As noted above, if the Act alone applied, and not the policy, § 1009.110(c)(1) would provide that the basic loss benefits would be determined by the Florida Law, Fla.Stat.Ann. § 627.736, which does not include work loss benefits in the instant situation.