author: SPAETH, President Judge:

text:
    493 A.2d 81
    Samuel K. SAVITZ v. William CICCOTELLI and Palma Ciccotelli, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 3, 1984.
    Filed March 29, 1985.
    Reargument Denied June 6, 1985.

      Louis S. Criden, Philadelphia, for appellants.
    William F. Livingston, Norristown, for appellee.
    Before SPAETH, President Judge, and BROSKY and McEWEN, JJ.
   SPAETH, President Judge:

This is an appeal from an order permitting appellee as a judgment lienor to foreclose against appellants’ real estate, including appellants’ residence. Appellants’ principal argument is that their residence should be exempt from foreclosure because they claimed it as exempt in Federal bankruptcy proceedings. This argument is without merit, for when the judgment was initially entered, the Federal Bankruptcy Reform Act of 1978, Act of November 6, 1978, Pub.L. No. 95-598, 92 Stat. 2549 (1978), effective generally October 1, 1979, 11 U.S.C. § 101 et seq., which contains the exemption on which appellants rely, had not been enacted. We therefore affirm.

On October 19, 1971, appellee filed a complaint in confession of judgment against appellants. The judgment, which was later revived, was secured by appellants’ real estate, consisting of appellants’ residence at 7145 Large Street, Philadelphia, and another property at 644 Durfor Street, Philadelphia.

In July 1979 the parties entered into a stipulation that, for an agreed upon time period, appellee would refrain from execution against the residence while appellants tried to obtain financing or sell the property, and that appellants would refrain from filing any proceedings to delay or avoid foreclosure of the residence. When appellants were unable to finance or sell the property, an order was entered on November 28, 1979, directing the sheriff to sell appellants’ residence.

On or about November 29, 1979, appellants jointly filed for bankruptcy in the United States District Court for the Eastern District of Pennsylvania. The petition listed appellee as a creditor and the residence as security for the debt. The residence was valued at approximately $30,000. Of this value, appellants claimed $15,000 as exempt. This claim was based on Section 522(b) of the Bankruptcy Act, which provides that a debtor may exempt from property of the estate either property that is exempt under State law or property that is exempt under Federal law. Appellants claimed that their residence was exempt, up to $15,000, under Section 522(d)(1) of the Bankruptcy Act.

As a consequence of the bankruptcy proceeding, proceedings against appellants’ real estate were automatically stayed. 11 U.S.C. § 362. On April 15, 1981, the bankruptcy court modified the automatic stay and permitted appellee to proceed against the property at 644 Durfor Street, although apparently appellee did not so proceed. The bankruptcy court also approved the report of the interim trustee. Although the record does not disclose any further proceedings in bankruptcy, appellants were apparently discharged in bankruptcy on or about June 30, 1981. Appellee then revived the judgment, and after further proceedings, the trial court entered an order allowing appellee to proceed to foreclose both properties. This appeal followed.

In regard to the property at 644 Durfor Street, appellants’ argument is unclear. They refer to both properties throughout their main argument, and seem to contend that the 644 Durfor Street property is exempt from foreclosure on the basis of their exemption claim in the bankruptcy court. However, they concede that “[i]f ... the debt due [appellee] from [appellants] exceeds the amount of the exemption allowed [appellants] under the Bankruptcy Code ..., [appellee’s] recovery should be against the 644 Durfor Street property only.” Brief for Appellants at 10. Since the Durfor Street property was not claimed as exempt in bankruptcy, and since the bankruptcy court by its order of April 15, 1981, allowed appellee to proceed against it, we can find no basis for appellants’ argument that appellee may not now proceed against it. We also note that in a prior pleading appellants admitted, or asserted, that appellee’s action “must be limited to the property at 644 Dufor [sic] Street____” Defendants’ Motion to Dismiss Plaintiff’s Petition to File Certificate of Readiness Nunc Pro Tunc, filed Oct. 4, 1982.

In regard to their residence, appellants argue that property claimed as exempt in a bankruptcy proceeding is protected from “collateral attack in state court by the bankrupt’s creditors.” Brief for Appellants at 8. We are not persuaded by this argument. It assumes that the exemption for residential real estate provided by the Bankruptcy Act will be recognized as consistent with Pennsylvania law, which provides no counterpart to the Federal exemption, although 42 Pa.C.S. § 8123(a) allows a debtor to exempt property, including real estate, from judgment up to a value of $300. This assumption may or may not be correct. Cf. Beneficial Consumer Discount Co. v. Hamlin, 263 Pa.Super. 393, 398 A.2d 193 (1979); and see Pa.R. Civ.P. 3123.1, note (noting “Pennsylvania and Federal law provide numerous exemptions of property from execution” and listing examples); 13 Std.Pa.Practice 2d § 74:13 (noting exemptions permitted under Bankruptcy Act as well as other federal statutes). We need not decide the point. For the Federal exemption for residential real estate on which appellants rely did not become effective until October 1, 1979, the effective date of the Bankruptcy Reform Act of 1978, supra, and appellee’s judgment was initially entered against appellants’ real estate in 1971. We will not give retroactive effect to a Federal exemption that has no State counterpart. “No bankruptcy law shall be construed to eliminate property rights which existed before the law was enacted in the absence of an explicit command from Congress.” United States v. Security Industrial Bank, 459 U.S. 70, 81, 103 S.Ct. 407, 408, 74 L.Ed.2d 235 (1982).

Affirmed.

      . This act has subsequently been amended; sections applicable to appellants were those as originally enacted.

      . 11 U.S.C. § 522(b) provides:
      (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate either—
      (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative,
      (2) (A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; and
      (B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law.

      . 11 U.S.C. § 522(d)(1) provides:
      (d) The following property may be exempted under subsection (b)(1) of this section:
      (1) The debtor’s aggregate interest, not to exceed $7,500 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor.

      . 11 U.S.C. § 362 provides in part:
      § 362. Automatic stay
      (а) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
      (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
      (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
      (3) any act to obtain possession of property of the estate or of property from the estate;
      (4) any act to create, perfect, or enforce any lien against property of the estate;
      (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
      (б) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
      (7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
      (8) the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor.
      (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
      (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
      (2) with respect to a stay of an act against property, if—
      (A) the debtor does not have an equity in such property; and
      (B) such property is not necessary to an effective reorganization.

      . The bankruptcy court "ORDERED AND DECREED that the automatic stay and all other proceedings in connection with the property located at 644 Dufor [sic] St., Philadelphia, Pa. 19148 be modified and that the plaintiff, Samuel Savitz, be permitted to proceed only as to said property; ____"

      . The report is not part of the record in this case.

      . Since the report of the trustee is not part of the record, we do not know whether appellants’ claimed residential exemption was allowed. Appellee appears to question the claimed exemption in his brief to us. Brief for Appellee at 12-13. See 11 U.S.C. § 522, Notes of Committee on the Judiciary, House Report No. 95-595: "Property may be exempted even if it is subject to a lien, but only the unencumbered portion of the property is to be counted in computing the ‘value’ of the property for the purposes of exemption.” However, we need not decide this issue. If the bankruptcy court did not allow the exemption, then of course there is no impediment to appellee proceeding; but as will appear, the same is true even if the court allowed the exemption.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    493 A.2d 84
    Joanne McMANUS, Appellant, v. CHUBB GROUP OF INSURANCE COMPANIES, Appellee.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed March 29, 1985.
    Reargument Denied June 6, 1985.

      James L. Womer, Philadelphia, for appellant.
    Alan G. Rosenbloom, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

After Joanne McManus, the plaintiff, had consistently refused to comply with court orders directing her to produce for examination the policy of insurance covering the vehicle which she was driving at the time of her accident, the trial court granted a defense motion to hold her in contempt, directed her to pay the costs of the motion for contempt, as well as prior assessments of costs, and stated that if the costs were not paid within twenty-one days, the action would be dismissed with prejudice. Before the twenty-one day period had expired, McManus appealed. We quash the appeal. There is no final order. The underlying action has not been dismissed, appellant has not been punished for contempt, the costs have not been paid, both parties are still in court, and the pending action must be litigated further.

Joanne McManus was injured in a two car collision on April 17, 1977. She commenced an action against the other driver which was settled for $15,000.00 on or about February 17, 1981. She then made a claim against her insurance carrier, Fireman’s Insurance Company of Newark, New Jersey, to recover underinsured motorist benefits. A declaratory judgment was entered in favor of her insurance company on August 18, 1982. She also presented a claim to the present defendant and appellee, Chubb Group of Insurance Companies, which had issued a policy of insurance on a vehicle owned by plaintiff’s father. The claim apparently was for underinsured motorist benefits. Chubb appointed an arbitrator to hear the dispute but objected to and refused to accept plaintiff’s arbitrator because he shared offices with plaintiff’s counsel and allegedly had a prior or ongoing relationship with such counsel. Plaintiff then commenced an action in assumpsit against Chubb.

