author: JOHNSON, Judge: CIRILLO, President Judge, BROSKY, Judge,

text:
    539 A.2d 1345
    J.H. FRANCE REFRACTORIES CO. and the Van Brunt Company v. ALLSTATE INSURANCE COMPANY, PMA Insurance Company, St. Paul Insurance Company, U.S. Fire Insurance Company, Wausau Insurance Company, and Rockwood Insurance Company.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed April 6, 1988.

      Mark D. Turetsky, Norristown, for J.H. France Refractories, Co.
    John C. Sullivan, Philadelphia, for Allstate Ins. Co.
    Wayne A. Schaible, Philadelphia, for PMA Ins. Co.
    Ralph L. Hose, Ardmore, for St. Paul Ins. Co.
    John A. Luchsinger, for U.S. Fire Ins. Co.
    William F. Sullivan, Jr., Philadelphia, for Wausau Ins. Co.
    Mitchell S. Pinsly, Philadelphia, for Rockwood Ins. Co.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

J.H. France Refractories Company (France) manufactures a line of refractory products. Between 1956 and 1972 France used asbestos in one of its products called Franco-Therm. France also sold products containing silica beginning in 1924 and continuing to the time of this litigation. Van Brunt Company was a wholly owned subsidiary of France which achieved its current status as a division of J.H. France Refractories Company through a merger. Van Brunt is a sales organization with warehouse facilities. Van Brunt at one time sold products containing asbestos and presently sells products containing silica.

In 1981 France filed a declaratory judgment action against Allstate Insurance Company, Pennsylvania Manufacturer’s Association Insurance Company, St. Paul Insurance Company and U.S. Fire Insurance Company. France sought a declaration of the contractual obligation of the defendant insurance companies to afford coverage and provide a defense to France in an asbestos related lawsuit initiated by Charles and Gladys Temple. The Temple lawsuit sought recovery for asbestos-related injuries caused by exposure to asbestos products sold by France and others.

In 1984 Allstate commenced a second declaratory judgment action in which it named as defendants France, Pennsylvania Manufacturers’ Association Insurance Company, St. Paul Fire Insurance Company, U.S. Fire Insurance Company, and Wausau Insurance Company. Allstate later added Rockwood Insurance Company as a defendant. Also joined were 14 individual defendants who, like the Temples, were claimants in asbestos and/or silica-related lawsuits brought against France. This action, as did the first, sought to resolve insurance coverage disputes between the parties. Specifically, it sought to determine the extent of the obligation of each insurance company and France for the defense/indemnity of the tort actions.

The two actions were consolidated. France motioned and a number of parties cross-motioned for summary judgment, based on essentially identical policy language in each company’s insurance policy. France sought a determination of when coverage was triggered and the scope of the triggered coverage, as well as attorney’s fees and expenses based on allegations of bad faith.

The Court of Common Pleas denied the request for counsel fees, finding that no party acted in bad faith. In all other respects the court granted the motion for summary judgment and found the following:

In the context of asbestos or silica-related diseases, “bodily injury” shall mean any part of the process from initial exposure to manifestation, inclusive. Any insurer whose policy was in effect during the period of bodily injury is liable in full for indemnification and defense of any claims arising out of bodily injury during the time its policy was in effect. From among the insurers whose policies were in effect during the entire period of bodily injury, the duty to indemnify and the duty to defend first falls upon the insurer whose policy was first in effect. If that insurer’s highest applicable policy limit is exhausted, the insurer whose policy was next in effect must indemnify and defend until its highest applicable policy limit is exhausted. Defense costs and indemnity payments shall be allocated among the insurers whose policies activated (including the insured for any relevant period of uninsurance) in accord with the policies’ “other insurance” clauses or the equitable doctrine of contribution.

Order of April 18, 1986. Multiple appeals were taken from the order.

The parties ask this Court to review the substantive resolution of issues which was reached by the lower court. This we cannot do because of our determination that the Common Pleas Court lacked jurisdiction to issue a declaratory judgment on this record. We believe this result follows from an application of the Pennsylvania Supreme Court decision in Vale Chemical Company v. Hartford Accident and Indemnity Company, 512 Pa. 290, 516 A.2d 684 (1986), to the facts of this case.

The facts in Vale involve a declaratory judgment action brought by Vale Chemical Company against its insurance carriers, Hartford Accident and Indemnity Company (Hartford), Manufacturers’ Casualty Insurance Company (Manufacturer’s) and Transamerica Insurance Company (Transamerica). Vale sought a determination of whether its insurance contracts with the companies required them to defend Vale and indemnify it against a separate action commenced by Sandra Smith in Illinois. In this separate action Smith had sued Vale and other manufacturers of the drug diethylstilbestrol (DES) to recover damages for vaginal cancer she claimed to suffer as the result of her mother’s use of DES during pregnancy. Transamerica’s predecessor-in-interest, Manufacturers’, had insured Vale at the time Smith’s mother ingested DES. Hartford provided coverage to Vale at the time Smith was diagnosed with cancer.

The Common Pleas Court required the companies to provide a defense. The Superior Court affirmed that ruling, and in so doing adopted a “multi-trigger” theory of liability. Under that theory the insurance policy language “bodily injury”, “sickness” or “disease” was interpreted to include coverage from the time of exposure to the drug to the time of manifestation. Accordingly, both the company which insured Vale at the time Smith’s mother took the drug, and the company which insured Vale when Smith’s cancer manifested itself were required to defend and if necessary indemnify Vale.

The insurance companies in Vale appealed by allowance to the Pennsylvania Supreme Court. That court held that the Common Pleas Court lacked jurisdiction to issue a declaratory judgment on the record in Vale. The court therefore vacated the Superior Court’s order and remanded the case to the Common Pleas Court with directions to dismiss Vale’s suit for lack of subject matter jurisdiction. The court based the dismissal on the failure to join the proper parties.

The court commenced its analysis with reference to the Declaratory Judgments Act, 42 Pa.C.S. § 7531 et seq., which provides that:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.

42 Pa.C.S. § 7540(a). The court in Vale found that Smith, the Illinois tort plaintiff, had an interest in the Pennsylvania declaratory judgment action commenced by Vale, because the action sought a declaration about coverage for the tort action which Smith had commenced. Smith was thus found to be an indispensable party. She was not joined because personal jurisdiction over her could not be had. However, since Smith had an interest which would have been affected by the declaration, and she was not joined, the Supreme Court ruled that the Court of Common Pleas lacked jurisdiction, under the Declaratory Judgment Act, to entertain the action.

In this case, much as in Vale, the parties allege that they have joined those tort plaintiffs in the underlying asbestos/silica lawsuits who were named as defendants in the two declaratory judgment actions. However, in the trial court, they also stipulated to the fact that:

Since the filing of this declaratory judgment action, additional asbestos and/or silica-related lawsuits have been filed in which the plaintiffs seek damages for injuries allegedly sustained as a result of their exposure to asbestos and/or silica-containing products and in which it is alleged that J.H. France manufactured, fabricated, supplied and/or sold asbestos and/or silica-containing products to which the plaintiffs were exposed.

Pre-trial Stipulation of Facts, para. 4.

No showing has been made, nor probably could have been made, that any of these tort plaintiffs have been joined to this consolidated declaratory judgment action.

A similar circumstance existed in Vale. Vale represented in its supplemental brief that the Smith case was only 1 of more than 140 suits that had been filed against Vale based on DES-related injuries. Vale represented that at least 40 of those cases were then pending and more would undoubtedly be filed. These suits, Vale argued, involved the same insurers, policy language and injuries. The Pennsylvania Supreme Court responded to this argument stating:

If this is indeed the case, and the parties would like to determine all of Vale’s insurance companies’ responsibilities in this case, it would have to be dismissed because the record does not indicate that all insurance companies representing Vale have been joined. Moreover, the affected plaintiffs have also been left out. The brief states that many of these cases are similar to this one; this implies, to us, that there are other carriers involved. Their rights and those of the plaintiffs in these cases would certainly be prejudiced by the result in this action. Thus we again lack indispensable parties even if we held that joining this particular tort plaintiff [Smith] was unnecessary.

Vale, 512 Pa. at 295-96, 516 A.2d at 687. (emphasis supplied). Thus the court was concerned not only with the failure to join Smith, but with the failure to join the other tort plaintiffs and other insurance companies.

In an explanation of its rationale the court stated: Essential to the adversary system of justice, and one of the basic requirements of due process is the requirement that all interested parties have an opportunity to be heard. Thus, all parties whose interest will necessarily be affected must be present on the record. Smith, the particular tort plaintiff involved in this case, is not present. Nor are any of the other plaintiffs seeking damages, for injuries suffered as a result of the use of DES, represented as parties on this record. Appellants’ argument amounts to a request to convert this case into a kind of class action in which they would represent a plaintiff class of all insurance carriers similarly situated, appellee would represent the interest of all manufacturers, and all tort plaintiffs would become parties represented by amicus. For obvious reasons, we reject such an attempt first presented at the appellate level. See Pa.R.C.P. 1701-1716.

Vale, 512 Pa. at 296, 516 A.2d at 688. (emphasis supplied). In the case at bar, the parties likewise seek a decision which will affect the rights of people who, admittedly, are not now before the court. These people are the tort plaintiffs who have not been named as defendants and whose claims have not been joined. Their rights would without a doubt be affected by any declaration, and yet they have had no opportunity to be heard. Under our reading of Vale and application of that precedent to these facts, these tort plaintiffs are indispensable parties, whose absence from this case deprived the Court of Common Pleas of jurisdiction to issue a declaratory judgment on this record. See Vale, 512 Pa. at 293, 516 A.2d at 686.

