author: TAMILIA, Judge: BECK, Judge,

text:
    496 A.2d 56
    Linda Claire LACZKOWSKI v. Edward Thomas LACZKOWSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 19, 1984.
    June 7, 1985.
    Reargument Denied Aug. 20, 1985.

      Joseph P. Giovannini, Jr., Wilkes-Barre, for appellant.
    Charles A. Shaffer, Wilkes-Barre, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This case presents the novel, yet important, issue of whether section 401 of the Divorce Code empowers our courts to enter an Order giving a wife (and child) the right to reside in the marital residence until equitable distribution is made, and further ordering the husband to vacate said premises. Since this is an issue of first impression in this Commonwealth, we have reviewed the law of two leading jurisdictions which have addressed this question and conclude that the Order of the lower court should be affirmed.

The appellee, Linda Claire Laczkowski, and the appellant, Edward Thomas Laczkowski, although currently separated, are husband and wife and were married on June 17, 1967. The parties have one child born of this marriage, a daughter, Melissa, age 7. The parties and their minor daughter resided together in the marital residence located at 123 Oak Street, Wilkes-Barre, Luzerne County, Pennsylvania, until May 3, 1982, when the appellee, together with Melissa, left the marital residence and went to reside at the appellee’s parents’ home at 42 Dagobert Street, Wilkes-Barre. Appellee and Melissa resided there until May 16, 1983.

The marital residence is jointly owned by the parties, in the form of tenancy by the entirety, and is the only real estate owned by them and the single major asset of their marital estate. On June 24, 1982, the appellee filed a complaint in divorce against the appellant alleging the no-fault grounds of an irretrievably broken marriage as well as the fault grounds of indignities. The complaint further requested that the ancillary matters of permanent alimony, division of property, attorneys fees, temporary alimony, child support and court costs be determined in the divorce proceedings.

On September 15, 1982, an inventory and appraisement was filed by the appellee pursuant to the Rules of Civil Procedure. On November 19, 1982, the appellee filed a petition for special relief, requesting that she be placed in possession of the marital residence to the exclusion of the appellant on the basis that she had been subjected to harrassment and mental cruelty by the appellant and, in support thereof, cited section 401(h) of the Divorce Code and Pa.R.C.P. 1920.43(a). Along with the petition for special relief, the appellee filed a rule to show cause why the possession of the marital residence should not be granted to the appellee. Said petition and rule were duly served upon the appellant, who filed an answer to the petition on November 29, 1982. After a hearing on December 29, 1982, the lower court issued an Order directing the appellant to leave the marital residence and granting exclusive possession to the appellee. No exceptions were taken to this Order nor was an appeal perfected.

On January 27, 1983, appellant’s former counsel withdrew his appearance and present counsel entered his appearance on appellant’s behalf. On February 7, 1983, the appellant, by and through his new counsel, filed a motion and rule to show cause why the Order of December 29,1982 should not be vacated for lack of jurisdiction.

On February 22, 1983, a rule to show cause and petition for citation for contempt was filed on behalf of the appellee due to the appellant’s failure to relinquish possession of the marital residence. The rule returnable was set for March 7, 1983, the same day on which the appellant’s rule was returnable on his motion to vacate the Order for lack of jurisdiction.

On March 11, 1983,. the lower court, after a hearing, denied the appellant’s motion to vacate the December 29th Order. The Order of March 11, 1983 was entered of record on March 16, 1983, whereupon the appellant immediately filed an appeal to this Court. The Order of March 11, 1983, reads as follows:

‘AND NOW, this 11th day of MARCH, 1983, at 10:45 o’clock, A.M., upon consideration of the Defendant’s Motion, and after Hearing, this Court finds that the issues raised by the Defendant in his Motion to Vacate, could have been raised by the Defendant at the time that the hearing was held on the Plaintiff’s Petition for Special Relief, and that they were not raised at that time, and not having raised them previously, the Defendant is barred from raising them now.
FURTHER, even if this Court were to consider the issues now raised by the Defendant, the Court is of the opinion that the Order entered December 29, 1982, was proper under all of the circumstances; and it is hereby ORDERED that the Defendant’s Motion to Vacate said Order is DENIED.
BY THE COURT,
/s/ Brominski,
J.’

On March 10, 1983, appellant filed a petition for stay and supersedeas of the December 29, 1982 Order, pending the instant appeal. Said petition was denied and on March 11, 1983, after a hearing, the lower court found the appellant in contempt of the December 29, 1982 Order awarding appellee the right to live in the family home to the appellee. On May 12, 1983, after a hearing, the lower court entered a further Order which directed the appellant to purge himself of his contempt of the December 29, 1982 Order by 9:00 a.m. on May 16, 1983. Additionally, the Order stated that upon failure of the appellant to purge himself of his contempt, as provided above, the Sheriff of Luzerne County, upon request by the appellee and without further hearing, would be directed to apprehend and incarcerate the appellant in the Luzerne County Prison, until such time as the appellant assured the court that he had purged himself of his contempt.

Appellant argues (1) that the lower court lacked jurisdiction under section 401 of the Divorce Code and Pa.R.C.P. 1920.43(a) to dispossess the appellant from the marital residence and grant exclusive possession to the appellee; and (2) that because the lower court lacked jurisdiction and authority to issue such an order, the appellant cannot be held in contempt of court for noncompliance with an invalid order.

At the outset, we note that appellant has phrased the above issues in the context of a jurisdictional attack when, in fact, no such question exists. This appeal stemmed from a divorce action which the lower court clearly had jurisdiction to hear. The question concerning whether the court could dispossess the appellant from the marital residence and grant exclusive possession to the appellee during the pendency of the divorce proceedings is not a jurisdictional matter; rather, it involves the judicial interpretation of section 401 of our Divorce Code. Rephrased, the issue before us is whether the lower court correctly applied section 401 of the Divorce Code. Consequently, we are not concerned with subject matter jurisdiction, which is limited to the question of whether a court has the power to determine controversies of the general class to which the case belongs. See Nagle v. American Casualty Co., 317 Pa.Super. 164, 463 A.2d 1136 (1983). Our review of the record leads us to conclude that appellant, through his new counsel, phrased the above issues in this context because an attack on the court’s subject matter jurisdiction can be raised at any time and cannot be waived. Encelewski v. Associated-East Mortgage Co., 262 Pa.Super. 205, 396 A.2d 717 (1978). Obviously, this was done in direct response to prior counsel’s failure either to take exceptions to the December 29, 1982 Order or to perfect an appeal from that Order. While there is no Pennsylvania case on point regarding a temporary award of the possession of the marital residence, this Court has previously held that the failure to file exceptions to an award of alimony pendente lite or interim counsel fees constitutes a waiver. See, e.g., Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984); Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983); Commonwealth ex rel. Dewalt v. Dewalt, 309 Pa.Super. 275, 455 A.2d 156 (1983). See also Pa.R.C.P. 1038, 1920.-1(b), 1920.52 and 1920.55.

However, we believe that a finding of waiver would be unfair in the context of the present case as this area of the law was unsettled during the time period wherein appellant’s counsel failed to file exceptions. While Dewalt held that the failure to file exceptions to an Order awarding alimony pendente lite constitutes a waiver, we emphasize that it was not filed until January 21, 1983, more than three weeks after the December 29, 1982 Order. Thus, when the final order awarding the temporary use and possession of the marital home was entered on December 29, 1982, there had been no judicial pronouncement which specifically required the filing of exceptions to an award of alimony pendente lite or interim counsel fees (let alone an award involving the temporary use and possession of the marital home). Due to the uncertainty in the existing law at that time, we conclude that there are sufficient reasons for finding no waiver here. See Commonwealth ex rel. Nixon v. Nixon, 321 Pa.Super. 313, 458 A.2d 976 (1983) (no waiver since at time final support order was entered there existed no judicial pronouncement specifically requiring the filing of exceptions); Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983) (failure to file exceptions did not constitute waiver due to the considerable confusion in the existing law). See also Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978); General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 199 A.2d 540 (1964); Werts v. Luzerne Borough Authority, 15 Pa. Commw.Ct. 631, 329 A.2d 335 (1974); Pa.R.C.P. 126; Pa.R.A.P. 105.

