author: PER CURIAM.

text:
    599 A.2d 992
    James MANZI, Appellant, v. H.K. PORTER COMPANY, Celotex Corporation.
    Superior Court of Pennsylvania.
    Filed Oct. 30, 1991.
   ORDER

PER CURIAM.

The court hereby denies the application filed September 20, 1991, requesting reargument/reconsideration of the decision dated March 13, 1991. 402 Pa.Super. 595, 587 A.2d 778.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    599 A.2d 993
    COMMONWEALTH of Pennsylvania v. Lawrence GRIER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed Nov. 20, 1991.

      Robert M. Barrett, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered on April 30, 1991, denying appellant’s petition for post-conviction relief. On appeal, appellant contends that he is entitled to relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, because: (1) the trial court erred in revoking appellant’s probation; (2) appellant’s counsel was ineffective for failing to introduce favorable evidence at the time of the revocation hearing; and (3) appellant’s counsel was ineffective for failing to file a post-sentencing motion to preserve sentencing issues. For the following reasons, we affirm the order dismissing appellant’s claim for post-conviction relief.

Appellant pleaded guilty to two counts of criminal trespass and one count of criminal mischief on June 15, 1988. After conducting a colloquy, the court accepted appellant’s plea and sentenced appellant to two concurrent terms of two years probation.

On August 16,1990, during the term of appellant’s probation, appellant pleaded guilty to a new charge of criminal trespass. This constituted a violation of probation. Consequently, his probation was revoked at a probation violation hearing on September 26, 1990, and appellant was sentenced to two consecutive terms of incarceration of two-and-one-half-to-five years. No post-sentencing motions were filed, and no appeal taken. However, on December 31, 1990, appellant filed a pro se petition under the PCRA, alleging that his counsel was ineffective and that his sentence was excessive. On January 8, 1991, an amended PCRA petition was filed by court-appointed counsel, alleging that the trial court erred in revoking his probation. On April 30, 1991, the court dismissed appellant’s PCRA petition without a hearing, after concluding that there existed no genuine issue of material fact and that appellant presented no claims entitling him to relief under the PCRA. Opinion, Bigley, J., 6/19/91, at 3-4. This timely appeal followed.

Appellant’s first contention on appeal is that the court erred in revoking his probation. As a preliminary matter, we must determine whether this claim is cognizable under the PCRA. The PCRA limits the types of claims that are cognizable. Thus, the petitioner must “plead and prove by a preponderance of the evidence” that the conviction or sentence resulted from one or more of eight specified circumstances. See 42 Pa.C.S.A. § 9543(a)(2)(i)-(vii).

Appellant’s claim is that his probation was improperly revoked. The only PCRA category under which this claim could arguably be brought is § 9543(a)(2)(vii), which governs “imposition of sentences greater than the lawful maximum.” However, appellant has made no attempt to conform his arguments to the requirements of the PCRA. Furthermore, appellant does not argue that the sentence imposed was unlawful, i.e., greater than the lawful maximum, nor does he dispute that he violated his probation. Rather, he argues that the trial court, in revoking his probation, failed to consider “the existence of unusual circumstances ... that the Appellant’s initial conviction and subsequent arrest represented isolated incidents rather than a pattern of behavior.” Appellant’s Brief at 6. This claim is not cognizable under the PCRA.

Appellant’s last two contentions involve the effectiveness of his counsel. Appellant first argues that his counsel was ineffective for “failing to introduce favorable evidence at the time of the revocation hearing,” Appellant’s Brief at 7. Secondly, appellant argues that his counsel was ineffective for failing to file a motion to modify sentence. Id. Again, we must determine whether these claims are cognizable under the PCRA.

A claim for ineffectiveness may be raised in a PCRA petition if the ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We have interpreted this to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an “innocent individual” has been convicted. See Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990) (contention of ineffectiveness for failing to preserve insufficiency of evidence issue was cognizable because it raised issue of possible innocence). We have held that the language in the PCRA referring to ineffectiveness claims constitutes “a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) (comparing PCRA provision to broader language in predecessor Post Conviction Hearing Act).

This court recently held that an ineffective assistance of counsel claim regarding counsel’s performance at sentencing and failure to preserve the issue of an excessive sentence was not cognizable under PCRA. In Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990), the court determined that counsel’s failure to put forth mitigating factors for the trial court to consider in sentencing did not constitute a claim for ineffectiveness under the PCRA, as the claim only raised an issue as to the discretionary aspects of the sentence. Thus, the claim did not render the adjudication unreliable as to the ultimate guilt or innocence of the petitioner. Id,., 398 Pa.Superior Ct. at 99-100, 580 A.2d at 860. See also Commonwealth v. Weinder, 395 Pa.Super. 608, 626-27, 577 A.2d 1364, 1374 (1990) (it is not enough for appellant to show that he suffered some prejudice from counsel’s inaction because purpose of PCRA is to prevent fundamentally unfair conviction; appellant must show that inaction rendered trial result inherently unreliable). Compare Commonwealth v. Pitts, 397 Pa.Super. 387, 394-95, 580 A.2d 352, 355-56 (1990) (allegation of ineffective assistance of counsel for failure to seek severance of charges, failure to allow petitioner to testify and failure to pursue particular defense not cognizable); Commonwealth v. Dukeman, 388 Pa.Super. 469, 471, 565 A.2d 1204, 1205 (1989) (allegation of ineffective assistance of counsel for failure to file motion to dismiss for violation of Rule 1100 not cognizable); Commonwealth v. Lyons, 390 Pa.Super. 464, 469, 568 A.2d 1266, 1269 (1989) (allegation of ineffective assistance of counsel for failure to preserve issue of defective preliminary hearing not cognizable), allocatur denied, 525 Pa. 663, 583 A.2d 792 (1990).

In the instant case, neither of appellant’s contentions raises an issue going to his ultimate guilt or innocence. Appellant’s first contention is that trial counsel was ineffective by failing to introduce favorable evidence at the time of the revocation hearing. Appellant does not explain how this failure undermined the truth-determining process, nor does he allege that it prevented a reliable determination as to his guilt or innocence. Rather, it appears from subsequent paragraphs in his brief that appellant is arguing that the allegedly favorable evidence would have affected his sentence after his probation was revoked. Thus, this ineffectiveness claim is not cognizable under the PCRA.

Similarly, appellant’s final contention, that counsel was ineffective for failing to preserve the issue of sentencing by filing a motion to modify sentence, is also outside the scope of the PCRA. This claim is very similar to that advanced by the petitioner in Wolfe, supra. The Wolfe court rejected it, holding that such a claim is not cognizable under the PCRA. Accordingly we affirm the order of the trial court dismissing appellant’s claim for post-conviction relief.

Order affirmed.

      . Appellant was charged with one count of criminal trespass under 18 Pa.C.S.A. § 3503(a)(l)(ii) on November 14, 1987, and one count of criminal trespass under 18 Pa.C.S.A. § 3503(a)(l)(i) on February 19, 1988.

      . Appellant was charged with one count of criminal mischief under 18 Pa.C.S.A. § 3304(a)(1) on November 14, 1987.

      . Appellant was sentenced separately to four-and-one-half-to-twelve months incarceration on this charge.