We must respectfully disagree both with Judge Brosky’s perception of what we here decide and with his perspective as to the real issue before this Court. We do not assert that the trial court was without jurisdiction to hear the declaratory judgment action. As our supreme court has stated in Commonwealth, Dept. of Public Welfare v. Court of Common Pleas of Philadelphia County, 506 Pa. 410, 485 A.2d 755 (1984):

The test of whether a court has jurisdiction over a particular controversy depends upon “the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged, — whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case.” (emphasis in original) Studio Theaters, Inc. v. Washington, 418 Pa. 73, 77, 209 A.2d 802, 804-805 (1965). See Yezerski v. Fong, 58 Pa.Cmwlth. 566, 569, 428 A.2d 736, 737 (1981).

Commonwealth, Dept. of Public Welfare, 506 Pa. at 417, 485 A.2d at 758. In the case now before us, we agree with the dissenters that the trial court was empowered to hear the matters now on appeal.

This is the beginning, rather than the end, of the inquiry, however. A court can be competent to enter upon an inquiry and yet ultimately decide that, in view of the facts pleaded or proved, it is unable to grant the relief sought. That was the circumstance facing our supreme court in Vale and the situation we here review.

The Declaratory Judgments Act mandates that:

all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.

42 Pa.C.S. § 7540(a) (emphasis added). It is clear from this section of the Act that the joinder of all persons who have an interest which would be affected by the declaratory judgment must be accomplished before a declaration can issue.

In this case, the parties had stipulated, before submitting their cross-motions for summary judgment, that additional lawsuits had been filed in which plaintiffs sought damages against France. Given the “multi-trigger” theory of liability contained in the order here under review, and given the immunity afforded to insurance companies once their highest applicable policy limit is exhausted, it could hardly be successfully maintained that the unnamed plaintiffs referred to in the stipulation of facts would not be affected by the proposed declaration.

Our position is further buttressed, we believe, by the fact that Allstate, the plaintiff at 1146 January Term 1984 in the trial court (one of the two consolidated cases on appeal) expressly requested a pro rata sharing of expenses and indemnification not only in the cases then known to be filed against France, but also “in all future cases filed against J.H. France.” Complaint of Allstate Insurance Company, Prayers for relief following paragraphs 45, 49, 56, and 60.

Since we read § 7540(a) of the Declaratory Judgments Act to be speaking to the power of the trial court to issue the declaratory judgment as opposed to the court’s jurisdiction to receive and hear the suit, we feel constrained to follow Vale and vacate the judgment.

In Vale, our supreme court stated:

We ... now hold that Common Pleas lacked jurisdiction to issue a declaratory judgment on this record.

Vale, 512 Pa. at 293, 516 A.2d at 686. The court went on to declare that:

No adequate reason has been advanced for us to ignore the statutory requirement that all interested parties shall be joined before a declaratory judgment can issue. While we recognize the importance of the question involved in this matter, importance alone does not confer jurisdiction where it does not otherwise exist. Essential to the adversary system of justice, and one of the basic requirements of due process, is the requirement that all interested parties have an opportunity to be heard. Thus, all parties whose interest will necessarily be affected must be present on the record.

Id., 512 Pa. at 296, 516 A.2d at 687-88 (footnote omitted).

We do not disagree with Judge Brosky who, in dissent, contends that the abstract right of a court to exercise its powers in causes in a certain class (subject matter jurisdiction) attaches at the time of the filing of the action. We do not believe this is inconsistent with the legislative mandate found in 42 Pa.C.S. § 7540(a), requiring the joinder of indispensable parties prior to the issuance of any declaratory judgment affecting their rights.

Because the requirements of the Declaratory Judgments Act with respect to the joinder of indispensable parties have not been satisfied, the judgment must be vacated and the case remanded to the Court of Common Pleas with directions to dismiss the suit. Vale, 512 Pa. at 293, 516 A.2d at 686.

Judgment vacated. Case remanded for dismissal of the suit. Jurisdiction relinquished,

BROSKY, J., files a dissenting opinion.

CIRILLO, President Judge, files a dissenting statement in which he joins BROSKY, J., dissenting opinion.

CIRILLO, President Judge,

dissenting:

I join Judge Brosky’s dissenting opinion. I write separately only to emphasize my disagreement with the majority’s implication that a court’s jurisdiction in a declaratory judgment action hinges on whether or not new plaintiffs will file new lawsuits during the pendency of the action.

In Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986), the Pennsylvania Supreme Court dismissed the declaratory judgment action for lack of subject matter jurisdiction. Sandra Smith, the tort plaintiff involved in the original case, was not joined in the subsequent declaratory judgment action. The court stated: “While we recognize the importance of the questions involved in this matter, importance alone does not confer jurisdiction where it does not otherwise exist.” Id., 512 Pa. at 296, 516 A.2d at 687-88 (emphasis added). In the case before us, unlike the situation in Vale, the court had jurisdiction at the time the action was filed. It was only since the filing of the declaratory judgment action that additional lawsuits were filed. I agree with Judge Brosky that the filing of additional lawsuits cannot divest a court of jurisdiction where it otherwise exists. See generally 20 Am.Jur.2d, Courts § 147.

BROSKY, Judge,

dissenting:

I respectfully dissent. The majority, relying upon our Supreme Court’s opinion in Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986), asserts that the trial court was without jurisdiction to hear the declaratory judgment action. With this view, I disagree.

As the majority notes, Vale involved a situation where an action was filed by an Illinois resident against Vale Chemical Company (“Vale”) in Illinois, as a result of an alleged injury being sustained from the use of a drug Vale manufactured. Vale filed a declaratory judgment action in Pennsylvania against its insurers to determine issues of the insurers’ duty to defend and indemnify Vale in the Illinois action. The Supreme Court, finding that the Illinois plaintiff had an interest in the outcome, held that jurisdiction was lacking for failure, and inability, to join an indispensable party. The majority reads Vale as requiring the same result here. The majority appears to be troubled by what I perceive to be dictum expressed by our Supreme Court in Vale: that had Vale wished to settle all of its insurer’s obligations in the many similar cases which had been filed against Vale, it would likewise have faced dismissal since the record revealed that not all of the insurers or plaintiffs involved in those cases had been joined. This dictum, coupled with the stipulation that other suits had been filed against J.H. France since the filing of the present declaratory judgment action, leads the majority to conclude that indispensable parties have not been joined and that, consequently, the trial court lacked jurisdiction. I cannot agree with the majority’s reading of Vale nor with the result reached.

Early in the Vale opinion, the Supreme Court states its holding: “[bjecause the Illinois plaintiff, an indispensable party, was not joined, we reverse for lack of subject matter jurisdiction.” 512 Pa. at 292, 516 A.2d at 685. Lest the holding remain unclear, the Supreme Court noted at the end of its .opinion:

The dismissal of this case is based solely on the failure to join the proper parties. It is clear that if personal jurisdiction of the Illinois plaintiff could have been had, her joinder would have given the court jurisdiction, under our Declaratory Judgments Act, to entertain this action.

512 Pa. at 297, n. 5, 516 A.2d at 688, n. 5. (Emphasis added).

These two passages clearly indicate that, in our Supreme Court’s opinion, jurisdiction was lacking in Vale only for the failure of Vale to join the Illinois plaintiff, Smith, she being indispensable to that action. That other actions had been filed against Vale was of no consequence to the case before the Supreme Court. In fact, the language which troubles the majority addresses an alternative argument advanced by Vale; one which is usually advanced in a mootness context, that an issue is capable of repetition while avoiding review. (Perhaps this alternative argument was prompted by Vale’s dismissal from the underlying tort action brought by Smith. 516 A.2d at 687, n. 2).

Having concluded that Smith was indispensable to the action before it, and thus, that jurisdiction was lacking for failure to join her, the Court addressed Vale’s secondary contention that the case should be decided regardless, because there were many other cases pending which involved similar issues of coverage and, thus, deciding the issue was of great importance. The court found this argument self defeating because not all of those parties, plaintiffs and insurers alike, had been joined, and apparently, also because it did not believe the issue was likely to escape review as contended, see 512 Pa. at 295, n. 3, 516 A.2d at 687, n. 3.

It is a fundamental legal principle that rights and liabilities of individuals cannot be positively and directly decided in an action if they are not a party to that action. Hence, in the Vale case the trial court could not issue a declaration of rights as to ABC insurance company or Jane Doe plaintiff, for instance, as neither had been joined to the action; nor, upon appeal, having found Smith indispensable and thus jurisdiction lacking, could jurisdiction be saved by asserting that non-parties, such as Jane Doe and ABC insurance, as well as many others, also needed the issue decided. However, in contrast, it is beyond contention as well that a determination in any action may affect individuals in other actions who are similarly situated, then presently or in the future, either by way of collateral estoppel or by establishing legal precedent. But it cannot be said that all such individuals must be joined to the first filed action for the court to retain jurisdiction of that action. It is one matter for the court to decide rights and liabilities of non-parties, which the court cannot do; and another matter altogether to decide rights and liabilities of parties to an action which may then affect others similarly situated in a collateral manner. This the court can do (and does all the time) and really must do lest it be rendered impotent to perform its function. Consequently, going back to my earlier posed hypothetical situation, had Smith been joined in the Vale case, constituting joinder of all interested parties to that particular action, the later filing of an action by Jane Doe against Yale and involving additionally ABC insurance company would not have divested the court of jurisdiction as to the first action involving Smith. At best, it would have created a situation where permissive joinder might be appropriate.

