author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    504 A.2d 335
    Rosemary SIMPSON, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation, Appellee. Rosemary SIMPSON v. ALLSTATE INSURANCE COMPANY. Appeal of John A. ROBB, Jr., Esquire.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed Jan. 24, 1986.

      John A. Robb, Jr., Pittsburgh, for Allstate Ins., appellant, (at 471) and appellee (at 470).
    Charles W. Garbett, Ellwood City, for Rosemary Simpson, appellant, (at 470) and appellee (at 471).
    Before SPAETH, President Judge, and BROSKY, ROW-LEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MONTEMURO and TAMILIA, JJ.
   WIEAND, Judge:

Rosemary Simpson commenced an action in assumpsit against Allstate Insurance Company (Allstate) to recover a fire loss of $35,468 for which Allstate allegedly had agreed to indemnify her pursuant to a policy of fire insurance. After Allstate had refused to respond to Simpson’s request for the production of certain statements of witnesses and other documents, Simpson obtained a court order, dated April 14, 1982, directing Allstate to produce the requested documents for examination within thirty days. Appellant’s counsel again failed to produce the required documents. Simpson’s threats to obtain a sanction order from the court also failed to produce action. Finally, by letter dated October 6, 1982, Simpson’s counsel notified Allstate’s attorney that a motion for the imposition of a sanction in the nature of a judgment on the claim would be presented to the trial court on October 11, 1982 unless Allstate complied with the court’s discovery order before that date; Allstate failed to comply, and its counsel failed to appear in opposition when the motion for sanctions was presented to the court. The motion, therefore, was granted. The trial court, pursuant to Pa.R.C.P. 4019(c)(3), directed the prothonotary to enter judgment against Allstate by order dated October 13, 1982. The judgment was entered the following day, October 14, 1982.

Five days later, the discovery material having been deliv-. ered in the interim, Allstate filed a petition to open the judgment. Simpson filed an answer, and the petition to open was argued before the court. Thereafter, more than five months after the judgment had been entered, the trial court entered the following order:

AND NOW, this 22nd day of March, 1983, upon consideration of the motion to open default judgment by defendant, Allstate Insurance Co., and after hearing argument thereon, in accordance with Pa.R.C.P., No. 4019, the Court finds that defendant has willfully violated the Pennsylvania Rules of Civil Procedure for failure to produce discoverable materials, which justifies the entry of this ORDER, and therefore, ORDERS:
(1) that the petition to open default judgment is granted;
(2) that defense counsel, as a disobedient party, is hereby held in contempt of court pursuant to the Judiciary Act of 1976, July 9, P.L. 586, No. 142, § 2 (42 Pa.C.S.A. § 4131 et. seq.) and fined in the amount of $3,000 for failing to obey the Court’s Order dated April 14, 1982 for a period of approximately six months;
(3) that defense counsel shall be responsible for all reasonable attorney fees incurred by plaintiff’s counsel in his attempt to obtain discovery including the motion for sanctions and the motion to Open Default Judgment filed pursuant to the Pa.R.C.P. Rule No. 4010(g)(1); that amount is due upon presentment of a statement to defense counsel by counsel for the plaintiff;
(4) that interest due will be computed at the current prime rate from the date of the original default judgment in October of 1982, or the rate pursuant to Pa.R.C.P. No. 238, whichever is higher, for the amount of monetary damages if the plaintiff is later entitled to a judgment from defendant. Although damages for delay are compensatory and not punitive, this court does not consider the interest portion of this Order as a penalty, but rather as compensation for the plaintiff because of the delay incurred by defense counsel. See Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966); see also Colodonafo v. Consolidated Rail Corp., 307 Pa.Super. 478, 453 A.2d 987 (1982).

Two appeals were filed from this order. One appeal was filed by Simpson, who contends that the trial court erred when it opened the judgment previously entered. The other appeal was filed by John A. Robb, Jr., Esquire, counsel for Allstate, who contends that the court erred when it held him in contempt of court without prior notice. We agree with the contentions made by both appellants. The trial court’s reconsidered order of March 22, 1983 was improper and will be set aside.

The Simpson appeal from the trial court’s order has been properly filed. Pa.R.App.P. 311(a) establishes that “an appeal may be taken as of right from: (1) [a]n order opening, vacating or striking off a judgment____” The trial court’s order, which purported to “open” and, in any event, vacated the prior judgment was appealable by Simpson as of right. Hunter v. Employers Insurance of Wausau, 347 Pa.Super. 227, 500 A.2d 490 (1985).

The judgment in this case was not entered by confession pursuant to warrant of attorney, nor was it entered by default upon praecipe. Instead, it was entered by the trial court in a contested civil action because of Allstate’s willful refusal to comply with the court’s discovery order. The judgment entered by the court was not a “default judgment” as that term is generally understood. It was not merely a judgment entered upon praecipe by the prothonotary. Rather, it was a judgment entered in a contested proceeding pursuant to court order. See: Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 580, 493 A.2d 741, 743 (1985).

“Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final].” Klugman v. Gimbel Brothers, Inc., 198 Pa.Super. 268, 272, 182 A.2d 223, 225 (1962). A judgment entered in adverse proceedings becomes final if no appeal therefrom is filed within thirty days. See: 42 Pa.C.S. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Hunter v. Employers Insurance of Wausau, supra. Similarly, it cannot be “opened.” Livolsi v. Crosby, 344 Pa.Super. 34, 36, 495 A.2d 1384, 1385 (1985); Miller Oral Surgery, Inc. v. Dinello, supra, 342 Pa.Super. at 580, 493 A.2d at 743; Kappel v. Meth, 125 Pa.Super. 443, 448-450, 189 A. 795, 797-798 (1937).

“This doctrine, respecting judgments entered [in adverse proceedings], has a very definite function, namely, to establish a point at which litigants, counsel and courts ordinarily may regard contested lawsuits as being at an end.” Klugman v. Gimbel Brothers, Inc., supra, 198 Pa.Super. at 272, 182 A.2d at 225. See also: Kappel v. Meth, supra, 125 Pa.Super. at 450, 189 A. at 798. “A contested action yields a judgment in which the value of finality is greatest. There has been a decision following an examination of the critical issues through bilateral participation of the parties---For all the reasons that finality of judgments is important, such a judgment should be invulnerable except upon a showing of extraordinary miscarriage.” Restatement (Second) of Judgments, Introductory Note to Chapter 5, p. 152.

A party may always request a court to reconsider a judgment entered in adverse proceedings. However, such a request must be made within thirty days. “Absent a stay, the [trial] court must grant the petition for reconsideration within the thirty day appeal period to toll the appeal period____ If the [trial] court does not expressly grant reconsideration or enter an appropriate stay within the thirty day appeal period, its ‘power ... to act on the application for reconsideration ... is lost.’ ” Leonard v. Andersen Corp., 300 Pa.Super. 22, 25-26, 445 A.2d 1279, 1281 (1982) (citations omitted).

Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court.” Klugman v. Gimbel Brothers, Inc., supra, 198 Pa.Super. at 272, 182 A.2d at 225. See: Brodsky v. Philadelphia Athletic Club, Inc., 277 Pa.Super. 549, 553-554, 419 A.2d 1285, 1287-1288 (1980); Dormont Motors, Inc. v. Hoerr, 132 Pa.Super. 567, 570-571, 1 A.2d 493, 494-495 (1938); Kappel v. Meth, supra. An oversight by counsel in failing to appeal does not constitute “extraordinary cause” which permits a trial court to grant relief from a final judgment entered in a contested action. Klugman v. Gimbel Brothers, Inc., supra, 198 Pa.Super. at 273, 182 A.2d at 225. See also: Wise v. Cambridge Springs Borough, 262 Pa. 139, 144, 104 A. 863, 864 (1918), quoting Singer v. Delaware, Lackawanna & Western Railroad Co., 254 Pa. 502, 98 A. 1059 (1916); Livolsi v. Crosby, supra. Compare: Estate of Gasbarini v. Medical Center of Beaver County, 487 Pa. 266, 409 A.2d 343 (1979).

The judgment in this case was entered on October 14, 1982. Allstate’s petition, whether we deem it a petition to open or a petition to reconsider the judgment, was filed five days after the judgment had been entered. However, the trial court did not act on the petition within thirty days, and no appeal was ever taken from the judgment. At the end of thirty days, therefore, the judgment became final. When the trial court subsequently attempted to open the judgment without any showing of fraud or other extraordinary cause, it erred.

The order which the trial court entered on March 22, 1983 suggests that it had reconsidered its prior action and had determined that a more appropriate sanction for conduct which the court deemed “willful” disobedience would be to hold counsel in contempt. The purpose of this contempt order, as can be determined by the circumstances and by the terms of the order itself, was not to coerce but to punish. This was an indirect, criminal contempt. See: Commonwealth v. Marcone, 487 Pa. 572, 577, 410 A.2d 759, 762 (1980); Grubb v. Grubb, 326 Pa.Super. 218, 222, 473 A.2d 1060, 1062 (1984). Because indirect criminal contempt is a crime, an accused must be accorded essential procedural safeguards. Commonwealth v. Charlett, 481 Pa. 22, 26, 391 A.2d 1296, 1298 (1978); L & J Equipment Co. v. United Mine Workers of America, 339 Pa.Super. 51, 56, 488 A.2d 303, 306 (1985). See: 42 Pa.C.S. § 4136. Allstate’s counsel in this case was not accorded essential, procedural safeguards. He was not given any notice that a charge of criminal contempt was being considered by the court; and he was given no opportunity to be heard in response to such a charge. The order holding him in contempt and imposing a fine of $3,000, costs and interest, came without warning in response to a petition to open a judgment which the trial court had previously entered. This was improper.

For the foregoing reasons, the trial court’s order of March 22, 1983 must be reversed and set aside; and the judgment entered on October 14, 1982 must be reinstated.

It is so ordered.

SPAETH, President Judge, joined in this opinion before the expiration of his term on the court.

OLSZEWSKI, J., filed a concurring and dissenting statement.

OLSZEWSKI, Judge,

concurring and dissenting:

I agree with the majority that the judgment of October 14, 1982 should not have been opened, and that the trial judge should have held a hearing before holding counsel in contempt of court. However, I dissent from the final order because I feel the matter should be remanded for a hearing on the contempt issue.

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

      . The contempt issue was not raised or even alluded to in the petition to open the judgment.

      . This judgment bears interest at the legal rate. Damages at the rate of ten percent, as provided by Pa.R.C.P. 238, are not recoverable in a contract action. Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., Inc., 308 Pa.Super. 98, 107, 454 A.2d 39, 44 (1982).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    504 A.2d 339
    Martha S. YOUNG, an Incompetent, by Clifford A. YOUNG, Her Guardian v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1985.
    Filed Jan. 24, 1986.

      William J. Kubiak, Bradford, for appellant.
    John H. Yoder, Smethport, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellee instituted an assumpsit action seeking payment under a group health plan insurance policy issued by appellant. Appellant denied liability, relying upon a custodial care limitation contained in its policy. The case was tried non-jury on January 17, 1984 and on January 30, Í984 the trial judge entered a general finding in favor of appellee and against appellant. Appellant filed exceptions to the finding; however, before they could be ruled upon, the trial judge died. The exceptions were subsequently argued before the Honorable Paul B. Greiner, P.J., Specially Presiding, and were disposed of by Order of court on the basis of the transcribed record, briefs and oral argument. The Order was accompanied by a Memorandum Opinion. Judgment was entered in favor of appellee and appellant filed this appeal. We affirm.

Appellee was an employee of Quaker State Oil Refining Corporation for twenty-five years. As such, she was insured under a group health plan policy issued by appellant. In 1970 or 1971, appellee was diagnosed as suffering from presenile dementia (Alzheimer’s disease). As a result of the disease, she was given a disability termination from Quaker State in 1971; subsequently, her condition worsened. By 1975 appellee was suffering from seizures, hallucinations and was unable to feed, bathe or clothe herself. In February of 1978 appellee was involuntarily committed to the Warren State Hospital where she still resided at the time of trial.

Appellant paid appellee's hospital bills until it sent a denial of claim letter to appellee on November 24, 1980. In its letter, appellant denied liability for expenses incurred since January 1, 1980, based on a custodial care limitation contained in the policy. No further payments were made by appellant.

During appellee’s stay at Warren State Hospital, her mental condition worsened. She could not communicate meaningfully and was in need of constant care to aid her in bathing, eating and dressing. During her stay at the hospital, appellee was placed in various types of therapeutic programs.

The trial court found that appellee was being treated for the stated purpose of controlling her epileptic, psychotic and violent behavior to the point where she would be suitable for eventual transfer to a custodial care facility. The court also found that appellee was being aided in achieving this goal by highly trained medical specialists.

In denying appellant’s exceptions, the court held that the definition of custodial care contained in appellant’s policy was ambiguous, contradictory, and against “the stated public policy of this Commonwealth.” Memorandum Opinion at 3-4; See 31 Pa.Code § 89.94. To resolve the ambiguity, the court applied an interpretation utilized by the federal courts in construing the phrase “custodial care” as it appears in the Social Security Act. The court looked to Samuels v. Weinberger, 379 F.Supp. 120 (S.D.Ohio 1973), to define custodial care as, “care that could be administered by a layman without any possible harm to the health of the one in custody and refers to guardianship for convenience that has no significant relationship to medical care of any type.” Memorandum Opinion at 2. Application of the federal interpretation to the facts in the present case led the court to conclude that the treatment received by appellee did not constitute custodial care within the limitation set forth in the policy.

In addition, the court held that appellant’s payment of benefits to appellee from March, 1978 until January, 1980 constituted a waiver of the custodial care limitation because appellant failed to assert the limitation at the earliest possible time. Finally, the court held that appellant was es-topped from relying upon the limitation contained in the policy by its failure to make a final decision on appellee’s request for review of its decision to terminate payments within 120 days of receipt of appellee’s request for review, as required by the terms of the policy.

Appellant’s principal argument on appeal is that there is no evidence in the record to support the conclusion that the policy language is ambiguous. Furthermore, appellant contends that the court erred when it applied the definition of custodial care that was developed to interpret and administer federal legislation. It claims that the policy language in question is more specific than the federal definition and therefore is more restrictive than the more general federal definition. Additionally, appellant argues that the court erred by failing to determine whether alternative language, if used, would have put the matter beyond a reasonable doubt. Appellant also argues that the court erred in finding that appellant had waived the policy limitation by its prior payments under the policy and in finding that the failure to follow the contractual review procedure estopped appellant from asserting the limitation.

