text:
    447 A.2d 991
    Roslyn LEVIN, Appellant, v. Richard LEVIN.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1982.
    Filed July 2, 1982.
    Allen L. Feingold, Philadelphia, for appellant.
    Michael P. Dignazio, Media, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant action concerns the denial by the Common Pleas Court of Delaware County of a petition for reconsideration nunc pro tunc of a support order. We affirm the lower court’s decision.

This court must, in the first instance, protest the condition of the reproduced record as presented; it is not only incomplete under the Rules of Appellate Procedure but appears to contain inaccuracies as well. The lack of reciprocal filings by the appellee has further prejudiced the court’s attempt to fully understand the matter presented.

A full exploration of the deficiencies of the record would be unproductive, but this court will outline a few of the more obvious problems.

Pa.R.A.P. 2152 and 2153 demand the reproduction of relevant docket entries. The suggested list of what is considered “relevant” are entries which “indicate briefly but clearly”

(1) The character of the proceedings.
(2) The pleadings or papers upon which the case was tried or heard.
(3) The trial or hearing.
(4) The order or other determination to be reviewed (under Rule 2115(a) the text of the order is to be set forth verbatim after the statement of jurisdiction).
(5) All later proceedings.
(6) All other matters referred to in the statement of questions involved in the argument.

At a minimum, therefore, the reproduced record should have listed accurately such matters as the filing date of the petition for increase of support; the date of the Master’s hearing; the date of the order for support; the date of filing of the petition for reconsideration nunc pro tunc; the date of the hearing held on that petition; the notes of testimony; the text of the order of court from which this appeal is taken.

The Table of Contents lacks any subdivision containing docket entries. It does twice list the Petition for Reconsideration Nunc Pro Tunc, but instead of the filing date it lists the item as “under cover of” two other dates. Presumably this is a reference to two letters reproduced in the “Brief for Appellant and Record” which are not part of the actual record as submitted by the prothonotary.

An Affidavit of Filing and Service is also reproduced with appellant’s brief; this too is lacking in the original docket papers. The content of that affidavit would naturally have been a subject of discussion at the hearing on the petition for reconsideration, but the notes of testimony (never alluded to in the reproduced record) show that appellant’s attorney did not discuss with the judge and opposing counsel any earlier hand delivery of the Petition to the trial judge’s chambers or any earlier mailing of the Petition to opposing counsel.

Rule 2101 requires conformity with the requirements of the Rules as “nearly as the circumstances of the particular case will admit”, and when the “defects in the brief or the reproduced record are substantial” this court is empowered to dismiss the action. We are tempted to do so on that ground alone.

However, as the matter does concern the support of children, this court has winnowed out of the original record the following facts: a hearing on a Petition to increase support was held before the Master on April 2, 1981; the Master told both parties of his decision and informed them and their counsel that there were ten days for appeal; the court signed the recommendation into an order of the court on April 3, 1981; the Domestic Relations Office mailed the order (“Effective date of the order” given as 4/2/81) on April 8, 1981;. the letter reached counsel’s office on a Saturday, April 11, 1981 and was not read until Monday, April 13, the final day for appeal; a petition for reconsideration nunc pro tunc was filed on April 22, 1981, twenty days after the Master’s hearing and Recommendation.

The record makes it abundantly clear that local practice of Delaware County has been consistent and was made plain to appellant and her counsel. The trial judge at the hearing stated:

We have never computed the time from the date that you received the copy of the order ... it may be two or three days later after they get up to me that they are signed.
But the order has been entered as of the day the Master enters it, and that is clearly set forth in the forms which we use. (N.T. 5)

Further, the uncontradicted testimony of the appellee’s counsel at the hearing establishes that the Master in fact did fully inform the parties of the ten-day period for filing a petition for reconsideration:

Transcript was made of—the order was made of seventy-six dollars. It was announced to both parties and counsel the date of the hearing, April 2, and both parties and counsel were informed that they had a right of appeal within ten days of that date. (N.T. 7)

The Master’s recommendation of April 2, 1981, as signed and submitted for court signature, sets forth the following paragraph:

The Master herewith certifies that the parties and/or their attorneys have been advised that an Order based upon these Recommendations will be presented to the Court for approval and shall be the Order in this case unless either Party files a written Petition to the Court for reconsideration of the findings of the Master within ten (10) days from the date hereof. (Emphasis supplied)

We see no merit in appellant’s counsel’s argument that special dispensation should have been accorded out-of-county counsel. Local support rules were, until July of 1981, a factor to which any attorney practicing outside his own county had to adopt himself. No mystery was made of the Delaware County practice, and appellant had actual notice.

Further, a review of the new Pennsylvania Support Rules, which now create uniformity in this area of the law across the state, show that the Delaware County practice is consistent with the essential elements of the newly adopted statewide rules governing support.

Rule 1910.12(d) provides for hearing before a hearing officer, and the filing of a report by that officer to the court. Rule 1910.12(e) then provides that “within ten days of the conclusion of the hearing”, any party may file “exceptions.” At 1910.12(f) the court enters its final order after the ten days. At 1910.12(g) the Rule provides that no exceptions may be filed to the final court order.

Delaware County practice provides for hearing before an officer, filing of a recommendation, filing of a petition for reconsideration within ten days of the hearing, and finality of the order of court ten days after the hearing.

The most important deviation between The Delaware County practice and the provision of the new Rules concerns the timing of the signing of the court order. In Delaware County the order customarily was signed any time within a few days of the recommendation but was stated on its face to be “effective” as of the date of the Master’s hearing and recommendation. It became final ten days after its “effective” date. In contrast, under Rule 1910.12(f), the court order is not “entered” until after the ten day period. In either case, however, certain rights of appeal are forever forfeited after the ten day period, whether labeled “petition for reconsideration” or “exceptions.” Delaware County’s variations from the later-implemented state support rules do not affect the basic fairness of the rights provided.

We affirm the lower court’s decision to deny the Petition for Reconsideration Nunc Pro Tunc.

Order affirmed.

CAVANAUGH, J., concurs in the result.

      . See e.g. Darlington v. Reilly, 375 Pa. 583, 101 A.2d 903 (1954); Trescott v. Co-operative Building Bank, 212 Pa. 47, 61 A. 478 (1905); Snyder’s Estate, 279 Pa. 63, 123 A. 663 (1924); Shaw v. Shaw, 295 Pa. 241, 145 A. 75 (1928).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    447 A.2d 994
    COMMONWEALTH of Pennsylvania v. David V. THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1981.
    Filed July 2, 1982.

      Colie B. Chappelle, Philadelphia, for appellant.
    Michelle G. Lehr, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, David Thomas, entered pleas of guilty to seven counts of forgery, two counts of theft by deception, and one count of criminal conspiracy. No petition to withdraw the guilty pleas was filed, and appellant was sentenced to concurrent terms of imprisonment of not less than two years nor more than five years on each count. The court also indicated that it would consider appellant for a work release program upon presentation by the prison authority.

Subsequently, appellant filed a timely petition to reconsider his sentence which was denied. This appeal followed.

On appeal, appellant raises four issues concerning the legality of his sentence. He contends that the sentence was illegal: (1) due to the fact that it was based upon an impermissible sentencing factor (i.e., retribution); (2) since it was based upon vague and insufficient information; (3) because the trial court failed to provide a written statement of reasons for deviating from the Sentencing Code, 42 P.C.S.A. § 9721 et seq.; and, (4) because the trial court improperly applied the applicable sentencing guidelines. Appellant also contends that his notice of appeal was filed timely because counsel complied with the instruction given by the trial court in open court. For the reasons herein stated, the judgment of sentence is affirmed.

Initially, this Court must respond to the prosecution’s contention that the appeal should be quashed because it was filed untimely.

The facts pertinent to this aspect of the appeal are undisputed and reveal the following:

On April 15, 1980, appellant’s sentence was imposed. A timely petition to reconsider appellant’s sentence was filed. The trial court denied appellant’s petition on May 9, 1980. Appellant then filed a notice of appeal on June 6, 1980, which was less than thirty days after the court denied appellant’s reconsideration petition but more than thirty days from the date on which the judgment of sentence was imposed.

On October 31, 1980, the prosecution petitioned this Court to quash appellant’s appeal as untimely filed. However, this Court denied the prosecution’s petition without prejudice to argue the issue on appeal. Additionally, appellant’s petition for bail pending appeal was granted by the court below.

It is undisputed that the lower court did not vacate the prior judgment of sentence nor did it grant appellant’s reconsideration petition. In this connection, we have said the following:

“It cannot be discounted that the lower court did not vacate the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion. Such procedure would have had the same effect as an express order granting reconsideration under Pa.R. App.P. 1701.[] See Comment to Pa.R.Crim.P. 1410. Hence, the 30-day period for appeal ran continuously. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 79, 393 A.2d 1020, 1021 (1978). As a result, the sentencing court had only 30 days from the imposition of sentence within which to act to modify the sentence. See Comment to Pa.R.Crim.P. 1410; see also 42 Pa.C.S.A. § 5505 (Pamphlet, 1980); Pa.R.App.P. 1701.