Furthermore, the troubling passage from Vale is qualified and indicates that if the parties had wished to determine all of Vale’s insurers’ responsibilities with regard to the many pending cases, the action would have had to be dismissed, because the record indicated that not all of those insurers had been joined, nor had those plaintiffs. The suggestion here is that Vale was requesting a direct determination of the rights of all of the individuals involved in the other cases, such as might be found in a class action suit; or, in the least, a direct determination of rights of some of the non-parties. Of course, as indicated above, the rights of those parties could not have been determined in their absence from joinder to the case. Consequently, with respect to a direct determination of the rights of all, or some of, those potential parties, indispensable parties were also lacking. But with respect to the case before the Supreme Court, only the failure to join the Illinois plaintiff prevented jurisdiction from attaching, as she was indispensable to that action. Unlike Vale, J. H. France has not asked, in this case, for a determination of rights of non-parties to the action.

In the present action, it cannot be said that an indispensable party is missing. All parties indispensable to this action have been joined, including the plaintiffs. That other parties filed actions after the present one was filed should not affect jurisdiction of this case. Jurisdiction is something which a court possesses at the time of the filing of the action and an assessment of the court’s jurisdiction is made on the record at the time of the filing of the action. The Supreme Court recognizes this in the Vale opinion itself where they state:

The supplemental briefs ambiguously indicate that Vale has been dismissed from the Smith lawsuit. This is irrelevant to a determination of whether there was jurisdiction over this matter when it was first filed.

512 Pa. at 295, n. 2, 516 A.2d at 687, n. 2. (emphasis added).

As touched upon above, every time that an action is filed, there is a possibility that, prior to trial, other actions will be filed involving some of the same parties and/or some of the same issues, especially in cases like Vale and the present one. However, this does not divest the court of jurisdiction as to the first filed action, even if the results of the first action may affect those involved in subsequently filed actions by virtue of legal precedent or the doctrine of collateral estoppel.

Furthermore, to the extent the Declaratory Judgment Act is read to require joinder of all persons or parties to be potentially affected by the determination by virtue of the doctrine of collateral estoppel, perhaps for policy reasons, it would not seem reasonable that the requirement would reach past those individuals or parties indispensable to then pending cases. Of course, all such persons or parties were joined in this case as well. To read the joinder provisions of the Declaratory Judgment Act and the Vale decision to result in a divestiture of jurisdiction every time an individual or individuals file similar actions against the insured, after the insured has sought declaratory relief as to its insurer’s obligations, would create a situation where declaratory relief would be virtually impossible to obtain in such cases, while also ignoring the great importance such relief has for all parties involved in such cases. In addition, it would appear to conflict with statements of this court and our Supreme Court that once jurisdiction of a court attaches, it exists for all times until the cause is fully and completely determined. See Get Set Organization v. Philadelphia Federation of Teachers, Local No. 3, 446 Pa. 174, 286 A.2d 633 (1972); Whitmer v. Whitmer, 243 Pa.Super. 462, 365 A.2d 1316 (1976). It cannot be said that indispensable parties were missing when the case was filed. Consequently, the court possessed jurisdiction over the subject matter at that point in time. As such, this case is distinguishable from Vale. The majority provides no authority for the proposition that the subsequent filing of actions against J. H. France could work to divest the trial court’s ability or competency to issue a declaratory judgment.

In response to the majority’s discussion of my Dissenting Opinion, the point I have argued is that the Vale case does not dictate the result reached by the majority. I believe a very careful reading of Vale will disclose this fact. The majority responds to my dissent by indicating there is a difference between competency to “enter upon an inquiry” and competency to “grant the relief sought.” This may indeed be true; however, the Vale case did not hinge upon such a distinction as the majority suggests. The majority states, at pp. 582 of their opinion, “[a] court can be competent to enter upon an inquiry and yet ultimately decide that, in view of the facts pleaded or proved, it is unable to grant the relief sought. That was the circumstance facing our Supreme Court in Vale and the situation we here review.” A careful review of Vale discloses that our Supreme Court was not faced with this “circumstance”, nor did they make such a distinction in their holding.

The Supreme Court stated early in Vale that “[b]ecause the Illinois plaintiff, an indispensable party, was not joined, we reverse for lack of subject matter jurisdiction.” (Emphasis added). 512 Pa. at 292, 516 A.2d at 685. They then state that “we vacate Superior Court’s order and remand to Common Pleas with directions to dismiss appellee’s suit for lack of subject matter jurisdiction.” (Emphasis added). 512 Pa. at 293, 516 A.2d at 686. Perhaps even more definitive is the Supreme Court’s final statement on the issue:

The dismissal of this case is based solely on the failure to join the proper parties. It is clear that if personal jurisdiction of the Illinois plaintiff could have been had, her joinder would have given the court jurisdiction, under our Declaratory Judgments Act, to entertain this action.

(Emphasis added), 512 Pa. at 297, n. 5, 516 A.2d at 688, n. 5.

The Court also states that the fact that Smith had allegedly been dismissed from the underlying lawsuit was “irrelevant to a determination of whether there was jurisdiction over this matter when it was first filed." (Emphasis added), 512 Pa. at 295, n. 2, 516 A.2d at 687, n. 2. These passages clearly show that the Vale decision focused on the failure to join Smith, the underlying tort plaintiff, and found a lack of subject matter jurisdiction due to this failure. The Supreme Court found a jurisdictional defect which existed at the time the case was filed and which was never subsequently cured by the joinder of Smith. The Court did not find that Common Pleas had jurisdiction to hear the action initially but lacked competency to issue a declaratory judgment. Nor does the Court indicate or suggest that once gaming jurisdiction or competency to hear the action Common Pleas could still possibly be without authority to issue a declaratory judgment. The majority states at page 582 of its opinion, “we agree with the dissenters that the trial court was empowered to hear the matters now on appeal.” Further, the majority does not contend that indispensable parties were absent when the case was filed. Consequently, as pointed out by President Judge Cirillo, the Vale case is clearly distinguishable from the present one because the Supreme Court found in Vale that the trial court did not have jurisdiction over the case when it was “first filed” and therefore lacked jurisdiction to “entertain this action.”

Additionally, even if the majority should take issue with the Supreme Court’s characterization of the jurisdictional defect which existed in Vale, it cannot be reasonably argued that the Court found such a defect or loss of competency based upon the later filing of cases against Vale by others similarly situated to Smith. The Court clearly based its holding on an examination of the record at the time the case was filed.

As such, the majority’s holding today constitutes a great expansion of the holding made by our Supreme Court in Vale. If this happens to be the majority’s intent, they should state so clearly and support their decision with either appropriate authority, rationale or both. However, such a decision should not rest upon a mischaracterization of the Vale holding. There is an immeasurable difference between finding a lack of subject matter jurisdiction, based upon the-failure to join an indispensable party, the tort plaintiff from the underlying case, as was done in Vale, and finding a lack of competency to issue a declaratory judgment due to the fact that, after the declaratory judgment action was filed with the joinder of the underlying tort plaintiffs, others similarly situated had filed lawsuits against J. H. France, as the majority holds here. It is this difference which has yet to be adequately explained or supported by the majority and which I refuse to support with my vote. Consequently, I disagree with the majority’s expressed view and I respectfully dissent.

      . In Allstate’s Amended Complaint filed August 3, 1984 paragraphs renumbered to 48, 52, 59 and 63.

      . This is really tantamount to the holding of the majority as they find a lack of jurisdiction due to events occurring after the filing of the original action for declaratory judgment. Of course, jurisdiction should attach at the time of the filing of the action and an assessment of the court’s jurisdiction should be made based upon the record at the time of filing. See argument and authority infra.

      . Pa.RX.P. 2229 reads:
      Permissive Joinder.
      (a) Persons may join as plaintiffs who assert any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the rights to relief of all such persons will arise in the action.

      . The court comments, with disapproval, on Vale’s attempt, by way of its argument, to convert the case into a kind of class action suit, 512 Pa. at 296, 516 A.2d at 688. By way of further distinction, it should be noted that no tort plaintiff had been joined to the case in Vale. Consequently, the plaintiffs position in that controversy was left unrepresented. It appears that this is what truly troubles the Supreme Court in Vale. However, here many of the tort plaintiffs have been joined and, therefore, their position should be considered well represented.

      . In actuality, it appears Vale was faced with two potential hurdles. One, jurisdiction, for failure to join an interested party, the tort plaintiff Smith; and two, mootness, because Vale had been subsequently dismissed from the underlying law suit filed by Smith. With respect to the mootness issue the Court comments at 512 Pa. 295, n. 3, 516 A.2d at 687, n. 3, that the issue of coverage could be decided in one of the other 40 pending cases. It does not suggest, as would the majority’s holding here, that all the interested parties of all 40 cases would have to be joined prior to the court gaining jurisdiction to render a decision.


source: Caselaw Access Project

author: DEL SOLE, Judge: JOHNSON, Judge,

license: Public Domain

text:
    539 A.2d 1354
    Harold David TALLMAN, Administrator of the Estate of Irene B. Tallman, Deceased, Appellee, v. AETNA CASUALTY AND SURETY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed April 6, 1988.
    Darryl R. Slimak, State College, for appellant.
    William Carlucci, Williamsport, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Today we are asked to determine whether a provision in an automobile insurance policy which prohibits the stacking of underinsurance coverage where multiple vehicles are insured under the policy should be declared invalid as contrary to the public policy expressed in the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701 et seq. We affirm the trial court’s ruling which determined that such a provision is void as violative of public policy.