It is appellee’s position that the court correctly resolved all issues.

The principle issue centers around the following policy language:

CUSTODIAL CARE LIMITATION
No payment shall be made for “covered charges” incurred for custodial care. For the purposes of this limitation, expenses incurred for care comprised of accommodations (including room and board and other institutional services) and nursing services provided an insured person, because of age or other mental or physical condition, primarily to assist the insured person in the activities of daily living shall be deemed custodial care. The fact that the insured person is concurrently receiving medical service which is merely maintenance care that cannot reasonably be expected to contribute substantially to the improvement of a medical condition shall not preclude the application of this limitation.

Insurance policy at 20.

We begin our analysis, as always, by first determining the appropriate standard of review. Because neither the trial court nor Judge Greiner entered detailed findings of fact and conclusions of law, but, instead, made only general findings, we review the decision under the same standards accorded a general verdict rendered by a jury. Merion Spring Co. v. Muelles, 315 Pa.Super. 469, 462 A.2d 686 (1983). In reviewing the general findings of the trial court, we may affirm a correct result based on a rationale different than that utilized by the tribunal whose decision we are reviewing. Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840 (1984).

We have concluded that Judge Greiner correctly found that the custodial care limitation is not applicable on the basis of the facts disclosed in the record; however, we reach our conclusion for reasons different than those utilized by Judge Greiner. Having reached this conclusion as to the first issue, it is unnecessary for us to pass on the waiver and estoppel claims.

The interpretation of an insurance policy is a question of law for the court. Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978). As a reviewing court, we are not bound by the trial court’s conclusions of law; instead, we are free to draw our own inferences and conclusions from the facts established at trial. Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982). In determining whether an insurance policy is ambiguous, the standard of review has been characterized as “plenary.” Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985). In interpreting the policy at issue we are guided by the following principles:

A contract will be found to be ambiguous:
[I]f, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.
Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa.Commw.Ct. 246, 251, 430 A.2d 328, 330 (1981) (Quoting 8 P.L.E. CONTRACTS § 146 (1971)).

Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 386, 476 A.2d 1, 5 (1984). “Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement.” Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983); Musisko v. Equitable Life Assur. Soc., 344 Pa.Super. 101, 496 A.2d 28 (1985), Aetna Casualty and Surety Co. v. Drake, 343 Pa.Super. 114, 494 A.2d 381, 382 (1985). However, “an insurer may draft a policy with explicit exclusions and the Court will uphold the plain meaning of the exclusions since a policyholder cannot reasonably expect unlimited coverage in the face of an explicit, unambiguous limitation.” Huffman v. Aetna Life & Casualty Co., 337 Pa.Super. 274, 486 A.2d 1330, 1334 (1984).

In the present case, we find it unnecessary to resort to the federal interpretation of custodial care to arrive at a reasonable interpretation of the limitation clause relied on by appellant. Instead, we focus our analysis on the particular language contained in the policy written and issued by appellant. The policy defines custodial care as care provided to “an insured person, because of age or other mental or physical condition, primarily to assist the insured person in the activities of daily living____” (Emphasis supplied.) While it may be unclear what constitutes “activities of daily living,” we think it is beyond argument that the phrase applies, at least, to the basic, rudimentary tasks of daily living that most persons carry out each day, such as bathing, dressing and eating. Furthermore, it is clear that such services are being provided to appellee at Warren State Hospital. Thus, we start with the proposition that appellee is receiving some custodial care within the meaning of the policy definition. This conclusion, however, does not end our inquiry. It is the last sentence in appellant’s definition that poses a more difficult problem of construction. That sentence reads:

The fact that the insured person is concurrently receiving medical service which is merely maintenance care that cannot reasonably be expected to contribute substantially to the improvement of a medical condition shall not preclude the application of this limitation. (Emphasis added.)

Thus, the last sentence of the clause, by implication at least, limits its application to those cases where “custodial care” is not accompanied by medical services which are expected to contribute substantially to the improvement of the insured’s medical condition. In other words, if “custodial care” is accompanied by medical services that substantially contribute to the improvement of the insured’s medical condition, the limitation is not applicable and coverage is provided. While we are of the opinion that this is the clear meaning of the clause, it is certainly “fairly susceptible” of such a meaning and, if there is any doubt (ambiguity) on the matter, it is resolved in favor of appellee and against appellant. Read in this light, the issue is whether the evidence before the trial court is sufficient to support its finding that the medical services being provided appellee, in addition to custodial care, are reasonably expected to substantially improve her medical condition. If so, the custodial care limitation is not applicable and appellant’s expenses are covered by the terms of the policy.

In Hrebec v. Aetna Life Insurance Co., 603 S.W.2d 666 (Mo.App.1980), the Court was presented with a custodial care clause that contained language similar to the one in this case. The Court was required to determine, inter alia, what constituted improvement in the insured’s medical condition. Id. at 674. In Hrebec, even though there was a custodial care exclusion, the Court construed it to mean that those medical services which improved the insured’s medical condition must be reimbursed under the terms of the policy even though the cost of custodial care was not reimburseable. Hrebec serves as an example of medical services that did not improve the insured’s medical condition. However, the ability of the insured to respond to treatment in Hrebec is in stark contrast with that of the insured in the present case. The present record supports the conclusion that appellee’s medical condition was reasonably expected to be substantially improved by the medical services she received at Warren State Hospital.

“Improve” is defined as: “(1) to advance to a better state or quality; make better; (2) to increase the productivity or value of....” AMERICAN HERITAGE DICTIONARY 662 (New College Ed.1980). Application of the foregoing definition to the language in question reveals that if the medical care received by appellee could be said to produce a substantial advance in appellee’s medical condition, then the limitation is not applicable. This interpretation is not at odds with appellant’s own approach to the meaning of the limitation. On cross-examination of appellant’s physician in charge of reviewing claims, he agreed that the limitation did not require that the patient be cured. Appellant’s physician framed the test as being “[w]hat benefit does the patient get from what’s being done for him.” (N.T. 115-116.)

During her stay at Warren State Hospital, appellee received an anticonvulsant drug, dilantin, to control her seizures and a neuroleptic medication, haldol, for the control of her psychosis and the associated symptom of agitation. (N.T. 37, 79-80.) In the past, appellee’s agitation had caused her to strike out at her caretakers. (N.T. 73.) Appellee also engaged in various therapeutic programs including reality orientation, milieu therapy and therapeutic recreation programs. (N.T. 58-60.) She also received assistance from psychiatrically trained nurses. (N.T. 41.) Appellee’s case was reviewed monthly by a treatment team to determine whether she was ready to be discharged to a nursing home. (N.T. 44-45.)