In the instant case, although appellant failed to file a notice of appeal as required by the rules, he did exercise his appellate rights according to the instructions articulated by the trial court at the sentencing hearing. The transcript sets forth the following scenario:

[The Appellant] “Could I say anything?
[The Court] Yes.
[The Appellant] Your Honor, please. I can’t. I can’t go to jail. Your Honor, I realize what I have done. I honestly realize what I have done. Please, I can’t go to jail. I can’t.
[The Court] Now, Mr. Thomas, you have just been sentenced by this Court. You now have the right to file an appeal to the Superior Court and also to the representation of counsel in the filing and preparation of that appeal.
Your appeal must be filed within 30 days from today or you will lose the right to file it.
Your lawyer, if you ask him to do so, will assist you in the preparation and filing of the appeal papers.
If you are indigent, that is, if you are without sufficient funds, you have the right to proceed informa pauperis, that is, without payment of costs or payment for the notes of testimony, and in that case you will also be entitled to have the Court appoint either your trial lawyer or another lawyer to represent you in the Appellate Court, free of charge.
You also have the right to file a motion challenging the propriety of your sentence and the validity of your plea of guilty. Such a motion must be in writing and must be filed within ten days from today or you will lose the right to file it.
You are entitled to be represented by counsel in preparing and litigating such a motion.
If you are without sufficient funds, the Court will appoint counsel for you free of charge to prepare and litigate such a motion.
If you file such a motion, you will have SO days from the disposition of the motion to file an appeal. Only claims or grounds raised in this Court may be raised on appeal.
Do you understand everything I have said?
[The Appellant] Yes.
[The Court] Do you want anything explained?
[The Appellant] No.”
Sentencing Transcript at 40-42 (Emphasis added).

As is evident from the colloquoy, supra, the trial court misinformed the appellant since an appeal had to be taken within thirty days of the judgment of sentence. See Pa.R. Crim.P. 1405(c)(1) (“At the time of sentencing, the judge shall . .. advise the defendant on the record: (1) of his right to appeal and the time within which he must exercise such right . . .) (Emphasis added). Accord Commonwealth v. Dormon, 272 Pa.Super. 149, 154 n. 6, 414 A.2d 713, 716 n. 6 (1979). Under these circumstances, we cannot assume, as does the prosecution, that appellant’s decision to exercise his appellate rights late was done in a knowing, intelligent, and voluntary manner since appellant was led to believe that a direct appeal could be taken to a higher court within thirty days from the disposition of his motion to challenge his sentence. See Commonwealth v. Cathey, 477 Pa. 446, 449, 384 A.2d 589, 590 (1978) (where the trial court failed to inform a defendant of his right that only those grounds which are raised in post-verdict motions can be asserted on appeal, defendant did not knowingly and intelligently waive his right to appeal); Commonwealth v. Myers, 427 Pa. 104, 108, 233 A.2d 220, 222 (1967) (where the court harbored under an erroneous assumption “that appellant had to vigorously assert his desire to appeal or suffer a waiver, the court below erred.”) (Cases omitted). Moreover, our Supreme Court has said that “[t]he right to appeal is a personal right which a defendant may relinquish only through a knowing, intelligent and voluntary waiver.” Commonwealth v. Cath ey, 477 Pa. at 449, 384 A.2d at 590 (Cases omitted) (Emphasis added). Additionally, before we may find a waiver of the right to appeal, “the accused must be aware of all of his rights incident to an appeal, and with such knowledge intentionally abandon or fail to exercise them.. .. ” Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970) (Emphasis added). Thus, we cannot conclude on the state of the instant record that appellant’s appeal should be quashed when he was not aware that an appeal had to be taken within thirty days of the date on which court imposed his sentence. Accordingly, we will consider appellant’s appeal as if it had been filed timely.

With respect to the sentencing issues raised by appeal, we have engaged in an independent review of the record and conclude that they are without merit.

Appellant’s bail is hereby revoked, and appellant is remanded to the custody of the court below for the resumption of his sentence.

Judgment of sentence affirmed.

       We note that pursuant to Pa.R.A.P. 1701, unlike Pa.R.Crim.P. 1410, the lower court’s granting of a reconsideration motion tolls the appeal period, in addition to rendering inoperative a notice of appeal filed concerning the order for which reconsideration has been granted. See Penjerdel Refrigeration Corp., Inc. v. R. A. C. S., Inc., 296 Pa.Super. 62, 442 A.2d 296 (1982).
      In order to cause a notice of appeal from a judgment of sentence to be rendered inoperative under Rule 1410, the lower court, which also considers a motion to modify the sentence, is required to vacate the

        sentence within thirty days of the date judgment is entered. Otherwise, the lower court loses jurisdiction over the matter. See Comment to Pa.R.Crim.P. 1410.” Commonwealth v. Corson, 298 Pa.Super. 51, 55 n. 2, 444 A.2d 170, 172 n. 2 (Emphasis added).


author:
PER CURIAM:
      CIRILLO, Judge,

text:
    447 A.2d 996
    Helen DAVIS & William Davis, Appellants, v. John A. LANGTON, D. O.
    Superior Court of Pennsylvania.
    Argued May 5, 1982.
    Filed July 2, 1982.

      James L. Womer, Philadelphia, for appellants.
    Brian M. Peters, Philadelphia, for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   PER CURIAM:

This appeal is from an order dismissing appellant’s complaint with prejudice pursuant to Pa.R.C.P. 4019 for repeatedly failing to answer appellee’s supplemental interrogatories. The procedural history of this case is adequately discussed by the lower court. On appeal, appellant argues that the lower court abused its discretion by dismissing the complaint with prejudice when other less severe sanctions were available under the rule. We agree. Although we can well understand the lower court’s frustration with appellant’s counsel, we nevertheless think it was unduly harsh to preclude appellant’s claim.

Reversed and remanded. Lower court to enter an order precluding appellant from proving any damages which were the subject of appellee’s interrogatories.

CIRILLO, J., files a concurring opinion.

CIRILLO, Judge,

concurring.

I agree with the majority that rather than preclude appellant’s claim, it is more appropriate to prevent appellant from proving damages which were the subject of appellee’s interrogatories.

In addition to the above sanction, I would require appellant’s attorney, Mr. Feingold, to pay to appellee the reasonable expenses, including attorney’s fees, incurred in obtaining the order of compliance and the order for sanctions.

Authority for our imposition of expenses upon Mr. Feingold may be found at Pa.R.C.P. No. 4019(g)(1) which provides that:

Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney’s fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

The explanatory note to Rule 4019(g)(1) states that:

These are powerful disciplinary tools, if the courts will use them. The placing of the burden to escape the expenses and counsel fees on the shoulders of the losing party, plus the new provision for imposing the sanction on the attorney, will hopefully assure compliance with the Discovery Rules and a minimum of sanction proceedings.

We note that Rule 4019 was amended on November 20, 1978 adding, among other things, the (g)(1) remedy. The amendment was to take effect 120 days after December 16, 1978, or April 16, 1979. In the instant case, the order imposing sanctions was issued on January 16, 1979, three months before the effective date. Despite this finding, we believe that Rule 4019(g)(1) should be applied to this case.

In Pope v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 176 Pa.Super.Ct. 276, 107 A.2d 191 (1954), our court declared:

A statute is normally construed to operate prospectively only, especially where vested rights are affected, but if a statute is curative, remedial or procedural only, it may be applicable to litigation instituted prior thereto but not completed.

See Honey Bear, Inc. v. Commonwealth, Pennsylvania Liquor Control Board, 45 Pa.Commw.Ct. 185, 406 A.2d 814 (1979).

A remedial law has been defined as that:

Affording a remedy; giving means of obtaining redress; of the nature of a remedy; intended to remedy wrongs and abuses, abate failures, or supply defects; pertaining to or affecting remedy, as distinguished from that which affects or modifies the right.

Blacks Law Dictionary, West Publishing Co., Fifth Edition, p. 1162 (1979).

A procedural law has been defined as:

That which prescribes a method of enforcing rights or obtaining redress for their invasion; machinery for carrying on procedural aspects of civil or criminal action, e.g. Rules of Civil, Criminal and Appellate Procedure...

Id. at p. 1083.

Based on the foregoing, it is evident that Rule 4019(g)(1) is a rule of civil procedure which provides an additional remedy to the moving party, when an order of compliance and order for sanctions have been imposed. Thus, as a remedial or procedural statute, Rule 4019(g)(1) is applicable to this litigation which was pending at the time of its enactment.

      . We believe that in the future the courts should invoke Rule 4019(g)(1) as the initial sanction against attorneys, who fail to answer interrogatories, rather than punish the party by precluding his case from being heard on the merits.


author: PER CURIAM:

text:
    447 A.2d 998
    James SANDERS, v. Ernest SEAY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1981.
    Filed July 2, 1982.
    Mark S. Harris, Philadelphia, for appellant.
    James Dunworth, Phoenixville, for appellee.

      Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Appellee-plaintiff brought suit in equity, seeking an order: enjoining appellant-defendant from wasting assets; directing appellant to transfer to appellee one-half (V2) of the stock in a corporation; directing appellant to preserve the assets of the corporation; and directing such other relief as may be appropriate. The dispute arose from an alleged breach of a written partnership agreement concerning the purchase and operation of a tap room located in Philadelphia.

The trial court after making findings of fact, concluded that the business conducted by appellant, in the corporate name, was the property of the partnership. The chancellor found that appellant held title to the assets of the corporation as a trustee of the partnership. The court ordered appellant to account for any benefits or profits derived from the corporation. After the dismissal of appellant’s exceptions, the decree nisi directing appellant to file an accounting was entered as the final decree. This appeal followed.

' An order directing an accounting is interlocutory in nature. Rule 311, Pennsylvania Rules of Appellate Procedure provides for certain interlocutory appeals as of right; orders directing an accounting are not included. The commentary following the rule and directed to paragraph (a)(7) of the rule provides for an appeal from such order to be taken pursuant to Rule 312, Pa.R.A.P. Rule 312 allows for appeals from interlocutory orders by permission, pursuant to Chapter 13, Pa.R.A.P. Appellant has not petitioned for permission to take such appeal as required by Rule 1311(a), (b), Pa.R.A.P. Therefore we must quash the appeal.

Appeal quashed without prejudice to the parties to file an appeal from any subsequent appealable order. We do not retain jurisdiction.


author: CERCONE, President Judge: HESTER, Judge,

text:
    447 A.2d 999
    John G. FREEZE, Jr., Administrator of the Estate of John Goss Freeze, III, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1981.
    Filed July 9, 1982.