Chubb filed, inter alia, a request for production of a copy of the Fireman’s policy of insurance which had been in effect on plaintiff’s vehicle at the time of the accident. Chubb also filed interrogatories and requests for admissions. Plaintiff did not respond. Therefore, Chubb filed a motion to compel discovery. On November 6, 1981, plaintiff-appellant was directed to file answers to Chubb’s interrogatories and also to Chubb’s requests for admissions within twenty days. Plaintiff refused to comply. There followed a series of motions and orders pertaining to Chubb’s requested discovery. Plaintiff and her attorney continued their refusal to comply. On two occasions, motions for sanctions in the nature of a judgment of non pros were denied, but plaintiff was directed to pay $150.00 to Chubb as the costs of presenting the motions. Finally, after plaintiff’s continuous, adamant refusals to comply with the court’s orders, the following order was entered:

AND NOW, this 15th day of December, 1982, it is hereby ORDERED AND DECREED that plaintiff’s uncontested motion for contempt is granted; costs in favor of defendant and against plaintiff are imposed in the sum of $150.00 for filing this motion. It is further ORDERED and DECREED that the foregoing assessment of costs and all other outstanding assessments are to be paid within twenty one (21) days from the date hereof. Unless an affidavit is submitted to the court within twenty one (21) days from the date hereof stating that all outstanding court imposed costs are paid, an Order will be entered dismissing this action with prejudice.

It is from this order that the present appeal was filed.

“It is clear that, unless sanctions are imposed, an order declaring a party in contempt is interlocutory.” Hester v. Bagnato, 292 Pa.Super. 322, 323, 437 A.2d 66, 67 (1981). Unless the order of contempt is final, this Court lacks jurisdiction to entertain an appeal. Guisler v. Alexander, 307 Pa.Super. 219, 220-221, 453 A.2d 4, 5 (1982); Cedar Valley Civic Association v. Schnabel, 239 Pa.Super. 486, 488, 362 A.2d 993, 994 (1976).

The order in this case was entered pursuant to Pa.R.C.P. 4019(c)(4). The threatened sanction, which is dismissal of the action, has not been imposed. It may or may not be imposed in the future. Unless and until it is, however, appellant is not out of court. See: Rulli v. Dunn, 337 Pa.Super. 613, 487 A.2d 430 (1985). Compare: Marshall v. Southeastern Pennsylvania Transportation Authority, 76 Pa.Cmwlth. 205, 463 A.2d 1215 (1983).

Appellant argues that the portion of the order assessing the payment of costs is a final order. The award of expenses in obtaining compliance with discovery orders is authorized by Pa.R.C.P. 4019(g). An order awarding expenses pursuant to this rule is collateral to the main action. In determining whether such an order is appealable, therefore, we apply the approach of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), where the Supreme Court carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment will result in irreparable loss of the right asserted. Under this exception, an appeal may be taken from an order if (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. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975).

An order awarding the expenses involved in presenting a motion for sanctions is collateral to the main action. However, there is no good reason why it should be reviewed before final judgment in the principal action. The purpose of the main action is to recover a money judgment. An ultimate review of costs imposed pursuant to R.C.P. 4019(g), therefore, can be achieved at the time of reviewing the final judgment. Meanwhile, the right of review will not have been lost. Indeed, by refusing an interim review of the sanction order, the main action can proceed uninterrupted to a final judgment; and thereafter, the final judgment, as well as interlocutory orders entered by the court, can be reviewed in one appeal. Hankin v. Hankin, 338 Pa.Super. 442, 487 A.2d 1363 (1985).

It must be conceded that in Jerry Pitell Co. v. Penn State Construction, Inc., 277 Pa.Super. 575, 419 A.2d 1299 (1980) a panel of this Court undertook to review an order awarding counsel fees and costs incurred in preparing and presenting a motion for sanctions. That decisión can be distinguished because the order awarding counsel fees and costs had been reduced to judgment, and the appeal was filed from that judgment. See: Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981). Allowing an appeal from an order awarding sanctions in the form of costs and counsel fees under Pa.R.C.P. 4019(g) would violate the admonition of the Supreme Court in Pugar v. Greco, supra, 483 Pa. at 75, 394 A.2d at 546, that “whenever possible, review must await the determination of a suit notwithstanding any resulting inconvenience to a party.” In this respect, we agree with Judge Wickersham who wrote in Hall v. Lee, supra, 285 Pa.Super. at 548, 428 A.2d at 181, “if this order were found to be presently appealable, it would tend to discourage the [trial] court’s use of this disciplinary tool, and it would merely become another weapon in the arsenal of dilatory practice for the attorney who wished to delay judicial proceedings.”

As a general rule, this Court will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judgment in the main action. There are no unusual circumstances recommending interim review in the instant case. The appeal, therefore, will be quashed.

Appellee has requested that we determine that the present appeal is frivolous and impose delay damages pursuant to Pa.R.A.P. 2744. We reject this request. Because of the uncertainty, perhaps confusion, which exists regarding the appealability of Rule 4019 sanction orders, caused in part by appellate decisions which have not been uniformly predictable, we will give appellant the benefit of the doubt. The costs of the appeal, however, must be paid by appellant. Pa.R.A.P. 2741(1).

Appeal quashed. Costs to be paid by appellant.


author: DEL SOLE, Judge: JOHNSON, Judge,

text:
    493 A.2d 88
    COMMONWEALTH of Pennsylvania v. Barry PATTERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed March 29, 1985.
    Reargument Denied June 6, 1985.
    Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Appellant complains that the trial court improperly denied his request for a waiver of a jury trial and erred in not conducting a colloquy of his request, thereby violating Pa.R.Crim.P. 1101. We agree.

Appellant was charged with rape, robbery, burglary and aggravated assault. On October 25, 1982, Appellant requested to waive his right to a trial by jury. The Commonwealth, according to 42 Pa.C.S.A. 5104(c) , demanded a jury trial. Appellant’s request was denied without a colloquy.

The Pennsylvania Supreme Court, in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1983), declared 5104(c) unconstitutional and ruled that courts must apply Pa.R. Crim.P. 1101 which states:

Rule 1101 Waiver of Jury Trial
In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record____

The trial court acted on Appellant’s request two months prior to the Sorrell decision. However, the application of that decision has been made retroactive. This Court, in Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (1983), remanded for retrial and issued a rule requiring the application of Pa.R.Crim.P. 1101 where the record did not indicate reasons for Maxwell’s request to waive his right to be tried by a jury, the Commonwealth’s reasons for demanding a jury trial and the trial court colloquy with Maxwell as required under the rule. Commonwealth v. Maxwell, 312 Pa.Superior Ct. at 562, 459 A.2d at 364. Because no colloquy on waiver of jury trial was made part of the record in this case, we must remand for retrial based on Sorrell. See also, Commonwealth v. Garwood, 320 Pa.Super. 109, 466 A.2d 1086 (1983). Because we remand on this issue, we find it unnecessary to deal with Appellant’s remaining assignments of error.

Judgment of Sentence is reversed and the case is remanded for retrial and proceedings consistent with Pa.R.Crim.P. 1101.

Jurisdiction is relinquished.

JOHNSON, J., concurs with opinion.

JOHNSON, Judge,

concurring:

I concur in the result reached by the Court, but wi te separately to clarify why I believe a remand is in order.

As stated by the majority, Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1983) declared 42 Pa.C.S. § 5104(c) to be unconstitutional, and mandated the application of Pa.R.Crim.P. 1101. In my view, a remand is only necessary when a request for a non-jury trial has been denied solely because the Commonwealth has demanded a jury trial. This appears to be the case as applied to appellant herein. Although there may have been sufficient justification for denying appellant’s request for a non-jury trial, the trial judge’s inquiry ceased upon the Commonwealth’s demand to go before a jury.

I note further that, where it is clear from the record that appellant’s request for a non-jury trial is motivated by an obvious attempt to maneuver for another judge who might be more lenient, the trial court’s denial will be upheld. See Commonwealth v. Kellum, 339 Pa.Super. 513, 489 A.2d 758 (1985).

      . Section 5104(c) provided:
      In criminal cases, the Commonwealth shall have the same right to trial by jury as does the accused.


author: BECK, Judge:

text:
    493 A.2d 89
    Joseph D. MORING and Mary Alice Moring v. William DUNNE and City of Philadelphia. Appeal of William DUNNE. Joseph D. MORING and Mary Alice Moring v. Detective William DUNNE and City of Philadelphia. Appeal of CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued June 2, 1983.
    Filed April 26, 1985.
    Petition for Reargument Dismissed June 4, 1985.

      Richard M. Sanders, Philadelphia, for appellant (at 3204) and for appellee (at 658).
    Sarah Makin, Philadelphia, for appellant (at 658) and for appellee (at 3204).
    Keith S. Erbstein, Philadelphia, for appellees.
    Before ROWLEY, WIEAND and BECK, JJ.
   BECK, Judge:

The threshold issue on appeal is whether the lower court properly granted appellants’ petitions for leave to file a notice of appeal nunc pro tunc. We hold that these petitions were erroneously granted and therefore quash the appeals as untimely filed.

On October 23, 1973, at approximately 11:45 p.m., in the Allan’s Alley bar in Philadelphia, Joseph Moring was shot and critically wounded by William Dunne, a Philadelphia police officer, following a series of physical confrontations between the two men. Moring filed a complaint in trespass against Dunne and the City of Philadelphia seeking damages for his injuries. The matter was heard without a jury before the lower court on May 8-9, 1980. On May 20, 1980, the court made findings of fact on liability in favor of Moring and against the defendants, jointly and severally, in the amount of $200,000. The defendants then filed exceptions to these findings. On May 15, 1981, the lower court dismissed the exceptions and directed the Prothonotary to enter judgment in Moring’s favor in the amount of $211,-880.43. Both Dunne and the City subsequently appealed from the May 15, 1981 order.