      . A sentence that exceeds the statutory maximum is illegal. Cf. Commonwealth v. Britton, 334 Pa.Super. 203, 222, 482 A.2d 1294, 1304 (1984) (en banc) (court held that sentence exceeding statutory limit was illegal), allocatur granted, appeal dismissed as having been improvidently granted, 509 Pa. 620, 506 A.2d 895 (1986). In this case, appellant’s sentences, although above the sentencing guidelines, were well below the statutory limit.
      Appellant pleaded guilty to two counts of criminal trespass, one a second-degree felony and the other a third-degree felony, and one count of criminal mischief, a third-degree misdemeanor. The sentencing guidelines suggest that, with appellant’s prior record score of zero, the standard range sentences for these charges are: zero-to-twelve months for the second-degree felony, zero-to-twelve months for the third-degree felony and zero-to-six months for the third-degree misdemeanor. The aggravated range sentences are: twelve-to-eighteen months for the second-degree felony, twelve-to-eighteen months for the third-degree felony and the statutory limit for the third-degree misdemeanor. See Sentencing Guidelines, 204 Pa.Code § 303.9, reprinted in 42 Pa.C.S.A. § 9721. In comparison, appellant was sentenced to a total of two-and-one-half-to-five-years for the second-degree felony and third-degree misdemeanor charges, and another two-and-one-half-to-five-years for the third-degree felony charge. Thus, the sentences for these charges exceeded the statutory guidelines.
      However, appellant’s sentences are within the statutory limits. The statutory limit for a second-degree felony is not more than ten years. 18 Pa.C.S.A. § 1103(2). The statutory limit for a third-degree felony is not more than seven years. 18 Pa.C.S.A. § 1103(3). Finally, the statutory limit for a third-degree misdemeanor is not more than one year. 18 Pa.C.S.A. § 1104(3). Hence, appellant’s cumulative sentence of five-to-ten-years for the three charges does not exceed the statutory limits.

      . We note that appellant does not detail what favorable evidence should have been introduced. This court has held that we will not consider ineffectiveness claims in the abstract. Commonwealth v. Weinder, 395 Pa.Super. 608, 617, 577 A.2d 1364, 1369 (1990) (claim of ineffectiveness for failure to pursue other avenues of defense too abstract). Thus, even if the instant appellant’s claim was cognizable, it is too indefinite to examine on its merits.

      . We note that appellant mislabels the sentencing issue as a challenge to "the legality of the sentence imposed." Appellant’s Brief at 8. However, we have already determined that appellant’s sentence was not illegal. Thus, the only sentencing issue that counsel failed to preserve would involve the discretionary aspects of sentencing. This claim does not raise a question as to the reliability of the result in the instant case, and, therefore, is not cognizable as an ineffectiveness of counsel claim under the PCRA.


author: JOHNSON, Judge:

text:
    599 A.2d 996
    William ELDER, Appellant, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Nov. 21, 1991.

      Elizabeth Gray, Philadelphia, for appellant.
    Edward J. Carney, Jr., Media, for appellee.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   JOHNSON, Judge:

William Elder appeals from an order which granted summary judgment in favor of Nationwide Insurance Company. The issue presented in this appeal is whether 75 Pa.C.S. § 1714 bars recovery of first party benefits, as a matter of law, by a party who no longer owns a vehicle which nonetheless remained registered in that party’s name in Pennsylvania at the time of an accident from which the benefits claim arose. We hold that ownership of a vehicle is a prerequisite to the application of § 1714. We also conclude that Elder has failed to set forth sufficient, specific facts to show that there is a genuine issue of fact warranting a trial. Accordingly, we affirm the order granting summary judgment in favor of Nationwide.

In December of 1988, Elder was struck and injured by a motor vehicle while walking along Chester Pike. He sought recovery of first-party benefits under a policy of insurance issued by Nationwide Insurance Company to his parents. Elder also sought acknowledgement of a potential claim for underinsured motorist benefits. When Nationwide denied the coverages sought, Elder brought suit based upon a claim for first-party benefits under the policy, as well as a claim based upon the Unfair Trade Practices Act, the Consumer Protection Law, and common law fraud and deceit. After pleadings were closed, Nationwide filed a motion for summary judgment.

In its motion, Nationwide relied upon the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701 et seq., which states, pertinently:

§ 1714. Ineligible claimants
An owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.

Nationwide contended that, at the time of the accident from which the claim arose, Elder was the registered owner of an uninsured Buick for which no policy of insurance was in force. Nationwide argued that, therefore, as a matter of law, Elder was ineligible to recover the benefits sought. Elder responded that, although the Buick was registered in his name at the time of the accident, he was no longer the owner. He argued that, therefore, he was not precluded from recovery by § 1714. The trial court granted Nationwide’s motion for summary judgment, stating that Elder’s assertions regarding ownership are “factually irrelevant to this matter because only registration is relevant to our inquiry.” Opinion of April 11, 1991, at 5. Elder appeals, contending that the trial court erred by granting summary judgment in favor of Nationwide.

In considering the availability of summary judgment, we refer to the Pennsylvania Rules of Civil Procedure, wherein Rule 1035(b) provides that summary judgment:

shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

When determining whether the moving party is entitled to summary judgment, the court must resolve all issues of fact in the light most favorable to the non-moving party and resolve all doubts as to the existence of material facts against the moving party. MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 578 A.2d 970 (1990). Additionally, the non-moving party is entitled to the benefit of all reasonable inferences. Samarin v. GAF Corporation, 391 Pa.Super. 340, 571 A.2d 398 (1989). Summary judgment may be entered only in cases that are free from doubt. MacCain. Finally, a trial court’s grant of summary judgment will only be reversed if there has been an error of law or a clear abuse of discretion. Id.

Elder contends on appeal that recovery is precluded by § 1714 only if he was the owner of the Buick at the time of the accident from which the claim arises. He argues that whether he was the owner at the time is a question of fact, rendering summary judgment inappropriate. We agree that the language of the statute preconditions its applicability upon the ownership of a currently registered but uninsured vehicle. Furthermore, we have previously recognized the significance of an ownership interest in a vehicle in determining the applicability of § 1714. In Ibarra v. Prudential Property & Casualty Insurance Company, 402 Pa.Super. 27, 585 A.2d 1119 (1991), we determined that the claimant was not precluded from recovering first party benefits by § 1714 where the claimant had no ownership interest in the vehicle in question. In determining that no ownership interest existed, we looked beyond the title and registration to the undisputed facts of the case. Similarly, in Bethea v. Pennsylvania Financial Responsibility Assigned Claims Plan, 407 Pa.Super. 57, 595 A.2d 122 (1991), we held that a claimant would be precluded from recovery by § 1714 upon a finding of sufficient “ownership interest” notwithstanding that she was not listed as the owner on the title or registration.

We recognize that the issue presented by both Ibarra and Bethea involved the extension of the preclusive effect of § 1714 to persons not named on the title or registration. The instant case, by contrast, involves the issue of whether the preclusive effect of § 1714 necessarily applies to the record owner. However, both Ibarra and Bethea make clear, as does the language of the statute, that the applicability of § 1714 turns upon a claimant’s actual ownership interest in an uninsured, registered vehicle. Kresge v. Keystone Insurance Company, 389 Pa.Super. 548, 567 A.2d 739 (1989), relied upon by the trial court in granting summary judgment, does not compel a different result. There, we held that § 1714 applied regardless of whether the claimant still possessed the vehicle, and regardless of whether the vehicle was operable. Nowhere does the Kresge court state that the claimant alleged non-ownership of the vehicle in question; indeed, in rejecting the claimant's argument, the focus was on the unworkability of making § 1714’s applicability dependent upon degrees of inoperability or degrees of dispossession. Kresge, 389 Pa.Super. at 551-52, 567 A.2d at 739.