      Richard C. Angino, Harrisburg, for appellant.
    Laurence T. Himes, Jr., York, for appellee.
    Before CERCONE, President Judge, and HESTER, CAVANAUGH, WICKERSHAM, BECK, MONTEMURO and POPOVICH, JJ.
   CERCONE, President Judge:

The instant appeal presents us with a question under that embattled statute, the Pennsylvania No-fault Motor Vehicle Insurance Act. The operative facts are these. On January 14, 1977 John G. Freeze, III, was struck and killed by an automobile while sled riding near his home in Wrightsville, York County. The no-fault insurance coverage on the family automobile was carried by Donegal Mutual Insurance Company (appellee hereinafter); decedent was insured under the policy as a member of the household. At the time of his death decedent was eleven years old. Decedent’s father, John G. Freeze, Jr., (hereinafter appellant) acting as administrator of his son’s estate, requested and received the funeral benefits due under the insurance policy. Appellant also requested that appellee pay work loss benefits as defined by the No-fault Act. The latter request was refused. Appellant then instituted the instant action on behalf of his son’s estate in order to recover the work loss benefits. Appellee filed preliminary objections in the nature of a demurrer asserting that a decedent’s estate is not allowed to recover work loss benefits under the Act since such benefits may only be had by the statutorily defined class of “survivors.” Appellee also asserted that work loss benefits are neither due the survivors of a deceased eleven year old who had never worked, nor calculable. The lower court sustained appellee’s demurrer to the complaint’s sole cause of action, but sua sponte granted appellant leave to amend the complaint to allow appellant to seek survivors loss benefits and reimbursement for funeral expenses. Rather than amend the complaint appellant chose to file this appeal. By agreement of counsel, the original argument in this case was stayed pending our decision of Heffner v. Allstate Ins. Co., 265 Pa.Superior Ct. 181, 401 A.2d 1160 (1979).

I.

Before addressing the merits of the case, we must first surmount a crucial procedural hurdle. Because even an explicit agreement of the parties will not vest jurisdiction in a court where it otherwise would not exist, T. C. R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Giannini v. Foy, 279 Pa.Superior Ct. 553, 421 A.2d 338 (1980), we may raise sua sponte the issue of the appealability of a trial court’s order. Giannini v. Foy, supra; Davidyan v. Davidyan, 229 Pa.Superior Ct. 495, 327 A.2d 139 (1974).

At the time the instant appeal was filed this Court had jurisdiction over “all appeals from final orders of the courts of common pleas....” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742. In ascertaining whether an order is final, we will look beyond the technical effect of the order and apply practical considerations in light of the order’s ramifications. See Giannini v. Foy, supra. And see Adoption of G. M., 484 Pa. 24, 398 A.2d 642 (1979); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). Ordinarily, an order which terminates litigation or disposes of the entire case is final, and an order is interlocutory and not final unless it effectively puts the litigant “out of court.” Giannini v. Foy, supra; Adoption of G. M., supra; T. C. R. Realty, Inc. v. Cox, supra; Alessandro v. State Farm Mutual Auto Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979); Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968).

The lower court’s order denied the deceased’s estate the right to collect work loss benefits under the No-fault Act. Its stated reason for doing so was that appellant, as representative of his son’s estate, is essentially a “deceased victim,” and only survivors and “victims” can collect basic loss benefits. Thus, as far as work loss benefits are concerned the estate was “out of court,” and the litigation of appellant’s chosen cause of action for work loss benefits could proceed no further.

The order also granted appellant leave, however, to amend the complaint in order to seek survivors loss and funeral expenses. Arguably this sua sponte grant of leave to amend the complaint was an interlocutory order. This is so because generally speaking an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or entering judgment or otherwise terminating the action between the parties is interlocutory and, therefore, lacks the requisite finality to be an appealable order. Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954). This general rule has been modified, however. If the order in effect, serves to terminate the action between the parties by so restricting the pleader with respect to further amendment of the pleading as to virtually put him out of court on the cause of action he seeks to litigate, it is a definitive and final order, and thus, appealable. Hudock v. Donegal Mutual Ins. Co., 438 Pa. 272, 264 A.2d 668 (1970); Local No. 163, Int’l Union of Brewery Workers v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965); Sullivan v. Philadelphia, supra.

Appellant could have amended the complaint to seek survivors loss benefits—the funeral expenses question was moot at the time of the order since appellee had already reimbursed appellant for them—but this amendment would have altered the cause of action entirely. Appellant sought to litigate the question of whether an estate could recover work loss benefits, not whether recovery of survivors loss benefits is possible. Since this was not a case where appellant sought to recover on more than one cause of action where the court sustained demurrer only as to some of the causes of action advanced, see Giannini v. Foy, supra, but rather one where there was but a single cause of action alleged, appellant was “out of court” on his chosen cause of action. Practically speaking, then, the order sustaining appellee’s demurrer is final and appealable. Having, then, an appealable order before us we may proceed to the merits of the case.

II.

Our decision today is controlled by Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) which sustained this Court’s orders in Heffner v. Allstate Ins. Co., supra, (suit brought by decedent’s widow) and Pontius v. United States Fidelity and Guaranty Co., (order of July 3, 1979, remanding case for disposition below in accord with Heffner v. Allstate Ins. Co.) (suit brought by the administration of the deceased’s estate).

Appellee would have us overrule our decision in Heffner v. Allstate Ins. Co.,—a course which we are neither inclined to pursue nor one which is open to us in view of the Supreme Court’s recent decision in Allstate Ins. Co. v. Heffner—or that we construe Section 103 of the No-fault Act strictly and thereby limit the recovery of work loss benefits due under the Act to the statutorily defined class of “survivors” contained therein. This same argument was rejected in both this Court and the Supreme Court. Such an interpretation of the Act as advanced by appellee herein, and by Allstate in both Heffner cases, would abolish “the right of the deceased victim’s estate to recover from a tortfeasor the earnings the deceased victim would have contributed to his estate had he survived.” Heffner v. Allstate Ins. Co., 265 Pa.Superior Ct. at 191, 401 A.2d at 1164. In addressing this issue in Heffner v. Allstate Ins. Co., we stated:

. . . Section 301 . . . retains traditional tort liability against third persons for lost earnings to the extent that they exceed the monetary limits established by Section 202(b) of the Act, i.e., work loss benefits up to $1,000 per month and $15,000 total. Therefore, in order to recover damages for lost earnings in a survival action against a tortfeasor, the decedent’s estate must prove that the damages have exceeded the limits of its coverage under Section 202(b). Under Allstate’s analysis no decedent’s estate could ever prove this fact because the estate would never qualify for work loss benefits in the first place. The limits are never reached because the coverage is not afforded in any amount to survivors of deceased victims. Ergo, the net result is that the estate of a deceased victim can never recover monetary damages for lost earnings in a survival action.
However, in Pennsylvania our Constitution, Article III, Section 18 provides that the General Assembly may not limit “the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in the case of death from such injuries, the right of action, shall survive.. .. ” To be sure, in another context our Supreme Court found that the No-Fault Motor Vehicle Insurance Act did not violate a similar provision of our Constitution. In Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), the Court construed that part of Article III, Section 18 of the Constitution, which reads: “The General Assembly may enact [workmen’s compensation laws] but in no other cases shall the General Assembly limit the amount to be recovered . .. for injuries to persons...” [Emphasis added.] The Court concluded that nothing in that clause of Section 18 of the Constitution prohibited the abolition or modification of a cause of action for personal injuries, and that the effect of the threshold provisions of the No-Fault Act was the partial abolition of a cause of action for personal injuries, not the limitation of damages recoverable therefor. Thus, Singer v. Sheppard is distinguishable on several grounds. First, the language of Article III, Section 18 of the Constitution with which we are concerned herein is considerably broader than the clause the Singer court construed. Indeed Section 18 may prohibit even the partial abolition of a cause of action for wrongful death or survival. Second, as footnote [4], supra, and the text accompanying it indicate, it cannot be said with equal confidence in this case that a cause of action has been abolished, indeed Section 301(a)(5) of the No-Fault Act specifically exempts fatal accidents from the general abolition clause of Section 301(a). If Allstate’s argument were to prevail, it could only be concluded that the Act abolished only one aspect of damages in a survival action—economic loss. And, third, even the Court in Singer v. Sheppard perceived that the General Assembly intended to preserve all aspects of recovery for economic losses; the Court stated: “The No-fault Act, however, allows recovery for proven economic loss without limitation.” Id., 464 Pa. at 396, 346 A.2d at 901. This statement would surely be erroneous if Allstate’s interpretation of the Act prevail.

Id., 265 Pa.Superior Ct. at 191-193, 401 A.2d at 1165. (Footnotes omitted.) Strictly speaking the foregoing quotation was dictum to our opinion in Heffner v. Allstate Ins. Co. since the plaintiff in that case was the deceased victim’s widow and not the estate. However, the plaintiff in Pontius was the administrator of the deceased victim’s estate. In reversing the lower court’s decision in our order filed in Pontius we relied on our opinion in Heffner v. Allstate Ins. Co. Our Supreme Court never directly addressed the question of whether a deceased victim’s estate may recover under the No-fault Act, however, it did affirm both our decision in Heffner v. Allstate Ins. Co. and our order in Pontius. Furthermore, the Supreme Court adopted much of our opinion in Heffner v. Allstate Ins. Co. as its own. From the tenor of the Supreme Court’s opinion in Allstate Ins. Co. v. Heffner, supra, and from its affirmance sub silentio in that case of our decision in Pontius that a deceased victim’s estate may recover under the Act, we conclude that what was dictum in our earlier opinion must properly be applied to this case and become our holding. As we stated in Heffner v. Allstate Ins. Co.:

In any event, even if we were to conclude that the General Assembly could, consistent with our Constitution, abolish the recovery of damages for economic loss in a survival action, we could not conclude that the General Assembly so intended—at least not in the equivocal manner Allstate’s argument suggests. Such a reading of the Act would certainly forsake its stated objectives of being fair, comprehensive, and achieving “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed” on our highways.