With regard to Dunne’s appeal, sometime after September 22, 1981, Dunne filed a petition for leave to file a notice of appeal nunc pro tunc in the lower court. On November 18, the lower court entered an order permitting Dunne “to file a notice of appeal from the Order of this Court dated June 15, 1981.” On December 9, Dunne filed a notice of appeal “from the Order entered in this matter on the 15th day of June, 1981, as per order of Judge Wilson dated 11/18/81.” On December 10, the lower court amended its November 18 order to read: “In consideration of the Petition filed by defendant, William Dunne and upon good cause shown, it is hereby ORDERED and DECREED that defendant William Dunne shall be permitted to file a notice of appeal from the Order of this Court dated May 15, 1981.” On December 16, Dunne filed an Amended Notice of Appeal from the May 15, 1981 order. This appeal was docketed on December 17, 1981.

With regard to the City’s appeal, on June 23, 1981, the City filed a petition for leave to file a notice of appeal nunc pro tunc in the Superior Court. On September 8, this Court denied that petition without prejudice to the City to file it in the Court of Common Pleas. The City then filed a petition in the lower court and, on November 2, 1981, the lower court granted this petition. The City’s notice of appeal from the May 15, 1981 order was filed on or about February 24, 1982 and was docketed on March 2, 1982.

Pennsylvania Rule of Appellate Procedure 903(a) expressly provides that a notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 105(b) states that:

An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal

(Emphasis added). It is well-established that the extension of the filing period or the allowance of an appeal nunc pro tunc will be permitted only in extraordinary circumstances, namely, fraud or some breakdown in the processes of the court. Pa.R.A.P. 105(b) note; West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Englert, 311 Pa.Superior 78, 81, 457 A.2d 121, 123 (1983); Maxton v. Philadelphia Housing Authority, 308 Pa.Superior 444, 448, 454 A.2d 618, 620 (1982); Conrad v. Kemmerer, 301 Pa.Superior 410, 412, 447 A.2d 1032, 1034 (1982); Marcinak v. Lavery, 286 Pa.Superior 92, 96, 428 A.2d 587, 589 (1981); International Brotherhood of Electrical Workers, 259 Pa.Superior 65, 67, 393 A.2d 718, 719 (1978); Provident National Bank v. Rooklin, 250 Pa.Superior 194, 199, 378 A.2d 893, 895 (1977); McKanick v. Rubin, 244 Pa.Superior 467, 470-71, 368 A.2d 815, 817 (1976); Leveto v. National Fuel Gas Distribution Corp., 243 Pa.Superior 510, 516, 366 A.2d 270, 273 (1976); Scharfman v. Philadelphia Transportation Co., 234 Pa.Superior 563, 571 n. 7, 340 A.2d 539, 543 n. 7 (1975); Riley’s Grille Liquor License Case, 213 Pa.Superior 46, 48, 245 A.2d 725, 726 (1968); Southwest Philadelphia Plumbing Supply v. Catanzaro, 181 Pa.Superior 209, 212, 124 A.2d 476, 477 (1956); Perin v. Gochnauer, 173 Pa.Superior 609, 612, 98 A.2d 755, 756-57 (1953). Additionally, the mere neglect or mistake of the appellant or his counsel is not considered a sufficient excuse for failure to file a timely appeal. State Farm Mutual Automobile Insurance Co. v. Schultz, 281 Pa.Superior 212, 218 n. 7, 421 A.2d 1224, 1227 n. 7 (1980); International Brotherhood of Electrical Workers, supra, 259 Pa.Superior at 67, 393 A.2d at 720; McKanick v. Rubin, supra, 244 Pa.Superior at 470-71, 368 A.2d at 818; W. W. Grainger, Inc. v. Ruth, 192 Pa.Superior 446, 449, 161 A.2d 644, 646 (1960).

However, in 1979, our Supreme Court held that a wow-negligent failure to file a timely appeal would be grounds for allowing an appellant to file an appeal nunc pro tunc where the appeal was filed within a very short time, during which any prejudice to the other party would necessarily be minimal. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). In Bass, the appeal papers had been typed up and were ready for filing on Friday, July 7, six days prior to the expiration of the time allowed for filing the appeal, and the papers were placed in a folder on the corner of the secretary’s desk in the law office, along with other papers to be filed. However, during the late afternoon on that day, the secretary became ill and left work. She was out because of illness during the entire following week and returned to work on Monday, July 17. Although normal office procedure was to have another secretary check the desk of a secretary who was ill, in this case, the secretary who was ill was the one who routinely did the checking. The petition for permission to appeal nunc pro tunc was filed on Monday, July 17, four days after the appeal period had expired. On these facts, the Court concluded that neither the attorney nor the secretary acted negligently. Id., 485 Pa. at 258-60, 401 A.2d at 1135. By way of analogy, the Supreme Court cited the example of an attorney who has a heart attack or other illness on the way to the Prothonotary’s Office to file an appeal, thereby causing him to lose control of his vehicle and injure a bystander: “Just as the attorney would not be liable for damages to the bystander resulting from his non-negligent driving, his client should not suffer because the attorney, as a result of his illness, was unable to file the appeal.” Id., 485 Pa. at 260, 401 A.2d at 1135.

The Bass exception has not been readily applied by this Court. In State Farm Mutual Automobile Insurance Co. v. Schultz, supra, we quashed an untimely appeal where the notice of appeal was not filed until the 31st day after the entry of the lower court’s order. In reconciling this result with Bass, we concluded that, in Schultz, “[t]here [was] no indication in the record that the late filing ... was caused by non-negligent happenstance.” 281 Pa.Superior at 218 n. 7, 421 A.2d at 1227 n. 7. Similarly, in Commonwealth v. Keys, 313 Pa.Superior 410, 460 A.2d 253 (1983), where the error was the omission of the bill or information number on the notice of appeal, we quashed the appeals because “[t]here [was] no indication in the record that the late filing here was caused by non-negligent happenstance.” Id., 313 Pa.Superior Ct. at 414, 460 A.2d at 254-55. Finally, in Gallardy v. Ashcraft, 288 Pa.Superior 37, 430 A.2d 1201 (1981), this Court declined to apply retroactively the Bass exception for “non-negligence” to allow an appeal when the appeal time had expired prior to the date of the Bass decision. Id., 288 Pa.Superior Ct. at 43-44, 430 A.2d at 1203-04. Moreover, we commented that the “Bass majority applied its ‘non-negligence’ standard to a set of facts which plainly seemed to involve negligence under any traditional meaning of the term.” Id., 288 Pa.Superior Ct. at 43 n. 8, 430 A.2d at 1204 n. 8.

Here, both appeals were filed several months late. Because there is no allegation or evidence of fraud or court breakdown, we must determine if appellants have satisfied the Bass exception for non-negligence. In Dunne’s petition for leave to file a notice of appeal nunc pro tunc, he alleged that (1) he received a letter dated September 22, 1981, from Marsha Bashman, the wife of his attorney at that time, informing him that his attorney had died on March 14, 1981, that his exceptions had been denied, and that he should obtain substitute counsel; (2) this letter was the first notice which he received of his attorney’s death and of the court’s action on his exceptions; and (3) he then acted promptly to secure new counsel and to petition the court for permission to appeal nunc pro tunc from the May 15, 1981 order. In the City’s first petition, filed in the Superior Court, the City alleged that (1) the record of the case was sent to the attorney in charge of appeals by the trial attorney without a notice of appeal having been filed; (2) the appeals attorney terminated her employment with the City during the appeal period, and her secretary was out on extended sick leave during the final weeks of the attorney’s employment; (3) as a result of office reorganization, “present counsel” [then, Chief Assistant City Solicitor Arlene F. Bell] was placed in charge of appeals for the city during the appeal period; (4) during this entire period of time, the Office of the City’s Law Department was undergoing physical renovation, resulting in moving to temporary quarters and packing and unpacking of records and materials; (5) “present counsel” prepared for typing a notice of appeal which, although typed, was lost temporarily and not returned to counsel for signature and filing during the appeal period; and (6) the City acted promptly, upon discovery of the error, to petition this Court for relief, and the delay was not so long as to prejudice the plaintiff. In the City’s second petition, filed in the lower court, it alleged that (1) on June 23, 1981, Bell filed a petition for leave to file a notice of appeal nunc pro tunc with the Superior Court; (2) by letter dated September 15, 1981, this Court notified the City that the petition was denied without prejudice to the City’s right to refile it in the lower court; (3) the petitioner on behalf of the City [Deputy City Solicitor Jill A. Douthett] had no knowledge of the facts set forth in the previously filed petition because she commenced her employment in the Law Department on August 24, 1981, and Bell was no longer employed in the Law Department; and (4) the City incorporated into the instant petition the sworn averments of the previously filed petition.