The instant action was commenced by Appellee, administrator of the estate of his deceased wife, following a two car automobile accident. The decedent who was operating a Renault automobile suffered fatal injuries when a vehicle driven by another individual crossed the center line and collided with her vehicle. The limits of a policy issued to the other driver, $95,613.00 were received by Appellee. Since Appellee’s damages exceeded this figure, a declaratory judgment action was brought against Appellant who had issued a policy of insurance to the decedent as a named insured which covered both the Renault automobile and a Chevrolet pick-up truck. The policy contained a maximum liability limit of $100,000.00 and a maximum limit of liability for uninsured and underinsured motorist coverage of $35,-000.00. Because the policy issued by Appellant provided coverage for two vehicles Appellee sought to “stack” the underinsurance coverage to recover $70,000.00. Appellee averred that the loss suffered exceeded the combined total of liability limits received from the other driver’s insured and the $70,000.00 of underinsurance coverage sought under the policy issued by Appellant. However, in determining whether such coverage should be obtained the trial court was presented with certain limitations contained in the amendments to the policy. The following provision was found under “Part C. Uninsured Motorists Coverage”, “Limit of Liability” “B.”:

If a single limit of liability for bodily injury liability is shown in the Declarations for this coverage, this is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. We will apply this limit to provide any separate limits required by law for Uninsured and Underinsured motorist coverage. However, this provision will not change our total limit of liability.

Paragraph “C.2.” further provided:

With respect to damages caused by the owner or operator of an underinsured motor vehicle, the applicable limit of liability under paragraph A or B above is the most we will pay regardless of the number of covered persons, claims made, vehicles or premiums shown in the Declarations, or vehicles involved in the accident.

Judgment was entered for Appellee after the court determined that the above provisions, which purport to prohibit stacking of underinsurance coverage for multiple vehicles insured under one policy, were invalid as violative of the public policy expressed in the Motor Vehicle Financial Responsibility Law, hereinafter the MVFRL.

The task of interpreting a policy of insurance is designed so as to effectuate the intent of the parties to the contract as manifested by the language contained in the written document. Language found in the contract which is clear and unambiguous must be enforced unless such provision violates public policy. Votedian v. General Accident Fire and Life Assurance Corporation, 330 Pa. Super. 13, 16-17, 478 A.2d 1324, 1326 (1984), citing Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 306, 469 A.2d 563, 566 (1983). The clarity or ambiguity of the instant policy provisions which disallow the stacking of underinsurance coverage are not at issue in this case. We are only asked to determine whether these provisions are repugnant to the policy underlying the MVFRL. Since a specific statement of findings and purpose is not contained within the MVFRL, we must be guided by the established rules set forth in the Statutory Construction Act, 1 Pa.C.S.A. §§ 1501 et seq. This Act declares that the intention of the General Assembly is to be ascertained and effectuated when interpreting a statute. 1 Pa.C.S. § 1921(a). Words of a statute which are clear and free from ambiguity are not to be disregarded. 1 Pa.C.S. § 1921(b). And where words are not explicit, this court is to consider, among other matters, the following so as to ascertain the intent of the General Assembly:

(1) The occasion and necessity for the statute;
(2) The circumstances under which it was enacted;
(3) The mischief to be remedied;
(4) The object to be attained;
(5) The former law, if any, including other statutes upon the same or similar subjects;
(6) The consequences of a particular interpretation;
(7) The contemporaneous legislative history;
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921(c).

The present law was enacted and prompted by growing dissatisfaction with the prior No-Fault Motor Vehicle Insurance Act. See: Wolgemuth v. Harleysville Mutual Ins. Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988). The No-Fault Act did not address either uninsured or underinsured coverage except to provide minimum limits for uninsured motorist coverage. Uninsured motorist coverage was required under the Uninsured Motorist Act. The courts of this Commonwealth have been called upon to determine the purpose and policy behind these Acts as they relate to the “stacking” question.

In the seminal case of Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968) the legislative intent behind the uninsured motorist statute was examined to determine whether anti-stacking clauses were violative of the purpose of the Act. The court stated:

The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the Act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist.
We do not wish to imply that injured parties may be permitted to pyramid separate coverages so as to recover more than the actual loss____ We do hold, however, ... that where the loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or to the amount of the actual loss.

Id., 429 Pa. at 395-396, 241 A.2d at 115.

Different classes of insured and their ability to stack uninsured coverage were outlined in Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). Therein the court held that the decedent, the son of the named insured as well as a member of his household, was a “Class One” insured, an intended beneficiary of the policy, and entitled to “stack” coverages. The court recounted the justification for stacking:

[Fjirst, ... it furthers the policies sought to be accomplished by the act; and second, that the intended beneficiary of an uninsured motorist policy is entitled to multiple coverage when multiple premiums have been paid. The latter rationale is grounded in the belief that a person has reasonable expectations when he pays separate premiums that he has obtained coverage under separate policies, and therefore is entitled to benefits under each.

Id., 504 Pa. at 338, 473 A.2d at 1010.

Appellee aptly argues that “the same precedents that mandated a liberal intent and prohibited the exclusion of stacking in the un insured motorist context, should also now apply with respect to underinsured motorist protection under the Financial Responsibility Law.” Appellee’s Brief at 15. In positing that the rationale utilized in voiding prohibitions to stacking under the Uninsured Motorist Act should be applied to the instant law, Appellee, like the trial court, refers to the language of the MVFRL.

Initially, we turn to the Subchapters contained within the MVFRL and note that the provisions for both uninsured and underinsured motorist coverage were drafted together within Subchapter C. titled Uninsured and Underinsured Motorist Coverage. Appellee maintains, and we agree, that this factor is important to a determination of the legislative intent regarding the stacking question. The legislature in enacting a statute is presumed to have been familiar with the law as it then existed and the construction which the courts had placed upon such law. Wallaesa v. Wallaesa, 174 Pa.Super. 192, 100 A.2d 149 (1953). As recited, the stacking of uninsured benefits prior to the passage of the MVFRL was permitted. See discussion supra. When enacting the provisions for uninsured and underinsured motorists benefits together in Subchapter C. of the MVFRL, no express limitation regarding stacking was written into the law. We find this fact lends credence to Appellee’s position that the legislature intended the stacking of uninsured benefits to continue, and by coupling uninsured and underinsured benefits within the same sub-chapter, the legislature intended for stacking of underinsured benefits to be permitted.

Appellee also points to the definitions found within the two acts. Under the MVFRL underinsured motorist coverage is described as designed to “provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.C.S.A. § 1731(c). Similar language was used in the Uninsured Motorist Act in describing such coverage as issued “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motorist vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” 40 P.S. § 2000.

Further, an intent to provide for stacking of uninsured and underinsured motorist benefits may be evinced under Subchapter C. § 1733 which sets forth the order of priority where multiple policies apply. Although Subchapter C. does not expressly provide for the stacking of underinsured coverage where multiple vehicles are covered under one policy, it does not expressly prohibit such recovery. The only limitation on recovery listed within Subchapter C. requires that “a person who recovers damages under uninsured motorist coverage or coverages cannot recover damages under underinsured motorist coverage or coverages for the same accident.” 75 Pa.C.S.A. § 1731(d). There is no provision in Subchapter C. prohibiting the stacking of either uninsured or underinsured coverage. It is important to note that Subchapter B., entitled Motor Vehicle Liability Insurance First Party Benefits, does set forth in § 1717 an express prohibition providing that first party benefits shall not be increased by stacking the limits of coverage of “(1) multiple motor vehicles covered under the same policy of insurance; or (2) multiple motor vehicle policies covering the individual for the same loss.” 75 Pa.C.S.A. § 1717 (emphasis added) See: Laguna v. Erie Insurance Group, 370 Pa.Super. 308, 536 A.2d 419 (1988). No similar limitation is contained within Subchapter C. Since the legislature chose not to include a like provision when enacting Subchapter C., their noninclusion of such a provision must be construed as intentional where there is no other meaning fairly implied from the legislative intent. Allen v. Erie Insurance Company, 369 Pa.Super. 6, 11-12, 534 A.2d 839, 841 (1987) citing Hochgertel v. Canada Dry Corp., 409 Pa. 610, 614, 187 A.2d 575, 577 (1963).

Appellant reasons that the Legislature did not expressly prohibit stacking of underinsured motorist coverage in Sub-chapter C. since prior to the passage of the MVFRL a clear and unambiguous provision disallowing the stacking of underinsured benefits was enforceable. See: Votedian v. General Accident Fire and Life Assurance Corporation, supra. Appellee argues that while the courts permitted insurance companies to enforce clauses which prohibited the stacking of underinsured motorist coverage, such rulings were premised on the fact that underinsured motorist coverage was not required in this Commonwealth and therefore the parties were free enter into a contract which made such limitations. The following language is cited in support of this position:

Underinsurance motorist coverage is not the same as uninsured motorist coverage. The Uninsured Motorist Coverage Act does not require underinsured motorist coverage; the statute contains no reference to and does not seek to regulate policies which provide underinsured motorist coverage.
The Legislature has not by statute established a policy which compels the writing of underinsured motorist coverage. An insurance company is wholly free to issue a policy of automobile liability insurance which contains no protection whatsoever against underinsured motorist ... When underinsured motorist coverage is included, the terms and limitations thereof are not controlled by statute or by public policy but by the agreement reached by the parties.

Id., 330 Pa.Superior Ct. at 18-19, 478 A.2d at 1327. (citations omitted).