Moreover, on January 27, 1983, appellant’s former counsel withdrew his appearance and present counsel entered his appearance on appellant’s behalf. While appellant seems to have a propensity for experiencing difficulty with his attorneys, we are concerned that this incompatibility could have motivated prior counsel’s failure to either take exceptions to or appeal the December 29, 1982 Order. Finally, as we previously stated, this is an issue of first impression which involves the welfare of a child; we believe that the necessity of addressing the merits of this appeal is evident. We find no waiver in the instant case because of the above reasons. However, we wish to point out that in future cases, counsel must follow the dictates of Sutliff, Carangelo and Dewalt, supra, which require the filing of exceptions to preserve issues on appeal.

Turning now to the issue of whether the lower court properly awarded the marital residence to the wife, we point out the broad equitable powers conferred upon courts pursuant to section 401(c) of the Divorce Code, which provides: .

c. In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

Moreover, section 401(h) specifically states:

h. The court may award to one, each, or both of the parties the right to live in the family home for reasonable periods of time.

Viewing these two sections together, we hold that the lower court had the authority to temporarily award the marital residence, pending equitable distribution of marital property, to a spouse having physical custody of a minor child. Our conclusion is supported by section 102 of the Divorce Code which states in pertinent part:

§ 102. Legislative findings and intent
(a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems____

Our conclusion is supported by the case law of two states whose divorce statutes are substantially similar to our Divorce Code. In the recent New Jersey case of Degenaars v. Degenaars, 186 N.J.Super. 233, 452 A.2d 222 (1982), the New Jersey Superior Court held that a spouse may be excluded from the marital residence solely because that spouse had been living apart from the residence for a period of time. The Degenaars court noted that it had the power to grant the relief sought by the wife through its inherent equitable jurisdiction. In Degenaars, the husband voluntarily removed himself from the marital home and for 17 months, the wife and children planned and lived their lives in the absence of the husband as an overnight resident. The Degenaars court emphasized that it was faced with a pendente lite situation, and thus, the mental and emotional health and welfare of the wife and children should not “be compromised by the ever-present knowledge that defendant can move in, out and about the marital home with impunity[.]” Degenaars, supra, 186 N.J.Super. at 235, 452 A.2d at 223. Citing its parens patriae jurisdiction as protecting the interests of children, especially in matrimonial litigation, the Degenaars court noted that the legislature has vested the trial courts with broad equitable powers during the pendency of matrimonial actions, to make such orders “as to the care ... and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just ...” N.J.S.A. 2A:34-23. See Davis v. Davis, 184 N.J.Super. 430, 446 A.2d 540 (1982).

The Degenaars court found that:
... [i]t would be inimical to the best interests and welfare of the plaintiff and the children to permit their lives, both emotionally and physically, to be traumatieally invaded by defendant’s unilateral decision to resume residency in the marital home. The interests and welfare of the plaintiff and children will be best served by maintaining the status quo ante as initiated by the defendant himself.

Degenaars, supra at 235, 452 A.2d at 223.

Another instructive case is Pitsenberger v. Pitsenberger, 287 Md. 20, 410 A.2d 1052, appeal dismissed, 449 U.S. 807, 101 S.Ct. 52, 66 L.Ed.2d 10, reh’g denied, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980), where the court ruled against the husband’s due process challenge to an award of temporary exclusive possession of the marital home to one spouse without requiring said spouse to show that grounds exist for a divorce. The Pitsenberger court noted that the trial court had referred the pendente lite issues to a master, who recommended that the wife, who was given pendente lite custody of the parties’ five children, also be given pendente lite possession of the family home so that the children could continue to attend their former school without being forced to travel a greater distance. The authority upon which the Pitsenberger court issued the use and possession award of the family home to the wife is section 3-6A-06 of the Courts and Judicial Proceedings Article from the Annotated Code of Maryland which, in relevant part, provides:

(a) The authority conferred by this section shall be exercised to permit the children of the family to continue to live in the environment and community which is familiar to them and to permit the continued occupancy of the family home and possession and use of family use personal property by a spouse with custody of a minor child who has a need to live in that home____ In exercising its authority under this section, the court shall consider each of the following factors:
(1) The best interests of any minor child;
(2) The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any portion of it as a dwelling place;
(3) The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any part of it for the production of income;
(4) Any hardship imposed upon the spouse whose interest in the family home or family use personal property is infringed upon by an order issue under this section____

In Pitsenberger, supra, 287 Md. at 31, 410 A.2d at 1058, the Maryland Court of Appeals lucidly stated that the legislative purpose and intent of section 3-6A-06 in the context of a pendente lite use and possession award is to give “special attention to the needs of minor children to continue to live in a familiar environment” and “to avoid uprooting the children from the home, school, social and community setting upon which they are dependent.” Id. See also, Kennedy v. Kennedy, 55 Md.App. 299, 462 A.2d 1208 (1983); Strawhorn v. Strawhorn, 49 Md.App. 649, 435 A.2d 466 (1981), vacated on other grounds, 294 Md. 322, 450 A.2d 490 (1982).

We adopt the rationale of Degenaars and Pitsenberger, and hold that the lower court acted properly in awarding temporary use and possession of the marital home to the appellee.

Appellant’s claim that Pa.R.C.P. 1920.43(a), which is a procedural arm of section 403(a) of the Divorce Code, precludes the award of the marital home in the instant case since the appellee did not allege that the property would be sold, removed, alienated or encumbered in any way, has no bearing on the issues before us. Appellant’s claim is belied by the manifest language of section 102(a), which, as we have already indicated, is concerned with preserving the family unit and protecting the welfare of children in marital disputes. Appellant’s attempt to override such a humane policy by arguing that our Divorce Code can only grant relief when there is harm to the property involved is contrary to the dictates of our Divorce Code, as well as being offensive to the societal needs of children caught in the crossfire of domestic disputes. While common law jurisdictions have traditionally treated property rights as both unique and omnifarious, we believe that in the instant case such rights must yield to the common law doctrine of parens patriae, the goal of which is to provide the child with a permanent home. Since the cases relied on by the appellant involve different situations, such as the award of the marital home as a form of child support or permanent alimony after a divorce and pursuant to equitable distribution, we need not consider them as they are totally inapposite.

Furthermore, appellant’s contention that the Protection From Abuse Act, 35 P.S. § 10181 et seq., preempts any alternative procedure by which one spouse may dispossess another spouse from the marital residence is untenable. Where a conflict exists between two statutes, the Superior Court must construe the two, if possible, so that both may be given effect. Young v. Young, 320 Pa.Super. 269, 467 A.2d 33 (1983), rev’d on other grounds, 507 Pa. 40, 488 A.2d 264 (1985). A protection from abuse proceeding is quasi-criminal in nature and seeks to protect the abused spouse and children from physical violence, whereas the relief awarded in the instant case is equitable in nature and is concerned with stabilizing the family unit. As such, this statute must be construed in pari materia with the Divorce Code, since they were enacted for different but not incompatible purposes. Since recourse was not had to a proceeding under the Protection From Abuse Act, we find that it has no bearing on our decision.

The equitable powers of the courts under our Divorce Code are extremely broad, and since the Code unequivocally recognizes the right of one spouse to live in the family residence after divorce, there is no discernible reason for precluding such an award in a pendente lite situation. While our decision may appear to have wide reaching ramifications, we are mindful that the exclusion of a spouse from the marital home during the pendency of a divorce proceeding is a harsh remedy that will not be awarded cavalierly. The need for such an award must be clearly evident in the facts of each case.