Nationwide correctly points out that, in Kresge, we stressed that § 1714 admits of no exceptions. Kresge, 389 Pa.Super. at 552, 567 A.2d at 740. However, our holding today does not create an exception to the statute; rather, it recognizes a precondition to the statute’s applicability which is set forth in the statute itself. Accordingly, we conclude that the trial court’s determination that Nationwide was entitled to summary judgment irrespective of ownership of the vehicle in questions was erroneous.

Having determined that ownership of the Buick is material to a determination regarding the applicability of § 1714, we next look to whether Nationwide was, nevertheless, entitled to summary judgment as a matter of law. It is well-settled that an order of the trial court may be affirmed on appeal where it is correct on any legal ground or theory, regardless of the reason or theory adopted by the trial court. Leasing Service Corporation v. Benson, 317 Pa.Super. 439, 464 A.2d 402 (1983).

In its motion for summary judgment, Nationwide alleged that, at the time of the accident, the Buick had been registered in Elder’s name in Pennsylvania, and that no transfer of title or change of registration had been filed in Pennsylvania with respect to that vehicle. Nationwide also alleged that the Buick was uninsured the day of the accident. Each of these allegations was admitted in Elder’s response.

In response, Elder contended that whether he was the owner of the Buick is a question of fact yet to be determined. In support, Elder directs our attention to his deposition, and the supporting “affidavits” of John Carey and Thomas Ellis. Those documents establish that Elder received title to the Buick from his parents in January of 1988. Shortly thereafter, the car was damaged in an accident. Elder then gave the car to John Carey, a friend. Neither Elder nor Carey made any attempt to transfer the title or registration. Carey drove the vehicle for a couple weeks, but, when the car wouldn’t start, he left it parked near his home in the 400 block of Pine Street in Darby Borough. The car remained parked for a couple months. Eventually, the car was “red stickered” by local authorities, indicating that the vehicle was considered abandoned pursuant to the Abandoned Vehicle and Cargo Act, 75 Pa.C.S. § 7301 et seq. In March, Elder went to check on the Buick, but it had been removed. Neither Elder nor either affiant knows who took possession of the vehicle, despite having made inquiries with the local police.

In support of his contention that his ownership of the vehicle is still in question, Elder directs our attention to the Abandoned Vehicle and Cargo Act, which provides the following: “Upon written request of a police department, a salvor shall take possession of and remove ... any abandoned vehicle____” 75 Pa.C.S. § 7301(c). Any salvor taking possession of an abandoned vehicle under that section is to report information regarding the vehicle to the department. 75 Pa.C.S. § 7304. The report is to state whether the vehicle has any value other than as junk. Id. Where the vehicle has value, the department is required to provide notice via certified mail to the registered owner, 75 Pa.C.S. § 7305(a), and that notice is to inform the owner of his right to reclaim the vehicle within 30 days after the date of the notice. 75 Pa.C.S. § 7305(b)(3). Where the vehicle having value is not reclaimed, it is to be sold at a public auction and the salvor is required to apply for a certificate of title which shall be free and clear of all previous claims of ownership. 75 Pa.C.S. § 7308(a), (b). On the other hand, where the vehicle is valueless except as junk, the salvor is to so report to the department, and the salvor is to apply for a certificate of junk, issuance of which divests the owner of all rights, title and interest in the vehicle. 75 Pa.C.S. § 7309(a), (d).

Therefore, the “owner” is divested of ownership where 1) the vehicle is sold and a new certificate of title is issued, or 2) where a certificate of junk is issued. Elder contends that, pursuant to § 7305(b)(3), divestment of ownership also occurs upon failure to reclaim a vehicle within 30 days. He urges that if the Buick was taken by the authorities in February or March of 1988, his rights to the vehicle expired some time in March or April. He concludes that, by December of that year, he was no longer the owner of the Buick although it was still registered in his name.

Our reading of the Abandoned Vehicle and Cargo Act does not support Elder’s initial argument as to non-ownership. We do not read the provision which extends the right to reclaim the vehicle within 30 days as automatically terminating ownership rights at the end of that period. Were we to so conclude, the language of § 7308(b) and § 7309(d), divesting title upon issuance of a new certificate of title or upon issuance of a certificate of junk, would be rendered superfluous. We are not inclined to draw inferences from one section of the Act which would render the express provisions of another section meaningless. Accordingly, we hold that an owner is not divested of title merely upon failure to reclaim a vehicle within 30 days of notice under the Abandoned Vehicle and Cargo Act.

Elder argues in the alternative that he may have been divested of ownership by the issuance of a certificate of junk or the issuance of a new title. Nationwide responds that Elder has no personal knowledge of the car’s fate or that such certificates have ever been issued as to this vehicle. Nationwide argues that summary judgment cannot properly be denied based on “assumptions” that such certificates were issued.

The Rules state that, in resisting a motion for summary judgment, a party:

“may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”

42 Pa.R.C.P. 1035(d) (emphasis added). The purpose of the rule is to allow the moving party to “pierce the pleadings,” thus requiring the non-moving party to disclose the facts of his claim or defense. Samarin, supra, 391 Pa.Super. 340, 571 A.2d 398 (1989) (citing Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986), appeal denied, 517 Pa. 599, 535 A.2d 1058 (1987)).

In Samarin, affidavits were presented by the non-moving party to establish that materials involved in the case were composed of asbestos. Those affidavits set forth that the product in question had been subjected to and had withstood high temperatures, consistent with asbestos. In holding that this was insufficient to resist a motion for summary judgment, we held that, “without more facts, it is not reasonable for the trial court to infer that these products must have contained asbestos because they were heat resistant. The same facts could lead to the inference that the heat resistant products contained other heat resistant materials; therefore there was insufficient foundation for a jury to infer by a preponderance of the evidence that the heat resistant products used at B & W contained asbestos.” Samarin, 391 Pa.Super. at 350, 571 A.2d at 404 (emphasis in original).

A similar issue presents itself in the case at bar. Although the documents brought forth by Elder are consistent with the conclusion he sought, it cannot be said that those facts, even given the benefit of all reasonable inferences, establish that a certificate of title or certificate of junk was ever issued for the Elder’s vehicle. Indeed, the facts presented are as consistent with the vehicle having been stolen, rather than towed.

In reaching our conclusion, we realize that the “quantum of evidentiary facts which must be adduced to preclude summary judgment is not the same as required ... at trial____” See, McFadden v. American Oil Company, 215 Pa.Super. 44, 257 A.2d 283 (1969) (en banc) (evidence presented by non-moving party to establish fraud need not rise to a level of clear and convincing, although that is the standard to be applied at trial). However, the evidence must reasonably support the inference sought to be drawn therefrom in order that the non-moving party may resist a motion for summary judgment. The facts presented in the case at bar cannot be said to rise to such a level.

For the foregoing reasons, we affirm the order granting summary judgment in favor of Nationwide Insurance Company.

Order affirmed.


author:
HOFFMAN, Judge:
      POPOVICH, Judge,

text:
    599 A.2d 1001
    Michael CLARK v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed Nov. 26, 1991.