Referring to the fact that underinsurance is now mandated under the MVPRL, 75 Pa.C.S.A. § 1731(a), Appellee persuasively advances that the fundamental predicate to the court’s earlier decisions upholding the validity of anti-stacking clauses is no longer viable.

Appellant, however, challenges Appellee’s reasoning. It finds a different basis for the courts’ previous decisions to enforce these limitation provisions. It suggests that the different stacking treatment of uninsured and underinsured coverage found in prior case law was not based upon the fact that uninsured coverage was required, while underinsured coverage was not. Instead it submits that under the Uninsured Motorist Act the limits were stacked primarily because no maximum benefit limits were set forth in the Act. The Act only referred to minimum amounts of coverage. Appellant reasons that such a distinction is evident when one examines the different treatment of the stacking question in cases which were decided based upon an interpretation of the Uninsured Motorist Act and the now repealed No-Fault Act.

In Antanovich v. Allstate Insurance Company, 507 Pa. 68, 488 A.2d 571 (1985) the Pennsylvania Supreme Court ruled that there was no indication of policy contained within the No-Fault Act which was clear enough to void a clear provision in an insurance contract which precludes stacking work loss benefits. Id., 507 Pa. at 76, 488 A.2d at 575. Appellant posits that since both the Uninsured Motorist Act and the No-Fault Act mandated that coverages be included in insurance policies, the sole distinction for permitting stacking in the former but not in the latter must rest on the fact that the Uninsured Motorist Act did not set forth maximum benefits limits while the No-Fault Act did. Appellant continues by maintaining that the stacking of under-insurance coverage under the MVFRL should be treated as was work loss benefits under the No-Fault Act. It is Appellant’s position that the MVFRL sets forth a specific formula for a determination of maximum benefits recoverable under underinsurance coverages. Referring to Sections 1734 and 1736 of the MVFRL, Appellant notes that underinsured motorist benefits cannot exceed the limits of liability for bodily injury. Appellant would therefore conclude that such a limitation would enable an insurer to prohibit stacking by the terms of its policy.

Unlike Appellant we do not read the provisions of Sub-chapter C. to place a ceiling on the amount of underinsurance a victim may recover. Although an insured may obtain uninsured and underinsured coverages in amounts equal to, but not greater than, the amount of his liability coverage, there is no restriction on the maximum liability insurance limit that may be written. Thus, it follows there is no restriction on the maximum uninsured or underinsured motorist coverage limits. The rationale for such a feature was recently expressed:

The legislature has thus prevented an insured from providing greater coverage, via uninsured/underinsured coverages, for himself and his additional insureds than the amount of coverage he provides for others injured through his negligence.

Wolgemuth v. Harleysvill Mutual Insurance Co., supra, 370 Pa.Super. at 55, n. 3, 535 A.2d at 1147, n. 3.

Accordingly, this argument presented by Appellant must be dismissed.

In conclusion we find the rationale utilized by the courts in Harleysville Mutual Casualty Co. v. Blumling and the cases which follow it in interpreting the Uninsured Motorist Act to provide a liberal compensatory scheme, applies with equal force to our interpretation of the MVFRL. We hold that on the facts of this case underinsurance coverage may be stacked to compensate Appellee to the extent of damages. The limitation on stacking contained in the instant policy which would provide otherwise is void as repugnant to and in derogation of the purpose and policy of the MVFRL.

JUDGMENT

ON CONSIDERATION WHEREOF, it is hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Lycoming County is affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

Because I believe that the majority confuses, and attempts to equate, “public policy” with “legislative intent”, I must dissent.

I agree with the majority that in this case, the provisions of the insurance contract under review are clear and unambiguous. I disagree that we, as an intermediate appellate court, are free to declare the contract provisions void upon a finding that they are “repugnant to the policy underlying the [Motor Vehicle Financial Responsibility Law] MVFRL.”

Public policy should be taken to mean a principle under which freedom of contract or private dealings is restricted by law for the good of the community. Thus, a clause in an insurance policy might be found to be against public policy if its implementation might have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality. See Black’s Law Dictionary 1041 (5th ed. 1979).

Legislative intent, however, refers to the state of mind or mental attitude present within the legislature at the point in time when a specific act secures passage. It should be looked to only when we are called upon to construe a statute which is ambiguous or inconsistent.

I do not read the majority opinion to suggest that a clause prohibiting stacking of underinsurance coverage within a single policy is in any way mischievous or injurious to the interests of the state. Indeed, it could not, since we have found such clauses to be entirely legal in the past. Votedian v. General Accident Fire and Life Assurance Corporation, 330 Pa.Super. 13, 478 A.2d 1324 (1984); Vogel v. National Grange Mutual Insurance Company, 332 Pa.Super. 384, 481 A.2d 668 (1984). See also, Haegele v. Pa. General Insurance Company, 330 Pa.Super. 481, 479 A.2d 1005 (1984).

Rather, the majority, seemingly, has examined the arguments presented by the parties and considered various sections of the MVFRL in order to determine what the legislature might have done, if they had considered stacking in direct relation to underinsurance coverage. I find this approach to be nothing more than our court attempting to engage in the legislative process. I decline to join in such an escapade.

I do not find the Motor Vehicle Financial Responsibility Law to be either ambiguous or inconsistent on the issue presented in this appeal. On the contrary, the legislature has quite clearly spelled out an insured’s right to select a maximum amount of underinsurance coverage desired beyond the statutorily required minimum. 75 Pa.C.S. § 1734. The minimum limit for bodily injury financial responsibility is $15,000 because of injury to one person in any one accident and $30,000 because of injury to two or more persons in any one accident. 75 Pa.C.S. § 1702. In the case before us, the insured secured $35,000 of underinsured motorist coverage, while securing $100,000 of bodily injury liability coverage. This, to me, is a clear case of the insured exercising his rights under Subchapter C of the MVFRL, §§ 1731 and 1734.

Even if I were to accept the majority’s premise that one may look to the intention of the legislature in order to fill in the interstices of the act where no ambiguity or inconsistency exists, I would conclude that there is no indication of policy within the MVFRL clear enough to void a plain, unambiguous provision in an insurance contract precluding stacking of underinsurance benefits. Cf. Antanovich v. Allstate Insurance Company, 320 Pa.Super. 322, 467 A.2d 345 (1983), aff'd, 507 Pa. 68, 488 A.2d 571 (1985).

I would take issue with this court’s attempt to use Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968) as the springboard for its analysis based on legislative intent. In Blumling, our supreme court was faced with an insured who held two distinct policies of insurance, each containing uninsured motorist coverage. In ruling that the “other insurance” clause was invalid, the court was not required to examine, compare and contrast the various clauses of the Uninsured Motorist Act, but could rest on the fact that the Act mandated coverage. Were the “other insurance” clauses in both policies to be given effect, an insured could have ended up with no coverage, a result that clearly would have offended the public policy as expressed in the Act. Moreover, the “other insurance” clause was being used to limit the carrier’s liability in the face of a statute mandating a fixed amount of coverage.

I am puzzled by the majority’s assertion, without citation to authority, that the failure of the legislature to include an express limitation regarding stacking in Subchapter C of the MVFRL “lends credence” to the insured’s contention that the legislature (1) intended the stacking of uninsured benefits to continue and, by joining uninsured and underinsured benefits within the same subchapter, (2) intended to permit the stacking of underinsured benefits. I find this to be nothing more than mere speculation, in no way supported by any rules of statutory construction with which I am familiar.

The majority concludes that the limitation on stacking is void as repugnant to and in derogation of the purpose and policy of the MVFRL. If that purpose and policy as found by the majority is nothing more than the provision of a “liberal compensatory scheme,” I find such a policy not clear enough to void the plain, unambiguous provision in the insurance contract before us.

There is nothing to suggest that our past attempts to assist the legislature in amending the now-defunct No-fault Act proved beneficial to the Commonwealth. I would prefer to leave the amendment of the MVFRL in the capable hands of our representatives in Harrisburg. Hence this dissent.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Act of August 14, 1963, P.L. 109, 40 Pa.S.A. § 2000.

      . Act of August 14, 1963, P.L. 909; 40 P.S. § 2000.


text:
    539 A.2d 1360
    Deloris B. SOLES, Appellee, v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed April 5, 1988.

      James M. Horne, State College, for appellant.
    Joseph P. Green, Bellefonte, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This appeal follows the trial court’s ruling on cross motions for Summary Judgment. Summary Judgment in favor of Appellee, Plaintiff in the underlying action, was granted; while a like motion filed by the Appellant, defendant, was denied.

A unique factual circumstance provides the basis for the instant litigation. On January 17, 1985, Appellee was traveling as a passenger in a Renault Alliance when that vehicle was involved in an accident. Appellee suffered injuries and received benefits from Allstate Insurance Company, which had issued Appellee a policy of insurance covering a Jeep vehicle she owned. The Allstate policy was drafted in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701 et seq., hereinafter MVFRL. Since Appellee’s expenses exceeded the amount she collected under the Allstate policy, she sought to have Appellant compensate her under the terms of a policy it had issued to the owner of the Renault Alliance. This insurance agreement was made prior to October 1, 1984, pursuant to the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act. After Appellant refused to tender benefits, this action was commenced.

Appellant cites three reasons to support its dispute of the trial court’s ruling requiring it to compensate Appellee. It is Appellant’s position that (1) the Financial Responsibility Law expressly prohibits Appellee from recovering these benefits from Appellant; (2) the No-Fault Act has been interpreted as prohibiting the “stacking” of these sought-after first party benefits; and (3) the terms of Appellant’s policy expressly preclude recovery under these circumstances. Upon review of the record, including the policies at issue, and the applicable law, we conclude Appellant’s challenges to the trial court’s ruling must be dismissed as meritless.