Id., 265 Pa.Superior Ct. at 193, 401 A.2d at 1165-66. (Emphasis in the original) (Footnote omitted). There, we termed the result advocated by the insurance company “untoward” and “legislatively unintended.” Id. We are no less convinced of the correctness of our position in Heffner v. Allstate Ins. Co. today than we were two years ago. Indeed, in light of Allstate Ins. Co. v. Heffner, supra, we stand the firmer yet behind our conviction that the Legislature intended no such result. We hold today that the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act.

Finally, although the “deceased victim” in the instant case is a minor child who had never worked, we see no difficulty in calculating his work loss. Section 205(c) sets out the method by which the work loss of one not employed at the time of the accident is to be calculated:

(c) Not employed.—The work loss of a victim who. is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period;

40 P.S. § 1009.205(c). Because the victim was never employed the “probable annual income” referred to in Section 205(c)(1) will be “the average annual gross income of a production or nonsupervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in injury occurs” as required by Section 205(d)(C) of the Act. 40 P.S. § 1009.-205(d)(C). See Marryshaw v. Nationwide Mut. Ins., 13 Pa.D. & C.3d 172 (1979). In addition, it has been suggested that the fact that the victim never worked creates a problem about determining the proper “accrual period” to be utilized in fixing the work loss amount; we think the existence of such a problem illusory. The “accrual period,” instantly, the number of years the deceased victim would have worked had he survived the accident, can be readily established by reference to actuarial tables and other relevant statistical compilations. This is true even though the deceased victim was never actually given the chance to work and that, therefore, we cannot precisely fix the date of his entry into the working world.

The order is reversed and the case remanded for disposition not inconsistent with this opinion.

HESTER, J., filed a dissenting opinion.

HESTER, Judge,

dissenting:

This is a suit instituted by the estate of an 11-year old boy, killed in a sled riding accident, to collect “Work Loss Benefits” from his father’s No-Fault Insurance Carrier. “Work Loss Benefits” can be collected only by those individuals included in the definition of survivors in the No-Fault Act.

As our Supreme Court recently stated in Allstate v. Heffner, 491 Pa. 447 at 450, 421 A.2d 629 at 631 (1980):

“This Court must start from the position that its duty ‘is to ascertain and effectuate the intention of the General Assembly,’ so that full effect is given to every position of a statute, if possible. 1 Pa.C.S.A. § 1921(a)(1980-81 pamphlet).
In enacting the No-Fault Act, the General Assembly expressly declared that “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, ... is essential to the humane and purposeful functioning of commerce.” 40 P.S. § 1009.102(a)(3) (emphasis added). Furthermore, ‘it is hereby declared to be the policy of the General Assembly to establish ... a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims’ 40 P.S. § 1009.102(b) (emphasis added). The legislature has provided definitions for the terms with which we must interpret the No-Fault Act. The following definitions contained in Article I are required in order to resolve the issue presently before us: (Emphasis added).

And on 491 Pa. 452, 421 A.2d at 632:

“Survivors” means: (A) spouse; or (B) child, parent, brother, sister or relative dependent upon the deceased for support.”

Clearly, to recover Work Loss Benefits, the claimant must be a survivor as defined by the Act. The Estate of the 11 year old deceased victim is certainly not a “Survivor” as defined by the No-Fault Act. Therefore, the Estate is not entitled to receive Work Loss Benefits.

The majority contends that this case is controlled by our Opinion in Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 401 A.2d 1160 (1978). I do not agree. There, the appellant-plaintiff was the surviving widow, the spouse of the decedent. She clearly qualified as a “Survivor” under the No-Fault Act. In the case at bar the appellant is the Estate of the decedent, and does not qualify as a “Survivor”. John G. Freeze, Jr., as father of the deceased victim, is not to be confused with John G. Freeze, Jr., Administrator of the Estate of the deceased victim, the within appellant-plaintiff. The Estate is a separate and distinct entity.

In Heffner v. Allstate, supra, the trial court held that the surviving widow-appellant was entitled to recover the “Survivors Loss” benefits but not the “Work Loss” benefits her husband indisputably would have received had he been permanently injured, rather than killed in the accident. Our Court reversed, holding “that appellant is entitled to recover work loss benefits as the survivor of a deceased victim”, 265 Pa.Superior Ct. 188, 401 A.2d at 1163 (emphasis added).

The only issue in Heffner v. Allstate was whether the spouse of decedent could collect in her own right, both “Survivors Loss” benefits and “Work Loss” benefits under the No-Fault Act. Our Opinion concluded with the following:

“.. . We conclude that appellant is entitled to recover work loss benefits as the survivor of a deceased victim under the No-Fault Motor Vehicle Insurance Act and, consequently, under the contract of insurance with Allstate”. 265 Pa.Superior Ct. 193, 401 A.2d at 1166 (Emphasis added).

Our holding in Heffner v. Allstate, is restricted to awarding Work Loss Benefits to Survivors of deceased victims as enumerated in the Act. It cannot be here broadened to include the estates of deceased victims. That argument, or interpretation, was never advanced or asserted in Heffner v. Allstate. We were there concerned only with the effort of the spouse of the deceased victim to collect Work Loss benefits. His estate was not a party. I joined in that Opinion. I continue to believe it to be a correct interpretation of the Act. It permitted recovery by one included in the Legislative Enumeration of Survivors.

As asserted by the majority, the Supreme Court, in Allstate v. Heffner and Pontius v. United States Fidelity and Guaranty Company, 491 Pa. 447, 421 A.2d 629 (1980), affirmed our Opinion in Heffner v. Allstate. The opinion of the Supreme Court concerns itself only with the fact situation in Heffner and the right of Survivors to collect both Survivors Loss and Work Loss benefits under the No-Fault Act. Pontius is mentioned but once in the Opinion.

As Justice Nix states of 491 Pa. at 453, 421 A.2d at 632-33:

“The crux of the issue presented to us is whether the legislature intended ‘victims’ of motor vehicle accidents to be accorded differing basic loss benefits from those accorded survivors of ‘deceased victims.’ Appellants, Allstate and USF&G, contend that the legislature did intend such a distinction. On the one hand, appellants assert that ‘victims’ are entitled to the following basic loss benefits: allowable expense, work loss, and replacement services loss. On the other hand, appellants maintain survivors of ‘deceased victims’ are only entitled to: allowable expense (funeral expenses) and survivor’s loss. This view has been adopted by four different courts of common pleas but was rejected by the Superior Court in the two cases presently before us.” (Emphasis added).

The Supreme Court discussed only the issues involved in the Heffner appeal and restricted its discussion to the rights of “Survivors” as defined in the No-Fault Act. The term “Survivors” is used throughout the Opinion. The facts of the Pontius appeal were never discussed.

The major thrust of the Supreme Court’s Opinion in Allstate was to rebut the allegation that the No-Fault Act did not permit the recovery of both “Survivors Loss Benefits” and “Work Loss Benefits” by survivors of deceased victims. Double recovery was the major issue in Allstate. In disposing of that issue the Supreme Court stated at, 491 Pa. 459, 421 A.2d 636:

“Even assuming such potential for double recovery, this fact, in and of itself, does not necessarily evidence a legislative intention to deny “work loss” benefits to survivors. As appellee Pontius points out in his brief, the legislature has allowed double recovery of other benefits under the Act. For example, Section 203 of the Act concerning Collateral Benefits permits victims to recover their medical expenses from Blue Cross and Blue Shield and then recover the same expenses a second time from the no-fault carrier. It is apparent that the “vice” of double recovery was not foremost in the minds of the legislators when the No-Fault Act was enacted. Consequently, the mere possibility of a double recovery by granting “work loss” benefits to survivors of deceased victims, does not seem contrary to either the express or implied intention of the legislature.
However, we believe that in practice, recovery of survivors loss and work loss benefits by survivors of deceased victims, will no more constitute double recovery under the Act than does recovery under analogous wrongful death and survival actions in tort law. See Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942); First National Bank of Meadville, Pa. v. Magra Therapy Mfg. Corp., 229 F.Supp. 460 (W.D.Pa.1964); and Hochrein v. United States, 238 F.Supp. 317 (E.D.Pa.1965). As we view the Act, the decedent’s contribution of income under surviv- or’s loss recovery shall be excluded from the amount recovered under work loss. In this manner, both basic loss benefits will compliment, rather than duplicate each other. It must be kept in mind that the Act sets monetary limits of $15,000 for recovery of work loss benefits and $5,000 for survivor’s loss benefits. If actual losses do not reach or exceed these limits, the full amounts of these basic loss benefits need not be paid. (Emphasis added).

In the concluding paragraph of its Opinion in Allstate, the Supreme Court embraced the position adopted by this Court in Heffner. See 491 Pa. 460, 421 A.2d 636:

The position taken by the Superior Court in Heffner is the most cogent approach to the No-Fault Act. The recovery of work loss benefits by survivors of deceased victims best fulfills the legislature’s express intention to provide “compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents” by providing “adequate basic loss benefits [to] . . . the survivors of deceased victims.” (Emphasis added).

Note the constant use of the word “Survivors”.

The intent of the Legislature in enacting No-Fault was to provide “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the ‘survivors’ of all individuals killed in motor vehicle accidents on Commonwealth highways .... ” 40 P.S. § 1009.102(a)(3) (emphasis added). Furthermore, it provided that, “it is hereby declared to be the policy of the General Assembly to establish ... a statewide system of prompt and adequate loss benefits for motor vehicle accident victims and the ‘survivors’ of deceased victims,” 40 P.S. § 1009.102(b) (emphasis added).