      Peter J. Hoffman, Philadelphia, for appellant.
    John W. Craynock, Philadelphia, for appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order of the Court of Common Pleas of Philadelphia County entered on August 17, 1990, which, inter alia, granted appellee Clark’s petition to compel arbitration and dismissed appellant State Farm Automobile Insurance Company’s (State Farm) counterclaim for declaratory relief. Appellant presents five issues for our review. First, we must determine whether an employee injured in a work-related automobile accident who has received workmen’s compensation but was denied uninsured motorist coverage from his employer’s insurance company under then existing law, has complied with the priority requirements of the Motor Vehicle Financial Responsibility Law by then proceeding against his own insurance company. Appellant also contends that the trial court erred in not dismissing appellee’s petition to compel arbitration and claim for uninsured motorist benefits for failure to comply with both the four-year statute of limitations and the notice provision of the insurance contract. Fourth, appellant argues that the trial court was not empowered to rule on the petition because of improper venue. Finally, we must determine whether the trial court erroneously allowed arbitration of the above disputes. For the reasons that follow, we find that appellee has complied with the MVFRL, appellant’s challenge to venue has been waived, and arbitration of issues of fault and damages is appropriate. We remand for determination of whether appellee complied with the statute of limitations and the notice provision.

Appellee Clark, acting within the course and scope of his employment, was injured while operating a vehicle owned by his employer, Harrin Communications, Inc. The vehicle was covered under an insurance policy issued by Reliance Insurance Company (Reliance) pursuant to the Motor Vehicle Financial Responsibility Law (MVFRL). Subsequent to the accident, appellee recovered workmen’s compensation benefits from his employer. In addition, appellee requested uninsured motorist benefits from Reliance. However, in the separate action of Clark v. Reliance Insurance Co., CCP, Philadelphia, January Term, 1988, No. 5224 (July 11, 1988) (Reliance), the Court of Common Pleas of Philadelphia County denied appellee’s request and released Reliance from liability, basing its decision on the holding in Lewis v. School Dist. of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988).

Appellee, proceeding under the MVFRL, then sought uninsured motorist benefits from his personal auto insurance carrier, appellant State Farm Automobile Insurance Company (State Farm). Appellee submitted a claim for Uninsured Motorist arbitration pursuant to his contract of insurance with appellant and filed a Petition to Appoint an Arbitrator and to Compel Arbitration. Appellant responded by filing a counterclaim against appellee, seeking a declaratory judgment resolving, inter alia, the issue of State Farm's liability to pay Uninsured Motorist Benefits to appellee under the parties’ insurance contract. The trial court granted appellee's request. This timely appeal followed.

I. APPEALABILITY

Initially, we must determine whether this case is properly before this court. Ordinarily, an order compelling arbitration is a non-appealable, interlocutory order. Gardner v. Prudential Ins. Co., 332 Pa.Super. 358, 481 A.2d 654 (1984). However, the order sub judice not only compelled arbitration, but also dismissed appellant’s counterclaim for declaratory relief. Both the Pennsylvania Supreme Court and this court have held that an order dismissing a counterclaim is appealable. See Commonwealth v. Orsatti, 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972) (order sustaining preliminary objections to defendant’s counterclaim in an amount in excess of plaintiff’s claim is appealable); Zivitz v. Centennial Road Properties, 328 Pa.Super. 79, 81 n. 1, 476 A.2d 462, 463 n. 1 (1984) (order sustaining preliminary objections and dismissing counterclaim is appealable since it puts defendant out of court as far as counterclaim is concerned, even though validity of plaintiff’s claim is still undetermined). Because the trial court in its order and subsequent opinion, in effect, precluded appellant from litigating its claims, we find the order in question which dismissed appellant’s counterclaim for declaratory relief to be appealable.

II. ISSUES

Appellant raises five issues on appeal. We will address these seriatim.

A. COMPLIANCE WITH 75 Pa. C.S.A. § 1733 Appellant first contends that appellee must obtain uninsured motorist benefits under his employer’s insurance policy before he can recover from appellant. In order to fully understand the issue presented here, a summary of the prior law is necessary.

The priority section of the MVFRL, § 1733 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701 et seq., provides:

(a) General rule. — Where multiple policies apply, payment shall be made in the following order of priority:
(1) A policy covering a motor vehicle occupied by the injured person at the time of the accident.
(2) A policy covering a motor vehicle not involved in the accident with respect to which the injured person is an insured.
(b) Multiple sources of equal priority. — The insurer against whom a claim is asserted first under the priorities set forth in subsection (a) shall process and pay the claim as if wholly responsible. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim.

Id.

The case relied upon by the Reliance trial court, Lewis v. School Dist. of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988) held that under the Uninsured Motorist Act an employee’s exclusive remedy against his or her employer was under the Workmen’s Compensation Act. According to the Lems court, recovery of uninsured motorist benefits is barred by section 303(a) of the Workmen’s Compensation Act, which limits an employee’s recovery from his employer to workmen’s compensation benefits for any work-related injury. At that time, the specific question whether an employee could recover uninsured motorist benefits from his employer’s insurer under the MVFRL had not yet been decided by our courts.

Three years after both the Lewis decision and the decision releasing Reliance from liability, the Pennsylvania Supreme Court handed down its decision in Hackenberg v. Transp. Authority, 526 Pa. 358, 586 A.2d 879 (1991). The Hackenberg court held that § 1735 prevails over § 303(a) in cases concerning employers who have purchased policies of insurance, but is not applicable to self-insured employers. 526 Pa. at 369-370, 586 A.2d at 885.

Appellant does not dispute that appellee is entitled to insurance benefits in addition to workmen’s compensation. Rather, appellant contends that appellee must proceed against Reliance, his employer’s insurance company, before he is entitled to collect from appellant. Appellant argues that the earlier trial court that released Reliance improperly relied upon the Lewis decision and consequently the court below similarly erred in not requiring appellee to relitigate its claim against Reliance.

Appellant relies upon several cases for the proposition that an employee must first recover both Workmen’s Compensation benefits and uninsured motorist benefits from his employer’s insurance carrier before proceeding against his or her own insurance company. Specifically, appellant points to Chatham v. Aetna Life & Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1989), allocatur granted, 526 Pa. 626, 584 A.2d 310 (1990); Selective Risks Ins. Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989); Ferry v. Liberty Mutual Ins. Co., 392 Pa.Super. 571, 573 A.2d 610 (1990); Odom v. Carolina Ins. Co., 394 Pa.Super. 283, 575 A.2d 631 (1990), allocatur granted, 525 Pa. 653, 582 A.2d 320 (1990). Appellant contends that these cases are controlling and require appellee to seek reconsideration of the Reliance decision. Furthermore, according to appellant, the trial court’s reliance on Lewis was erroneous because Lewis was decided under the Uninsured Motorist Act, 40 Pa.S.A. § 2000 et seq. rather than the MVFRL. He finds support for this proposition in the statement by the Hackenberg majority that Lewis is not controlling precedent in cases decided under the MYFRL. Hackenberg, 526 Pa. at 368, 586 A.2d at 884. According to appellant, if appellee was required to once again seek benefits from Reliance, the trial court would be required to determine that the aforementioned MVFRL provision would prevail over the workmen’s compensation provision, thereby allowing recovery from Reliance, and consequently lessening or precluding recovery from appellant in accordance with § 1733.