Appellee’s doctor testified that appellee was being treated for psychosis that was a symptom of presenile dementia. The goal of the treatment was to enable appellee to participate with nursing care and to enable her to function in a less restrictive setting, such as a nursing home. (N.T. 35.) Notably, appellee’s doctor testified that while the medical services provided would not substantially improve presenile dementia, the treatment did slow down the progress of the disease and thus increased the lifespan of patients with Alzheimer’s disease. (N.T. 53-55.) Appellee’s doctor was questioned on cross-examination as follows:

Q. And is it also safe to say, Doctor, in the past, during the course of hospitalization, 1978 to present, there has been no substantial improvement in either her medical or psychological status?
A. Improvement is diffcult [sic] to define. There has been improvement in her behavior and basic presenting symptoms. Only thing is she is not ready to be discharged. She still needs active care. There is decline in her level of mental functioning, but there is improvement in her personal distress.

(N.T. 71-72.)

It is clear on the record before us that appellee did receive some custodial care during her stay at Warren State Hospital. The care included assistance in the activities of daily living; appellee was bathed, fed and clothed by the staff. The record also reveals that, in addition, appellee received medical services that were not merely maintenance care and that these services could reasonably be expected to contribute substantially to the improvement of appellee’s medical condition.

The care received by appellee did more than maintain her. In fact, the treatment slowed down the progress of her psychosis and extended her lifespan. Through carefully controlled dosages of haldol and assistance from psychiatrically trained nurses, appellee’s agitation was checked. Appellee’s doctor testified that the agitation was a primary reason for keeping appellee at the hospital. (N.T. 75.) When the agitation is brought under control, discharge proceedings would be initiated. Id. By increasing appellee’s longevity and working towards her eventual release to a nursing home, appellee’s condition was being substantially improved. The record reveals that the therapeutic programs and medication received by appellee did more than merely maintain her. The treatment stablilized her so that she could be eventually released to a nursing home facility.

Accordingly, while we find it unnecessary to resort to federal law in resolving the issue, we are satisfied that Judge Greiner did not err in finding that the custodial care limitation in appellant’s policy was not applicable to appellee’s circumstances and entering judgment in favor of the insured.

Therefore, we affirm.

This case was decided prior to the expiration of President Judge SPAETH’s term of office.

      . In finding waiver, Judge Greiner relied upon the fact that appellant had "paid benefits to [appellee] from March 1978 to January 1980 for which they subsequently denied coverage on the basis of the ‘custodial • care’ limitation.” Memorandum Opinion at 3. Although we decline to reach the merits of the waiver issue, we note that the aforementioned payments may be considered as evidence of the meaning that the parties placed on the limitation. See Celley v. Mutual Benefit Health and Accident Assoc., 229 Pa.Super. 475, 482-483, 324 A.2d 430, 434 (1974) (In construing an ambiguous policy term, the court may attempt to arrive at a reasonable construction “in accord with the parties' apparent intention as revealed by extrinsic evidence of the insurance, its subject matter, the situation of the parties, and the circumstances surrounding the making of' the contract.”) (citation omitted).

      . Custodial care is not defined in the Social Security Act; hence, the phrase has been interpreted by the federal courts. The Department of Health and Human Services has attempted to provide certainty in the area by promulgating federal regulations to define custodial care. See Kuebler v. Secretary of U.S. Department of Health & Human Services, 579 F.Supp. 1436 (D.C.N.Y.1984).

      . No such claim has been made by appellant in this case. Appellant has consistently maintained that it is not liable for any of appellee’s expenses. Appellant has never asserted that, even if it is liable for the cost of non-custodial services, it is excused by the limitation from paying for the cost of those services appropriately characterized as assisting in the activities of daily living.


author: WICKERSHAM, Judge:

text:
    504 A.2d 344
    Derrick BRAGG, a Minor, by Delores J. BRAGG, Mother and Natural Guardian and Delores J. Bragg, Mother of the Minor in Her Own Right, Appellants, v. STATE AUTOMOBILE INSURANCE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Jan. 24, 1986.

      Conrad A. Johnson, Chester, for appellants.
    Peter B. Skeel, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   WICKERSHAM, Judge:

This case was certified to the court en banc to determine the appropriate statute of limitations for uninsured motorist benefit claims under the Pennsylvania No-fault Motor Vehicle Insurance Act and the effect, if any, of a claimant’s minority.

Derrick Bragg, a minor, was struck by a motor vehicle operated by William Kellem while Bragg was riding a bicycle on August 17, 1978. At the time of the accident, Kellem was allegedly uninsured. Accordingly, the appellants, Derrick Bragg, by his guardian Delores Bragg and Delores Bragg, in her own right, submitted a claim for no-fault benefits to the Pennsylvania Assigned Claims Plan Bureau on December 14, 1978. This claim was subsequently assigned to the appellee, State Automobile Insurance Association, and basic loss no-fault insurance benefits were paid to Derrick Bragg. The date of the last payment of no-fault benefits made by appellee was on February 28, 1980.

In order to obtain uninsured motorist benefits, a demand was made upon appellee by appellants at some later date. This was followed by a demand for settlement. The record is devoid of the dates and manner of both demands. The record does show that on August 9, 1982, counsel for appellee refused to arbitrate this matter, however, asserting that appellants had no right to arbitrate under the No-fault Act’s assigned claims plan.

On February 11, 1983, appellants brought the instant cause of action in the Court of Common Pleas of Allegheny County against appellee to obtain uninsured motorist benefits.

Appellee filed an answer and new matter, raising as an affirmative defense the statute of limitations. No reply to new matter was filed by appellants. Appellee then filed a motion for summary judgment which alleged that the implied contract statute of limitations of four years, 42 Pa.C.S. § 5525, applied, barring the commencement of the instant action. The lower court granted that motion and upon appellants’ motion for reconsideration, the court affirmed its earlier decision.

Appellants filed this appeal in which they raise the following issues:

1) Whether the lower court erred in failing to find that the time limitation for uninsured motorist benefits under an assigned claim plan begins to run from the date that the assigned carrier refuses to accept the claim.
2) Whether the lower court erred in failing to find that the claim for uninsured motorist benefits on behalf of a minor is governed by the time limitations outlined in 40 P.S. Section 1009.106(c).

Brief for Appellants at 3.

Our scope of review on an appeal from the granting of a motion for summary judgment was recently summarized in Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985). In that case, this court stated:

Under Pennsylvania Rule of Civil Procedure No. 1035(b), a party shall be entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Skowronski v. Bailey, 330 Pa.Super. 83, 478 A.2d 1362 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Richland Mall Corp. v. Kasco Construction Co., Inc., [337] Pa.Super. [204], 486 A.2d 978 (1984); Skowronski v. Bailey, supra.
“In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.”
Curry v. Estate of Thompson, 332 Pa.Super. 364, [368], 481 A.2d 658, 659 (1984), quoting Rybas v. Wapner, 311 Pa.Super. 50, [54], 457 A.2d 108, [109] (1983).

Id., 340 Pa.Superior Ct. at 438, 490 A.2d at 859. See also Meyers Plumbing and Heating Supply Co. v. West End Federal Savings and Loan Association, 345 Pa.Super. 559, 498 A.2d 966 (1 985).

In essence, appellants contend that the lower court erred in holding that their complaint was time-barred. Appellants argue that the statute of limitations had not yet run for two reasons: the date upon which the statute began to run was the date of breach and not some earlier date and, in any case, the statute was tolled due to appellant Derrick Bragg’s minority. Upon careful consideration, we cannot agree with the former contention but we are constrained to find that the latter contention has merit.