The definition of the term “survivor” in the Act does not include the Estate of a deceased victim. We are bound by that definition.

I am of the opinion that the principle of expressio unius est exclusio alterius applies to an interpretation of that statutory language. By expressly naming the parties that were to be considered as “Survivors” under the No-Fault Act, the Legislature intended to exclude all parties and/or entities not included in their definition.

In retrospect, an estate of an individual could not possibly be considered a survivor. The estate does not exist prior to the death of the testator. Not having existed prior to the death of the individual, the estate cannot be a survivor. The Estate of John Goss Freeze did not come into existence until some time following his death. His Estate cannot be considered as one of his survivors.

The majority would have us expand the legislative definitions of “survivor” to include the estate of a deceased victim. In so doing the majority is once again moving out of the area usually inhabited by the Judiciary and into the habitat of the Legislature. This is not unique. This inclination has been common to the Bench since “the time the memory of man runneth not to the contrary.” While asserting the power of judicial review, Chief Justice John Marshall carefully elaborated this view: “Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” Osborn v. United States Bank, 9 Wheaton 738, 866, 6 L.Ed. 204 (1824).

We are often inclined to become “robed legislators”. In the instant case, there is no cause to inject the court into the role of the Legislature. The definition of “survivor” in the statute is clear and precise.

“When the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
1 Pa.Con.Stat.Ann. § 1921(b).

In construing the provisions of the No-Fault Act, we must be mindful of our obligation to follow established rules of statutory construction under which we are not permitted to disregard the clear and unambiguous language of the Act on the pretext that its literal interpretation will frustrate its spirit.

The Act clearly restricts recovery of work loss benefits to “survivors” as defined in the Act. The estate of the deceased victim is not included in that definition. No where in the Act is there a provision that would permit an estate to recover the basic loss benefits created by the Act. It is clear that an estate, therefore, cannot recover those basic loss benefits.

The result, which I urge, is compelled by a valid and unambiguous statute with which courts may not palter under the pretext of construction or interpretation. 1 Pa.C. S.A. 1921(b). The result urged by appellant can be achieved only through Legislation.

The majority finds that the “sub silentio” affirmance by the Supreme Court of Judge Wieand’s order of July 3, 1979, remanding Pontius v. U.S.F. & G., supra, to the court below, is sufficient to support a conclusion that the estate of a deceased victim is entitled to work loss benefits under the No-Fault Act.

I do not agree.

The Supreme Court has at no time, either directly or indirectly, ever addressed the question as to whether the estate of a deceased victim may recover work loss benefits. The most that the Supreme Court has done is affirm Judge Wieand’s order in Pontius, supra. That order did no more than reverse and remand without prejudice. No opinion or memorandum was filed. That, I submit, was not a “decision” of the Superior Court. This, in my judgment, is not sufficient to support the conclusion that the estate of a deceased victim can collect No-Fault benefits, particularly in view of the wording of the Act.

The majority further states that: “From the tenor of the Supreme Court’s opinion in Allstate Insurance Company v. Heffner, supra, and from its affirmance sub silentio in that case of our decision in Pontius that a deceased victim’s estate may recover under the Act, we conclude that what was dictum in our earlier opinion must properly be applied to this case and become our holding.” Slip Opinion, page 1004.

My reading of the Supreme Court opinion in Allstate v. Heffner, supra, leads me to the opposite conclusion. In that opinion that court states that one of the purposes of the Act was to provide maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents. The court further stated: “The legislature has provided definitions for the terms with which we must interpret the No-Fault Act. The following definitions contained in Article I are required in order to resolve the issue presently before us.”

“Survivor” means:

(A) spouse; or
(B) child, parent, brother, sister or relative dependent upon the deceased for support.

The Supreme Court specifically listed that definition of “survivors” in its opinion.

The tenor of the Supreme Court’s opinion in Allstate v. Heffner, is that work loss benefits could be recovered by survivors of deceased victims and that the recovery of both work loss and survivors loss benefits by survivors of deceased victims was permitted. The opinion refers to survivors throughout. Recovery is strictly limited to survivors as defined in the Act.

There is absolutely nothing in the tenor of the Supreme Court’s opinion that would substantiate the conclusion that the estate of a deceased victim could collect work loss benefits. The opposite is true. The opinion rigidly confines itself to survivors as defined by the Act. The plaintiff-appellee was the spouse of the deceased victim. She was covered by the definition of survivors in the Act, and she was permitted to recover. Her husband’s estate was not a party. This is the only valid conclusion that can be drawn from that opinion.

The Supreme Court’s opinion in Allstate does not hold that the estate of a deceased victim is entitled to work loss benefits. The No-Fault Act makes no such provision.

I therefore dissent.

      . This case was originally argued before a panel of this Court. It was ordered reargued before the Court en banc because of the importance of the questions presented.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp. 1980-81) hereinafter referred to as the Act or the No-fault Act.

      . In his reargument brief appellant asserts the right to “stack” work loss benefits because there were two vehicles insured under the policy. The lower court did not reach the question (if indeed the question was ever presented to it) because it was precluded from going further once it had sustained the preliminary objections and dismissed the complaint. Accordingly, we need not address the question ourselves.
      On the stacking question see Wilson v. Keystone Ins. Co., 3822 November Term, 1979, (Phila. Co., May 7, 1981). Accord, McNemee v. Farmers Insurance Group, 228 Kan. 211, 612 P.2d 645 (1980); Petty v. Allstate Ins. Co., Minn., 290 N.W.2d 763 (1980); Wasche v. Milbank Mutual Ins. Co., Minn., 268 N.W.2d 913 (1978); Cooke v. Safeco Ins. Co. of America, 94 Nev. 745, 587 P.2d 1324 (1978); Travelers Ins. Co. v. Lopez, 93 Nev. 463, 567 P.2d 471 (1978); Carey v. Electric Mut. Liability Ins. Co., 500 F.Supp. 1227, 1234 (1980) (Footnote 2). Cf., State Farm Mut. Auto. Ins. Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978); Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968); Sones v. Aetna Cas. & Surety Co., 270 Pa. Superior Ct. 330, 411 A.2d 552 (1979). And see, Zittrain, Whose Fault Is No-Fault?: The Pennsylvania No-fault Motor Vehicle Insurance Act, 41 U.Pitt.L.Rev. 27, 58-67 (1979).

      . 40 P.S. § 1009.103 defines survivor as “(A) spouse; or (B) child, parent, brother, sister or relative dependent upon the deceased for support.”

      . For the propriety of the court’s sua sponte grant of leave to amend the complaint see Delgrosso v. Gruerio, 255 Pa. Superior Ct. 560, 389 A.2d 119 (1978) and Keller v. Cook, 69 York Leg.Rec. 161 (1956).

      . In Pontius v. United States Fidelity & Guaranty Co., the parties jointly petitioned this Court to reverse the lower court’s order denying work loss benefits to the deceased victim’s estate. The reason for the petition was the parties’ desire to have the case consolidated on appeal with the Allstate Ins. Co. v. Heffner. Judge Wieand’s order in Pontius read:
      NOW, this 3rd day of July, 1979, upon request of counsel for the parties that a summary disposition of the appeal be made consistently with the decision of this court in Heffner v. Allstate Insurance Company ..., which decision is presently the subject of a petition for allowance of appeal to the Supreme Court of Pennsylvania, the judgment of the lower court is hereby reversed and remanded without prejudice to the appellee’s right to petition for allowance of appeal to the Supreme Court of Pennsylvania.

      . See Heffner v. Allstate Ins. Co., 265 Pa. Superior Ct. at 191 n.25, 401 A.2d at 1164 n.25 where we said:
      “The other elements of damages for wrongful death and survival appear to have been preserved. With respect to wrongful death actions, the present value of the victim’s services to his dependents is recoverable by reading Sections 301(a)(4), 202(d) and 103 together, and funeral expenses are recoverable by reading Sections 301(a)(4), 202(a) and 103 together. Similarly, in survival actions, damages for pain and suffering are recoverable under Section 301(a)(5), and medical expenses may be recouped pursuant to Sections 301(a)(4), 202(a) and 103.”

      . See, e.g. Bulgin v. Pennsylvania Assigned Claims Plan, 655 Civil 1981 (Cumb. Co., Sept. 21, 1981); Smith v. Motorist Mut. Ins. Co., 129 P.L.J. 389 (Alle. Co., 1981); Tubner v. State Farm Mut. Auto. Ins. Co., 129 P.L.J. 387 (Alle. Co., 1981). Cf. Sachritz v. Pennsylvania Nat. Mut. Cas. Ins. Co., 293 Pa. Superior Ct. 483, 439 A.2d 678 (per Hoffman, J., (1981); Daniels v. State Farm Mut. Auto. Ins. Co., 283 Pa. Superior Ct. 336, 423 A.2d 1284, 1288 (1981).
      In Sachritz, Judge Hoffman denominated these benefits as “post mortem work loss benefits.”
      Interestingly enough, in Pontius v. United States Fidelity & Guaranty Co., on remand from the Supreme Court, the Dauphin County Court of Common Pleas came to the conclusion that the Heftier opinions, supra, did not stand for the proposition that an estate may collect work loss benefits. See Pontius v. United States Fidelity & Guaranty Co., 102 Dauph. 432 (1981).

      . Since the only question properly presented is the propriety of awarding work loss benefits to the deceased eleven year old’s estate we need not address the issue of dependency, the latter being more properly a question concerning survivor’s loss benefits.