Our review of the record leads us to conclude the lower court acted properly in ruling that the appellee, Linda Claire Laczkowski, met her burden of proof regarding the petition for special relief wherein she alleged:

1. The Plaintiff and the Defendant are the owners of a family home, which home is known as 123 Oak Street, Wilkes-Barre, Luzerne County, Pennsylvania.
2. The Plaintiff and the Defendant, and their minor daughter, resided together in the family home, prior to May 3, 1982, at which time, the Defendant engaged in such harassment and mental cruelty and intimidation, and threats of violence, as to cause Plaintiff and her minor daughter, to leave the family home.
3. The Defendant, since May 3, 1982, has had possession of the family home, and has excluded the Plaintiff from the family home.
4. The Plaintiff, and her minor daughter, are residing with the Plaintiff’s parents, and have been residing with the Plaintiff’s parents since May 3, 1982.
5. The present situation is not conducive to a harmonius home life for the Plaintiff and her minor daughter; nor is it fair to the Plaintiff’s parents. The situation is progressing to the point where it will no longer be tolerable for the Plaintiff and her minor daughter, and the Plaintiff’s parents, to share the home of the Plaintiff’s parents.
6. The Plaintiff has tried to rent suitable living accommodations for herself and her minor daughter, but she has been unsuccessful because of her lack of a credit rating, and because of insufficient income.
7. The Defendant earns an excess of Twenty-three Thousand ($23,000.00) Dollars a year; he can easily rent an apartment, or he can live with his father, who lives alone and has adequate room for the Defendant. WHEREFORE, the Plaintiff prays this Honorable Court to enter an Order, awarding to the Plaintiff, the right to live in the family home until such time as this Court makes equitable distribution of the marital property of the Parties.

(Appellee’s Petition for Special Relief, filed November 19, 1982).

Accordingly, the March 11, 1983 Order denying appellant’s motion to vacate the December 29, 1982 Order is affirmed.

BECK, J., dissenting.

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s holding that appellant has properly appealed to this court. I would quash the instant appeal on the ground that the trial court’s order of December 29, 1982, was interlocutory and non-appealable. Moreover, even if the trial court’s order had been final and appealable, I would nevertheless quash the present appeal because appellant did not timely appeal the December 29 order.

Where, as in the case sub judice, an order does not terminate the parties’ litigation or resolve the parties’ entire dispute, the order may be deemed final and appealable only if it bears the following three aspects of finality: “ ‘(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.’ ” Sutliff v. Sutliff, 326 Pa.Super. 496, 499, 474 A.2d 599, 600 (1984) (citation omitted). I conclude that the third aspect of finality is not satisfied by the trial court’s December 29 order.

It is necessary to construe the mandate of Sutliff strictly. For this court to do otherwise would result in an undue number of piecemeal appeals from a single case. “[I]t would permit the party with greater resources to exhaust the resources of the party with less by taking repeated appeals.” Id., 326 Pa.Superior Ct. at 504, 474 A.2d at 603 (Beck, J., dissenting). An appeal of an order stays the entire proceeding. Appeals from interim orders create undue delay in the ultimate resolution of the parties’ marital and economic status. “Justice is best served and harm to both parties is minimized by proceeding directly and expeditiously to a final disposition of the entire case at which a complete and fair resolution of all the economic issues may be made.” Id., 326 Pa.Superior Ct. at 504, 474 A.2d at 603 (Beck, J., dissenting).

The Divorce Code empowers a court to adjust the parties’ ultimate financial settlement (equitable division and distribution of marital property; permanent alimony) to reflect interim relief afforded either party during the pend-ency of the divorce proceedings. Sutliff (Beck, J., dissenting). Accordingly, an award of interim relief such as temporary occupancy of the marital residence, does not irreparably disadvantage the non-receiving party. Id. Since appellant’s claimed right will not be irretrievably lost if review of the December 29 order is postponed until final disposition of the parties’ divorce action, the December 29 order does not meet all three criteria of finality and is an interlocutory, non-appealable order.

However, assuming arguendo that the December 29 order was final and appealable as the majority holds, I would still quash the instant appeal. The majority states, and I agree, that appellant’s petition to vacate the December 29 order constituted an effort to circumvent appellant’s failure to file either timely exceptions to or a timely notice of appeal from the December 29 order. For the following reasons, I conclude that appellant’s failure to file a timely notice of appeal from the December 29 order requires us to quash this appeal.

Citing Commonwealth ex rel. Nixon v. Nixon, 321 Pa.Super. 313, 458 A.2d 976 (1983); Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983); Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978), and General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 199 A.2d 540 (1964), the majority contends that appellant’s failure to file exceptions to the December 29 order should not constitute a waiver of issues for appellate review. My reading of Nixon, Jones, Pomerantz, and General Mills, Inc. persuades me that the case at bar is sufficiently distinguishable to necessitate a different result.

In Nixon and Jones the respective appellants did not file exceptions to the challenged court orders, but the appellants did file timely notices of appeal from the orders in question. In Pomerantz the appellant timely filed a document contesting a court order, but the document was captioned motion for a new trial rather than exceptions. Finally, in General Mills, Inc. the appellant duly filed an answer, new matter, and counterclaims containing contradictory averments, but his pleadings were not accompanied by a Pa.R.C.P. No. 1024 verification of inconsistent allegations. The common thread in Nixon, Jones, Pomerantz, and General Mills, Inc. is that the appellant in each case took timely, affirmative action to assert his viewpoint even though the action in each instance was not in strict accordance with the applicable procedural rules. Most similar to the case sub judice are Nixon and Jones wherein the appellants neglected to file exceptions to contested court orders. Notably, however, the appellants in Nixon and Jones did file prompt notices of appeal from the disputed orders whereas the instant appellant permitted the appeal period to expire before he took any action challenging the December 29 order.

While the “rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter,” Pa.R.A.P. 105(a), I would not liberally interpret the rules to justify an appellant’s complete inaction. Since appellant wished to treat the December 29 order as a final and appealable order, he should, at the very least, have filed a notice of appeal from same. See Nixon; Jones. Nor am I convinced that a different result should obtain because appellant later filed a petition to vacate the December 29 order. Appellant’s belated challenge to the December 29 order cannot serve to enlarge the time period for appealing the December 29 order. See Pa.R.A.P. 105(b).

Therefore, I would in any event quash the appeal now before us.

      . Act of April 2, 1980, P.L. 63, No. 26, §§ 101-801; 23 P.S. §§ 101-801 (Supp.1984).

      . The Order from which this appeal was brought is final since: "(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Sutliff v. Sutliff, supra, 326 Pa.Superior Ct. at 499, 474 A.2d at 600, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-45 (1978).

      . The record discloses that appellant’s second counsel also withdrew from representing him due to their incompatability and appellant’s failure to pay legal fees.

      . The dissent would quash the instant appeal since appellant failed to file a timely notice of appeal from the December 29, 1982 Order. See Pa.R.A.P. 105(b); Hesson v. Weinrebe, 288 Pa.Super. 216, 431 A.2d 1015 (1981) (appellate courts are without authority to enlarge time period for filing notice of appeal). However, since no exceptions were taken to the December 29, 1982 Order, it was not immediately appealable. In light of the ambiguity surrounding the appealability of the instant Order, (see page 59 text), we feel compelled to reach the merits of this appeal notwithstanding its unusual procedural posture. We conclude that this result is in the interests of judicial economy since the issues have been briefed by both parties and argued before this Court. Pa.R.A.P. 105(a).

      . Appellant contends that he cannot be held in contempt of court for noncompliance with a court order since the court lacked jurisdiction and authority to issue said order. However, since we have already concluded that the lower court had adequate jurisdiction pursuant to the Divorce Code to entertain this matter, we need not address this issue as it is totally meritless.

      . The trial court’s December 29, 1982, order allowed appellee and the parties' daughter to reside in the marital residence during the pendency of the divorce action.

      . I note that, technically, the instant appeal is from the trial court’s order of March 11, 1983, which denied appellant’s petition to vacate the court’s previous order of December 29, 1982. That is, appellant timely filed a notice of appeal from the trial court’s order of March 11 but did not file a notice of appeal from the trial court’s order of December 29. However, my analysis of the interlocutory nature of the December 29 order applies equally to the trial court’s March 11 order. See further discussion infra of appellant’s petition to vacate the December 29 order.

      . Act of April 2, 1980, P.L. 63, 23 P.S. §§ 101-801.

      . Appellant’s petition to vacate was filed well after the expiration of the period for appealing the December 29 order.


source: Caselaw Access Project

author: WICKERSHAM, Judge: WIEAND, Judge,

license: Public Domain

text:
    496 A.2d 397
    COMMONWEALTH of Pennsylvania v. ONE 1979 LINCOLN, FOUR DOOR SEDAN. Appeal of Duane K. KERSTETTER.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed June 7, 1985.
    Reargument Denied Aug. 20, 1985.