After careful consideration of the above-described allegations in appellants’ petitions, we conclude that there is no evidence in the record to indicate that the late filings were caused by “non-negligent happenstance.” See Commonwealth v. Keys, supra, 313 Pa.Superior at 414, 460 A.2d at 255; State Farm Mutual Automobile Insurance Co. v. Schultz, supra, 281 Pa.Superior at 218 n. 7, 421 A.2d at 1227 n. 7. Although the death of Dunne’s former attorney could qualify as a non-negligent event, we note that the September 22, 1981 letter indicated that Dunne was already aware of his attorney’s death prior to receiving the letter: “As you already know, my husband, Stanley Bashman, died on March 14, 1981____ As I mentioned before, you may wish to retain other counsel to protect your interest in this matter.” (Emphasis added). Moreover, even assuming that Dunne was unaware prior to September 22, 1981, we find that Dunne’s failure to contact Bashman as to the status of his case or to question the sixteen-month silence from the filing of his exceptions in late May, 1980, until his receipt of the letter in late September, 1981, cannot qualify as “non-negligence.” Unlike the situation in Bass, where the error was quickly discovered and remedied within a few days after the expiration of the appeal period, the instant failure to appeal by June 14, 1981 was not remedied until several months later. As our Supreme Court stated in Bass, “[wjithout doubt the passage of any but the briefest period of time during which an appeal is not timely filed would make it most difficult to arrive at a conclusion that the failure to file was nonnegligent.” 485 Pa. at 260, 401 A.2d at 1135. Additionally, we find that the city’s explanation for failing to file a timely appeal reveals negligent conduct on several occasions.

Under these circumstances, we find Bass clearly distinguishable from the instant case. “Untimely appeals present a jurisdictional issue and must be quashed.” Murphy v. Brong, 321 Pa.Superior 340, 344, 468 A.2d 509, 511 (1983). Accordingly, we must quash the instant appeals.

Appeals quashed.

       These appeals were consolidated pursuant to a May 12, 1982 stipulation.
      On appeal, Dunne raises the following issues: (1) whether Dunne was acting as an agent for the City of Philadelphia, and (2) whether Dunne exercised reasonable care in the use of force and in effecting Moring’s arrest. Additionally, the City raises the following issues: (1) whether the lower court abused its discretion in denying the City’s motion to preclude the testimony of Moring and his physician, and (2) whether the lower court abused its discretion in denying the City’s motion for compulsory nonsuit and in dismissing the City's exceptions. Because of our disposition of this case, however, we need not address appellants’ claims.


author: CIRILLO, Judge:

text:
    493 A.2d 93
    Helen C. SWIDZINSKI, Executrix of the Estate of Joseph C. Schultz, Appellant, v. Eugenia SCHULTZ and Kenneth Schultz.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed May 17, 1985.
    Petition for Allowance of Appeal Denied Nov. 12,1985.

      William D. Kemper, Butler, for appellant.
    Frank P. Krizner, Butler, for appellees.
    Before CIRILLO, HOFFMAN and ROSENWALD , JJ.

       Judge Edward Rosenwald, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   CIRILLO, Judge:

Appellant Helen Swidzinski is the sister of the decedent, Joseph Schultz, and the executrix of his estate. Joseph Schultz is survived by his wife, appellee Eugenia Schultz, his son, appellee Kenneth Schultz, and other children who are not parties to this action. Joseph Schultz’s only assets were real estate owned jointly with his wife and a bank account held jointly with Kenneth. In his will, he directed that his funeral expenses be paid out of the assets of his estate; however, his estate is insolvent.

Appellant, as executrix of the estate, sued appellees in assumpsit to recover the testator’s funeral expenses. The appellees demurred to the complaint. The trial court sustained their demurrers, and stated that neither a widow nor a surviving child is liable for the funeral expenses of a husband or parent, where the estate is insolvent.

Appellant presents two questions, which we will answer together:

1) If a husband is presumed to be primarily liable for the funeral expenses of his deceased spouse, does the same presumption of liability apply to make the wife liable for the husband’s funeral expenses?
2) Is the obligation of a spouse to pay funeral expenses of his/her deceased spouse relieved totally by language in the decedent’s Will which states that funeral expenses are to be paid out of the estate of the decedent whenever the decedent’s estate is insolvent?

The scope of review of an appellate court, when confronted with a challenge to a demurrer, is limited. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). We may sustain a demurrer only if it is clear, on the face of the complaint, that the plaintiff has no cause of action. Mahoney, supra; Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 471 A.2d 856 (1984); Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982); Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981). We do not find this requisite clarity in the instant case.

The Probate, Estates and Fiduciaries Code provides that, if the applicable assets of an estate are insufficient, the decedent’s personal representative shall pay, in order, the estate’s administration costs, the family exemption and the decedent’s funeral and burial expenses. 20 Pa.C.S. § 3392. A testator may provide in his will for his burial. See Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904); 22 Am.Jur.2d, Dead Bodies § 12; Annot., 7 A.L.R.3d 747 (1966). However, burial costs have long been a charge imposed by law on an estate. Wright v. Allstate Insurance Co., 271 Pa.Super. 559, 414 A.2d 395 (1979); Volkwein v. Volkwein, 146 Pa.Super. 265, 22 A.2d 81 (1941). Appellant now argues that, under the Pennsylvania Constitution, a surviving wife should account for her husband’s funeral costs, where his estate is insolvent.

Historically, a husband was responsible for his family’s necessities, including funeral expenses. See Waesch Estate, 166 Pa. 204, 30 A. 1124 (1895); Samuels v. Hirz, 189 Pa.Super. 492, 151 A.2d 640 (1959); 41 Am.Jur.2d, Husband and Wife §§ 348-370. This rule presumed that the husband was in a better individual economic situation than his wife or her estate; in addition, it defined the marriage contract as one to which the husband contributed monetary support and the wife domestic services.

The enactment of Married Women’s statutes in many states recognized the separate estate of a wife and began the erosion of the common-law rule. See Bair v. Robinson, 108 Pa. (12 Out.) 247, aff'd. per curiam 3 A. 669 (1886) (where husband insolvent, wife held bound to her contract for funeral arrangements for her mother, who had resided with couple). In Pennsylvania, the Marriage Law states that a contract creditor may sue both a husband and wife, and levy upon the wife’s separate property if execution upon the husband’s is returned unsatisfied. 48 P.S. § 116.

However, the husband remained primarily responsible for the family’s necessities, so that a wife whose husband had deserted the family could use her estate to provide those necessities, and then assert a quasi-contractual right against her husband to recover her expenditures. Adler v. Adler, 171 Pa.Super. 508, 90 A.2d 389 (1952). The husband was legally obligated to pay for necessary goods and services, unless the wife paid for them directly, contracted specifically in her own name, or requested that necessities be charged to her estate. Link v. Highway Express Lines, Inc., 444 Pa. 447, 282 A.2d 727 (1971); Johns Hopkins Hospital v. Delhomer, 82 York 92, aff'd. 434 Pa. 474, 255 A.2d 117 (1969); Fulcomer v. Pennsylvania R. Co., 141 Pa.Super. 264, 14 A.2d 593 (1940); Dublino v. Natale, 118 Pa.Super. 301, 179 A. 821 (1935); Estate of Cora A. McGinnis, 109 Pa.Super. 248, 167 A. 616 (1933). Accord, DeFeo v. DiBacco, 162 Pa.Super. 608, 60 A.2d 597 (1948) (husband primarily liable on judgment note for rent, but wife who signed note with him could also be liable).

Section 116 was enacted, and these decisions rendered before the adoption of our state’s equal rights amendment, which provides: “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const, art. I, § 28. The amendment was intended to equalize the benefits and the burdens between the sexes, so that gender alone could no longer be an exclusive method of classification. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974); 1973 Op.Atty.Gen., No. 62. Thus, it was not meant merely to benefit women, and has already been applied to a variety of personal and economic rights and responsibilities: reimbursement for public defender services, United States v. O’Neill, 478 F.Supp. 852 (E.D.Pa.1979); sentencing, Commonwealth v. Saunders, 459 Pa. 677, 331 A.2d 193 (1975); eligibility for parole, Commonwealth v. Butler, supra; child custody, Commonwealth ex rel. Weber v. Weber, 272 Pa.Super. 88, 414 A.2d 682 (1979); consent to adoption of illegitimate child, Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976); child support, Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980); support of illegitimate children, Commonwealth v. Rebovich, 267 Pa.Super. 254, 406 A.2d 791 (1979); alimony pendente lite, counsel fees and expenses in divorce proceedings, Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974); recovery for loss of consortium, Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd. 457 Pa. 90, 320 A.2d 139 (1974); employee disability benefits, Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980); and motor vehicle insurance, Com., Human Relations Commission v. Transit Casualty Insurance Co., 478 Pa. 430, 387 A.2d 58 (1978). See also Albert Momjian, “Family Law and the Pennsylvania Equal Rights Amendment,” 25 Vill.L.Rev. 677 (1979-1980); Annot., 90 A.L.R.3d 158 (1979).

Other states have similarly modified or voided the common-law rule, under married women’s statutes or equal rights amendments or on equal protection or public policy grounds. See Credit Bureau of Santa Monica Bay District, Inc. v. Terranova, 15 Cal.App.3d 854, 93 Cal.Rptr. 538 (1971); Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla.Dist.Ct.App.1981); Condore v. Prince George’s County, 289 Md. 516, 425 A.2d 1011 (1981); Nichol v. Cierna, 188 Neb. 74, 195 N.W.2d 233 (1972); Swogger v. Sunrise Hospital, Inc., 88 Nev. 300, 496 P.2d 751 (1972); Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980); Marshfield Clinic v. Discher, 105 Wis.2d 506, 314 N.W.2d 326 (1982); Annot., 11 A.L.R. 4th 1160 (1982); Annot., 20 A.L.R. 4th 196 (1983).