      . In Marryshaw v. Nationwide Mut. Ins., 13 Pa. D. & C. 3d 172 (1979) the court held that a nineteen-year-old college student who had never worked, could collect work loss benefits under Section 205(c) of the Act based on the Pennsylvania Insurance Department’s calculation of “the average annual gross income of a production or nonsupervisory worker in the private nonfarm economy in” Pennsylvania. As the court cogently stated there, [the insurance company’s] view [that such benefits are not conferrable] fails to take into consideration the established principle of Pennsylvania tort law that impairment of earning capacity resulting from physical or mental injury caused by an accident is a legitimate element of damages, and that proof of this element does not depend upon showing that, at some time the victim was gainfully employed. Accordingly, such damages have been awarded to a three-year-old child; Campbell v. Philadelphia, 252 Pa. 387, 97 Atl. 456 (1916); to minors, each seven years old; Fedorawicz v. Citizens’ Electric Illuminating Co., 246 Pa. 141, 92 Atl. 124 (1914); O’Hanlon v. Pittsburgh Railways Co., 256 Pa. 394, 100 Atl. 972 (1917); to an eight-year-old girl, Brzyski v. Schreiber, 314 Pa. 353, 171 Atl. 614 (1934); to a ten-year-old boy; Allen v. Buffalo, R. & P. Ry., 274 Pa. 518, 118 Atl. 490 (1922); and to a high school student, 18 years old at the time of the accident; Fisher v. Schlegel, 26 Berks 57 (1933), affirmed 315 Pa. 390, 172 Atl. 658 (1934).
      Id. at 175-176. (Emphasis in original).


author: WICKERSHAM, Judge:

text:
    447 A.2d 1009
    COMMONWEALTH of Pennsylvania v. Donald Sylvester JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1982.
    Filed July 9, 1982.
    Petition for Allowance of Appeal Denied Nov. 30, 1982.

      Robert Niels Tarman, Public Defender, Harrisburg, for appellant.
    William H. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WICKERSHAM, Judge:

On March 20, 1975 Jones was found guilty of third degree murder after a jury trial. Jones was awarded a new trial for reasons not relevant to this case; after another jury trial, the Honorable Warren G. Morgan presiding, Jones was again convicted of third degree murder. Judge Morgan sentenced Jones to a ten to twenty year prison term and Jones took a direct appeal. The Pennsylvania Supreme Court affirmed the judgment of sentence in a per curiam opinion. Commonwealth v. Jones, 477 Pa. 593, 385 A.2d 946 (1978).

Jones next filed a petition for habeas corpus relief alleging that he was unconstitutionally confined because he was imprisoned at some distance from his home town, making family visits difficult. This petition was denied. Jones then filed a petition under the Post Conviction Hearing Act (hereinafter PCHA or Act). Counsel was appointed to assist Jones in his petition, which alleged that he was prejudiced at trial by the prosecutor’s reference to and display of exhibits which were not entered into evidence as well as by trial and appellate counsel’s failure to object to the display of exhibits. Judge Morgan rejected these contentions without a hearing on the ground that the supreme court considered these issues in its decision on Jones’ direct appeal. No appeal was taken from this dismissal of Jones’ first PCHA petition.

Jones filed another PCHA petition on September 17,1980. Counsel was again appointed to assist Jones in his petition. In an amended PCHA petition prepared by counsel Jones alleged that several photographs admitted into evidence at his trial were inflammatory and that the trial judge abused his discretion by overruling trial counsel’s objections to admission of the photographs. Jones also alleged that his appellate counsel rendered ineffective assistance by failing to preserve the issue of the photographs on appeal and that his first PCHA counsel rendered ineffective assistance by failing to raise the issue of appellate counsel’s alleged ineffectiveness. Judge Morgan dismissed this second petition, again without a hearing, and this appeal timely followed.

On December 25, 1974, Jones visited his cousin, Cheryl Williams in the City of Harrisburg. Cheryl Williams was living with her boyfriend, Robert Bedney. Williams and Bedney had an argument and Jones ordered Bedney out of the house at gunpoint. Jones followed Bedney outside, a short time later shots were heard. Jones returned to the house, told his cousin he shot Robert Bedney and left. When the police came they found Robert Bedney lying dead on the porch. Bedney had received four gunshot wounds, including three to the head. At trial Jones claimed he shot Bedney in self-defense.

During Jones’ trial, pictures taken at the autopsy performed on the body of Robert Bedney were admitted into evidence over the objection of trial counsel. The objection to admission of the autopsy photographs was not raised in post-trial motions, direct appeal or in the first PCHA petition.

Before addressing the merits of Jones’ arguments before us we must determine whether the judge below was correct in dismissing Jones’ petition without a hearing. The Act provides:

§ 1180—9. Hearings
If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.
The petitioner shall have a full and fair hearing on his petition. The court shall receive all evidence, which shall be recorded, that is relevant and necessary to support the claims in the petition, including affidavits, depositions, oral testimony, certificate of the trial judge, and relevant and necessary portions of transcripts of prior proceedings.
The petitioner has the right to appear in person at the hearing.

Act of January 25, 1966, P.L. 1580, § 9, eff. March 1, 1966, 19 P.S. § 1180-9 (emphasis added).

As both this section of the Act and case law make clear a petitioner does not have an absolute right to a hearing on a PCHA petition. See, Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Overall, 275 Pa.Super. 206, 418 A.2d 685 (1980) and Commonwealth v. Miller, 275 Pa.Super. 236, 418 A.2d 700 (1980). Even more recently, the Pennsylvania Supreme Court said:

Furthermore, section 1180-9 provides the PCHA court may deny a hearing on a petition if the petitioner’s claim is ‘patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held.. . . ’ Clearly then, the PCHA contemplates that a second (or greater number of) petition(s) is the exception and the decision whether to dismiss such petitions without a hearing lies in the sound discretion of the PCHA court whose determination in this regard will be affirmed absent abuse. See Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978) (right to hearing not absolute and Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977).

Commonwealth v. Alexander, 495 Pa. 26, 30, 432 A.2d 182, 183-84 (1981).

Here, the judge below was faced with a second PCHA petition and the judge certainly did not abuse his discretion by denying Jones’ petition without a hearing.

Jones raises two issues in this appeal:

1. Whether appellate counsel rendered ineffective assistance in failing to preserve the issue of the improper admission of certain photographs at appellant’s trial?
2. Whether appellant’s counsel on the first post conviction hearing act petition was ineffective in failing to raise the above-mentioned ineffectiveness of appellate counsel?

This is Jones’ second PCHA petition and in Alexander, supra, the supreme court offered guidance in analysis of cases involving repeated petitions.

The starting point in any review or consideration of multiple PCHA petitions must be section 1180-5(b) of the PCHA which provides:
Any person desiring to obtain relief under this act shall set forth all of his then available grounds for such relief for any particular sentence he is currently serving in such petition and he shall be entitled to only one petition for each such crime. The failure to raise any such issue in such petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented. 19 P.S. § 1180-5(b). (emphasis added)
Thus, the PCHA explicitly contemplates a single post-conviction proceeding in no uncertain terms. As Mr. Justice Flaherty pointed out in his dissenting opinion in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431, 437 (1978), joined by Mr. Justice Kauffman, “a second post-conviction appeal should be the exception, not, as is presently the case, the rule.”

Commonwealth v. Alexander, supra, 495 Pa. at 30, 432 A.2d at 183.

Because this is Jones’ second petition he would normally have been held to have waived his claim of ineffective assistance of appellate counsel. Any argument that appellate counsel was ineffective should have been presented at the first opportunity, that is, when petitioner received new counsel. Commonwealth v. Wallace, 495 Pa. 295, 298, 433 A.2d 856, 858 (1981); Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978). Jones seeks to avoid the consequences of the waiver doctrine by alleging before us that his first PCHA counsel was ineffective for failing to preserve the issue of appellate counsel’s ineffectiveness.

Both claims in this appeal may be disposed of by examining the merits of the argument counsel were allegedly ineffective for failing to advance. Jones believes his appellate counsel and his first PCHA counsel should have argued that photographs taken at the autopsy performed on the victim should not have been admitted into evidence. Jones also asserts that appellate counsel had no reasonable basis for failing to argue that the photographs were prejudicial and inflammatory. “In determining whether appellant was denied the effective assistance of counsel, we must make an independent review of the record, and first decide whether the claim with which the attorney is charged with not pursuing had some reasonable basis. Only if the claim which was foregone was of arguable merit must we inquire into counsel’s reasons for not pursuing it.” Commonwealth v. Strader, 262 Pa.Super. 166, 171, 396 A.2d 697, 700 (1978) (citations omitted).

After our review of the record before us we conclude that Jones’ claim as to the admissibility of the autopsy photographs is without merit. The PCHA judge, who presided over Jones’ trial as well, held that the photographs used were not inflammatory per se because the wounds were cleaned of blood and did not present a gory aspect. Even assuming arguendo that the photographs were gruesome their evidentiary value outweighed any inflammatory tendency. The essential value of the photographs as evidence was to conclusively refute Jones’ claim that he acted in self-defense.

Because the claim as to the admissibility of the photographs is meritless, neither appellate counsel nor first PCHA counsel was ineffective for not advancing arguments about the pictures. “[C]ounsel is not ineffective in failing to assert a meritless claim.” Commonwealth v. Hollerbush, 298 Pa. Super. 397, 444 A.2d 1235 (1982) (citations omitted).

Order affirmed.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. Repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(2) [1397]. Repeal delayed until June 27, 1981 by Act of June 26, 1980, P.L. 265, No. 77, § 2. Repeal further delayed until June 26, 1982 by Act of June 26, 1981, P.L. 123, No. 41, § 1.


author: CIRILLO, Judge: WIEAND, Judge,

text:
    447 A.2d 1012
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas J. WETMORE.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1982.
    Filed July 9, 1982.

      Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellant.
    Edward C. Connolly, Warminster, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellee, Thomas J. Wetmore, was convicted in a jury trial of theft by deception and theft by unlawful disposition. After argument, the trial court granted appellee’s motion in arrest of judgment and ordered him discharged. The Commonwealth has appealed that order to this court.