It is first claimed that Appellee is not entitled to recover benefits from Appellant because the MVFRL expressly prohibits Appellee from looking beyond her own policy for the recovery of first party benefits. Appellee points to the terms of the MVRFL since it “had become effective at the time of the accident which [gave] rise to Plaintiff’s claim.” Appellant’s Brief at 6. It is Appellant’s position that the limitations on the “stacking” of benefits provided in Section 1717 of the MVFRL apply where a plaintiff seeks to recover expenses resulting from an accident which occurred after the effective date of the MVFRL. However, the date on which the accident occurred is not critical to Appellee’s claim against Appellant. Appellee is seeking recovery based upon a policy Appellant had issued to the owner of the vehicle in which she was riding. This policy was issued pursuant to the No-fault Act. “The express language of Section 9 of Act 11 clearly indicates that the legislature intended that the new Financial Responsibility Law'would only apply to insurance policies issued on renewed on or after October 1, 1984. In so providing the legislature recognized that policies issued prior to October 1, 1984 would remain subject to the provisions of the repealed No-fault Act until such policies were renewed subsequent to the effective date of the Financial Responsibility Law.” Borysowski v. State Farm Mutual Automobile Insurance Company, 368 Pa.Super. 399, 534 A.2d 496 (1987). Accordingly, the policy at issue is to be interpreted in accordance with the provisions of the repealed No-fault Act.

More puzzling, however, is Appellant’s claim that the No-fault Act and the terms of its policy prohibit Appellee from recovering under this factual situation. The policy at issue provided personal injury protection with no maximum amount for medical expenses and a maximum of $15,000.00 for work loss for those eligible persons who sustained bodily injury due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. The definition of an eligible person included “any other person who sustains injury while occupying ... the insured motor vehicle.” Appellee would therefore appear to be included as an “eligible person” as that term is defined within the policy. However, Appellant relies upon specific language contained within its policy:

Exclusions:

This coverage DOES NOT APPLY to bodily injury to: ... (a) any person, except the named insured or any relative if entitled to Pennsylvania personal injury protection coverage as a self-insured or as a named insured or relative in another insurance policy.

As noted by Appellant, similar clauses prohibiting the stacking of No-fault basic loss benefits were judged to be enforceable by the courts of this Commonwealth. See: Antanovich v. Allstate Insurance Co., 507 Pa. 68, 488 A.2d 571 (1985); Wright v. National Grange Mutual Insurance Co., 323 Pa.Super. 559, 471 A.2d 86 (1984). Although Appellee would not dispute that the limitation found within the policy is enforceable, it is submitted that the terms of the limitation do not preclude her from recovering the benefits she seeks. Highlighted is the language of the policy which excludes coverage for any person “entitled to Pennsylvania personal injury protection coverage ... in another insurance policy.” Appellant contends that Appellee's entitlement to medical expenses and work loss benefits under her own policy would require the exclusion to apply. The trial court did not accept this argument, nor will we.

Appellant’s conclusion that Appellee’s entitlement under her own policy precludes recovery under the policy in question, presumes that Appellee contracted for “Pennsylvania personal injury protection coverage.” This term is not contained within the policy issued by Allstate to Appellee. Appellee was insured under the Allstate policy for “first party benefits.” The Allstate policy issued in accordance with the MVFRL was required to provide its eligible claimant with a minimum mandatory benefit of $10,000.00 for medical and rehabilitative expenses and $5,000.00 for income loss. 75 Pa.C.S.A. § 1711. Appellee purchased insurance in these amounts and recovered these benefits. The benefit to which Appellee was entitled under the Allstate policy cannot be equated with benefits to which she would have been entitled had the policy been issued pursuant to the No-fault Act. Appellant’s policy, issued in accordance with the No-fault Act, provided no maximum amount as its limit of liability for medical expenses and a maximum of $15,000.00 as its limit of liability for work loss. The coverages afforded insureds under these two acts cannot be equated.

Since Appellee was not entitled to receive “personal injury protection coverage” under her Allstate policy, and since Appellee falls within Appellant’s definition of an “eligible person”, she cannot be excluded from recovering under Appellant’s policy. The rationale for this decision was provided by the trial court: “the court considers the exclusion cited above to address specific circumstances arising from the No-fault Act — an insurance company would provide no benefits when an injured person could recover unlimited (No-Fault Act) medical benefits from another policy. In such a situation, an insured party such as Landmark Dodge would not have been exposed to an excess claim for medical benefits because the other insurance policy would have paid unlimited medical benefits.”

Finding no factual issues in dispute and concluding Appellee was entitled to judgment as a matter of law, we affirm the trial court order granting Appellee summary judgment. See: Curry v. Estate of Thompson, 332 Pa.Super. 364, 366-367, 481 A.2d 658, 659 (1984).

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

The express terms of the Motor Vehicle Financial Responsibility Law (MVFRL) preclude the insured from first recovering first party benefits under a MVFRL Policy in which she is a named insured and thereafter seeking recovery under a No-fault policy as a victim. I would reverse the order granting benefits and therefore must dissent.

The MVFRL establishes a priority for the payment of first party benefits. 75 Pa.C.S. § 1713 provides as follows:

§ 1713. Source of Benefits.
(a) General rule. — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:
(1) For a named insured, the policy on which he is the named insured.
(2) For an insured, the policy covering the insured.
(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.

75 Pa.C.S. § 1713(a).

Deloris B. Soles (Appellee) was a named insured under a policy issued by Allstate Insurance Company. She collected first party benefits, pursuant to § 1713(a)(1), from Allstate in the sum of $10,000. Although the MVFRL requires a carrier to make available for purchase first party medical benefits up to at least $100,000, 75 Pa.C.S. § 1715(a)(1), we may fairly assume that Appellee elected to receive the statutory minimum coverage. 75 Pa.C.S. § 1711.

Moreover, the MVFRL clearly prohibits Appellee from looking beyond her own policy for the recovery here sought. 75 Pa.C.S. § 1717 provides:

§ 1717. Stacking of benefits.
First party benefits shall not be increased by stacking the limits of coverage of:
(1) multiple motor vehicles covered under the same policy of insurance; or
(2) multiple motor vehicle policies covering the individual for the same loss.

75 Pa.C.S. § 1717.

It seems crystal clear to this writer that, without more, Appellee is precluded from pursuing benefits under the policy insuring the vehicle in which she was injured.

Even if we look to the No-fault policy issued by Pennsylvania National Mutual Insurance Company, the result must remain the same. The now-repealed No-fault Act also contains a priority of payment scheme. Section 204 of the Act provides:

§ 204. Source of basic restoration benefits.
(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, ... if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident____

(emphasis added).

Thus, under both the No-fault Act and the MVFRL, Deloris B. Soles claim was appropriately made to Allstate Insurance Company for coverage under the policy issued to her.

The majority argues that since the term “personal injury protection” is not contained within the MVFRL policy issued by Allstate, and since the benefits available under the separate policies differ in amounts, the coverages afforded insureds under these two acts cannot be equated. While I might agree with this conclusion, I find it to be irrelevant to our task on this appeal.

The exclusion contained in the policy under which Appellee seeks her second recovery provides:

Exclusions:
This coverage DOES NOT APPLY to bodily injury to:
******
Persons covered by their own auto insurance
(a) any person, except the named insured or any relative, if entitled to Pennsylvania personal injury protection coverage as a self-insured or as a named insured or relative in another insurance policy.

Exclusions in an insurance policy are valid and enforceable when drafted in appropriate fashion. See, Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). The exclusion at issue clearly prohibits recovery of no-fault benefits where the otherwise eligible person is a named insured under a policy other than Pennsylvania National’s. This provision is clear, should therefore be enforced, and prohibits plaintiff’s recovery.

Moreover, our Supreme Court has held that the stacking of work loss benefits (another category of first party benefits) is prohibited in the face of plain and unambiguous policy provisions which preclude such stacking. Antanovich v. Allstate Insurance Co., 507 Pa. 68, 488 A.2d 571 (1985).

Viewed under either the MVFRL or the No-fault Act, Appellee's request for stacking of first party benefits should be denied. The order of the trial court should be reversed. Hence, this dissent.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Act of February 12, 1984, P.L. 26, No. 11, § 3, effective October 1, 1984, as amended, 75 Pa.C.S. § 1701, et seq.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq. (repealed 1984).


author: BROSKY, Judge: BECK, Judge,

text:
    539 A.2d 1365
    Larry C. GRIM, Administrator of the Estate of Richard Matthew Grim, Deceased, Robert M. Grim, a Minor by His Parents and Natural Guardians, Larry C. Grim and Gloria J. Grim, and Larry C. Grim and Gloria J. Grim, Individually v. James H. BETZ, Columbus Truck Center, Dallas & Mavis Forwarding Co., Commonwealth of Pennsylvania, Department of Transportation (Two Cases). Appeal of FREIGHTLINER CORPORATION (Two Cases). Amy GRIM, a Minor by Her Parents and Natural Guardians, Bruce D. GRIM and Susan L. Grim, Donna Grim, a Minor, by Her Parents and Natural Guardians, Bruce D. Grim and Susan L. Grim and Bruce D. Grim and Susan L. Grim, Individually v. James H. BETZ, Columbus Truck Center, Dallas & Mavis Forwarding Company, Commonwealth of Pennsylvania, Department of Transportation (Two Cases). Appeal of James H. BETZ and Dallas and Mavis Forwarding Company (Two Cases).
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1987.
    Filed April 8, 1988.