      Lester H. Zimmerman, Jr., Mifflintown, for appellant.
    William A. Helm, District Attorney, Lewistown, for Com., appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WICKERSHAM, Judge:

The instant appeal is a result of a civil action brought by the Commonwealth for forfeiture of One 1979 Lincoln, four door sedan, owned by Duane K. Kerstetter, appellant herein.

On June 15, 1982, appellant’s vehicle was seized by agents of the Bureau of Narcotics Investigations and Drug Control and a petition for forfeiture of same was filed by the Commonwealth seventy-two (72) days thereafter. Seizure of appellant’s vehicle was made incident to his arrest. In its petition, the Commonwealth alleged as its basis for forfeiture that the seized vehicle was used to transport appellant to the residence of Thomas C. Pollock, Union Township, Mifflin County, where, in conspiracy with others, a clandestine laboratory had been established with intent to manufacture methamphetamine. Appellant used his 1979 Lincoln to deliver aspirins, vaseline, sandwiches, and coffee to his co-conspirators who manufactured the controlled substance throughout the night.

On September 2, 1982, the lower court issued an order directing appellant to show cause why said vehicle should not be forfeited. A hearing was held on October 25, 1982 and forfeiture was directed. Exceptions were dismissed on August 25, 1983 and appellant filed this timely appeal. We affirm.

Initially, appellant claims that the petition for forfeiture filed by the Commonwealth was not filed “forthwith” as required by 35 P.S. § 780-128(b)(1) and (c). Section 780-128 provides, in pertinent part, as follows:

(b) Property subject to forfeiture under this act may be seized by the law enforcement authority upon process issued by any court of common pleas having jurisdiction over the property. Seizure without process may be made if:
(1) The seizure is incident to an arrest or a search under a search warrant or inspection under an administrative inspection warrant;
(c) In the event seizure without process occurs, as provided herein, proceedings for the issuance thereof shall be instituted forthwith. (Emphasis added)

Act of April 14, 1972, P.L. 233, No. 64, § 28, eff. June 14, 1972.

Appellant finds it “difficult” to accept a delay of seventy-two (72) days as complying with the statute’s mandate that proceedings be instituted “forthwith.” The Commonwealth looks to the interpretation of “forthwith” in Commonwealth v. One 1976 Oldsmobile Cutlass Supreme, 85 Pa. Commw. 433, 482 A.2d 686 (1984):

This Court has previously defined the term ‘forthwith’ as it was used in the Vehicle Code. ‘We never have construed the “forthwith” requirement to fix an arbitrary time limit; rather, we have held that ... compliance within a reasonable time is sufficient.’ Department of Transportation, Bureau of Traffic Safety v. Passerella, 42 Pa. [Commw.] 352, 354, 401 A.2d 1, 2 (1979). ‘[A]bsent a showing of prejudice, the mere passage of time ... is not sufficient justification to set aside the action____’ Department of Transportation, Bureau of Safety v. Lea, 34 Pa. [Commw.] 310, 312, 384 A.2d 269, 270-71

(1978) . We find this definition equally applicable here. Id. at 435, 482 A.2d at 687-88 (footnote omitted).

The commonwealth court continued, stating:

[T]he eighty-two day delay was reasonable and no real prejudice to [appellant] resulted. The prejudice which [appellant] claims is the loss of the use of his car but, as we said in One 1965 Buick 4 Door Sedan v. Commonwealth, 46 Pa. [Commw.] 189, 191, 408 A.2d 157, 158 (1979) , ‘that is the same “prejudice” suffered by every person that uses his car to facilitate illegal drug activity. Moreover, such “prejudice” is ... solely a result of ... illegal use of the car.’

Id. at 436, 482 A.2d at 688 (emphasis added) (footnote omitted).

Similarly, the decisions of Commonwealth v. One 1965 Rambler Sedan, 6 Pa. D. & C.3d 603 (1977) (where the time that elapsed between the seizure and the filing of the forfeiture petition was forty-seven days) and Commonwealth v. One 1966 Porche Coupe, 97 Dauphin 243, 245 (1975) (in which the elapsed time was a three week delay between seizure of the vehicle and the filing date of a forfeiture petition) indicate that the seventy-two (72) day delay in the instant case was not unreasonable. It is noted that appellant suffered no “prejudice”; in fact, the court ordered the return of the vehicle to appellant pending a final hearing.

Additionally, appellant further raises issue as to the tardiness of the actual hearing on the petition, which was not held until one hundred thirty-two (132) days following its filing. In One 1965 Buick 4 Door Sedan v. Commonwealth, 46 Pa.Commw. 189, 408 A.2d 157 (1979), the court quoting the Honorable James E. Rowley, Jr. (now of this court) from orders of the Common Pleas Court, Beaver County, stated: “Whatever the reason, however, the burden was on respondent to establish the lack of any activity was for some improper purpose and/or that he has been prejudiced, i.e., harmed in some way.” Id. at 191, 408 A.2d at 158. Appellant fails to show any “improper purpose” or “prejudice” in the instant forfeiture action.

We next address the central issue to this appeal: whether there were proper factual and legal grounds to effectuate a seizure and forfeiture of appellant’s vehicle. The court is guided in its reasoning by the written framework of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 28 (35 P.S. 780-128(a)).

This Act, as amended December 4, 1980, P.L. 1093, No. 186, § 3, provides for forfeiture of:

(1) All drug paraphernalia, controlled substances or other drugs which have been manufactured, distributed, dispensed, or acquired in violation of this act.
(2) All raw materials, products, and equipment of any kind which are used, or intended for use in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or other drug in violation of this act.
(3) All property which is used, or intended for use, as a container for property described in clause (1) or (2) of this subsection.
(4) All conveyances, including aircraft, vehicles, or vessels, which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clause (1) or (2).

35 P.S. 780-128(a) (emphasis added).

In application of this statute, the lower court made, inter alia, the following findings of fact and conclusions of law:

(1) Kerstetter was told to return to the laboratory in the morning with sandwiches and coffee for the people who would be manufacturing the controlled substance through the night.
(2) Kerstetter, along with a co-conspirator, returned in the morning on June 15 with the sandwiches and coffee that had been requested.
(3) Kerstetter had delivered the food in his 1979 Lincoln, four door sedan.
(4) There is little doubt that Kerstetter’s knowledge and involvement in the operation was significant.
(5) His delivery of food and drink to the co-conspirators at the laboratory on June 15 was aimed at allowing the manufacturing process to continue smoothly and without interruption.

Lower ct. op. at 5-6.

Appellant initially avers that the Commonwealth’s petition was defective because his activity did not fall within the language set forth and described in 35 P.S. 780-128; appellant further states that the Act makes no mention of the use of a conveyance to facilitate the manufacture of controlled substances. These alleged factual inadequacies, as raised by appellant in his first and fourth issues, will be addressed simultaneously.

Our research locates no Pennsylvania forfeiture cases on point with the facts of the instant case. Hence, we look to the case law construing 21 U.S.C. § 881(a)(4). The federal forfeiture provision is a mirror-image of 35 P.S. § 780-128(a)(4), i.e., an intentional patterning of the Pennsylvania Legislature, allowing the forfeiture remedy to become available as a means of combatting drug trafficking in Pennsylvania.

The statutory language of the federal forfeiture statute provides that a vehicle is subject to forfeiture if it is used “in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [contraband].” 21 U.S.C. § 881(a) (emphasis added). Facilitation has been broadly construed to encompass any use or intended use of a vehicle which makes trafficking in contraband “less difficult and laborious.” There is no requirement that contraband actually be found within the vehicle. United States v. One 1980 BMW 3201, 559 F.Supp. 382, 384 (E.D.N.Y.1983). A district court within the Third Circuit has defined “facilitation” by asking whether there was a reasonable ground for belief that the use of the automobile made the sale [transportation, receipt, possession, or concealment of contraband] less difficult and allowed it to remain more or less free from obstruction or hinderance. United States v. One 1981 Datsun 280ZX, 563 F.Supp. 470, 473 (E.D.Pa.1983) (citations and quotations omitted).