In 1874, an 18 year old man committed suicide. Appellee, who was then chief of police in the community, investigated the suicide and recovered a shotgun which was the suicide weapon. The following day, appellee met with the suicide’s father who requested that appellee destroy or otherwise dispose of the shotgun. Appellee agreed to do so. Appellee later wrote a letter to the father, indicating that he had disposed of the gun. Approximately one year later, appellee took the shotgun to a gun shop where he disposed of it for no compensation.

The Commonwealth argues that the trial court erred in concluding that the shotgun had been abandoned by the father and therefore could not be the subject of a larceny. We disagree and affirm the order of the lower court arresting judgment on both charges and discharging appellee.

It is well settled law that abandoned property cannot be the subject of larceny. Commonwealth v. Meinhart, 173 Pa.Super. 495, 98 A.2d 392 (1953). Abandoned property is defined as that:

... to which an owner has voluntarily relinquished all right, title, claim and possession with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming further possession or resuming ownership, possession or enjoyment.

1 Am.Jur.2d § 1; Ballantine’s Law Dictionary, Lawyers Co-operative Publishing Co., Third Edition, p. 1 (1969).

Abandonment involves an intention to abandon, together with an act or omission to act by which such intention is apparently carried into effect. In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Black’s Law Dictionary, West Publishing Co., Fifth Edition, p. 2 (1979). The intent to abandon is to be determined from all of the facts and circumstances of the case. Russell v. Stratton, 201 Pa. 277, 50 A. 975 (1902). The question of whether a particular act amounts to an abandonment is generally one of intention. Eagan v. Nagle, 378 Pa. 206, 106 A.2d 222 (1954). When deciding whether an object has been abandoned, we must consider the nature of the property, the acts and conduct of the parties in relation thereto and the other surrounding circumstances. Gilberton Contracting Co. v. Hook, 255 F.Supp. 687 (E.D.Pa.1966).

In the instant case, an abandonment occurred when the father requested appellee to destroy or otherwise dispose of the gun so it would never be used again for any purpose. As noted above, appellee obtained the gun when he was investigating the suicide. When appellee met with the father, the father told him to keep and dispose of the gun, rather than return it. Though one could argue that no delivery was made and, therefore, nonphysical act, we conclude that the omission to act, i.e., the father’s failure to recover the gun from the appellee, together with an intent to relinquish all claim to the property, both presently and in the future, was sufficient because the effect was the same. We would not expect the parties to go through the unnecessary motion of the physical transfer of the gun from appellee to the father and then its return to appellee, just to satisfy the requirement that a physical act take place. The moment the father told appellee to keep and dispose of the gun, he gave up his rights of possession and ownership. He did not intend to reserve any interest in the gun and, therefore, he clearly intended to abandon it.

Even if we assume that the gun was not abandoned property and, therefore, was a proper subject of larceny, we still must reach the same result because the Commonwealth failed to prove essential elements of the crimes charged.

Theft by deception is defined in Section 3922 of the Crimes Code as follows: “A person is guilty of theft if he intentionally obtains or withholds property of another by deception.” It is clear from the record that appellee obtained possession of the gun in the ordinary course of investigating the suicide. The alleged promise to dispose of the gun was made after appellee had the gun in his possession. Therefore, there is no evidence that the appellee “obtained” the gun by deception.

Furthermore, appellee did not “withhold” the gun by deception. “Withhold” is not defined in the Crimes Code but has been defined as, “to retain in one’s possession that which belongs to or is claimed by another.” Ballantine’s Law Dictionary, Lawyer’s Co-operative Publishing Co., Third Edition, p. 1373 (1969). Possession of the gun had been voluntarily relinquished by the father and he made no effort to reclaim possession. We conclude, therefore, that appellee was improperly convicted of theft by deception and judgment was correctly arrested on that charge.

Theft by failure to make required disposition has four elements:

1) the obtaining of property of another;
2) subject to an agreement or known legal obligation upon the recipient to make specified payments or other disposition thereof;
3) intentional dealing with the property obtained as the defendant’s own; and
4) failure of the defendant to make the required disposition of the property.

(emphasis added). Commonwealth v. Shapiro, 275 Pa.Super. 28, 418 A.2d 594 (1980); Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978); Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976).

A review of the evidence reveals that the first, third and fourth elements are present. As to the second element, we find that there was no clear legal duty owed by appellee to dispose of the gun in a particular manner. Appellee had promised to destroy the gun, as a favor, to the father, and he failed to do it. Though appellee’s conduct may be considered immoral, it was not illegal and, therefore, does not fall within the purview of Section 3927 of the Crimes Code. We agree with the lower court’s analysis of why the Commonwealth must fail in its attempt to bring this “agreement” within the confines of this statute:

The prosecution must fail because in our view the statute was not intended by the legislature to cover this “borderline” case that falls between the cracks only because in the most narrow sense its operative facts can be squeezed to fit the bare words of the statute.
Bare words are not enough. Involved is the community sense of what is criminal and it is our intuition that society did not intend to punish what in the last analysis has to be viewed as the breach only of a moral obligation.

Consequently, we conclude that, under either theory presented above, appellee was improperly convicted of the crimes charged and the lower court appropriately arrested judgment and discharged the appellee.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. A shotgun delivered to a policeman for the express purpose of destruction has not been abandoned by the owner and can properly be the subject of theft by failure to make required disposition. Therefore, I am of the opinion that the majority incorrectly affirms an order setting aside a conviction where the evidence shows that a policeman retained such a gun, used it for his own purposes, and after a year delivered it to a gun shop for sale in the normal course of business.

The shotgun which was the subject of the instant proceedings had been used in a suicide in New Britain Township, Bucks County, on October 17,1974. The father of the victim delivered the shotgun to the appellee, Thomas Wetmore, who was then the township chief of police, with specific instructions to destroy the gun so that it could never again be used by anyone for any purpose whatsoever. Appellee advised the father on several occasions, both orally and in writing, that he had carried out these instructions. In fact, he had not done so. He retained possession of the shotgun, carried it in his car for a year, and ultimately turned it over to a local gun shop, which sold it in the normal course of business.

Appellee was tried by jury and convicted of theft by deception and theft by failure to make required disposition. The trial court subsequently granted appellee’s motion in arrest of judgment. No determination was made of a motion for new trial which had also been filed. From the order arresting judgment, the Commonwealth appealed.

Theft by failure to make required disposition is defined at 18 Pa.C.S. § 3927(a), where it is provided in relevant part as follows:

A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition ... is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payments or disposition ....

The offense, derived from the Model Penal Code, has four elements: (1) the obtaining of property belonging to another; (2) an agreement or known legal obligation to make a specified disposition; (3) an intentional dealing with the property as one’s own; and (4) a failure to make the required disposition. See Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-95 (1976).

A review of the evidence in the instant case discloses that these four elements were present in and a part of appellee’s conduct. He obtained the property of another subject to an express agreement to dispose of it by destruction; however, he dealt with it as his own and failed to make the required disposition.

I am unable to agree with the majority that the gun had been abandoned when the offense was committed. “Abandoned property” has been defined as “that to which [the] owner has relinquished all right, title, claim and possession, with intention of not reclaiming it or resuming its ownership, possession or enjoyment.” For property to be abandoned, there must be the concurrence of a physical act, such as a throwing away of property, and the intention of not reclaiming it. See Black’s Law Dictionary (5th ed. 1979). When the gun was delivered to appellee an abandonment had not occurred. The physical act of abandonment, i.e., the destruction - of the gun, was to be effected by appellee. Until he destroyed the gun, it could be reclaimed by the owner. Until rendered inoperable by appellee, the weapon was not available for appropriation by the next comer; appellee was merely a bailee, an agent authorized to make disposition as directed by the owner.

In this respect, the facts are not analogous to the throwing away of garbage. Rather, they are similar to the situation in which a desk is to be delivered to a charity or where a rabid dog is delivered to a game warden for destruction. In these situations, a relinquishment of the rights of ownership does not occur until the desk has been delivered or the dog has been put to sleep. Where an item of property has been delivered to another for purposes of destruction, there is no abandonment until the property has been destroyed. If the bailee does not destroy the property and keeps it for his ovni use, he can be prosecuted for theft by unlawful disposition.

It may be, as appellant contends and the majority concludes, that considerations other than are apparent in the instant case prompted the legislature to define theft in the manner of 18 Pa.C.S. § 3927(a). This argument, however, does not alter the fact that the conduct attributed to appellee by the Commonwealth’s evidence in this case is precisely what has been made criminal by the legislature. If the result seems undesirable, that is an argument to be made to the legislature.

Accordingly, I would reverse the order arresting judgment on the conviction for theft by failure to make required disposition and remand for a determination of appellee’s motion for new trial.

      . 18 Pa.C.S.A. § 3922.

      . 18 Pa.C.S.A. § 3927.

      . 18 Pa.C.S. § 3922.

      . 18 Pa.C.S. § 3927.

      . Theft by deception can be committed only by one who “obtains or withholds property of another by deception.” 18 Pa.C.S. § 3922(a). In this case, there is no evidence that appellee “obtained” the gun by deception. Moreover, he did not “withhold” the gun. “Withhold” is defined in Black’s Law Dictionary (5th ed. 1979), as “[t]o retain in one’s possession that which belongs to or is claimed or sought by another.” Possession of the gun in the instant case had been surrendered, and there was no effort to re-claim such possession by the person or persons having rights of ownership therein. The offense, if any, lay in the failure to dispose of the gun as instructed. Therefore, I agree with the majority that judgment was properly arrested on the conviction for theft by deception.


author: CIRILLO, Judge:

text:
    447 A.2d 1017
    Loretta PLATTS, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 7, 1982.
    Filed July 9, 1982.