The specific question before us is whether a widow must, pursuant to the equal rights amendment, be presumed liable to the executor of her husband’s estate for his funeral expenses. By statute, appellee Eugenia Schultz would be liable for those expenses if they had been incurred by a public body or agency. 62 P.S. § 1974 (“Property of persons liable for expenses incurred for support and assistance”). Likewise, she could be liable, under the aforementioned Section 116, in a suit by a private provider of burial services. Here, however, recovery is sought by the executrix of the indigent’s estate. We have found no Pennsylvania appellate decision holding a widow, under common law or the equal rights amendment, responsible to the executor of her husband’s estate for his interment costs.

Our sister state, Ohio, has imposed a duty upon widows to ensure payment of their husband’s funeral expenses. In Charles Melbourne & Sons, Inc. v. Jesset, 110 Ohio App. 502, 163 N.E.2d 773 (1960), the widow had contracted with the plaintiff for funeral arrangements. The court stated that the wife of an insolvent was obligated, regardless of contract, for his necessities, which included funeral costs. Similarly, the Ohio Court in Smith v. Snapp, 16 Ohio Op.2d 304, 175 N.E.2d 333 (1961), found a widow liable for funeral expenses under a statute, the common law of necessities, and public policy.

In light of these authorities, we hold that, where a deceased husband’s estate is insufficient to pay his funeral expenses, those expenses, to the extent of the insufficiency, shall be charged to his surviving wife, as her share in the burdens arising out of the marital relationship. This rule is consistent with article I, Section 28, and acknowledges modern economic realities, like those presented in the instant case, in which the surviving wife’s assets may exceed those of her husband’s estate.

Accordingly, appellant’s complaint, as against appellee Eugenia Schultz, did not so clearly fail to state a cause of action as to justify sustaining a demurrer to that complaint. The order of the trial court, insofar as it sustained appellee Eugenia Schultz’s demurrer, is reversed.

Reversed in part; affirmed in part. Jurisdiction is relinquished.

      . Appellant does not now question the decedent’s child's responsibility for his father’s burial costs. This issue is therefore waived. Pa.R. App.P. 2116; Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983).

      . We note that Hetrick v. Hartman (No. 1), 80 D. & C. 342 (1951), required a widow to pay for her husband’s burial. See also Fox v. Gordon, 16 Phila. 185 (1883).


text:
    493 A.2d 97
    Saundra CARR v. ERIE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed May 17, 1985.

      David M. McCormick, Philadelphia, for appellant.
    James D. Rosen, Philadelphia, for appellee.
    Before BECK, POPOVICH and TROMMER , JJ.

       Judge Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County is sitting by designation.

   BECK, Judge:

The issue in this appeal is whether an insured who elected to make her basic loss benefits under the No-Fault Motor Vehicle Insurance Act excess insurance to the primary medical insurance provided by her health maintenance organization (“HMO”) may recover the full amount of medical expenses from her no-fault (excess) carrier when she voluntarily chose to obtain medical treatment from non-HMO physicians. We hold that such an insured may not recover the full amount of her expenses from her no-fault (excess) carrier and accordingly reverse the order of the trial court.

In 1979, appellee Saundra Carr applied for no-fault coverage for her 1979 Chevette. Section 203(b) of the No-Fault Act, 40 P.S. § 1009.203(b), provides that an insured who possesses other medical insurance may elect to make that collateral coverage the primary source of basic loss benefits. Section 203(b) continues:

“In all such instances each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.”

Section 203(c), 40 P.S. § 1009.203(c), then provides that such excess coverage shall be offered at a discount reflecting the diminished risk accepted by the no-fault carrier. Because appellee possessed other medical insurance, she made this election in her application and received a 40% reduction in premium for basic loss coverage.

Appellee was injured in an automobile accident on February 7, 1983. At that time her primary medical insurance was an HMO membership paid for by her employer, Rolling Hill Hospital. Before the accident appellee had received general medical and gynecological treatment from her HMO primary physician and an HMO-approved specialist. However, she chose not to visit her HMO primary physician for treatment for the injuries she sustained in the accident. Neither did she seek a referral to an HMO-approved specialist. Instead, she received treatment from a non-HMO physician who had been recommended to her by a friend. HMO denied payment for these medical services, and appellee sought reimbursement from her no-fault carrier, appellant Erie Insurance (hereinafter “appellant” or “Erie”). Appellant denied the claim on the ground that Erie, as the excess insurer, was not liable for medical treatment which appellee could have obtained through HMO-approved physicians. Appellee then filed suit against Erie to compel payment of no-fault benefits. Cross-motions for summary judgment were filed. The trial court granted appellee’s motion, holding that she was entitled to the benefits less a $250 deductible under 31 Pa.Code § 66.53. The trial court also awarded attorney’s fees and costs to appellee. The instant appeal by Erie followed.

The trial court held, and appellee argued before us, that because HMO denied payment to appellee, there are no “valid and collectible benefits otherwise provided” within the meaning of section 203(b) of the No-Fault Act. We disagree. The drafters of § 203(b) did not intend that an insured could render otherwise available collateral benefits “uncollectible” by her own action and thereby make the excess insurer liable for the full amount of the loss. Such a reading of the section would effectively destroy the distinction between policies with and without the collateral source election and allow appellee to collect benefits from Erie for which she did not contract.

Appellee argues based on the dictionary meaning of the word that no benefits were “collectible” from the primary insurer, HMO, once appellee chose to seek treatment from non-HMO physicians. While appellee is technically correct that at that point no primary benefits could be “collected,” her argument misses the mark. We believe the proper focus of inquiry is on what benefits were available to appellee at the time of the accident, before she took unilateral action to seek non-HMO medical treatment. Medical benefits were available, i.e. able to be collected, i.e. “collectible,” from HMO but appellee for her own reasons chose not to “collect” them. Appellee concedes that she made the § 203(b) election and received an appropriate premium reduction, that she was a member of HMO on the date of the accident and entitled to HMO coverage, and that she voluntarily sought treatment from a non-HMO physician (Appellee’s Brief at 1). Appellee correctly equates “provide” with “supply” (Id. at 8). The record shows without doubt that HMO supplied medical benefits in the sense that it stood ready and willing to furnish appropriate medical care to appellee, who nevertheless chose to reject its services.

Three months before the trial court rendered its order in the instant case, another judge of the Court of Common Pleas of Philadelphia County rejected an argument identical to that advanced by appellee. In Barksdale v. State Farm Mutual Automobile Ins. Co., 10 Phila.County Reporter 224 (1984) (per Klein, J.), the plaintiff had likewise designated an HMO as his primary basic loss benefits carrier, was treated by non-HMO doctors by his choice and sought payment from his no-fault (excess) carrier. The court found the plaintiffs argument that primary benefits were not “collectible” from his HMO to be meritless, explaining that “[bjenefits were, in fact, collectible from PHP but, because of his failure to fulfill the terms of the contract, Barksdale was not eligible to receive those benfits.” 10 Phila.County Reporter at —. Judge Klein reasoned that allowing recovery from the excess insurer was contrary to the goals of § 203(b), which are to encourage coordination of insurance coverages by providing an incentive for motorists to purchase and use collateral medical coverage, thereby reducing the risks assumed by no-fault insurers. This risk reduction was believed to lead to lower premiums for all no-fault purchasers. Id. at —; see also Singer v. Sheppard, 33 Pa.Commw. 276, 286-88, 381 A.2d 1007, 1012 (1978).

We agree with the reasoning of the Barksdale court. Although appellee and the trial court cite us to statements of policy in the No-Fault Act indicating one of its goals was to ensure prompt and full recovery of benefits to accident victims, another stated aim of the Act was to provide for adequate insurance at a reasonable cost. See 40 P.S. § 1009.102. Section 203(b) implements this policy by offering motorists an opportunity to avoid paying twice for the same coverage. Because the reduction in premium thus enjoyed by the insured is based on a reduction in the risk assumed by the no-fault insurer, such a contract of insurance clearly contemplates that the insured has a duty to take advantage of available benefits from the collateral source before turning to the excess insurer. Appellee had the means of securing a prompt and full recovery of benefits at her disposal but did not avail herself of them.

We note that similar excess insurance clauses were construed in this fashion prior to the enactment of the No-Fault Act. In Burns v. Employers’ Liability Assurance Corp., 205 Pa.Super. 389, 209 A.2d 27 (1965), the medical benefits portion of plaintiffs automobile insurance policy provided, inter alia, that “the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible automobile medical payments insurance.” We held that the purpose and effect of this clause

was to limit appellee’s obligations, in the event of an accident in a non-owned automobile, to payments in excess of the car-owner’s automobile medical payments insurance. Thus, if the car-owner had such insurance, the appellant would be bound initially to seek medical expense payments to the limit of that policy.