It is clear to this court that Kerstetter’s use of his 1979 Lincoln to deliver food and drink to his co-conspirators at the clandestine laboratory, made the manufacture of the controlled substance “less difficult and laborious” by allowing the process to continue without interruption. In addition, by having food supplies brought to the laboratory, the conspirators were able to remain at such for purposes of manufacturing, thus the use of the automobile made the possession and concealment of the controlled substance less difficult and allowed the manufacturing to remain more or less free from obstruction or hinderance.

We conclude that the use of the 1979 Lincoln, four door sedan, had a sufficient nexus with the drug manufacturing so as to justify application of the forfeiture provision under “The Controlled Substance, Drug, Device and Cosmetic Act,” 35 P.S. § 780-128(a)(4).

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. Evidence that a 1979 Lincoln Continental was used to deliver sandwiches and coffee to a residential dwelling does not subject the vehicle to confiscation and forfeiture. Forfeiture is not required merely because the occupants of the residence had there established a clandestine laboratory for the manufacture of methamphetamine.

The legislature, at 35 P.S. § 780-128(a) (1977 & 1984-1985 Supp.), has provided:

(a) The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
(1) All drug paraphernalia, controlled substances or other drugs which have been manufactured, distributed, dispensed, or acquired in violation of this act.
(2) All raw materials, products, and equipment of any kind which are used, or intended for use in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or other drug in violation of this act.
(3) All property which is used, or intended for use, as a container for property described in clause (1) or (2) of this subsection.
(4) All conveyances, including aircraft, vehicles, or vessels, which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clause (1) or (2)____
(5) All books, records, and research, including formulas, microfilm, tapes and data which are used, or intended for use, in violation of this act. (emphasis added). The trial court concluded, and the majority agrees, that in

this case the evidence established that the vehicle had been used to facilitate the transportation, sale, receipt, possession or concealment of methamphetamine. I disagree. I am unable to find any evidence that the vehicle was intended to be used for any such purpose. I reject the conclusion that because the vehicle was being used to deliver food and beverages it was being used to facilitate the sale, possession or concealment of a controlled substance.

The delivery of food and beverages, in my judgment, did not bear a direct, causal connection with the possession or manufacture of illegal drugs. The existence of any connection was speculative at best. If it did exist, the relationship between food and the possession of drugs was incidental only. I would conclude that the legislature intended to require more than a merely speculative and incidental connection of the type here revealed by the evidence. Otherwise, the forfeiture of vehicles will become a probability whenever the owner is or has been in any way involved in drug abuse. It will then become difficult to imagine any use of a vehicle by a person who is using or selling drugs or who intends to use or sell drugs which will escape the directive to confiscate. If that is what the legislature intended, I believe it would have said so. It would not have required that the vehicle be used to facilitate, i.e., to make easier or less difficult, the sale, possession or concealment of controlled substances or drug paraphernalia. The legislature, in my judgment, required a more direct relationship than that evident in the delivery of food to the home of one who is illegally in possession of a controlled substance.

I would reverse the forfeiture ordered by the trial court. I do not reach or consider whether the forfeiture proceedings in this case were issued “forthwith” after the vehicle had been seized without process.

      . Appellant raises four issues for our review, as follows:

        1. Does Commonwealth’s petition for forfeiture allege a factual basis for forfeiture of defendant's vehicle under Act of Assembly of 1972, April 14, P.L. 233, No. 64, § 28 (35 P.S. 780-128)?
      2. Was petition for forfeiture timely filed?
      3. Did lower court err in granting the Commonwealth’s request for continuance of October 5, 1982 hearing?
      4. Is lower court’s finding in favor of forfeiture supported in fact and law?
      Brief for Appellant at 11.

      . We note that the decision to allow the continuance of the October 5, 1982 hearing was well within the discretion of the trial court and thus of no moment in our decision. Pa.R.C.P. 216(A)(4).

      . Evidence that aspirin and vaseline was also being delivered was ambiguous and, apparently, was not accepted by the hearing court.


author: McEWEN, Judge:

text:
    496 A.2d 402
    COMMONWEALTH of Pennsylvania v. Sidney ROBINSON. Appeal of P.M.D.
    Superior Court of Pennsylvania.
    Argued May 21, 1985.
    Filed July 26, 1985.

      Before McEWEN, DEL SOLE and MONTEMURO, JJ.
   McEWEN, Judge:

The appeal here undertaken by trial counsel presents an issue quite collateral to the substantive appeal that has been separately undertaken by the Commonwealth at appeal No. 2032 of 1983. We must quash this appeal but so succinct an order will not suffice for we are instead compelled to an expression of concern to the profession.

The goal of the Post Conviction Hearing Act is to afford relief to a convict whom the system may have failed. The allegation of “ineffective counsel” has become a principal avenue of pursuit of that relief. We have witnessed the term — adversary system — assume a deeper meaning as post conviction counsel apply careful scrutiny to the preparation and the presentation by trial counsel of the defense. And while that scrutiny enables hindsight to seduce reason, post conviction counsel is, nonetheless, duty bound to focus upon fault.

Surely, however, criticism does not demand denunciation, nor advocacy require attack, nor fervor compel condemnation. Such an approach by post conviction counsel ill serves all, but, more importantly, such manner of assertion may well obscure the message. Certainly, clamor never convinces.

Nor should one proclaim the cause of the client so sacred that only denunciation will do, since such a plea rather reveals an inadequacy of skills and even implies that the judiciary must be first roused to be moved. Surely, fervor does not preclude eloquence, nor intensity dignity. It is our hope that post conviction counsel will in their dedication be thus mindful.

Appeal quashed.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    496 A.2d 403
    ORTHODOX CHURCH IN AMERICA, Dioceses of Eastern Pennsylvania, the Right Reverend Herman, Bishop of Philadelphia, St. Basil’s Russian Orthodox Church of Simpson, Pennsylvania, Michael S. Mikilak, Dennis Buberniak, Stephen Kowalsky, Denise Cobb, Esther Kowalsky, Mary Burke, Reverend Michael H. Evans, Appellees, v. Joseph MIKILAK, Anna Egnatovich, Alexander Kowalko, Stephen Fedak, Deemer V. Sumple, Karen Chaparo, June Barna, John Luchonok, Sr., and Frank Ference, John Doe, Jane Doe, Appellants.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed July 26, 1985.

      Gene E. Goldenziel, Scranton, for appellants.
    William R. Lee, Scranton, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

The parties, rival factions, vie for control of St. Basil’s Russian Orthodox Church. The matter before us resolves to a question of control over parish property. Appellants represent that part of the congregation which voted to secede. The lower court, finding that inadequate notice had preceded the vote, issued an order restoring possession of the church to appellees and enjoining appellants from interfering with appellees’ use of the property. By agreement of the parties, the lower court reached the ultimate issue and found that St. Basil’s was a “hierarchical,” as opposed to a “congregational” church.

Jurisdiction over an appeal in an action involving a corporation not-for-profit lies properly with the Commonwealth Court. See 42 Pa.C.S. Sec. 762. Rather than exercise our discretion to decide the questions in this case, we transfer this matter to the court vested with jurisdiction to hear the appeal, the Commonwealth Court.

Accordingly, pursuant to Pa.R.A.P. 751 and 42 Pa.C.S. Sec. 5103(a), this case is hereby transferred to the Commonwealth Court. Jurisdiction is relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

A majority of the members of St. Basil’s Russian Orthodox Greek Catholic Church of Simpson, Pennsylvania, voted to transfer affiliation from the ecclesiastical jurisdiction of the Orthodox Church in America to that of the Russian Orthodox Church Outside of Russia (Church Abroad). The Orthodox Church in America and the congregational minority, who are the appellees, commenced an action in equity in the Court of Common Pleas of Lackawanna County and obtained an injunction restoring possession of church property to them and preventing any future interference with their use of the property to conduct religious services. On appeal, the majority contends that St. Basil’s is a congregational church; and, therefore, the congregation, by majority vote, may use the church property to worship God in affiliation with whatever church body it chooses.