First, addressing the issue of when the statute of limitations commenced to run for filing a claim for uninsured motorist benefits, appellants argue that “[the] cause of action arose on August [9], 1982, when appellee refused to arbitrate this matter thereby indicating that it would not settle and/or defend the claim for uninsured motorist benefits.” Brief for Appellants at 8.

While it is well-established that the time period in which an action based on a legal obligation must be started does not begin until the date of breach, the time of refusal to arbitrate cannot be the relevant date when no right to arbitration exists under the assigned claims plan provision of the No-fault Act. Absent an express agreement to arbitrate between the parties, there can be no right to arbitration of uninsured motorist claims derived from the statute. Although appellants may have been entitled to uninsured motorist benefits under the Act, Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981); Prudential Property & Casualty Insurance Co. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984), appellee could not be compelled to arbitrate the claim. Article I, section 6 of the Pennsylvania Constitution entitles appellee to trial by jury. Appellee has not agreed to waive this right, nor has the legislature exercised its limited power to compel arbitration when there is a right to trial by jury de novo, see Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984) (medical malpractice arbitration may not infringe on a constitutional right to jury); Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980) (cited for the same principle).

Having decided that the time period in which to bring suit was not triggered by the refusal to arbitrate, the task remains to determine at what point the limitations period did commence to run. The answer to that question appears to be dependent upon what statute of limitations applies to the facts herein.

Appellee asserts that the applicable statute of limitations in the instant case is four years, as found in 42 Pa.C.S. § 5525(4). Appellants contest neither the length of the statute nor which is. applicable, but only the beginning date of the statute. We, however, cannot agree with the parties that the implied contract-in-law statute above even applies herein. Rather, this case seems to be controlled by our decision in Holland v. General Accident, Fire and Life Assurance Corp., Ltd., 339 Pa.Super. 433, 489 A.2d 238 (1985).

The facts in Holland are nearly identical to the instant facts. The passenger plaintiff in Holland was injured in a car accident on November 6, 1976. Neither he nor the driver of the car were covered by an insurance policy. On July 23, 1977, plaintiff filed an application for no-fault benefits pursuant to the Pennsylvania Assigned Claims Plan. On May 9, 1978, final payment of no-fault benefits was paid by the assigned carrier. Following a denial of plaintiffs subsequent request for uninsured motorist benefits, plaintiff commenced an action against the assigned carrier on April 21, 1982. Summary judgment in favor of the carrier was granted on the basis that the statute of limitations barred suit. The lower court held that the applicable statute governing uninsured motorist benefits was 42 Pa.C.S. § 5525(4), i.e., as a contract implied-in-law.

On appeal, our court affirmed the grant of summary judgment, but held that the relevant statute governing uninsured motorist benefits was 40 P.S. § 1009.106(c)(1), and not the four year, contract implied-in-law statute, applied by the court below.

In finding that the claim for uninsured motorist coverage, presented to us in Lewis [v. General Accident Group, 336 Pa.Super. 373, 485 A.2d 1128 (1984) ], was barred by a four-year limitation on actions, this court relied on our earlier opinion in Warren v. Reliance Insurance Company, 318 Pa.Super. 1, 464 A.2d 487 (1983) (en banc). In Warren, we held that a claim, timely filed with the Assigned Claims Bureau, entitles the claimant to written notification of rejection by the assigned obligor and then to at least sixty days in which to file an action. Significantly, we further held, however, that in any event a claimant must bring the action for benefits within four years of the accident.
Based upon the facts before us in Lewis, we found our Warren decision to be controlling. However, the four-year limitation upon actions for benefits under the PACP, announced in Warren and applied to an uninsured motorist claim in Lewis, is expressly limited in its application to only those actions initiated by claimants who have not already received benefits. See Warren, supra, 318 Pa.Super, at 6-7, 6-7 n. 5, 464 A.2d at 490, 490 n. 5.
Section 106(c)(1) states, in pertinent part: If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.
40 P.S. 1009.106(c)(1).
Appellant herein applied for basic loss benefits on July 23, 1977 and received $14,429.27 as satisfaction of her claim on May 9, 1978. It is clear from the record before us that this was the last payment of benefits made to appellant prior to her commencement of the instant action for further benefits on April 21, 1982. In order for the instant action to have not been barred by the applicable statute of limitations, it must have been commenced within the two year period following May 9, 1978. Clearly it was not.

Holland v. General Accident Fire and Life Assurance Corp., Ltd., supra, 339 Pa.Superior Ct. at 435-36, 489 A.2d at 239 (footnote omitted).

In Tubner v. State Farm Mutual Automobile Insurance Co., supra, our supreme court held that a company assigned to provide insurance coverage pursuant to the PACP is required to pay not only basic loss benefits, but also uninsured motorist benefits. Because Tubner did not create a new right of action, but merely clarified the law, it applies retroactively. See Holland v. General Accident Fire and Life Assurance Corp., Ltd., supra; Lewis v. General Accident Group, 336 Pa.Super. 373, 485 A.2d 1128 (1984). Section 106(c)(1) of the No-fault Act plainly states that in non-death cases, where no-fault benefits have been paid, an action for further benefits must be commenced within two years after the last payment of benefits. A claim for uninsured motorist benefits is undoubtedly a claim for further benefits, and thus falls under the provision of this section.

Paralleling the facts of Holland, appellants herein applied for basic loss benefits on December 14, 1978 and received .such benefits. The record clearly shows that the last payment of benefits made to appellants prior to their commencement of the instant action for further benefits was on February 28, 1980. The instant suit was commenced on February 11, 1983. In order for the suit to have not been barred by the applicable statute of limitations, it must have been commenced within the two year period following February 28, 1980. Clearly it was not. Therefore, under our decision in Holland, the beginning date of the statute is the date of the last payment of no-fault benefits. Since suit was not filed within the two year period following that date, the lower court did not err in its conclusion that the statute had run, unless the statute had been tolled for some reason. That brings us to the second issue in the case: was the statute tolled due to appellant Derrick Bragg’s minority? Appellants assert that 40 P.S. § 1009.106(c)(5) clearly tolled the statute in this case. Section 106(c)(5) states:

If a person entitled to no-fault benefits is under a legal disability when the right to bring an action for the benefits first accrues, the period of his disability is not a part of the time limited for commencement of the action.

While we are in agreement with the general reasoning of this court in Holland, supra, Lewis, supra, and Warren v. Reliance Insurance Co., 318 Pa.Super. 1, 464 A.2d 487 (1983), as to the proper statutes of limitations in assigned claims plan cases, we are concerned about the possible consequences of a broad interpretation of the language in Lewis which states “we find ‘basic loss and uninsured motorist benefits’ wherever the statute reads ‘basic loss benefits.’ ” Lewis, supra, 336 Pa.Super. at 377, 485 A.2d at 1129. We question such a sweeping extension of the decision in Tubner, which merely acknowledged the right of claimants to apply for uninsured motorist benefits, as well as no-fault benefits, from the assigned carrier. Under the circumstances of this case, however, consistency and logic compel us to agree with appellants that the language of section 106(c)(5) should be construed to include uninsured motorists benefits. Our court has held that the phrase “legal disability” in section 106(c)(5) includes disability attributable to a claimant’s minority and that the same section creates no distinction between minor claimants’ actions to recover basic no-fault benefits and actions to recover additional benefits. Salvado v. Prudential Property and Casualty Insurance Co., 287 Pa.Super. 304, 430 A.2d 297 (1981).