We disagree. The cited cases are not dispositive for two reasons. First, and most importantly, these cases were decided after the decision releasing Reliance from liability and thus were not available as precedent for that trial court. Second, we believe that appellee had indeed exhausted his remedies under the Reliance policy. Apparently appellee did not appeal the Reliance decision because he believed that it was correct under then existing law and that he could then proceed against his insurance company, appellant, under 75 Pa.C.S.A. § 1733. Moreover, we note that although appellant’s argument has merit, it does not warrant a reversal of the lower court’s decision. The Reliance court’s interpretation of the then-existing law was a colorable one. We also note that the Uninsured Motorist Act (1963) has been supplanted in some respects by the MVFRL (1984) and, as such, it is understandable that the trial court would rely on case law decided under the former.

We see no reason in law or policy why an insured who has litigated his claim in good faith against the first insurer, and lost, should be required to expend the time, effort, and money (possibly at multiple levels of appeal) to attempt to overturn the first decision, particularly when that decision is not contrary to existing precedent. It is unrealistic to require such tenacity from the insured when, in reality, the interest that would be vindicated on appeal is not so much his own as that of his insurance company. For all practical purposes, when the first suit was dismissed there was no insurance policy other than appellee’s own policy with appellant under which he could recover uninsured motorist benefits.

In the absence of any clear precedent, therefore, the trial court was justified in its belief that the rationale of a case decided under the Uninsured Motorist Act would extend to a case decided under the MVFRL.

B. STATUTE OF LIMITATIONS

Appellant next contends that appellee is barred from asserting a claim for uninsured motorist benefits under the State Farm contract by the four-year statute of limitations set forth in 42 Pa.C.S.A. § 5525. In Boyle v. State Farm Mutual Auto Insurance Company, 310 Pa.Super. 10, 456 A.2d 156 (1983), this court held that the statute of limitations applicable to contract actions governs uninsured motorist claims. The time within which a matter must be commenced is computed from the time the cause of action accrued. 42 Pa.C.S.A. § 5502(a).

Boyle established a three-prong test which provides that the right to payment of benefits accrues when (1) the insured is in a motor vehicle accident; (2) the insured sustains bodily injury as a result of the accident; and (3) the insured knows of the uninsured status of the other owner or operator. The last requirement was later clarified in Seay v. Prudential Property and Casualty Insurance Co., 375 Pa.Super. 37, 543 A.2d 1166 (1988), which held that, “[t]he right to payment of benefits vests when the insured knows of the uninsured status of the other owner or operator, and such a determination is evaluated by whether the reasonable individual knows of the uninsured status of the other party, or reasonably should have known.” 375 Pa.Super. at 42, 543 A.2d at 1169. 42 Pa.C.S.A. § 5503 provides that: “[a] matter is commenced for purposes of [the statute of limitations] when a document embodying the matter is filed in an office authorized by ... [any] provision of law to receive such document.”

Appellant argues that appellee is barred by the four-year statute of limitations because he was on notice of the operator’s uninsured status on January 4, 1986, the date of the accident, but did not file the petition to compel arbitration until January 22, 1990. Specifically, appellant claims that

The motor vehicle accident in which the appellee was allegedly injured occurred on January 4, 1986 when the appellee was struck by a hit and run driver. (R 8a) The other driver was identified later that day by the police and cited for failure to stop and for operating a vehicle without a license. The driver was also identified at that time as being uninsured, when she failed to provide proof of insurance. Thus, Mr. Clark was put on notice as of January 4, 1986 of the uninsured status of the alleged negligent motorist.

Appellant’s Brief, at 21. However, appellant provides this court with no record to substantiate this claim. The record which was provided by appellant does not contain any indication of the purported police report. Even assuming, arguendo, that a police report was created, there is no indication as to when appellee was notified of its contents. “Where the facts are not in dispute, the question of whether the statute of limitations on a claim has run is a question of law for the court.” Boyle, supra, 310 Pa.Super. at 15, 456 A.2d at 158-59 (citations omitted). Here, however, significant facts are in dispute and in light of the record before us, we cannot say that appellee knew or should have known of the operator’s uninsured status on January 4, 1986. Accordingly, we remand to the trial court to dispose of this issue in accordance with the foregoing.

C. NOTICE

Appellant next contends that appellee should be barred from obtaining benefits under the State Farm policy for failure to comply with the notice provisions of the contract. An insured will be barred from obtaining benefits where the insured failed to give notice in a reasonable amount of time and the delay in providing notice caused prejudice to the insurer. Brakeman v. Potomac Ins. Co., 472 Pa. 66, 76, 371 A.2d 193,198 (1977), Metal Bank of Am. v. Ins. Co. of N. Am., 360 Pa.Super. 350, 358, 520 A.2d 493, 497 (1987). The burden of proving such prejudice is on the insurer. Brakeman, supra, 472 Pa. at 76, 371 A.2d at 198. The lower court’s opinion and the record before us contain insufficient information for us to determine whether the lower court considered appellant’s claim that appellee failed to comply with the notice provisions of the policy. Appellee would have us find that the lower court’s order dismissing appellant’s counterclaim implicitly included such a finding. This we will not do. Accordingly, we remand this issue to the lower court for proceedings in accordance with the foregoing.

D. VENUE

Appellant’s fourth contention is that the Philadelphia Court of Common Pleas was not empowered to appoint arbitrators and compel arbitration under the facts of the present case. A petition to compel arbitration is the functional equivalent of a complaint. The proper way to challenge venue in a civil action is through a preliminary objection. Pa.R.C.P. Rule 1006 provides in pertinent part:

(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived____

Id. Instead of first filing a preliminary objection to challenge venue, appellant proceeded directly to its responsive pleadings. The failure to file appropriate preliminary objections to contest improper venue results in the waiver of the challenge. McLain v. Arneytown Trucking Co., Inc., 370 Pa.Super. 520, 524, 536 A.2d 1388, 1390 (1988) (defendant’s failure to file preliminary objections and by filing instead answer on the merits, waived objection they otherwise had to venue). Accordingly, appellant’s challenge to venue has been waived.

E. COVERAGE ISSUE/SCOPE OF ARBITRATION

Lastly, appellant argues that only two issues can be decided by arbitration under the arbitration clause at issue — namely whether the alleged uninsured motorist was responsible for the accident, and the amount of damages sustained by appellee. The pertinent section of the contract provides as follows:

Deciding Fault and Amount
Two questions must be decided by agreement between the insured and us:
1. Is the insured legally entitled to collect damages from the owner or driver of an uninsured motor vehicle or underinsured motor vehicle; and
2. If so, in what amount?
If there is no agreement, these questions shall be decided by arbitration at the request of the insured or us. The Pennsylvania Uniform Arbitration Act, as amended from time to time, shall apply.

When determining the scope of an arbitration clause, a court must look to the terms of the arbitration clause. See, e.g., Ostroff v. Keystone Ins. Co., 357 Pa.Super. 109, 515 A.2d 584, 585 (1986), allocatur denied, 515 Pa. 582, 527 A.2d 542 (1987). Courts that have addressed arbitration clauses similar to the one before us have construed them narrowly. Specifically, these courts have limited arbitrable issues to fault and damages, and have held other issues, such as coverage, to require judicial determination. See, e.g., Myers v. State Farm Ins. Co., 842 F.2d 705, 708 (3rd Cir.1988) (whether vehicle constituted “under-insured vehicle” required legal determination preceding arbitrability); Schemberg v. Progressive Casualty Ins. Co., 709 F.Supp. 620, 62 (E.D.Pa.1989) (validity of offset provision involves determination of coverage and is subject to judicial determination).