A majority of this Court has determined sua sponte that the appeal should be transferred for decision to the Commonwealth Court. I respectfully dissent. No party has objected to the jurisdiction of this Court to hear and decide the appeal; and, therefore, this Court’s jurisdiction has been perfected. Pa.R.App.P. 741(a). Because I am of the opinion that delay inherent in a transfer to the Commonwealth Court will be a disservice to the parties and will not serve the interests of judicial economy, I would retain jurisdiction and decide the appeal. See: Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983); Commonwealth v. Guinther, 290 Pa.Super. 441, 434 A.2d 834 (1981); Schrecengost v. Armstrong School Dist., 289 Pa. Super. 292, 433 A.2d 72 (1981); Jost v. Phoenixville Area School Dist., 267 Pa.Super. 461, 406 A.2d 1133 (1979). See also: Bethlehem Twp. v. Emrick, 77 Pa.Cmwlth. 327, 465 A.2d 1085 (1983), rev’d on other grounds, 506 Pa. 372, 485 A.2d 736 (1984).

The history of the struggle for power between three branches of the Russian Orthodox faith has been thoroughly briefed and argued. Also of assistance is the dissertation of Church history in St. Michael and Archangel Russian Orthodox Greek Catholic Church v. Uhniat, 436 Pa. 222, 259 A.2d 862 (1969), cert. denied, 400 U.S. 823, 91 S.Ct. 45, 27 L.Ed.2d 51 (1970) and Russian Church of Our Lady of Kazan v. Dunkel, 67 Misc.2d 1032, 326 N.Y.S.2d 727 (1971), aff'd, 33 N.Y.2d 456, 310 N.E.2d 307, 354 N.Y.S.2d 631 (1974). This history discloses that at the turn of the twentieth century, the Church had been united under the sole control of the Holy Synod in Russia. In 1917, a Patriarch was elected to replace the Holy Synod as head of the Church. In the early 1920s, refugees from the Bolshevik Revolution fled to Constantinople and eventually developed a competing branch of the Russian Orthodox faith which became known as the Russian Orthodox Church Outside of Russia (Church Abroad). The Church Abroad refused to submit to the Patriarch’s rule because it feared Soviet domination of the Patriarch. The Church Abroad is consequently considered by the Patriarch to be a schism, and it is not recognized canonically. During this period the American diocese of the Russian Orthodox Church was also concerned about possible Soviet influence on Church affairs. At an American Sobor held in April, 1924, the American diocese formed the Metropolia, later known as the Orthodox Church in America, which separated from the Patriarch’s rule in 1933. By the year 1933, therefore, there were three branches of the Russian Orthodox faith: the Church Abroad, The Orthodox Church in America, and the Patriarch, all of which were competing for control of parishes in America. In 1970, however, the Patriarch recognized the Orthodox Church in America as canonical with exclusive jurisdiction over all parishes affiliated with the Orthodox Church in America. Although the Patriarch and the Orthodox Church in America are now in affiliation, neither recognizes the Church Abroad.

The Church’s history is helpful in understanding the obviously deep-rooted feelings and beliefs of the parishioners involved in the present dispute, but the determinative issue in this litigation is whether St. Basil’s is a congregational or a subordinate church. If it is congregational, its property is subject to control by a majority of the members. If it is hierarchical, however, the law of Pennsylvania prevents the diversion of church property from control by the parent church body. Therefore, it is necessary to determine whether St. Basil’s is a church existing under the hierarchical jurisdiction of the Orthodox Church in America or whether it is an independent, congregational church possessing full power and authority to control its own property. If St. Basil’s is an independent, congregational church with power to control its own property, then a majority which elects to transfer allegiance to the Church Abroad can retain its property. Conversely, if it is hierarchical so that its property is held subject to control by the Orthodox Church in America, then its property would have to remain subject to hierarchical jurisdiction. Archbishop Most Reverend Metropolitan Ambrose Senyshyn v. Karlak, 462 Pa. 348, 351, 341 A.2d 114, 115-116 (1975); St. Michael and Archangel Russian Orthodox Greek Catholic Church v. Uhniat, supra; St. John Chrysostom Greek Catholic Church of Pittsburgh v. Elko, 436 Pa. 243, 259 A.2d 419 (1969); Pennsylvania State Spiritualist Assn. v. First Church of Spiritual Research & Healing, 430 Pa. 527, 529, 244 A.2d 31, 33 (1968).

The trial court held that St. Basil’s was not a congregational church but a hierarchical church and that its property, therefore, could only be used for religious services held in accordance with the doctrine and discipline of the Orthodox Church. My review of the record suggests that this conclusion of the trial court is not supported by the facts. The trial court also found, however, that inadequate notice had been given of the special congregational meeting at which the vote was taken to transfer affiliation. I agree that the notice was inadequate. Therefore, the issuance of the order restraining the congregational majority from interfering with religious services held by the minority according to the rites and traditions of the Orthodox Church in America was proper.

The trial court concluded that St. Basil’s was a hiearchical church. In doing so, the court relied almost exclusively upon the purpose clause in its corporate charter which provided: “Said corporation is formed for the purpose of the worship of Almighty God, according to the faith, doctrine, creed, discipline and usages of the Russian Orthodox Church.” I am unable to agree that the purpose clause defining the form of worship to be followed by St. Basil’s congregation is controlling of the present issue. This clause deals with ecclesiastical affiliation; it does not purport to determine title to the congregation’s property. When the trial court relied exclusively on the foregoing language to determine ownership of property, it fell into error. Of greater significance is the article in the charter which provides that title and control of all property of the corporation is subject to control of and disposition by a majority of the lay members. This article specifically provides as follows:

Any property, real or personal, which shall hereafter be bequeathed, devised or conveyed to said Corporation shall be taken and held, to enure to it, subject to the control and disposition of the lay members thereof, or such constituted officers or representatives thereof, as shall be composed of a majority of lay members.

This language suggests congregational ownership and control of church property and not ownership and control by the parent, hierarchical body.

If the articles of incorporation are deemed ambiguous, we may also look to the history of St. Basil’s. Archbishop Most Reverend Metropolitan Ambrose Senyshyn v. Karlak, supra. A review of St. Basil’s history confirms congregational ownership of property. In 1905, shortly after its inception as an unincorporated congregation, title to the real estate on which St. Basil’s is now erected was taken and held in common by the Russian Orthodox Church of St. Basil, in Simpson, Pennsylvania and by Archbishop Tikhon. The congregation of St. Basil’s was incorporated in 1924 consistently with Articles of Incorporation to which we have referred and which continue in effect today. In 1927, title to the church property, by litigation and subsequent conveyance, became vested solely in the name of the corporate congregation.

In 1956, St. Basil’s determined to withdraw its canonical affiliation with the Russian Orthodox Church and became affiliated with the Orthodox Church in America. Litigation to enjoin the congregation’s change of affiliation and its use of the church property for religious services according to the rites of the Orthodox Church in America was settled amicably. As a result of that settlement, St. Basil’s ownership of its property was confirmed; it was used for worship services consistent with its canonical affiliation with the Orthodox Church in America. This new affiliation by the congregation and its use of the church property in a manner allowing consummation thereof suggests most strongly that St. Basil’s was congregational, not hierarchical. Whatever claim the Orthodox Church in Russia might previously have had to the church property owned by St. Basil’s was terminated by the settlement of litigation pursuant to which St. Basil’s became affiliated with the Orthodox Church in America. The legal significance of the 1956 affiliation of St. Basil’s with the Orthodox Church in America is not lost merely because the schism between the Russian Orthodox Church and the Orthodox Church in America was healed in 1970.

The Orthodox Church in America, with which St. Basil’s became affiliated in 1956, was structured upon congregational, rather than hierarchical, control of church property. Thus, Section eight of the Statute of the Orthodox Church in America provided:

a) The parish or parish corporation is the sole owner of all parish property, assets, and funds. In administering them, however, the parishioners and the officers elected by them must always remember the religious nature, purposes and goals of the parish and act as trustees of God’s, not man’s, property. The parish, as the whole Church, serves God and cares for God’s work in the world, and all decisions concerning parish property must be inspired by that care and by the spiritual needs of the Church.
b) If the parish is abolished, its property is disposed of following the provisions of the parish bylaws. If no such provisions exist, the property is at the disposition of the diocesan authority. In all cases the sacred and untouchable items: the Holy Antimension, the Tabernacle and the Sacred Vessels must be surrendered to the Diocesan Bishop.