      Joseph G. Manta, Philadelphia, for appellant (at 1203 and 1211) and for appellee (at 1201 and 1202).
    Michael J. Piosa, Allentown, for Grim, appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.
   BROSKY, Judge:

This is an appeal from an order denying appellants’ petition for leave to file an amended answer, with new matter pleading the affirmative defense of comparative negligence. Appellants now contend that the denial constituted an abuse of discretion on the part of the trial court. Upon review of the record, and the briefs of counsel, we now affirm.

This matter arises from an automobile accident which occurred on May 26, 1983, at approximately 6:00 p.m., near the intersection of Route 100 and Spring Creek Road, in Lower Macungie Township, Lehigh County. Appellee Gloria Grim was operating a 1983 Chevrolet Monte Carlo north on Route 100, when a tractor trailer operated by appellant James H. Betz, in his capacity as an employee of appellant Dallas and Mavis Forwarding Company, careened out of control on the wet pavement, across the center line of Route 100 into the oncoming lane of traffic, thereby colliding head-on with the Grim vehicle. Richard Grim, Gloria’s three year old son, received severe internal injuries, and died later that evening. The remaining occupants of the Grim vehicle, including Gloria; Gloria’s seven year old son, Robert; Gloria’s sister-in-law, Susan Grim; and Susan’s two minor children, Amy, age eleven, and Donna, age six, received injuries of varying severity. Gloria and Susan were occupying the front seat of the vehicle at the time of the accident, while all four minor children were seated in the rear passenger seat. None of the occupants in the Grim vehicle were wearing seat belts or other restraining devices.

On July 25, 1984, two separate suits were filed in the Court of Common Pleas of Lehigh County. In the first action, the named plaintiffs were Larry and Gloria Grim, in their own right, and as the parents and natural guardians of Robert Grim, while in the second action, suit was filed by Bruce and Susan Grim, in their own right, and as the parents and natural guardians of Amy Grim and Donna Grim. The named defendants in both actions were James H. Betz, Dallas and Mavis Forwarding Company, Columbus Truck Center, Inc., and the Commonwealth of Pennsylvania, Department of Transportation. On February 28, 1985, both complaints were amended to add Freightliner Corporation as a named defendant, by stipulation of the parties.

After pleading and discovery had proceeded for approximately one year, appellants Betz, and Dallas and Mavis, filed a petition for leave to file an amended answer and new matter in both actions, in order to plead the following:

8. After a thorough review of the records and information received from plaintiffs, Betz and Dallas have concluded that use of seatbelts and/or a child restraining seat by the occupants of the plaintiffs’ vehicle would have prevented and/or mitigated the injuries suffered by the plaintiffs.
9. Betz and Dallas aver that plaintiffs Gloria Grim and Susan Grim may be liable on each of the minor plaintiffs’ claims due to their failure to have their children use seat belts and/or child restraining seats.
10. Betz and Dallas aver that plaintiff Susan Grim and plaintiff Gloria Grim may be comparatively negligent for their failure to wear their seat belts.
11. Betz and Dallas request leave to file an Amended Answer with New Matter so as to join plaintiffs Gloria Grim and Susan Grim as, additional defendants under Pa.R.C.P. 2252(d) and also to plead Susan Grim’s and Gloria Grim’s comparative negligence as an affirmative defense.

Appellant Freightliner Corporation joined in this petition, and filed a separate memorandum of law. On March 31, 1986, the petition was denied as a “violation of a positive rule of law”. All appellants timely appealed, and the appeals were consolidated by stipulation of the parties, pursuant to Pa.R.A.P. 513.

Pa.R.C.P. 1033 states:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

The courts of this Commonwealth have been liberal in permitting the amendment of pleadings. Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super. 311, 484 A.2d 148, 150 (1984); Tanner v. Allstate Ins. Co., 321 Pa.Super. 132, 467 A.2d 1164, 1167 (1983). Their discretion, however, is not unfettered; a defendant will not be permitted to amend his answer, to plead a new defense, where surprise or prejudice to the plaintiff will result, or where the proposed amendment is against a positive rule of law. Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350, 351-52 (1960); Goodrich Amram 2d § 1033.7.

Appellants contend that the trial court erred in finding that their request to amend, in order to plead a “seat belt defense”, was contrary to a positive rule of law. Appellants cite to the decision in Parise v. Fehnel, 267 Pa.Super. 79, 406 A.2d 345 (1979), in support of their position that the availability of a “seat belt defense” remains an open question in Pennsylvania. In Parise, a panel of this Court held that, in the absence of expert testimony demonstrating a causal connection between the plaintiffs injuries and plaintiffs failure to wear a seat belt, it was not error on the part of the trial court to refuse to instruct the jury that the failure to use a seat belt could be evidence of contributory negligence on the issue of damages. Id., 406 A.2d at p. 347. However, Parise also contained the following language with respect to the existence, per se, of a “seat belt defense”:

“Our decision today should not be seen as foreclosing the possibility of a so-called ‘seat belt defense’ in future cases____ (t)he New Jersey Superior Court said that it might have allowed the defendant a seat belt defense if he had introduced expert testimony showing a relationship between the plaintiffs injuries and his failure to use seat belts (cites omitted)____ That is our position." (Emphasis supplied.)

Id. As such, it would appear that appellants are substantially correct in their assertions that the trial court’s decision to preclude amendment to plead a “seat belt defense”, as contrary to law, was erroneous on the basis of the state of the law on March 31, 1986.

However, a reviewing court may affirm the decision of the trial court if the result is correct on any ground, without regard to the grounds relied upon by the trial court. Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840, 843 (1984). Moreover, it is well settled that an intervening change in the law must be applied to cases which are in the throes of direct appeal when the change occurs. Leland v. J.T. Baker Chemical Co., 282 Pa.Super. 573, 423 A.2d 393, 396 (1980). We find that an intervening change in the law has occurred which mandates affirmance of the trial court’s denial of permission to amend.

On November 23, 1987, the availability of a “seat belt defense” in Pennsylvania, ceased to be an open question, with the passage of Act 82 of 1987. Section 5 of that Act amends the Child Passenger Protection Act, 75 Pa.C.S. §§ 4581-85, to become the Occupant Protection Act. The relevant provisions of Section 5, which amend 75 Pa.C.S. § 4581, read as follows:

§ 4581. Restraint Systems.
(A) [Child Passenger] Occupant Protection. —[A Parent or Legal Guardian of a child under four years of age]
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(1) Any Person who is operating a passenger car, Class I truck, Class II truck, classic motor vehicle, antique motor vehicle or motor home registered in Pennsylvania and who transports [such child] a child under four years of age anywhere in the motor vehicle, including the cargo area, shall fasten such child securely in a child passenger restraint system, as defined in subsection (d). This subsection shall apply to all [parents or legal guardians] persons while they are operators or motor vehicles where a seating position is available which is equipped with a seat safety belt or other means to secure the systems or where the seating position was originally equipped with seat safety belts.
(2) Except for children under four years of age and except as provided in paragraph (1), each driver and front seat occupant of a passenger car, Class I truck, Class II truck or motor home operated in this Commonwealth shall wear a properly adjusted and fastened safety seat belt system. A conviction under this paragraph by state or local law enforcement agencies shall occur only as a secondary action when a driver of a motor vehicle has been convicted of any other provision of this title. The driver of a passenger automobile shall secure or cause to be secured in a properly adjusted and fastened safety seat belt system any occupant in the front seat who is four years of age or older and less than 19 years of age....
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(E) Civil actions. — In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in a civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this sub-chapter; nor shall failure to use a child passenger restraint system or safety seat belt system be considered as contributory negligence nor shall failure to use such a system be admissible as evidence in the trial of any civil action; nor shall this subchapter impose any legal obligation upon or impute any civil liability whatsoever to an owner, employer, manufacturer, dealer or person engaged in the business or renting or leasing vehicles to the public to equip a vehicle with a child passenger restraint system or to have such child passenger restraint system available whenever their vehicle may be used to transport a child. (Amendments emphasized in the original; deletions bracketed in the original.)

For additional clarification, the term “safety seat belt system” is also defined in Act 82, in Section 1, amending 75 Pa.C.S. § 102:

§ 102. Definitions
Subject to additional definitions contained in subsequent provisions of this title which are applicable to specific provisions of this title, the following words and phrases when used in this title shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
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“Safety seat belt system. ” Any strap, webbing or similar device designed to secure a person in a motor vehicle in order to mitigate the results of any accident, including buckles, fasteners and all installation hardware as specified by Federal Motor Vehicle Safety Standard No. 209. (Amendments emphasized in the original.)

The import of the amendments is clear: the legislature has decided that a defense of comparative negligence, in the form of a “seat belt defense”, premised on either the failure of an adult to employ a seat belt for his own protection, or on the failure of an adult to employ a seat belt for his own protection, or on the failure of an adult to protect his minor children with seat belts, will not be available in any civil action in this Commonwealth. Section (E) of § 4581 clearly states that the failure to use a “child passenger restraint system” or “safety seat belt system” shall not be considered, in any civil action, as contributory negligence, and shall not be admissible as evidence in any civil action. Moreover, the legislature has provided a definition of “safety seat belt system” which includes all known forms of mechanical restraint available, in order to preclude any misconstruction of its intent.