205 Pa.Super. at 395, 209 A.2d at 31 (emphasis added).

The trial court also held that Erie was obligated to pay basic loss benefits to appellee by virtue of 31 Pa.Code § 66.53. This regulation provides in pertinent part:

Insurers may also require the named insured to give reasonable notice of termination of such coverage to permit proper rating of coverage under this section. If no named insured has such coverage in effect at the time an accident occurs and the named insured has not previously notified the insurer, a $250.00 deductible for professional medical treatment and care or a two week waiting period for work loss, or both, as appropriate, shall apply, but only against the named insured.

The trial court held in effect that this regulation applied in all circumstances where the insured received no benefits from a primary insurer, whatever the reason. We agree with appellant that the trial court’s construction is untenable in light of the plain language of the regulation and the requirement that it be consistent with the statute which it implements, § 203 of the No-Fault Act. The regulation clearly applies only where the insured has no collateral medical coverage at the time of the accident, not where the insured has such coverage but chooses not to accept benefits. We agree with appellant that § 66.53 is intended to address the real possibility that an insured could lose his primary medical coverage for a reason not his fault. The collateral medical insurance envisioned in § 203(b) typically takes the form of a benefit provided by the insured’s employer. See D. Shrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act, § 1:18 (1979). The above regulation protects the insured who loses this primary coverage because he is laid off or because his employer reduces fringe benefits as a cost-cutting measure.

The same claim regarding 31 Pa.Code § 66.53 was also rejected in Barksdale. Judge Klein held:

By its terms, Section 66.53 is applicable only if and when a collateral contract is not in effect at the time a loss occurs. In this case, coverage with PHP was in effect at the time the loss occurred but, because of Plaintiff’s own actions, he was ineligible to receive those benefits.

10 Phila. County Reporter at —.

Lastly, appellee argues that reversing the trial court will infringe appellee’s First Amendment freedom of association by restricting her right to be treated by the doctors of her choice. This argument is utterly devoid of merit. The issue here is not what medical treatment appellee may receive but whether Erie is contractually or legally obligated to reimburse appellee for the particular medical expenses she incurred. The limitations appellee has encountered on her ability to be reimbursed for her medical expenses are self-imposed through her voluntary decision to seek treatment in a way not complying with the conditions of her primary or excess insurance coverages.

For all the foregoing reasons, the trial court erred in awarding summary judgment to appellee. The court also erred in awarding attorney’s fees and costs to appellee. The court failed to make a finding under section 107(3) of the No-Fault Act, 40 P.S. § 1009.107(3) that Erie denied appellee’s claim without reasonable foundation, and such a finding would be unwarranted in light of our holding that Erie’s position was well founded on the plain meaning and intent of the statutory language. Since there are no genuine issues of material fact for trial, we hold that appellant Erie is entitled to summary judgment.

The order granting appellee Saundra Carr’s motion for summary judgment and denying appellant Erie Insurance Co.’s motion for summary judgment is reversed, and summary judgment is hereby entered in favor of appellant Erie Insurance Co. Jurisdiction is relinquished.

      . No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed, Act of February 12, 1984, P.L. 26, No. 1984-11, as amended by Act of February 12, 1984, P.L. 53, No. 1984-12.

      . Our construction of section 203(b) was also foreshadowed by implication in Johnson v. State Farm Mutual Automobile Insurance Co., 339 Pa.Super. 112, 488 A.2d 335 (1985). In Johnson, plaintiff was covered by a Blue Cross/Blue Shield medical insurance plan, and received reimbursement for his medical expenses arising from an auto accident from Blue Cross/Blue Shield. He then sought to recover the same expenses from State Farm, claiming under a policy which did not include the § 203(b) election. We held that plaintiff was entitled to recovery from State Farm, because a collateral health insurer was not an "obligor" within the meaning of 40 P.S. § 1009.204(b), limiting the insured’s recovery to his net loss and apportioning liability where there are multiple “obligors" of basic loss benefits. In support of this holding, we cited § 203(b) as indicating that the legislature intended to distinguish collateral health insurers from multiple no-fault insurers and to provide in section 203 for a means of coordinating benefits with collateral health insurers. That means, of course, is the election under § 203(b).

      . It appears that appellee understood that by subscribing to her HMO, she was required to obtain treatment from physicians affiliated with or approved by her HMO in order to receive reimbursement from HMO. Significantly, she does not argue that HMO was unable to provide adequate medical treatment for the injuries she suffered in the accident. Obviously, if appellee’s HMO or other collateral medical insurance does not provide adequate medical services for appellee’s injuries, she could recover those expenses from her no-fault carrier because they would not be “collectible” from the primary insurer.


author: POPOVICH, Judge:

text:
    493 A.2d 101
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard Allen CAMPBELL.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed May 17, 1985.

      Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellant.
    Lorinda L. Hinch, Assistant Public Defender, Mercer, for appellee.
    Before BECK, POPOVICH and HANDLER, JJ.

       Judge Earl R. Handler, Senior Judge of the Court of Common Pleas of Indiana County, is sitting by designation.

   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Mercer County granting Richard Allen Campbell, appellee, a new trial. We affirm.

The Commonwealth, as the verdict-winner in a trial where the jury found the appellee guilty of statutory rape and incest, is entitled to have the evidence viewed in a light most favorable to it. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). Viewed in accordance with the preceding standard, the following evidence appears of record: On July 8, 1982, the Campbell children (Terry, age 10; David, age 7; and Rosella, age 11) were watching television at their Madison Street home in Sharon, Pennsylvania until 8:30 p.m. before being directed to go to bed by the appellee, their natural father. Mrs. Campbell, as was her custom on Thursdays, had gone to play bingo at the Eagles and was not expected back until 10:00 or 11:00 p.m. that evening.

After Rosella had changed into her sleeping apparel (which consisted of a robe, nightgown, shirt and underwear), the appellee came into her bedroom. Before doing so, however, the appellee had looked in on his sons, who slept on the same floor as Rosella but in a separate room.

Upon entering Rosella’s room, the appellee was visible to her because of a nightlight. As he stood along the side of the bed, he ordered his daughter to get undressed. When she refused, he slapped her across the face. The daughter screamed. The appellee told her to “shut up” and removed her clothing. The appellee then got on top of the victim, placed his penis between her legs and, as described by the victim, “went up and down” for about one-half (V2) of an hour. During this incident the victim told the appellee he was hurting her, but he did not cease until she complained a second time of the pain. Also, the victim went on to explain that the appellee penetrated her.

After the appellee got off the victim, he told her to hold his penis. She refused. The appellee reacted by striking the victim’s head against the wall next to the bed. He then lifted her from the bed by her arms and caused her head to strike the wooden floor. This was followed by the victim being placed back on the bed and being told by the appellee to put his penis in her mouth. When she said, “No” he smacked her and at some point struck her with a belt in the face. This caused the victim to cry. However, the ordeal did not come to an end until a knock was heard at the front door. It was Mrs. Campbell. The appellee got dressed, told the victim to do the same and warned, “If you tell, I’ll blow your head off.”

At this stage of the trial, a side bar was conducted which centered upon the admissibility of an “event of a year and a half before” the one being tried involving, again, the appellee and his daughter at their residence on Walnut Street in Sharon. The trial court permitted, over the appellee’s objection, the victim to testify that approximately a year and a half (IV2) before the July, 1982 incident she was assaulted by the appellee. The trial court also cautioned the jury that the testimony to be given went “to demonstrate the propensity or inclination of the father to commit this kind of crime.”

As the victim recalled it, her mother had gone to bingo and the appellee had required, thereafter, that she go to bed. Once she had put on her robe, nightgown, shirt and underpants, the appellee came into her bedroom wearing just his underwear. He told the victim to get undressed, and when she would not comply he slapped her face. He then took the victim’s clothing off, as well as his own. Following this, the appellee got on top of the victim and placed his penis between her legs. He commenced moving in and up and down motion for about one-half (V2) hour. Although he did not achieve penetration, he did perform cunnilingus.

Subsequent to the sexual assault, the appellee told the victim to put his penis in her hand. She said, “No” and had her head struck against the nearby wall. The appellee also asked the victim to place his penis in her mouth. This never occurred. What did happen next was the appellee’s wife knocked at the front door and he had to get dressed to let her in. Before doing this, however, the appellee told the victim he would “blow [her] head off if [she] told anyone.” The victim never informed her mother of either incident immediately because she was “scared”.

In fact, it was not until September of 1982 that the second assault was communicated to the mother by the victim. The victim’s story was corroborated by her brothers, who both testified to being awaken on July 8, 1982 by the sound of their sister screaming. When they entered Rosella’s bedroom, as recounted by Terry, “dad was on top of [their] sister” going “up and down”. Terry also recalled the appellee putting his penis in Rosella’s hand, and his sister stating “No” when being told to put it in her mouth.

Once the appellee realized that Terry and David were in the room, he told them to “get out”. Terry further noted that the appellee stated, “he was going to kill [Terry] ... [i]f [he] t[o]l[d] somebody.”

David, Rosella’s other brother, remembers leaving the bedroom at their father’s direction after witnessing him on top of his sister. The witness returned to talk to Rosella the following morning, and felt that she should tell their mother.

The victim, as noted earlier, did not come forward with what had occurred until September 25, 1982. Mrs. Campbell informed the police on the 29th or 30th of September. A few days prior thereto, the appellee left the marital domicile, something he had never done before according to Mrs. Campbell, and was not seen by her until March 5, 1983. Mrs. Campbell was of the belief that the appellee had left the area and was staying with a friend in Cleveland, Ohio. However, she was not sure.