(Emphasis added). These governing rules continue in effect. They have not been altered by the renewed canonical relationship between the Orthodox Church in America and the Patriarch of the Russian Orthodox Church.

Appellees called as a witness a person deemed expert in the structure and canonical laws of the Orthodox Church in America. His testimony that each faithful is subject to the moral and religious authority of the bishop is not determinative of the right to control church property. The true significance of the relationship between the Orthodox Church in America and its member congregations becomes apparent when it is viewed in the light of each congregation’s right to reject the assignment of pastors to it. Similarly, the expert’s opinion that a congregational church cannot exist canonically within the Russian Orthodox Church suggests only that St. Basil’s, as an affiliate of the Russian Orthodox Church, was required to conduct worship services and other church activities consistently with the custom, traditions and discipline of the parent body. The church’s form of worship alone did not — it could not — alter the congregational structure of the corporate church and the right of its members to control the use and disposition of its property.

Because there is no evidence on this record to refute the congregational status of St. Basil’s as established by its articles of incorporation, its history of controlling its own property, and the rules of the Orthodox Church in America with which it became affiliated in 1956, I cannot agree with the contrary conclusion reached by the trial court.

In reaching this decision, I have been mindful of and have given careful consideration to the decision of the Supreme Court in St. Michael and Archangel Russian Orthodox Greek Catholic Church v. Uhniat, supra. Any similarity between the facts of that case and those of the present one, however, are superficial only. Indeed, the only similarity is that St. Michael’s in the prior case and St. Basil’s in this case had both been affiliated at one time with the Russian Orthodox Church. The provisions contained in the articles of incorporation of St. Basil’s, as well as its subsequent history, are different than those of St. Michael’s. With respect to St. Basil’s, they paint a picture more nearly in keeping with the facts in St. John the Baptist Greek Catholic Church of Allentown v. Musko, 448 Pa. 136, 292 A.2d 319 (1972), where the right of the congregation to control church property was affirmed.

Neither appellants nor appellees have argued on appeal the adequacy or inadequacy of the notice of the special congregational meeting at which St. Basil’s disaffiliation with the Orthodox Church in America was decided. The trial court determined, however, that the special congregational meeting was the source of congregational action which went far beyond matters of which notice had been given. The majority’s action disaffiliating with the Orthodox Church in America, therefore, was improper; and the trial court could properly enjoin use of the church property pursuant to that action. The trial court, of course, has not enjoined a second congregational meeting. Thus, affirmance on this limited ground would not establish finally the rights of the competing factions. On the record presently before this Court, however, I am of the opinion that the church property is subject to control and disposition according to the will of a majority of its lay members. However, all members are entitled to notice of the meeting at which its canonical affiliation and disposition of property are determined.

      . Although the initial relief requested was a preliminary injunction, the parties stipulated that the hearing be considered a final hearing; and a final decree was thereafter entered.

      . Pa.R.App.P. 741(a) provides as follows:
      (a) General rule. The failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the last day under these rules for the filing of the record shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of law vesting jurisdiction of such appeal in another appellate court.

      . It is interesting and not lacking in significance that despite this new affiliation, the purpose clause of St. Basil’s articles of incorporation was not altered. Despite the continuation of the purpose clause in its articles of incorporation, the congregation at all times asserted its right, by majority vote, to control its own property.


author: HOFFMAN, Judge:

text:
    496 A.2d 407
    Lenore DiPIETRO, Administratrix of the Estate of Thomas DiPietro, Deceased, v. CITY OF PHILADELPHIA, Jenkins Elevator and Machine Co. Appeal of CITY OF PHILADELPHIA. Lenore DiPIETRO, Administratrix of the Estate of Thomas DiPietro, Deceased, v. CITY OF PHILADELPHIA, and Jenkins Elevator and Machine Co. Appeal of JENKINS ELEVATOR AND MACHINE CO.
    Superior Court of Pennsylvania.
    Argued May 7, 1984.
    Decided June 28, 1985.
    Reargument Denied Aug. 28, 1985.

      John B. Day, Philadelphia, for appellant (at 00041), for appellee (at 00199).
    John M. McNally, Jr., Philadelphia, for appellant (at 00199), for appellee (at 00041).
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, CIRILLO, MONTEMURO, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

The issue on appeal is whether defendant City of Philadelphia (City) is entitled to judgment in the amount of $100,000 against additional defendant Jenkins Elevator and Machine Co. (Jenkins) because of the latter’s failure to purchase a contractor’s comprehensive liability insurance policy as required by the elevator service contract between them. In holding that the city is not so entitled, we affirm the order and judgment of the court below.

On December 5, 1980, a jury returned a verdict in favor of the plaintiff for $220,000 on her wrongful death action and $130,000 on her survival action against both defendants. The actions stemmed from a March 27, 1976 accident in which plaintiff’s decedent fell to his death down an elevator shaft. Also on December 5th, the court awarded the City $100,000 as against Jenkins based on the clause quoted below. See N.T. December 5, 1980 at 570-74. After post-trial motions were filed and argued, however, the court reversed itself and held that the City was not entitled to the $100,000. See Lower Court Opinion at 26-27. Instead, the court found that the right of contribution existed between the City and Jenkins as joint tortfeasors. Id. at 27-28. On December 9, 1981, the total award of $350,000 in damages was entered in plaintiffs favor and also amended to include $39,794.52 in delay damages. Both the City and Jenkins appealed from that judgment, and a three-judge panel of this Court affirmed in a Memorandum Opinion filed October 21, 1983. DiPietro v. City of Philadelphia, (Pa.Superior Ct.1983) (per curiam). Reargument before this Court en banc was granted solely on the issue presently before us.

The provision of the elevator service contract in question provides as follows:

Insurance — Contractor shall obtain and maintain in full force and effect covering the performance of the work under this contract, a Contractor’s comprehensive liability insurance policy. Said policy shall have minimum limits, unless otherwise specified, of $100,-000/300,000 public liability and $25,000 property damage and such insurance shall be endorsed with a hold harmless clause in favor of the City of Philadelphia. Evidence of such insurance shall be furnished to the Department of Public Property before the work is begun.

(City’s Exhibit 5 II 3.11) (emphasis added). Both Jenkins and the City agreed that the interpretation of the clause was a question of law for the court to decide and that Jenkins did not, in fact, maintain a policy endorsed with a hold harmless clause in favor of the City. (N.T. December 8, 1980 at 582-83).

At first glance, the City would appear to be entitled to damages for Jenkins’s failure to procure the stated policy. “[0]ne who enters into an agreement to obtain insurance and neglects to fulfill his obligation becomes himself insurer and liable as such.” Zortman v. Volk, 97 Pa.Superior Ct. 137, 140 (1929); accord Hagan Lumber Co. v. Duryea School District, 277 Pa. 345, 121 A. 107 (1923); see generally 18 G. Couch, Couch on Insurance 2d § 74:55 (rev. ed. 1983). Here, Jenkins was required to “obtain and maintain in full force and effect covering the performance of the work under this contract, a Contractor’s comprehensive liability insurance policy.” We note that these “policies are commonly issued to contractors insuring them against liability for damages or injuries occurring in connection with the performance of their contracts.” 11 G. Couch, Couch on Insurance 2d § 44:344 at 520-21 (rev. ed. 1982) (footnote omitted); see also Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 374, 243 A.2d 389, 394 (1968). “[Bjroadly speaking, the so-called comprehensive provision of a [liability] policy covers loss or damage caused by any risk or peril other than those expressly excluded or excepted from coverage.” Gehrlein Tire Co. v. American Employers Insurance Co., 243 F.Supp. 577, 581 (W.D.Pa.1964), aff'd per curiam, 348 F.2d 918 (3d Cir.1965). Here, then, such a policy would be primarily for Jenkins’s benefit, namely, to insure Jenkins against liabilities or damages arising from its performance of its elevator service contract with the City. Because the policy was to be “endorsed with a hold harmless clause in favor of the” City, however, the City would be entitled to indemnity. Thus, from the City’s viewpoint, the policy would provide a fund from which the City could recover for any secondary liability imposed against it.