Section 106(c)(5)____ of the Act directs that where a claimant is under a legal disability, the period of disability shall not be included in the period within which an action is to be commenced. The intent seems clear. During legal disability the statute of limitations is tolled. The statute creates no distinction between actions to recover benefits and actions to recover additional benefits.

Id., 287 Pa.Superior Ct. at 308, 430 A.2d at 299. Therefore, we find that, following the holdings in Salvado, id., Lewis, supra, and Holland, supra, the two year statute of limitations established by section 106(c)(1) was tolled because of Derrick Bragg’s minority.

In summary, we hold that the appropriate statute of limitations for a claim for uninsured motorist benefits under the No-fault Act, in a non-death case in which some no-fault benefits have been paid previously, is two years from the date of the last payment of those benefits. When the claimant is a minor, however, the statute is tolled. Therefore, we must reverse the entry of summary judgment in this case.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

SPAETH, President Judge, joined in this opinion before the expiration of his term on the Court.

      . A trespass action was also instituted on behalf of Derrick Bragg at G.D. 78-29630. That action is pending in the court below.

      . The question of whether arbitration is the proper forum for the disposition of uninsured motorist claims against assigned carriers was recently decided by our court en banc in the case of Johnson v. Travelers Insurance Co., 348 Pa.Super. 278, 502 A.2d 206 (1985). There we held that absent an actual contract containing an arbitration clause, the proper procedure to follow in the enforcement of uninsured motorist benefits as against the assigned obligor, is the filing of a complaint in assumpsit.

      . Section 106(c) of the No-fault Act is applied through section 108(c)(1) which provides:
      (1) Except as provided in paragraph (2) of this subsection, an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of this act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim.

      . We note that on August 5, 1985, a petition for allowance of appeal was granted by the Pennsylvania Supreme Court in Lewis v. General Accident Group, 336 Pa.Super. 373, 485 A.2d 1128 (1984). It is listed at 107 E.D. Appeal Docket 1985.


author: WIEAND, Judge:

text:
    504 A.2d 350
    Ruth Brozgal ROSENBERG, Appellant, v. Lawrence S. ROSENBERG, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed Jan. 31, 1986.

      Robert C. Capristo, Pittsburgh, for appellant.
    Calvin J. Webb, II, Edensburg, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

This appeal is a last ditch effort by a mother, who has been awarded primary custody of two daughters, to prevent visitation by the girls’ father. We affirm the order of the Honorable Eugene Creany who, after carefully considering the mother’s objections, permitted visitation by the father. However, we will modify the order by eliminating the “automatic” penalty imposed by the hearing court in the event of the mother’s refusal to comply with the visitation feature of the order.

Dr. Lawrence S. Rosenberg and Ruth Rosenberg, husband and wife, are the parents of two daughters, Rebecca, age ten, and Idra, age seven. The Rosenberg marriage fell on hard times and, on January 31, 1984, Ruth commenced an action in divorce. In March, 1984, both spouses filed petitions under the Protection from Abuse Act of October 7, 1976, 35 P.S. § 10181 et seq. The custody of the parties’ daughters was an immediate and pressing issue, and, on April 2, 1984, the court awarded temporary custody of the girls to their mother and established a schedule of visitation for their father. Four amended orders dealing with support and visitation were entered in the next three months. The parties were divorced on July 13, 1984.

On August 6, 1984, Dr. Rosenberg filed a petition requesting that Ruth Rosenberg be held in contempt for refusing to allow visitation as the court had ordered. He also requested that permanent custody be awarded to him. Subsequent hearings disclosed the mother’s consistent pattern of refusing to allow visits by the father. In January, 1985, she was found to be in contempt of court and was imprisoned until she subsequently purged herself by agreeing to allow visitation. To facilitate visitation, temporary custody of the girls was awarded to their maternal grandparents, at whose home subsequent supervised visitations took place. Thereafter, the issue of permanent custody was heard and decided.

Appellant supported her objections to the father’s visits by accusations that appelleé had sexually abused Idra, the younger daughter. Because of these accusations, both daughters were examined by a psychologist and by two psychiatrists. In addition to this expert testimony, the court received testimony from the parties, their daughters (in camera), the parties’ rabbi and his wife, the maternal grandmother, and several neighbors.

On May 14, 1985, the hearing court entered an order awarding physical custody of the two girls to their mother and establishing a schedule for unsupervised visitations by the father. The order also provided that “if the Plaintiff-Mother in any manner hinders, hampers, denies and/or violates this Custody Order, physical custody of the minor children shall be transferred to the Defendant-Father.”

The trial court found as fact that (1) both parties were fit custodial parents, capable of caring for the children and providing for their physical and emotional needs; (2) both parents were well adjusted and genuinely concerned about their daughters’ welfare; (3) the homes of both parents were more than adequate; and (4) the evidence did not support the accusation that the father had sexually abused the younger daughter. The court concluded that either party could adequately parent the children, but determined that the children’s best interests would be served by placing primary custody with their mother, who had been the primary caretaker. On appeal, Ruth Rosenberg argues that the hearing court erred in finding that the accusation of sexual abuse had not been proved.

The scope of review of an appellate court in custody matters is broad. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). However, this broad power of review was not

“intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear.”

Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977), quoting Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A.2d 350, 353 (1953). “Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge.” Commonwealth ex rel. Robinson v. Robinson, supra, 505 Pa. at 236-237, 478 A.2d at 806 (emphasis deleted), quoting Commonwealth ex rel. Spriggs v. Carson, supra, 470 Pa. at 296, 368 A.2d at 637.

There was no abuse of discretion in this case. Idra demonstrated a clear preference for her mother. She testified that she didn’t care for her father “because Daddy does things to me____ He touches me in my private places. So I don’t think anybody would like that.” This was consistent with claims allegedly made to her mother that her father had on occasion fondled her in the vaginal and rectal areas. Dr. Rosenberg steadfastly denied that he had covertly fondled his daughter’s private parts. Rebecca said that she had never observed her father fondle her sister in this manner. She also testified that her father had never fondled her in the manner described by her sister. Rebecca apparently had told one of the psychiatrists, however, that her father was overly affectionate and sometimes hugged and kissed her too much. The experts differed in their opinions as to whether Idra’s accusations against her father were credible or the result of coaching by her mother. Except for the accusation, however, there was no other or objective evidence that Idra had been fondled in her vaginal and rectal areas. The hearing judge, who saw and heard the witnesses, decided this conflict in favor of appellee. We perceive therein neither error of law nor abuse of discretion.

A parent is rarely denied the right to visit a child. “A parent will be denied visitation only in those instances where the record shows that the parent is severely mentally or morally deficient so as to constitute a grave threat to the child’s welfare.” Niadna v. Niadna, 343 Pa.Super. 298, 302, 494 A.2d 856, 858 (1985). See also: Somers v. Somers, 326 Pa.Super. 556, 559, 474 A.2d 630, 631 (1984). The matter of scheduling visitation, however, is best left to the discretion of the hearing court. Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 357, 462 A.2d 1386, 1389 (1983); Scarlett v. Scarlett, 257 Pa.Super. 468, 473, 390 A.2d 1331, 1334 (1978).