As Section 11 of Act 82 states that the amendments to § 102 and § 4581 “take effect immediately” upon passage of the Act, we conclude that Act 82 of 1987: Act of November 23, 1987 is controlling, and precludes the amendment of appellants’ answer to plead a “seat belt defense” in new matter as comparative negligence. Such amendment is now contrary to a positive rule of law, and cannot be permitted.

Order affirmed.

BECK, J., files a concurring opinion.

CAVANAUGH, J. joins BECK, J., concurring opinion as well as the majority.

BECK, Judge,

concurring:

The majority finds that an order denying the appellant’s petition for leave to file an amended pleading, asserting plaintiffs’ contributory negligence and assumption of the risk, is a final and appealable order. Under our current rules and case law, contributory negligence and assumption of the risk are affirmative defenses which are waived if not raised in new matter. Pa.R.Civ.P. 1030, 1082, Grota v. La Boccetta, 425 Pa. 620, 230 A.2d 206 (1967).

Furthermore, an immediate appeal must be sought. “[X]f 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). The majority’s conclusion is correct and I join. I write to address the need for reforming the rules of procedure relating to final orders and appealability.

In several recent cases the Pennsylvania Supreme Court has recognized that piecemeal appeals must be curtailed. In Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987), the Supreme Court held that an appeal of a sanction order for failure to respond to interrogatories is interlocutory despite the fact that the sanction order in Bruno precluded presentation of an affirmative defense. The court concluded that appeal of the sanction order must await the final disposition of litigation.

In his dissent, Mr. Justice Hutchinson opined that the court was acting inconsistently. He noted that an order denying the plaintiff an opportunity to raise an affirmative defense was immediately appealable while a sanction order which had the same result for the plaintiff was not. He stated that unless the court overruled La Bocetta and its progeny, consistency required that the discovery sanction be viewed as a final order and appealable. Id., 515 Pa. at 52, 526 A.2d at 784.

Mr. Justice Papadakos, writing for the majority, responded to the dissent and expressed the need to stem the tide of premature appeals:

Mr. Justice Hutchinson has entered a dissent groping with the viability of Grota v. La Boccetta, 425 Pa. 620, 230 A.2d 206 (1967), which dealt with the substantive merits of an affirmative defense. By contrast, disposition of the case under review is based on the issue of a sanction order for failure to respond to interrogatories. This qualitative difference clearly distinguishes the two cases. But even more compelling is the yawning spectre of an avalanche of appeals which easily could overburden the judicial system. By insisting that sanctions are final orders, the dissent, in effect, would open the floodgates to perpetual judicial impermanence and impotence at the trial level and an unmanageable quantum of cases choking the appellate system.

Id. 515 Pa. at 50, n. 1, 526 A.2d at 782-83, n. 1.

Although the Supreme Court expressly limited its holding in Bruno to cases where a pre-trial sanction order precludes presentation of a defense, Bruno also presents a rationale which may herald a renewed review of what constitutes a final and appealable order. Mr. Justice Papadakos' rationale deserves broader application.

More recently, the Supreme Court embraced a stricter definition of what constitutes a final appealable order. In Wall v. Wall, 517 Pa. 29, 534 A.2d 465, 466-67 (1987), Mr. Chief Justice Nix, writing for the majority, adopted the principle that the proper time for appeal is when all matters have been resolved by the trial court. In the context of a divorce case, he concluded that an order that found a valid marriage between the parties was interlocutory because the trial court had not yet resolved other issues in the case relating to equitable distribution and alimony. In concluding that the decision as to the status of the parties alone was not final, the court stated:

The [trial] court's determination as to the validity of the marriage was merely its decision as to a particular legal issue without being a 'final' resolution of the overlying claim or cause of action____ The question of whether the declaration as to the validity of the marriage is a final order must thus be resolved in accordance with the standards and policies addressing interlocutory appeals.

Mr. Chief Justice Nix noted that the Supreme Court disfavored piecemeal appeals, because:

[A] policy which allows piecemeal appeals from a single case serves only to increase the cost of litigation, and favors the party with the greater resources, who can strategically delay the action at the expense of the indigent party.

Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 215 (1985), quoted in Wall, 534 A.2d at 467.

Another recent Pennsylvania Supreme Court case also restricts appealability. In Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 533 A.2d 998 (1987). Justice Flaherty held that,

[a] pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss.

Id., 516 Pa. at 539, 533 A.2d at 1000. (citations omitted) (emphasis added).

A strict definition of finality for purposes of appeal would limit the volume of the Pennsylvania appellate courts’ work load, would discourage delay, and would encourage the orderly and efficient administration of appellate review. See Pines, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction, 91 Dick.L.Rev. No. 1, 55, 58-59, n. 6. (1986).

As was recently stated in National Recovery Systems v. Perlman, 367 Pa.Super. 546, 533 A.2d 152, 154 (1987):

[B]oth the bench and bar would be better served by a return to the strict definition of a final order given in Pugar v. Greco: “one which usually ends the litigation, or alternatively, disposes of the entire case,” 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), at least as to one party to the suit.

It is important to note that a stricter definition of final order does not deny review. In most cases it postpones review until the matter has been finally adjudicated at the trial level. Nor does it completely close the door to review of interlocutory orders. If one of the parties determines that immediate review of a non-final order is essential, he or she can seek such review under Pa.R.App.P. 312, or under Pa.R.App.P. 1501.

We note that in the federal courts F.R.Civ.P. 54(b) addresses final orders in cases involving multiple parties or multiple claims.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

With some flexibility, the rule requires that all matters be resolved at the trial level as a condition of appeal. In Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980), Chief Justice Burger instructed that requests under Rule 54(b) should not be granted routinely and that the trial court should consider not only the equities involved in the case but also the efficient administration of justice.

I do not suggest the Rule 54(b) is the ideal solution for the efficient judicial administration in Pennsylvania. What I do point out is the need for reform. Confusion currently reigns in this area of the law. As Judge Del Sole cogently stated in his dissenting opinion in Zarnecki v. Shepegi, 367 Pa.Super. 230, 245, 246, 532 A.2d 873, 881 (1987) (Del Sole, J., dissenting):

The present state of the law in this area is confusing to say the least. Our appellate courts have held that the failure to immediately appeal one of these misnomered ‘final and appealable orders’ results in a loss of the right to have the trial court action later reviewed____ This in and of itself invites cautious counsel, when faced with the difficult question of determining whether or not an order is appealable, to take an immediate appeal, delay the litigation at the trial level and further burden the appellate courts of Pennsylvania____ The law in this area ... is unclear and dangerous to litigants and lawyers. A total re-examination and re-evaluation must be forthcoming so that these interlocutory appeals which are taken from misnamed “final orders” would not be permitted.

CAVANAUGH, J., joins this concurring opinion as well as the majority.

      . Contributory negligence and assumption of the risk are affirmative defenses which must be pled in new matter, or are waived. Hence, the trial court’s refusal to permit appellants to amend to plead the comparative negligence of appellees Susan Grim and Gloria Grim, is a final and appealable order. Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9, 11 (1981); Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206, 207 (1967); Pa.R.C.P. 1030 (as amended December 16, 1983); Goodrich Amram 2d § 1033:8.

      . The ownership of the tractor is currently in dispute. It is unclear whether the vehicle was owned by appellant Dallas and Mavis, appellant Freightliner Corporation, or Columbus Truck Center, Inc.

      . In the first action, Larry Grim was also a named plaintiff as the administrator of the Estate of Richard Grim.

      . It is alleged that PENNDOT was negligent in the design, construction, and maintenance of Route 100, a state-designated highway.

      . The trial court did not hold, and appellees do not argue in their brief, that the attempt to amend was in any way untimely or prejudicial. In light of the resolution we reach infra., we needn’t decide whether the requested amendment constituted surprise or prejudice to the plaintiffs.

      . We use the qualifier "substantially”, as the state of the law at that time did preclude any attempt to plead Gloria Grim’s negligence in failing to provide a seat belt or child restraint device to protect Richard Grim. Richard Grim died at the age of three, bringing his situation within the confines of the Child Passenger Protection Act, 75 Pa.C.S. §§ 4581-85, as it existed at the time amendment was attempted. That act stated, in relevant part:
      § 4581. Restraint Systems
      (a) Child passenger protection. — A parent or legal guardian of a child under four years of age who is operating a passenger car, Class I truck, Class II truck, classic motor vehicle, antique motor vehicle or motor home registered in Pennsylvania and who transports such child anywhere in the motor vehicle, including the cargo areas, shall fasten such child securely in a child passenger restraint system, as defined in subsection (d). This subsection shall apply to all parents or legal guardians while they are operators of motor vehicles where a seating position is available which is equipped with a seat safety belt or other means to secure the systems or where the seating position was originally equipped with seat safety belts.

        (e) Civil actions. — In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in any civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this subchapter, nor shall failure to use a child passenger restraint system be considered as contributory negligence nor shall failure to use such a system be admissible as evidence in the trial of any civil action; nor shall this subchapter impose any legal obligation upon or impute any civil liability whatsoever to an owner, employer, manufacturer, dealer or person engaged in the business of renting or leasing vehicles to the public to equip a vehicle with a child passenger restraint system or to have such child passenger restraint system available whenever their vehicle may be used to transport a child. (Emphasis supplied).
      Hence, conceding that Parise did not preclude a "seat belt defense" as to the adults’ failure to protect themselves through appropriate restraints, and as to their failure to protect their minor children over the age of four through appropriate restraints, we nonetheless find that the state of the law on March 31, 1986, precluded the “seat belt defense" with respect to Gloria’s failure to restrain three year old Richard, under the then-effective provisions of the Child Passenger Protection Act.