Appellant contends that any issues of coverage should be subject to judicial determination rather than arbitration. The issues of coverage appellant refers to are those raised in appellant's counterclaim for declaratory relief which the lower court dismissed. Appellee agrees that only the above two issues should be subject to arbitration, but argues that the lower court has already properly decided the non-arbitrable issues. We disagree. As we have noted previously the record before us is inadequate for us to properly review the issues of notice and statute of limitations.

Accordingly, we remand the issues of compliance with the notice provision and statute of limitations to the lower court for proceedings in accordance with this decision.

Remanded; jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Finding that appellee as a matter of law cannot recover against appellant, his insurance carrier, I respectfully dissent from the opinion of the majority, and I would reverse the decision of the court below.

Appellant asserts that as a matter of law, under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1701 et seq., appellee must first obtain uninsured motorist benefits under the policy covering his employer’s vehicle. Under the MVFRL, when multiple policies are involved, a claimant must first obtain benefits under the policy covering the vehicle occupied by the injured person at the time of the accident. 75 Pa.C.S.A. § 1733. Only after such coverage is exhausted may an injured claimant seek benefits under a policy covering a motor vehicle not involved in the accident with respect to which the claimant is an insured. Id.; Wolgemuth v. Harleysville Mut. Ins. Co., 370 Pa.Super. 51, 535 A.2d 1145, appeal denied 520 Pa. 590, 551 A.2d 216 (1988).

Presently, appellee was operating a vehicle owned by his employer, Harrin Communications, Inc., at the time of the accident and was acting within the course and scope of his employment. His employer’s vehicle was covered under an insurance policy issued by Reliance Insurance Company pursuant to the MVFRL. Subsequent to the accident, appellee recovered workmen’s compensation benefits from his employers. Additionally, appellee requested uninsured motorist benefits from his employer’s carrier, Reliance. However, in the separate action of Clark v. Reliance Insurance Co., CCP, Philadelphia, January Term, 1988, No. 5224, the Court of Common Pleas of Philadelphia County on July 11, 1988, released Reliance from liability to appellee for uninsured motorist benefits. As explained by the lower court in its opinion in support of the present order,

Reliance Insurance Company, plaintiff Clark’s employer’s auto insurance carrier was released from liability for uninsured motorist benefits allegedly due to plaintiff under the holding of Lewis v. School District of Philadelphia, [517 Pa. 461,] 538 A.2d 862 (1988), proper precedential authority at the time.

In Lewis, supra, our Supreme Court held that the workmen’s compensation law was an employee’s exclusive remedy against his employer for injuries sustained in the course and scope of his employment, and, hence, the employee could not recover uninsured motorist benefits from his employer arising from a work-related automobile accident with an uninsured motorist. Based on Lewis, supra, the lower court reasoned appellant was the only remaining insurer from which appellee could collect uninsured motorist benefits.

To the contrary, it is clear that the lower court erred in relying upon Lems, supra, as authority in appellee’s case against Reliance and in the present case. Lewis, supra, was decided under the provisions of the Uninsured Motorist Act, 40 Pa.S.A. § 2000 et seq., which our Supreme Court, applying § 1936 of the Statutory Construction Act, found to be subordinate to the provisions of the Workmen’s Compensation Act. Lewis, 517 Pa. at 474, 538 A.2d at 867-868; 1 Pa.C.S.A. § 1936. However, in Hackenberg v. SEPTA, 526 Pa. 358, 369-370, 586 A.2d 879, 884-885 (1991), our Supreme Court held that Lems, supra, “continues to be controlling precedent [only ] in cases ... involving the Uninsured Motorist Act and the No Fault Act.” Instantly, the MVFRL applied, and the lower court erred in relying upon Lewis, supra. Cf., Hackenberg, 526 Pa. at 369-370, 586 A.2d at 884-885.

Since the passage of the MVFRL, the courts of Pennsylvania have ruled that the provisions of the MVFRL take precedent over the exclusivity provisions of the Workmen’s Compensation Act and, as such, an employee may collect both workmen’s compensation benefits from his employer and uninsured motorist benefits from his employer’s insurance carrier. Chatham v. Aetna Life & Cas. Co., 391 Pa.Super. 53, 570 A.2d 509 (1989), relying upon Selected Risks v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989); Ferry v. Liberty Mutual Ins. Co., 392 Pa.Super. 571, 573 A.2d 610 (1990); Odom v. Carolina Cas. Ins. Co., 394 Pa.Super. 283, 575 A.2d 631 (1990), appeal granted, 525 Pa. 653, 582 A.2d 320 (1990); Azpell v. Old Republic Ins. Co., 526 Pa. 179, 584 A.2d 950 (1991); but see Hackenberg, supra (self-insured employer may not be required to pay both uninsured benefits and workmen’s compensation).

Since appellee did not first obtain uninsured motorist coverage available from his employer’s insurer, I am convinced that he is not entitled to uninsured motorists benefits from his own carrier. 75 Pa.C.S.A. § 1733. Appellee argues he fulfilled his duty to collect from Reliance once his suit against Reliance was dismissed. However, in dismissing Reliance, the court erred in relying upon authority inapplicable to the MVFRL. Consequently, I believe that appellee did not fulfill his duty under § 1733, since he neglected to pursue that erroneous decision on appeal. Although I recognize that Hackenberg, supra, was decided three years after Reliance was released from liability, the court’s decision to release Reliance was nevertheless erroneous. Unlike the majority, I do not believe that requiring a claimant to pursue his legal rights fully is “unrealistic.” To require otherwise in this case penalizes appellant for the lower court’s mistake and for appellee’s failure to exercise his rights. Therefore, I dissent.

      . The order appealed from provides:
      AND NOW, To wit, this 17th day of August, 1990, upon consideration of the Counterclaim of Respondent [Insurer] and Response of Counterclaim Defendant/Petitioner [Insured], It is Hereby ORDERED and DECREED that:
      1. [Insured] is permitted to assert a claim for Uninsured Motorists Benefits against State Farm and is not barred under any Statute of Limitations.
      2. The court determines and declares that the aforesaid policy of insurance issued by [Insurer], State Farm Fire & Casualty Company, policy number S420-378-B16 does provide uninsured motor vehicle benefits for the injuries allegedly sustained as a result of the motor vehicle accident which allegedly occurred on or about January 4, 1986 described previously.
      3. [Insurer] is entitled to have any award against it reduced by the worker’s compensation benefits to which [Insured] was eligible and/or received.

        4. [Insurer] is obligated to provide uninsured motorists benefits to [Insured] without exhaustion of workers compensation and uninsured motorist coverage from Harrin Communications Corporation.
      5. The issue as presented is arbitrable and [Insurer] is hereby compelled to arbitrate this dispute.
      6. The proper venue for the Arbitration Hearing is Chester County, and in the event that the parties cannot agree to a neutral arbitrator within thirty (30) days from the date of this Order, then the parties may apply to this Honorable Court for selection of a neutral arbitrator.
      BY THE COURT:

      . This issue is confined to the situation where, as here, a subsequently decided case holds that under the MVFRL an employee may recover from his non-self-insured employer both workmen’s compensation and uninsured motorist benefits.