That portion of the hearing court’s order which threatened to transfer custody of the children to their father if the mother continued to deny visitation was probably bom of exasperation with a recalcitrant litigant. Mrs. Rosenberg has continuously engaged in a course of conduct designed to frustrate Dr. Rosenberg’s visits as required by court order. Her frustrating course of conduct was established unequivocally by the evidence!

Frequent and willful disobedience of a court order concerning a parent’s right of visitation is a factor to be considered in an application for modification of a custody order. Continued and repeated contemptuous behavior which interferes with visitation may constitute a change of circumstances sufficient to support a change in custody. English v. English, 322 Pa.Super. 234, 241, 469 A.2d 270, 273 (1983); Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 593-594, 419 A.2d 1301, 1309 (1980); 24 Am.Jur.2d Divorce and Separation §§ 997, 1011 (1983); Annot., 28 A.L.R.4th 9 (1984). Continued interference with court ordered visitation reflects a person’s attitude toward law and society and suggests an absence of regard for authority. To deliberately sabotage visitation rights calculated to serve the best interests of children bears adversely on the fitness of the custodial parent, whose conduct most certainly does not go unnoticed by the children.

Nevertheless, the normal means of enforcing a partial custody or visitation order is by contempt proceedings. Pa.R.C.P. 1915.12; 24 Am.Jur.2d Divorce and Sepa ration § 997 (1983). See generally: English v. English, supra. A custody award should not be used to reward or punish a parent for good or bad behavior. Id., 322 Pa.Super., at 242, 469 A.2d at 273; 24 Am.Jur.2d Divorce and Separation § 1011 (1983); Annot., 28 A.L.R.4th 9 (1984). Willful interference with court ordered visitations, no matter how deplorable, cannot be made the basis for an “automatic” change of custody. “[A] change of custody is just as important to the child and to others as an original award of custody, and the parties should be afforded the same type of hearing on the subsequent application as they are entitled to on an original award.” 24 Am.Jur.2d Divorce and Separation § 1008 (1983). Although it is not clear that the order in this case was intended to be self-executing, i.e., without further hearing, we are of the opinion that the threat implicit therein should be removed from the order. In this way, the regularity of future proceedings will best be preserved.

The visitation order, as modified by removing language which directs a change in custody in the event of a violation of the visitation schedule, is affirmed.

      . This petition was filed in the Protection from Abuse action. Subsequent orders regarding permanent custody and visitation, therefore, were entered in the Protection from Abuse proceeding. We disapprove of this procedure. The Protection from Abuse Act was enacted to provide immediate protection from physical abuse; it was not intended to replace other, established proceedings for the determination of permanent custody of children. The right of the court to award temporary custody and establish temporary visitation rights with regard to minor children, which has been granted by Section 6(a)(4) of the Act (35 P.S. § 10186(a)(4)), was intended to provide ancillary relief regarding minor children in abuse actions, but was not intended to establish a procedure for determining permanent custody.


author: OLSZEWSKI, Judge:

text:
    504 A.2d 353
    Barbara A. SHINDEL, Appellee, v. Richard F. LEEDOM, Appellant. Barbara A. SHINDEL, Appellant, v. Richard F. LEEDOM, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1985.
    Jan. 31, 1986.

      John R. Kelsey, III, Lebanon, for appellant (at No. 26) and appellee (at No. 27).
    Kenneth C. Sandoe, Myerstown, for appellant (at No. 27) and appellee (at No. 26).
    Before ROWLEY, OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

This appeal and cross-appeal are the result of a lower court decision awarding Barbara Shindel $20 a week child support for her thirteen year old son. Because of the nature of the issues raised, a recitation of the facts are necessary.

On September 6, 1972, Ms. Shindel gave birth, out-of-wedlock, to a boy. One month later, Richard Leedom signed a petition for support order. Although not accompanied by counsel, the seventeen year old was accompanied by his mother, who witnessed his signature on the petition. A clause in that petition stated that Mr. Leedom was aware of his rights, had been Mirandized, and' waived these rights. Various orders and petitions were entered by the court concerning these parties’ obligations and for four years, Mr. Leedom made support payments. Support was voluntarily terminated by Ms. Shindel in September of 1976. No other action was taken until January 1984 when Ms. Shindel again petitioned for support. For the first time in twelve years, Mr. Leedom denied paternity. A domestic relations officer recommended support in the amount of $45 a week but the lower court ordered child support payments of $20 a week. Ms. Shindel appeals this order and asks for an increase to $45 a week. Mr. Leedom, in turn, cross-appeals and denies paternity. The cross-appeal further alleges that the action by Ms. Shindel is barred by the Statute of Limitations. Because the issue of paternity must be resolved before we can decide the propriety of the support award, we will discuss the issues of the cross-appeal first.

Mr. Leedom argues first that the cause of action is barred by the Statute of Limitations found in 42 Pa.C.S.A. Sec. 6704(b). Ancillary to that is Mr. Leedom’s argument that the doctrine of res judicata does not prevent him from raising the issue of paternity.

It is well established that a final, valid judgment precludes further litigation of the same issue by the same parties. Where a reasonable opportunity has been afforded to the parties to litigate a claim before the court and the court has finally decided the controversy, the interests of the state and of the parties require that the validity of the claim and any issue actually litigated shall not be litigated again. Haines Industries, Inc. et al. v. City of Allentown, 237 Pa.Super. 188, 355 A.2d 588 (1975). See also, Williams v. Murdoch, 330 F.2d 745 (3d Cir.1964); Restatements of Judgments, Sec. 1. In addition, before the doctrine of res judicata will apply, there must be: (1) identity of the thing sued on or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Oak Lane Shopping Center, Inc. v. Flame, 264 Pa.Super. 9, 398 A.2d 721 (1979).

A careful review shows that Mr. Leedom was conclusively determined to be the father of Ms. Shindel’s child. As this court has previously held, an order for support of an illegitimate child necessarily determines the issue of paternity. Absent an appeal taken directly from the order, the aggrieved party may not challenge this determination. The issue of paternity is established as a matter of law. Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); Armstead v. Dandridge, 257 Pa.Super. 415, 390 A.2d 1305 (1978). Furthermore, Mr. Leedom’s plea of guilty to paternity, settled the issue rendering it closed for future proceedings. Norris v. Beck, 282 Pa.Super. 420, 422 A.2d 1363 (1980). As noted above, several support orders were entered over a four year period in which Mr. Leedom freely complied with the orders to pay. Had he any doubt as to his fatherhood, that was the proper time to appeal. He did not. As a result, Mr. Leedom’s challenge to paternity must fail.

We also find Mr. Leedom’s statute of limitations argument meritless. Merely because Ms. Shindel voluntarily terminated support for a number of years does not mean Mr. Leedom is relieved of his financial obligations. Having determined that he is the father, he has a duty of support. The original action for support was well within the former two year statute of limitations. At that time, paternity was established. A strict interpretation of the statute bars only those actions brought to determine paternity. Since the action before us now is not one of paternity, that issue having been previously decided, but is an appeal of a support award, we find that the statute of limitations in 42 Pa.C.S.A. Sec. 6704(b) does not apply.