      Daniel L. Thistle, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, submitted a brief on behalf of appellee.

      Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the lower court granting appellee’s motion for summary judgment. Appellant contends that the statute of limitations contained in the No-Fault Motor Vehicle Insurance Act should not have been applied to bar her claim. We disagree and, therefore, affirm the order of the lower court.

The facts which gave rise to the instant appeal are as follows: On January 1, 1976, appellant was injured in a motor vehicle accident. She was insured at the time under a No-Fault policy issued by Government Employers Insurance Company (hereinafter Geico), the appellee herein. Appellant, who was represented by counsel, promptly submitted claims for payment of basic loss benefits to Geico. All of her requests, which included claims for work loss benefits and medical expenses, were honored. She received her last payment on February 25, 1977. For over two years after this date, appellant received medical care on a regular basis due to injuries she sustained in the accident. In addition, she was forced to retire from her job on March 8, 1977 because of the nature of these injuries. Neither appellant nor her attorney, however, submitted claims to Geico to recover additional loss benefits.

In January and July of 1979, appellant’s physicians informed her attorney that several of her medical bills for care rendered over the past two years, had not been paid. On July 10,1979, appellant submitted claims to Geico to recover these expenses and additional work loss benefits that she had not collected since February 25, 1977. On September 5, 1979, Geico informed appellant that it would not honor these claims because they were submitted beyond the statutory period provided for in the No-Fault Act. Appellant instituted the present action on September 25, 1979, to recover payment on these claims and for attorney’s fees. A motion for summary judgment filed on behalf of Geico was granted, and this appeal followed.

Section 106(c)(1) of the No-Fault Act provides, in pertinent part, “If No-Fault benefits have been paid for losses arising otherwise from death, an action for further benefits, other than survivors’ benefits, by the same or another claimant; may be commenced not later than two years after the last payment of benefits. (emphasis added).

The purpose of any statute of limitations is to expedite litigation and discourage delay and the presentation of stale claims. Insurance Company of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728, 729 (1971). One who asserts a cause of action against another has a duty to use all reasonable diligence necessary to inform himself of facts and circumstances upon which the right of recovery is based, and to institute the suit within the statutory period. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267 (1963).

Appellant advances two arguments in support of her contention that the statute of limitations contained in the No-Fault Act should not be applied to bar her claim. First, she avers that it does not apply to her claim for medical expenses because they did not accrue until her physicians notified her attorney that her bills had not been paid. We disagree.

The No-Fault Act clearly provides that loss is accrued when it is sustained. 40 P.S. § 1009.106(a)(1). See also, Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629, 632 (1980). Appellant received medical treatment for over two years under circumstances in which she could reasonably anticipate that compensation would be expected. See, e.g. Colish v. Goldstein, 196 Pa.Super.Ct. 188, 193, 173 A.2d 749 (1961). Therefore, appellant sustained losses when she accepted the medical treatment. Her doctor’s notification merely informed her of the amount she owed for medical treatment.

Geico’s refusal to pay these bills is actionable subject to the time limitations expressed in § 1009.106(c). See, Sachritz v. Pennsylvania National Mutual Casualty Co., 293 Pa.Super.Ct. 483, 485 n. 4, 439 A.2d 678, 680 n. 4 (1981). Appellant has advanced no arguments that would justify excepting her claim from the statute of limitations. Therefore, her claim for additional medical expenses is barred. Salvado v. Prudential Property and Casualty Insurance Co., 287 Pa.Super.Ct. 304, 430 A.2d 297, 299 (1981).

Secondly, appellant contends that the statute of limitations is inapplicable to her claim for work loss benefits because Geico failed to give her the required notice that it had rejected her claim until the statutory period had run. This argument is also without merit. Appellant admitted that she did not submit a claim for additional work loss benefits until after the statute of limitations had run. Under these circumstances Geico could not have given her notice before the statutory period expired. Moreover, appellant has not satisfactorily explained her failure to submit timely claims for work loss benefits. Therefore, she cannot be permitted to recover them at this late date. Salvado, 287 Pa.Super. 309, 430 A.2d at 299.

Finally, appellant requests that she be awarded attorney’s fees in accordance with § 107(3) of the No-Fault Act. Attorney’s fees cannot be awarded to appellant, however, because Geico had a reasonable basis for refusing to honor her claim. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419, 424 (1981). See also, Smith v. Harleysville Insurance Co., 275 Pa.Super.Ct. 246, 418 A.2d 705, 706 (1980).

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. 1, § 101, 40 P.S. § 1009.101 et seq.

      . In construing the provisions of the No-Fault, we are mindful of our obligation to follow established rules of statutory construction under which we are not permitted to disregard the clear and unambiguous language of the Act on the pretext that its literal interpretation will frustrate its spirit. Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.Con.Stat.Ann. § 1921(b).

      . Act of July 19, 1974, P.L. 489, No. 176, Art. 1, § 106, 40 Pa.Con. Stat.Ann. § 106(c)(1). In the instant case, the statutory period expired on February 25, 1979. Appellant instituted the present action approximately seven months later.

      . A case interpreting the New Jersey Automobile Reparation Reform Act reached a similar result. In Montag v. Bergen Bluestone Co., 145 N.J.Super.Ct. 140, 366 A.2d 1361, 1366 (1976), it was held that a cause of action for a claim of medical expenses under New Jersey’s No-Fault Act accrued on the date that the plaintiff learned that medical treatment would be necessary.

      . 40 Pa.Con.Stat.Ann. § 1009.106(a)(2) provides that [No-Fault Benefits are overdue if not paid within 30 days] “after the receipt by the obligor or of each submission of reasonable proof of the fact and amount of the loss sustained.... ”
      Section 1009.106(a)(5) provides that “[a]n obligor who rejects a claim for basic loss benefits shall give the claimant written notice of the rejection ... Such notice shall specify the reason for such rejection and inform the claimant of the terms and conditions of his right to obtain an attorney.”

      . Section 107(3) provides, “If, in any action, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended. Act of July 19, 1974, P.L. 489, No. 176, Art. 1, § 107, 40 Pa.Con.Stat.Ann. § 1009.107(3).


text:
    447 A.2d 1020
    William Keith MIKESELL v. Cathy Diane CORRY, an individual, and Thomas Corry, an individual, and Gary Stipancic, an individual and A-Z Chevrolet, Inc., a corporation. Appeal of Cathy Diane CORRY. Gary STIPANCIC v. Cathy Diane CORRY and William Mikesell. Appeal of Cathy Diane CORRY.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1982.
    Filed July 9, 1982.

      John A. Robb, Pittsburgh, for appellant.
    Louis M. Tarasí, Jr., Pittsburgh, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an order dismissing appellant’s motion for a judgment on the whole record after disagreement of the jury. Because the order entered in this case cannot be reduced to final judgment, we cannot reach the merits and must quash the appeal.

The relevant facts can be summarized as follows: Two consolidated actions arose out of a vehicular-pedestrian accident which occurred on April 22, 1978. On March 27, 1981, after four days of trial, the jury returned a verdict in both actions, finding all parties comparatively negligent. The verdicts were subsequently molded by the court and affirmed but they were later repudiated after a poll of the jury. In both cases, the court discharged the jury and declared a mistrial, because the jury was unable to agree on a verdict.

On April 2, 1980, appellant timely filed a motion for judgment on the whole record after disagreement of the jury. On July 22, 1980, the lower court dismissed post-trial motions of all parties other than appellant. On May 1, 1981, the lower court entered an order denying appellant’s motion for judgment on the whole record. This appeal followed.

Appellant’s motion for judgment on the whole record after disagreement of the jury was filed pursuant to the Act of April 20, 1911, P.L. 70, § 1, 12 P.S. § 684, which was subsequently repealed, by the Act of April 28,1978, P.L. 202, No. 53 § 2, effective June 27, 1980. Section 684 states:

Whenever upon the trial of any issue a point requesting binding instructions has been reserved or declined, and the jury have disagreed, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the court shall allow, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in his favor upon the whole record; whereupon it shall be the duty of the court, unless it shall be of opinion that the case should be retried, to so certify the evidence and to enter such judgment, if any, as under the law should have been entered upon the evidence at the time of trial, at the same time granting to the party against whom the judgment is rendered an exception to the action of the court in that regard. From the judgment thus entered the party against whom it is entered may appeal to the Supreme or Superior Court, as in other cases, which shall review the action of the court below, and enter such judgment, if any, as should have been entered by the court below upon that evidence.

In Hogan v. Bryn Mawr Hospital, 250 Pa.Super. 109, 378 A.2d 477 (1977), the court held:

Under the Act of 1911, it is only where judgment is entered that a right of appeal exists in favor of the party against whom judgment is entered. An order denying judgment upon the whole record is not a judgment in contemplation of the Act. When a jury disagrees, unless a judgment is entered upon the whole record, a new trial ensues without a grant thereof by the court. DeWaele v. Metropolitan Life Ins. Co., 358 Pa. 574, 578, 58 A.2d 34, 39 (1948).

The trial court’s denial of appellant’s motion for judgment on the whole record is thus not subject to review and the appeal must be quashed as interlocutory.

Appeals quashed.

      . Pennsylvania Rule of Civil Procedure, as adopted by Allegheny County, Local Rule 227.1 provides:
      All post trial motions after trial by jury, including ... judgment upon the whole record after disagreement of a jury ... shall be filed ten (10) days after nonsuit ... or disagreement of the jury.

      . Appellee, William Keith Mikesell, had also filed a motion for judgment on the whole record after disagreement of the jury. His motion was denied, no appeal was taken from that denial.

      . The case was then automatically relisted for trial for May 18, 1981.

      . Appellant’s motion was filed April 12, 1980, two months prior to the time the repeal of the Act of 1911 was to take effect.