      . This was an automobile accident which was governed by the Motor Vehicle Financial Responsibility Act.

      . Appellee did not appeal this decision.

      . The Act of August 14, 1963 P.L. 909, as amended, 40 Pa.S.A. § 2000.

      . Hackenberg resolved the conflict between two competing statutory provisions, § 1735 of the MVFRL and § 303(a) of the Workmen’s Compensation Act. The Workmen’s Compensation Act generally provides that its remedies are exclusive. The MVFRL, on the other hand, provides that "[t]he coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workmen’s compensation benefits’ payable as a result of the same injury.” 75 Pa.C.S.A. § 1735.

      . We cannot predict whether appellee, had he appealed the Reliance decision, would have had the benefit of any of these decisions.

      . We note that appellant’s citation to the record is erroneous. In appellee's petition to compel arbitration he avers that he was struck by an uninsured driver, not a hit and run driver.

      . The relevant portion of the notice provision of the policy states:
      REPORTING A CLAIM — INSURED’S DUTIES
      1. Notice to Us of an Accident or Loss.
      The insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible.

      . We note that the State farm insurance policy in question specifically adopts the language used in the priority provisions outlined in § 1733 of the MVFRL.

      . It does not appear from the record that appellee pursued the court’s decision regarding Reliance on appeal.

      . In Hackenberg, supra, our Supreme Court held that in the case of a self-insured employer under the MVFRL, recovery under the Workmen’s Compensation Act was the sole and exclusive remedy for an employee injured in a work-related vehicle accident with an uninsured motorist. However, as implicitly held by the majority and explicitly noted by the dissenters, "claimants [with work-related injuries] whose claims are covered by insurance companies are entitled to uninsured motorist benefits and workmen’s compensation benefits ...” Hackenberg, 526 Pa. at 371, 586 A.2d at 885 (Dissenting Opinion by Cappy, J., and joined in pertinent part by Larsen, J. and Papadakos, J.).

      . Further, the majority states, “It is unrealistic to require such tenacity from the insured when, in reality, the interest that would be vindicated on appeal is not so much his own as that of his insurance company.” Majority opinion, p. 308. I do not believe it is our concern whether appellant, an insurance company, somehow benefits from appellee’s vindication of his own rights. Rather, the pertinent question is whether appellee exhausted available coverage on his employer’s automobile.

      . Moreover, newly enacted § 1737 of the MVFRL, in pertinent part, specifically states: "Notwithstanding anything contained in the ... Workmen’s Compensation Act, no employee who is otherwise eligible shall be precluded from recovery of uninsured or underinsured motorists benefits from an employer’s motor vehicle policy under this subchapter or the ... [Uninsured Motorist Act].” Clearly, this provision of the MVFRL prevails over the § 303 of the Workmen’s Compensation Act which provides workmen’s compensation benefits are the exclusive liability of an employer for a work related injury. 1 Pa. C.S.A. § 1936. While we recognize that this section does not apply to the present litigation due to the timing of its enactment, this statute does demonstrate unequivocally the legislature’s "manifest intention” to permit recovery of both workmen’s compensation benefits and uninsured motorists benefits from one’s employer. Cf., Selected Risks, 552 A.2d at 1388 ("Although this act took effect after the incident here at issue, and therefore is not controlling as a statute, it is certainly a persuasive statement of what the legislature perceives as the appropriate public policy____’’); 1 Pa.C.S.A. §§ 1933, 1936.


text:
    599 A.2d 1009
    Rozina HAINAUT, Appellant. v. Frank HAINAUT.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed Dec. 3, 1991.

      Betty A. Dillon, Bethel Park, for appellant.
    George B. Stegenga, Washington, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a spousal support order entered on May 6, 1991 in the Court of Common Pleas of Washington County, Domestic Relations Division. Appellant, the wife herein, raises the following issues on appeal:

I. WHETHER THE ORDER OF THE TRIAL COURT IS ERRONEOUS IN THAT ARREARAGES WERE SET AT ZERO WHEN NINE MONTHS ELAPSED FROM THE FILING OF THE SUPPORT COMPLAINT UNTIL THE DATE OF THE HEARING AND ORDER.
II. WHETHER THE AMOUNT OF THE ORDER IS INSUFFICIENT TO PROVIDE SUPPORT AT A LEVEL EQUIVALENT TO THE STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE, AND IS INSUFFICIENT IN LIGHT OF THE DISPARITY IN THE INCOMES AND EARNING CAPACITIES OF THE PARTIES.

Appellant’s Brief at 3. For the following reasons, we remand this case for action consistent with this memorandum.

The parties were married in February, 1982, and separated in February, 1988. Pursuant to an oral agreement between the parties, appellee made monthly cash payments to appellant in the amount of $200. He also directly paid household and insurance bills totaling approximately $1,050 per month. In August, 1990, appellee ceased making the monthly cash payment. Thereafter, appellant filed a complaint in support. It is undisputed that appellee continued making the direct payments through the time of the hearing on this matter.

A hearing was conducted on May 6, 1991. An order, entered at the conclusion of the hearing, provided:

AND NOW, this 6th day of May, 1991, based upon the direct bills being paid by the defendant, the Court orders the defendant to pay $100.00 per month as spousal support. The defendant shall also maintain his wife on medical and dental coverage and pay one-half of all bills not covered by insurances up to $100.00 per month. Arrearages are set at zero.

Official Record at 4. Appellant’s timely appeal followed.

Appellant’s first contention is that the trial court improperly set arrearages at zero. Specifically, appellant argues that the trial court abused its discretion by refusing to make the support order retroactive to the date the complaint in support was filed. We disagree.

Rule 1910.17 of the Pennsylvania Rules of Civil Procedure provides, in relevant part, “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” Pa.R.Civ.P. 1910.17(a). “There is a sound policy favoring retroactivity in most cases.” Sutliff v. Sutliff 339 Pa.Super. 523, 556, 489 A.2d 764, 781 (1985), aff'd, 515 Pa. 393, 528 A.2d 1318 (1987). However, where a trial court articulates specific reasons to justify a nonretroactive order, we will uphold that order absent an abuse of discretion. See Shovlin v. Shovlin, 318 Pa.Super. 516, 519, 465 A.2d 673, 675 (1983); Com. ex rel. Swank v. Swank, 266 Pa.Super. 94, 96, 403 A.2d 109, 111 (1979).

In the instant case, the trial court made the order retroactive by setting arrearages at zero. The court reasoned that it “found the direct payments by the Defendant to have adequately met the Plaintiff’s needs through the date of the hearing.” Opinion, 7/12/91, at 3. Thus, the court concluded that “[i]t is not necessary that the Court mathematically compute an arrearage figure when there is a substantial amount of direct bills being paid.” Id. We cannot say that the court abused its discretion in so concluding. Although there was a nine-month delay between the filing of the complaint and the issuing of the order, appellant earned a net income of approximately $550 per month. Additionally, appellee paid approximately $1050 per month in direct bill payments, totalling approximately $9450 during the pendency of the complaint. Appellant has not demonstrated how these payments failed to satisfy her support needs.