Police efforts to locate the appellee proved futile — contact with family members concerning their interest in finding the accused resulted in no information as to his possible whereabouts. It was not until Mrs. Campbell saw her husband in March of 1983, near their residence, that she contacted the authorities. He was arrested trying to leave the area. The present charges were brought, a jury trial was conducted and a verdict finding the appellee guilty of statutory rape and incest was returned. This appeal followed the entry of the trial court’s order awarding appellee a new trial.

The only issue we need concern ourselves with is whether the trial court abused its discretion in awarding the appellee a new trial “in the interest of justice”, after concluding that it had erroneously admitted evidence of the appellee’s purported sexual attack of the victim on a date other than the one for which he was being tried. See Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979).

In Pennsylvania, it is axiomatic that evidence of other unrelated criminal conduct of an accused is generally inadmissible at trial except in certain limited circumstances. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). Our Supreme Court ruled in Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895) that a prosecution for incest was such an exception. In particular, the Court was faced with the issue of whether, in a prosecution for incestuous fornication, it was competent for the Commonwealth to introduce evidence of illicit relations between the parties prior to the commission of the specific offense laid in the indictment. It held:

If an act is so remote in point of time from the act laid in the indictment that the statute of limitations would protect the participants in it in case of their prosecution for it, it is still admissible if it is one of a series of acts indicating continuousness of sexual intercourse____ We conclude therefore that it was proper for the [CJommonwealth to introduce evidence of prior illicit relations between the parties although such evidence disclosed other indictable offen[s]es of like nature which were barred by the statute of limitations.

166 Pa. at 412, 31 A. at 123, 124. We find Bell to be controlling in the case before us.

To commence with, we note that no one disputes that the period of a year and a half (IV2) between the two offenses instantly is erroneous. For example, the victim testified that her family had lived at the Madison Street address for three (3) years prior to the July 8, 1982 incident. She also remarked to being born on June 8, 1971, that the first assault took place in her previous residence on Walnut Street, and that she was in the 1st grade and eight (8) years old at the time. Thus, because the victim had been held back a year in each of the 1st and 2nd grades, a more accurate accounting of the passage of time between the two incidents would appear to be 3 or 4 years. {See Trial Court Opinion at 9; Appellant’s Brief at 14)

We concede that remoteness is but another factor to be weighed in deciding if the prior crime tends to show that the same person committed both crimes, and that the degree of similarity between the two incidents necessary to prove common identity of the perpetrator is inversely proportional to the time span between the two crimes. Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984); Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977). Also, we admit that no rigid rule has been formulated for determining when such evidence is no longer relevant, and that the remoteness of prior instances of relations between the defendant and victim affects the weight of that evidence and not its admissibility. Commonwealth v. Petrakovich, 459 Pa. 511, 524, 329 A.2d 844, 850 (1974); Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980); Henry on Pennsylvania Evidence, § 309 (4th Ed. 1953).

Nonetheless, our sedulous review of the law in this jurisdiction, dealing with incest, statutory rape and indecent assault, has failed to unearth one decision condoning the admission of a single, prior accounting of a sexual assault (so distant in time as the one at bar) to buttress a prosecutrix’s complaint of a subsequent sexual assault charged against the same assailant where there is no evidence of a continuous course of conduct linking the incidents of molestation. See, e.g., Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984) (Court did not err in allowing appellant’s daughter to testify that he had been sexually molesting her three or four times a week for a period of four years); Commonwealth v. Neimetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980) (Trial court did not err when it admitted into evidence testimony regarding incidents of sexual abuse allegedly occurring beyond the statute of limitations; appellant’s stepdaughter related a long and sordid narrative of her childhood); Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980) (Evidence of appellant’s prior sexual abuse of his daughter starting when she was 8 or 9 to 13 years of age fit within the limited exception of Bell); Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979) (Appellant’s sexual assault of his daughter over a period of 4 years was admissible to convict him of incest).

The aforementioned rulings are consistent with the seminal case of Commonwealth v. Bell, supra, where, it must be remembered, a father was charged with incestuous fornication with his daughter, and evidence of a number of prior offenses with the same daughter was admitted as a “series of acts indicating continuousness of sexual intercourse”, under the “sequence of acts” theory.

Instantly, we have, unlike in Bell and its progeny, a single instance of sexual abuse separated from the present charge by a period of 3-4 years. Next, we see that the appellee did not take the stand to refute the assault charge. Lastly, we cannot overlook the fact that the victim was not the sole witness to the July, 1982 assault. Her brothers, Terry and David, unequivocally testified to hearing their sister scream on the night in question, going into her bedroom and seeing their father on top of the victim going in an up and down motion. Thus, we fail to see the need for the introduction of the “other crime” by the prosecution. Compare Commonwealth v. Claypool, 317 Pa.Super. 320, 464 A.2d 341 (1983); Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980); Commonwealth v. Hodge, 270 Pa.Super. 232, 411 A.2d 503 (1979); Commonwealth v. Wright, 259 Pa.Super. 93, 393 A.2d 833 (1978).

Although the jury could have, and might have, convicted the appellee without hearing the testimony of the via m regarding the 3-4-year-old assault charge, nevertheless, the appellee is entitled to a trial without being prejudiced by such testimony. See Commonwealth v. Boulden, 179 Pa. Super. 328, 116 A.2d 867 (1955); see also Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976). Also, in balancing the unsubstantial Commonwealth interests against the appellee’s strong interest in not being convicted because he is a “bad person”, we find that the appellee’s interest must prevail. See Commonwealth v. Claypool, supra; Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978); McCormick on Evidence, § 190 at 565 (3rd Ed. 1984). And, as for the cautionary instruction, it did little to mitigate the prejudicial effect of the evidence presented. Cf. Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Justice Jackson said of limiting instructions by the trial judge: “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.”).

Further, the testimony complained-of is exactly the type of “other crimes” that appeals to a jury’s emotions and leads to a conviction because of a person’s supposedly bad character. Thus, we cannot conclude that the evidence of guilt was so overwhelming, and the error of admitting the prejudicial testimony so insignificant by comparison, that the error was harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Claypool, supra. Accordingly, we are in agreement with the trial court that the appellee should be awarded a new trial.

Order affirmed.


author: WATKINS, Judge:

text:
    493 A.2d 106
    James D. MALESH and Steve S. Hawryliak v. Joseph P. CHECHAK and Isabella M. Chechak, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1984.
    Filed May 17, 1985.

      Darrell L. Kadunce, Butler, for appellants.

      Silvio P. Cerchie, Butler, for appellees.
    Before BROSKY, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This case comes to us from separate orders entered by the Butler County Court of Common Pleas. On October 26, 1982, the lower court entered an order denying appellants’ motions for new trial, judgment n.o.v., and arrest of judgment. On November 15, 1982, the court below entered an order awarding counsel fees to counsel for plaintiffs (appellees). Separate appeals were filed to this Court, but have been consolidated for appeal purposes.

On or about the middle of November, 1977, the appellants and appellees entered into an oral agreement whereby the appellees would provide the labor for certain cement and concrete work requested by the appellants in a cattle barn located on appellants’ property. This oral agreement was subsequently reduced to writing on or about November 19, 1977. On or about December 22, 1977, the appellants dismissed appellees and directed them not to return to his premises or to perform any further work under the terms of the November 19, 1977 agreement. Appellants had advanced the sum of Three Hundred ($300.00) Dollars to appellee at the start of work. The completed contract price was One Thousand, Three Hundred ($1300.00) Dollars.

Appellees filed suit in the Court of Common Pleas of Butler County for the sum of $910.00 representing the amount allegedly owed to them for work performed. Appellants filed a counterclaim alleging improper workmanship and necessary repairs to the work performed.

The case was heard by a panel of arbitrators in Butler County and an award of $910.00 was made in favor of the appellees. Appellants subsequently filed an appeal requesting a jury trial which was held on September 28 and 29, 1982. The jury verdict was in favor of the appellees for the sum of $910.00.

Upon discharge of the jury on September 29, 1982, the lower court, on its own motion, advised appellants that a further hearing was to be held on the awarding of counsel fees pursuant to 42 Pa.C.S.A. 2503(9). Shortly after the verdict, the appellants obtained new counsel who filed motions for new trial, judgment n.o.v. and in arrest of judgment which were subsequently denied by the court on October 26, 1982.

On November 15, 1982 following a hearing scheduled by the court, an order was entered awarding counsel fees in the amount of Four Hundred ($400.00) Dollars to counsel for the appellees.

On appeal, the appellants first contend that the trial court erred in its determination that counsel fees should be assessed against the appellants for vexatious or bad faith conduct during the course of litigation below solely on the basis that an appeal from compulsory arbitration was affirmed by a jury at a subsequent de novo trial.

Following dismissal of the jury in the case below, the court, on its own motion, addressed appellant Joseph Chechak and read to him Section 2503 of the Judicial Code which provides: “Participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter. Subsection 9. Any participant who is awarded counsel fees because the conduct of another party in commencing the matter, or otherwise, was arbitrary, vexatious, or in bad faith;” The court then continued stating that “inasmuch as the verdict of the jury is identical with the arbitration award, and that you (referring to appellants) had an opportunity to settle this for Five Hundred Dollars, I find your conduct in this case was arbitrary and vexatious.”