Having disposed of the cross-appeal, we turn now to the dispute as to the amount of the award. The essence of Ms. Shindel’s argument is that the lower court abused its discretion in setting the amount of child support at $20 a week. To bolster her argument, Ms. Shindel cites several cases in which support payments were in excess of the amount awarded to her. Mr. Leedom, on the other hand, cites the facts of this particular situation as a basis for upholding the award. After due consideration of all the factors involved, we agree that the lower court award was reasonable and should not be disturbed.

To begin, we must note that it is well settled that we cannot disturb a lower court’s order of support absent a clear abuse of discretion or law. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981); Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981). A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. The lower court must be upheld on any valid ground. Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980).

Support of a minor child is the equal responsibility of both parents. The amount contributed by each parent will be determined by their ability and capacity to pay. All income, from whatever source, is to be evaluated as well as financial resources and property interests as of the time at which support payments are sought. Straub v. Tyahla, supra; Commonwealth ex rel. Hagerty v. Eyster, supra. Of equal interest to the support determinations are the parties’ expenses. The award must be fair and not confiscatory and must make allowance for the reasonable living expenses of the parent. As always, the support order must be in the best interest of the child.

These well established rules, developed over the years, have been incorporated into a set of guidelines in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The court then devised a complex formula to determine a proper support award. A necessary component of the formula is parental income available for support arrived at from income and expenses. Without this income available for support, the Melzer formula cannot be applied.

The trial court, after reviewing financial statements and listening to testimony regarding income and expenses, found that there was no parental income available for support. Therefore, the Melzer formula was not used. The trial court did, however, take under deliberation all of the other necessary considerations required to determine a support order. As such, we find no abuse by the lower court, neither in its final award amount nor in the method of its determination.

In summary, the lower court decisions are to be affirmed on both the appeal and the cross appeal.

      . (b) Limitation of actions. — All actions or proceedings to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action or proceeding may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.


author: TROMMER, Judge:

text:
    504 A.2d 356
    Sherri HOFFMAN, Appellant, v. Kenneth M. HOFFMAN.
    Superior Court of Pennsylvania.
    Submitted March 27, 1985.
    Filed Feb. 5, 1986.

      Charles R. Rosamilia, Jr., Lock Haven, for Hoffman, appellant.
    Before BECK, POPOVICH and TROMMER, JJ.

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

   TROMMER, Judge:

Appeal is taken from the final decree entered by the trial court dismissing appellant’s divorce action and limiting her claim for alimony pendente lite. We reverse in part and affirm in part.

This action was initiated by appellant’s filing, on January 11, 1982, of a complaint in divorce. Issues as to the grounds for a divorce, alimony pendente lite, counsel fees, equitable distribution of marital property and alimony were referred to a master, who conducted hearings on August 12, 1982 and October 1, 1982. The master’s report was filed on November 17, 1982, recommending that a divorce not be granted in light of the fact that appellant had not filed an affidavit of consent to divorce and no longer wished to proceed under Section 201(c) of the -.Divorce Code, and recommending that appellee pay $32.00 per week for alimony pendente lite and one-half of appellant’s counsel fees. In light of the recommendation that no divorce be entered, the master indicated that claims for alimony and equitable distribution be denied. Both parties filed exceptions to the master’s report and recommendation, and after hearing, the trial court dismissed appellant’s exceptions and sustained appellee’s exceptions in part, by ordering that alimony pendente lite be terminated as of the date of the master’s report. On August 23, 1983, the trial court entered its final decree dismissing appellant’s claims for divorce based on its finding that she no longer wished to pursue it. This timely appeal followed.

The facts found by the master, accepted by the trial court and supported by the record indicate the following. The parties were married on August 23, 1964 and separated on December 28, 1981. Appellant was 35 years old at the time of the master’s report, and had an income of $64.23 from a job with S.T.E.P.-C.E.T.A., $400.00 in rental income from two apartments, and $50.00 a month income from her job with appellee’s beer distributorship. Her expenses were calculated at $1,943.32 per month. Appellee was 36 years old and a partner in S & H Beer Distributors, which grossed $727,808.11 in 1981. His claim for monthly expenses was $1,316.00 and the master noted that some of the expenses are paid for by the partnership. Appellee receives $150.00 per week in salary, plus a number of other benefits from the business, including gasoline for his personal automobile, health and life insurance, auto insurance, milk, chips, beer, butter and eggs, expense money for promotions at local bars and payments for use of his car. The master concluded that the total weekly earning capacity of appellee was $200.00.

The master’s report indicates that at the first master’s hearing, appellant “consented on the record to the executing of an Affidavit of Consent to a 201(c) divorce. The master left the record open in order to receive the Affidavit. The Plaintiff later changed her mind and was uncertain whether she desired to so proceed.” (Report of Master, p. 3) As no affidavit had been filed by the time the master rendered his report, nearly one year after the filing of the complaint, the master indicated that appellant no longer desired to proceed under Section 201(c) and recommended that her claim for divorce be dismissed.

The first issue raised on appeal is whether the trial court erred by confirming the sua sponte recommendation of the domestic master to dismiss the divorce action because the appellant failed to execute an affidavit of consent. Appellant contends that such a sua sponte dismissal was improper absent notice to her of the consequences of a failure to file the affidavit. We agree.

In dismissing the action, the trial court cited Rueckert v. Rueckert, 20 D. & C.3d 191 (Allegheny County, 1981), where an order was entered stating that an action under Section 201 of the Divorce Code of 1980 would be dismissed if the plaintiff refused to file the requisite Section 201(c) affidavit within twenty days. The Rueckert court reasoned that “plaintiff should not be permitted the benefits of a law [alimony pendente lite] whose spirit she is defying.” 20 D. & C.3d at 197. Although this rationale, is sound, we note that Rueckert is distinguishable on its facts from the instant case. First, the defendant in Rueckert had filed a petition to dismiss the action. A review of the record establishes that no such petition was filed by appellee. Second, the Rueckert court allowed plaintiff an additional twenty days to file her affidavit or suffer a dismissal of the action. In the case sub judice, neither the master nor the trial court ever advised appellant that her failure to file an affidavit of consent would result in a dismissal. Accordingly, although we find that appellant should not be allowed to withhold her consent to the divorce while simultaneously seeking alimony pendente lite, we also hold that the trial erred in sua sponte dismissing appellant’s complaint without affording her prior notice.

We also find support for our position from the analogous situation presented by a trial court’s sua sponte entry of an order of non pros. In Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983), this Court held that a trial court lacks the authority to enter a non pros on its own motion. See also Moore v. Mobil Oil Co., 331 Pa.Super. 241, 480 A.2d 1012 (1984) (the chancellor erred in sua sponte ordering a final hearing for injunctive relief).

The second issue raised on appeal is whether the trial court committed an abuse of discretion in confirming the findings of the domestic master as to the earnings of the defendant. This claim is without merit, as the record supports the master’s findings.

The portion of the final decree dismissing appellant’s complaint is reversed and the case is remanded for further proceedings consistent with this opinion. The portion of the final decree confirming the amount of alimony pendente lite is affirmed.