When appellant was questioned at the hearing with respect to the termination of the cash payment, she provided only a vague response as to how she was harmed:

Q Have you suffered financial difficulty since your husband unilaterally stopped the $200.00 per month cash payments?
A Yes.
Q What problems have you had?
A I’ve neglected getting the repairs on the house. I’ve neglected getting the clothes I need to go to work. I’ve neglected doing some of the things like going out to dinner with my friends that I’ve always done. Just in general I’ve left things go. I don’t have any money to do the things that need to be done.

N.T., 5/6/91, at 4. However, there is no evidence in the record or in appellant’s brief that details what repairs were not made and what “things” were “left” go. Moreover, appellant testified that during 1990, she made three personal trips to California, each for periods of two or more weeks. Two of these trips were made after appellee terminated his cash payments. Id. at 5-6.

“The purpose of the order for support is to assure the party requiring support a. reasonable living allowance.” Com. ex rel. Bishop v. Bishop, 234 Pa.Super. 600, 606, 341 A.2d 153, 156 (1975). The statute authorizing the court to impose the support order retroactively is designed to “alleviate[] hardship on a party who is entitled to support but who is required to proceed through the often slow-moving judicial process.” Id., 234 Pa.Superior Ct. at 603, 341 A.2d at 155. In the instant case, the court denied retroactivity because it found that the substantial direct payments which appellee made each month sufficiently satisfied appellant’s support needs. Appellant has not shown that she suffered hardship because appellee terminated the monthly cash payment. Thus, we cannot conclude that the court abused its discretion by denying retroactive application of the support order.

Appellant’s next contention is that the trial court’s order does not provide a sufficient level of support for appellee. Specifically, appellant argues that the trial court erred in its calculation that the aggregate support payment under the May 6 order is $1,300 per month. We agree.

Our standard of review in support matters is well-settled: In reviewing such an order, this court will reverse only where the record indicates a clear abuse of discretion and does not support the trial court’s order. Stredny v. Gray, 353 Pa.Super. 376, 510 A.2d 359 (1986). The trial court possesses wide discretion as to the proper amount of support payments and, unless the surrounding circumstances suggest the court abused its discretion, its judgment will not be disturbed. Biler v. Biler, 353 Pa.Super. 49, 508 A.2d 1261 (1986).

Goodman v. Goodman, 375 Pa.Super. 504, 506, 544 A.2d 1033, 1034 (1988). “An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Coffey v. Coffey, 394 Pa.Super. 194, 196-97, 575 A.2d 587, 588 (1990) (citations omitted).

Rule 1910.16-3 of the Pennsylvania Rules of Civil Procedure sets out the guidelines to be followed and provides a formula for determining the appropriate amount of spousal support:

-appellee’s monthly net income..... $4,000.00
-appellant’s monthly net income____ 550.00
-difference between the two....... 3,450.00
-multiplied by 40%................. x .40
-total monthly spousal support 1,380.00

The trial court need not award the exact amount determined under the guidelines. However, the court, when deviating, must comply with Rule 1910.16-4 of the Pennsylvania Rules of Civil Procedure:

(a) If the amount of support awarded is within ten percent above or below the amount of support determined by the guidelines, the court, permanent hearing officer or hearing officer need not specify the reasons for the amount of the deviation.
(b) If the amount of support awarded is not within ten percent above or below the amount of support determined by the guidelines, the court, permanent hearing officer or hearing officer shall specify the reasons for, and make findings of fact justifying, the amount of the deviation.

Pa.R.Civ.P. 1910.16-4 (emphasis added).

In the instant case, the trial court miscalculated the total amount of appellant’s monthly bills paid by appellee. In so doing, it awarded an amount of spousal support that fell more than ten percent below the guidelines. However, because of the miscalculation, the court did not recognize that the amount was more than ten percent below the guidelines and, consequently, did not specify its reasons for deviating from the guidelines.

To illustrate exactly how the trial court erred, it is necessary to determine the true total of appellee’s direct payments to bills and compare that figure to the amount used by the court in framing its order. According to the record, appellee pays the following of appellant’s bills:

Mortgage................$ 600.00
Car Payments..............150.90
Electric....................190.00
Car Insurance...............68.00
House Insurance............21.50
Med/Dental Insur............20.00
Total......................1050.40

N.T., 5/6/91, at 12. Additionally, up until August, 1990, appellee made a $200 monthly cash payment to appellant. Thus, under the prior arrangement, appellee paid a total of $1,250 in monthly spousal support.

The trial court determined that the aggregate support payment under its May 6 order was $1,300. Opinion, 7/12/ 91, at 3. Because the order requires appellee to make only a $100 monthly cash payment, the total allocation under the order for direct bill payments is $1,200. However, because the direct bills only total $1,050, it is clear that the court inadvertently included the $200 cash payment that was paid under the former arrangement and that is no longer being paid. While this miscalculation is not an abuse of discretion requiring reversal, we must remand for clarification of the inconsistency. If the trial court intended to issue a support award of $1,300 per month, then a modification of the existing order is necessary because the current order is only for $1150 per month. On the other hand, if the trial court does not modify the order, then, pursuant to Pa.R.Civ.P. 1910.16-4(b), the court must specify its reasons for deviating more than ten percent from the guidelines.

Case remanded. Jurisdiction relinquished.

      . Appellant also contended that the trial court erroneously failed to include an immediate or conditional order for the attachment of income as required by Pa.R.Civ.P. 1910.22(a). However, in her brief, appellant withdrew this contention, stating, "[i]n light of [the judge’s] statement in his Opinion that 'the requirement of Pa.R.C.P. 1910.22(a) was an oversight by the Court and can be included in the support order upon motion,’ this ground for appeal shall not be pursued herein." Appellant’s Brief at 11. Thus, we need not consider this contention.

      . This $1,300 is broken down as a $100 monthly cash payment and $1,200 that the court calculated as the total direct bill payments.

      . We note that the language of the support order is not consistent with the way the parties and court appear to interpret it. The order expressly requires appellee to pay appellant $100 per month, as well as to maintain his wife's medical and dental coverage. It also requires “one-half of all bills not covered by insurances up to $100.00 per month." Appellant's bills not covered by insurance include mortgage payments, electric bills and car payments, which total from $793 to $940. Under our reading of the order, then, appellee would only be required to pay half of this total up to $100, i.e., $100 towards noninsurance bills.
      However, both the trial court and the parties, in discussing this issue, seem to agree that the order requires appellee to continue making direct payments for the mortgage, as well as for appellant's car payments and electricity. Thus, as the only dispute goes to the sum of all direct bill payments, we adopt the court’s and parties' interpretation of this order. Nonetheless, in light of our disposition of this case, we suggest that the language of the order be changed to reflect the interpretation ascribed to it by the court and parties.

      . The trial court made findings of fact with respect to each party’s net monthly income. We use those figures in calculating the guideline formula. See Opinion, 7/12/91, at 2.

      . We note that there is an unresolved dispute as to the amount paid for mortgage and electricity. Appellee contends that he paid $600 monthly for mortgage and approximately $190 monthly for electricity. N.T., 5/6/91, at 12. By comparison, appellant contends that appellee paid $553 monthly for the mortgage and $98 monthly for the electricity. N.T., 5/6/91, at 8. Although the trial court did not definitively resolve this factual dispute, and the record does not contain sufficient documentation to enable us to resolve it, we have utilized appellee’s figures so that, in comparing the instant order with the spousal support guidelines, we are using the highest possible amount to represent appellee’s direct payment of appellant’s bills.