However, we find that, even if Jenkins had taken out a contractor’s comprehensive liability policy, the City would not be able to recover the $100,000, the minimum limit under the policy, it seeks. Under Pennsylvania law, indemnity is disallowed if the indemnitee is actively negligent. Lackowitz v. Socony Mobil Oil Co., 194 F.Supp. 146, 147-48 (E.D.Pa.1961); Quinones v. Upper Moreland Township, 187 F.Supp 260, 267 (E.D.Pa.1960), aff'd in part and vacated in part, 293 F.2d 237 (3d Cir.1961); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 62, 171 A.2d 185, 190 (1961) (indemnity disallowed where both parties were actively and primarily negligent). While it is not contrary to public policy for a party to contract for indemnification against its own torts, Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 173 n. 5, 228 A.2d 656, 660 n. 5 (1967), the language in the indemnity provision must be clear and unequivocal, and the burden of proof falls on the party seeking such relief; the burden is even greater where such party drafted the agreement. Gimbel Brothers, Inc. v. William H. Vanderherchen, Inc., 468 F.2d 597, 599 (3d Cir.1972); see also Brown v. Moore, 247 F.2d 711, 723 (3d Cir.), cert. denied, 355 U.S. 882, 78 S.Ct. 148, 2 L.Ed.2d 112 (1957); Bush v. Chicago and Northwestern Transportation Corp., 522 F.Supp. 585, 587 (E.D.Pa.1981); Norfolk & Western Railway Co. v. Hardinger Transfer Co., Inc., 415 F.Supp. 507, 510 (W.D.Pa.1976), remanded, 558 F.2d 1028 (3d Cir.1977); Consolidation Coal Co., Inc. v. Liberty Mutual Insurance Co., 406 F.Supp. 1292, 1299 (W.D.Pa.1976); Fisher v. United States, 299 F.Supp. 1, 23 (E.D.Pa.1969), rev’d, 441 F.2d 1288 (3d Cir.1971); Baut v. Pethick Construction Co., 262 F.Supp 350, 363 (M.D.Pa.1966); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., supra, 404 Pa. at 57, 171 A.2d at 187; Tidewater Field Warehouses, Inc. v. Fred Whitaker Co., Inc., 370 Pa. 538, 540-41, 88 A.2d 796, 797 (1952); Perry v. Payne, 217 Pa. 252, 262, 66 A. 553, 557 (1907); Urban Redevelopment Authority v. Noralco Corp., 281 Pa.Superior Ct. 466, 471, 422 A.2d 563, 565-66 (1980); Potts v. Dow Chemical Co., 272 Pa.Superior Ct. 323, 326, 415 A.2d 1220, 1221 (1979). In the instant case, while we are not interpreting an indemnity provision as such, but rather a provision to procure insurance which is to be endorsed with a hold harmless clause, we nonetheless believe that these same principles are applicable because “to hold otherwise would be to put the indemnitor at the mercy of the indemnitee’s negligent conduct____” Quinones v. Township of Upper Moreland, supra at 266 (footnote omitted).

Here, the lower court found that the City was actively negligent. (Lower Court Opinion at 25-26). Because this finding is not before us for review, it follows that there must be clear and unequivocal language in the provision to procure insurance indicating that the city was to be protected from loss resulting from its own negligence. This is especially so because the specification was drawn by the City. The City concedes that paragraph 3.11 of the specification does not require Jenkins to indemnify the City for the latter’s own torts. Cf. Westinghouse Electric Co. v. Murphy, Inc., supra (language specifically referred to the negligence of the alleged indemnitee). The City’s reliance on Zortman, supra, and Hagan, supra, is misplaced because, in those cases, the party claiming recovery was to be an insured, not an indemnitee, under the insurance policies which were to be procured. In Zortman, the plaintiff failed to assign a fire insurance policy to the defendants, and the defendants were awarded damages (for fire loss to a dwelling) measured by appraisers, because “[i]f the contract with the insurance policy had been in force, the loss recoverable under the policy would have been determined by the appraisers, as they were appointed in accordance with the terms of the policy.” Zortman v. Volk, supra at 141. In Hagan, the defendant failed to maintain fire insurance on a school which the plaintiff was awarded a bid to erect. The insurance was “to be made payable to the parties hereto as their interests may appear.” Hagan Lumber Co. v. Duryea School District, supra 277 Pa. at 346, 121 A. at 107. The plaintiff was allowed to recover the damages sustained by it when the building burned down.

We do not agree with the lower court in the instant case that the language of the provision indicates that the contractor is liable for the City’s active negligence, thereby rendering Jenkins an insurer, because the cost of the insurance was included in the contract price and thus was paid for by the City. See Lower Court Opinion at 27 n. 6, citing Gulf Oil Corp. v. Mobile Drilling Barge or Vessel, 441 F.Supp. 1 (E.D.La.), aff'd, 565 F.2d 958 (5th Cir.1975). In Gulf Oil, the claimant was named as an additional insured under the policy at issue, supra at 6, whereas, here, the City was to be only an indemnitee under the insurance policy.

The City argues, instead, that, even assuming that its negligence may have been responsible for the elevator accident, Jenkins’s liability is in itself legally adequate to impose additional liability on it as the elevator owner. In support of this argument, the City cites Gilbert v. Korvette’s, Inc., 457 Pa. 602, 327 A.2d 94 (1974), for the proposition that, if a jury enters a verdict against an elevator service contractor, it must necessarily enter one against an elevator owner who owes the public the “highest degree of care.” Therefore, the City concludes, Jenkins is not being asked to insure the city against its own negligence, but rather to insure it for its liability “necessarily caused” by Jenkins’s liability. This argument is flawed. While the City’s proposition finds some support in Gilbert, see id., 457 Pa. at 624-25 n. 4, 327 A.2d at 106 n. 4 (JONES, C.J., concurring), the fact remains that here both the City and Jenkins were negligent. The Gilbert court itself noted that the harm suffered in that case, namely, foot injuries to a young boy, could have been caused by the negligence of the elevator contractor, the elevator owner, or both. Id., 457 Pa. at 615-16, 327 A.2d at 102. Indeed, the Court concluded that the jury’s finding of joint negligence was supported by the evidence, but nonetheless awarded a new trial as to the contractor because of an erroneous jury charge. Id., 457 Pa. at 617-18, 327 A.2d at 102-03. In the instant case, the City, as a joint tortfeasor, remains severally liable for the injuries to plaintiffs decedent regardless of whether a judgment has been recovered against Jenkins. See 42 Pa.C.S.A. § 8322. Thus, its liability does not stem from the negligence of Jenkins, but, rather, from its own negligent acts. It is, of course, well established that a joint tortfeasor cannot recover indemnity from those who helped to cause the injury. Builders Supply Co. v. McCabe, 366 Pa. 322, 328, 77 A.2d 368, 371 (1951); Lasprogata v. Qualls, 263 Pa.Superior Ct. 174, 178 n. 2, 397 A.2d 803, 805 n. 2 (1979).

Therefore, we cannot find that the City is entitled to the $100,000 by virtue of Jenkins’s failure to procure the comprehensive policy when liability would not exist even if Jenkins had taken out such a policy. Such a result would be novel indeed. The City could have protected itself by requiring that it be named as an additional insured on the policy or that the contractor save harmless the City from its own negligence or that of its agents. Accordingly, we affirm.

Affirmed.

      . Neither the City nor Jenkins argues the significance, if any, of the last sentence of the above-quoted provision, and thus we decline to consider it.

        . The lower court still found, however, that the City was not entitled to judgment for its claim. We agree, but for the reasons stated in this opinion.

      . Our conclusion is reinforced by considering the indemnification provision contained in the contract. The lower court found that the provision, see City's Exhibit 8, did not provide for indemnity against injury caused by the City’s negligence, see Lower Court Opinion at 16-26, and the City has not challenged that finding on reargument. We believe that the purpose of the insurance which Jenkins was to procure was to provide a fund to meet Jenkins’s indemnity obligation under the indemnity agreement, hence the requirement that the insurance include a “hold harmless” clause. Thus, we do not agree with the City that it “does not need the insurance since it is already protected under the indemnity language” and that the contractual construction we have adopted would be perceived by a business person as “unrealistic, if not silly.” (City of Philadelphia’s Post-Submission Communication Brief at 4).