Subsequently, a hearing was held on November 15, 1982. No motion, either oral or written, had been presented by appellees’ counsel requesting the granting of counsel fees pursuant to 42 Pa.C.S.A. 2503(9).

The court below concluded in its order as follows: “Its been my practice ... and this is the second or third time I have done it ... when there is an appeal from arbitration and its the same verdict, you’re going to pay counsel fees.”

Appellants contend that the decision with respect to counsel fees pursuant to 42 Pa.C.S.A. 2503(9) of the Judicial Code is completely untenable and that the opinion of the lower court directly contradicts the specific provision of the Pennsylvania Constitution, the Judicial Code and the appellate decisions of this Commonwealth. We agree.

In the case of In re: Estate of Roos, 305 Pa.Superior Ct. 86, 451 A.2d 255 (1982), this Court held that the party requesting counsel fees pursuant to Section 2503(9) of the Judicial Code, has the burden of proof that the actions of the other party were arbitrary, vexatious, or in bad faith.

In the instant case, the appellees (plaintiffs) did not present proof as to the arbitrary, vexatious or bad faith actions of the appellants. In fact, the appellees offered no evidence with respect to such a claim other than a statement of services rendered by their counsel. The trial court offered no reasons for its actions other than that the verdict was identical to the arbitration award and that the appellant had had an opportunity to settle for $500.00. Clearly the burden of proof had not been sustained at the hearing for the award of counsel fees.

Absent a showing of an arbitrary, vexatious, or bad faith action on the part of the appellants the lower court could not impose these fees. If we sustained such action this would have a chilling effect upon the rights of a litigant to request the constitutionally guaranteed jury trial provided in the Pennsylvania Constitution. The decision by the lower court was in direct contradiction to the Pennsylvania Constitution, Article 5, Section 9 which provides in part: “There shall be a right of appeal in all cases to a court of record from a court not of record; ...”

The appeal from the compulsory arbitration was an appeal from a court not of record (as provided in Compulsory Arbitration Rules) to a court of record. The appellants exercised their right to appeal under the Pennsylvania Constitution.

The opinion of the lower court also violates the specific provisions of the Pennsylvania Judicial Code which has specific guidelines governing judicial arbitration. The Rules of Judicial Administration governing Compulsory Arbitration of civil matters specifically provide: “Any party to a matter shall have the right to appeal for trial de novo in the court.” 42 Pa.C.S.A. 7361(d).

The opinion of the lower court in this case abrogates the statutorily mandated right of appeal and effectively destroys the rights granted under the Judicial Code by causing any litigant who wishes to appeal from compulsory arbitration and exercises constitutional rights to place himself at the mercy of the trial court in the event that the litigant’s appeal is unsuccessful.

In light of these facts, this Court has no alternative but to reverse the award of counsel fees by the lower court.

Appellants next contend that the trial court erred in refusing to permit the introduction of the testimony and documentary evidence by the defendant when no objection to the same was made by the opposing counsel.

At the time of trial, the appellants attempted to introduce into evidence certain of the concrete order slips written by the concrete supplier and provided to the construction site wherein appellees were working for the defendant. Appellees’ counsel indicated on the record that he had no objection. The court below in its own motion refused the admission of certain of the documents because they contained the name of a person who had not signed the written contract between the parties in this action.

The court below further objected, on its own motion, to testimony from defendant’s witness Ronald Haley with respect to the temperature on the days on which concrete was delivered by Mr. Haley to the construction site. The court reasoned that since the documentary evidence of the exact temperature on certain dates was contained in exhibits that the court had previously ruled inadmissible for another reason, the evidence as to the temperatures on those days was also inadmissible.

In determining whether alleged trial error warrants granting of a new trial, our inquiry is whether the trial court abused its discretion or committed error of law which controlled the outcome of the case. Hussey v. May Dept. Stores, Inc., 238 Pa.Superior Ct. 431, 357 A.2d 635 (1976).

Generally the question of whether proferred testimony or documentary material is admissible in evidence is a question of law for the court to determine. The court would not allow this evidence in because it contained the name of a person other than those who signed the writteh contract between the parties to this appeal, Mr. Matthew Malesh. In the contract, Mr. Chechak had agreed to supply the concrete for this construction, however, he testified that Matt Malesh had ordered the concrete on at least two occasions.

The decisions of the courts of this Commonwealth have established that the parties to a written agreement may introduce parole evidence as to subsequent modifications to written agreements. Dora v. Dora, 392 Pa. 433, 141 A.2d 587 (1958). These subsequent modifications or waivers can be shown either by express agreement or by actions which necessarily involve such alterations. Wagner v. Graziano Construction Co., 390 Pa. 445, 136 A.2d 82 (1957). Upon a review of the record, it is apparent that although Mr. Matthew Malesh had indeed ordered the concrete on at least two occasions, this did not in any way serve to modify or waive Mr. Chechak’s obligation under the contract to supply this concrete. In fact, the evidence proferred had been signed by a third party, Mr. Matthew Malesh, not a party involved in the written agreement signed by the appellees and the appellants.

Absent any indication that the evidence proffered would serve to prove a modification or waiver we cannot conclude that the trial court abused its discretion in any way by not admitting this evidence. Therefore, appellant’s claim is without merit.

Later in the proceedings the court below objected to testimony from defendant’s witness, Ronald Haley, with respect to the temperatures on the days on which concrete was delivered by Mr. Haley to the construction site. The court reasoned that since the documentary evidence of the exact temperature on certain dates was contained in exhibits that the court had previously ruled inadmissible for another reason, the evidence as to the temperatures on those days was also inadmissible.

Although the evidence had been deemed inadmissible for the purpose of showing that Mr. Malesh had ordered the concrete that is not to say that it would be inadmissible for other purposes. This case centered around the ability of appellees to complete a construction job. The weather conditions on particular days were an integral part of both cases. Thus, any evidence or testimony about temperatures and weather conditions was relevant to this case. The Supreme Court has recognized that where an otherwise relevant document contains matter which is irrelevant and highly prejudicial, the relevant part of the document may be received in evidence without the irrelevant part. Capozi v. Hearst Publishing Co., 371 Pa. 503, 51-519, 92 A.2d 177, 184 (1952).

Although the documents were irrelevant as to Mr. Malesh’s signature, they were relevant to the temperatures on particular days. Therefore, the trial court should have admitted the relevant portions of the document.

The court’s action precluded the appellant from establishing the weather conditions on important dates during the construction work. The question of temperature and weather was raised by the plaintiffs in their own case in chief. Because of the court’s action the appellants were unable to contradict the plaintiff’s testimony by fair and impartial witnesses, thus, they were not permitted to adequately present their defense. The trial court had made an erroneous determination as to the admissibility of these documents for the purpose of establishing the temperatures on particular days.

Based upon the foregoing information, we conclude that a new trial must be granted to appellants at which time they may present the facts in support of their position.

Finally, the appellant contends that the lower court erred in admonishing the defendants and counsel within the hearing of the jury without good cause, thereby prejudicing the defendants in the presentation of their case to the jury.

During the course of direct examination of defendant’s witness, Ronald Haley, appellant’s counsel attempted to introduce certain documentary evidence which the lower court, on its own motion, would not permit. When appellants’ counsel asked that an exception be noted to the court’s ruling on the record, the court’s response was: “You understand the English language? They are not in.”

Subsequently, a further question to witness Haley was summarily overruled by the Court.

During the testimony of appellee, James Malesh, several references were made to the involvement of the witness’ father, Matthew Malesh, in this particular transaction.

When appellants attempted to explore the same avenues of testimony, the court once again interrupted defense counsel and the appellant, Joseph Chechak, on the court’s own motion. The court’s statement to defense counsel at this time was: “I will not tolerate that questioning again. You understand that?” When defense counsel attempted to respond to the court’s interjection, the court summarily cut off any further discussion.

The court further interrupted defense counsel and advised counsel that any further comments with respect to Mr. Malesh or his involvement would result in the court “taking appropriate action”.

Appellants contend that the attitude of the trial court throughout the trial was one of disdain toward the appellants, their counsel and the case being presented by their counsel.

It has been held that when a complaint is made of a particular remark on the part of the trial court, the record as a whole may be examined to determine whether it shows animosity toward counsel or a lack of judicial impartiality toward a defendant. Commonwealth v. Smith, 374 Pa. 220, 97 A.2d 25 (1953). Further it has been held that if the trial judge by his questions to witnesses, remarks, a general attitude prevents the fair and unbiased consideration of the evidence by the jury a party prejudiced by that partiality is entitled to relief from the verdict. Wright v. Wagner, 405 Pa. 546, 175 A.2d 875 (1961); (cert. denied 369 U.S. 849, 82 S.Ct. 933, 8 L.Ed.2d 9).

Upon an examination of this record, it is apparent that the lower court demonstrated some animosity toward the appellants’ counsel. However, we cannot agree that the conduct of the trial court was of such magnitude that it prevented the fair and unbiased consideration of the evidence by the jury. Therefore, we find this claim by the appellants without merit.

The order of the lower court awarding counsel fees to appellees is reversed; and a new trial is granted on the basis of the reasoning set forth in this opinion.