author: McEWEN, Judge:

text:
    522 A.2d 614
    COMMONWEALTH of Pennsylvania v. Robert LOWE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed March 6, 1987.

      John R. Carroll, Philadelphia, for appellant.
    Cheryl A. Ondechek, Assistant District Attorney, Lancaster, for Com., appellee.
    Before CAVANAUGH, WICKERSHAM and McEWEN, JJ.
   McEWEN, Judge:

Appellant has undertaken this appeal from the judgment of sentence imposed after he pleaded guilty to one count of criminal solicitation to commit forgery, 18 Pa.C.S. §§ 902, 4101, and one count of false reports to law enforcement officers, 18 Pa.C.S. § 4906(b). He was, as a result, sentenced to serve a term of imprisonment of from one year to five years less one day for the offense of criminal solicitation, and to h concurrent term of imprisonment of from one year to two years for filing the false report. Both offenses arose from the same incident and, until the time that appellant engaged in 'this criminal behavior, he had been a law abiding citizen and had served for twenty-eight years as a state policeman. The sentencing court declared in the expression of reasons for the sentence that the fact that appellant was a police officer was an aggravating factor under the guidelines. We disagree and, accordingly, vacate the judgment of sentence and remand the case to the sentencing court.

The record reflects that appellant entered into a counterfeiting scheme with individuals to whom he delivered $27,-00G, and his brother-in-law delivered an additional $8,000. The individuals to whom appellant and his brother-in-law delivered the $35,000 had tricked appellant into believing that an elaborate bleaching process would enable counterfeit bills to be made from real currency. It serves no purpose to specifically describe the counterfeiting process by which appellant was duped except to describe it as bizarre. When the bogus counterfeiters absconded, appellant filed a report with the local police that the sum of $35,000 had been stolen from his brother-in-law. Following an investigation, appellant was charged with the criminal solicitation of his brother-in-law in the counterfeiting scheme, and with filing a false report of the theft of $35,000.

The contention that the sentencing court improperly considered appellant’s position as a state policeman as an aggravating factor presents a most troubling issue. The transcript of the sentencing proceeding reflects the extended and careful deliberation that the eminent sentencing judge had provided, as is his custom, to his determination of the sentence to be imposed. Nonetheless, while we emphatically reject the assertions of appellant that the sentencing judge failed to adequately consider the factors that would call for a sentence to a term of probation, and that the court gave undue emphasis to the criteria which call for a sentence of confinement, we are constrained to remand the case to the sentencing court because we do not agree that the fact that appellant was a police officer can be considered as an aggravating factor under the circumstances of this case.

We here consider the case of an offender who, the prosecution does not dispute, led a law abiding life that had included the completion of twenty-eight years of service to the Commonwealth during which he had attained the rank of Sergeant of the Pennsylvania State Police, a law abiding life which was abruptly halted when he engaged in the criminal conduct to which he entered a plea of guilty.

The ancient admonition that the punishment must fit the crime was long ago rejected in this Commonwealth.

At one time, sentencing by a court after a finding of guilt was purely ceremonial, since there was but one penalty at law for any given crime. However, during the nineteenth century ... the practice of discretionary sentencing be-gan____ [and] ... soon became an integral part of judicial procedure; the sentencing court had increasing discretion in its choice of sentence. This development reflected the move toward individualized sentencing, which attempted to rehabilitate, as well as to punish the offender.

The indeterminate sentence won early recognition in Pennsylvania. The Act of June 19, 1911, P.L. 1055 § 6, as amended, 19 P.S. § 1057 (1964).

******

The Legislature reinforced [the indeterminate sentencing] provisions by allowing suspension of sentence and probation, at the sentencing court’s discretion, in all but the most serious crimes. Act of June 9, 1911, P.L. 1055, § 1, as amended, 19 P.S. § 1051 (1964). The court has the power to use this sentencing alternative where:

... the said court believes that the character of the defendant and the circumstances of the case (are) such that he or she is not likely again to engage in an offensive course of conduct, and that the public good does not demand or require that the defendant should suffer the penalty imposed by law---- [emphasis supplied].

Commonwealth v. Martin, 466 Pa. 118, 128-129, 351 A.2d 650, 655-656 (1976) (footnotes omitted).

More recently, the legislature has provided that “the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Moreover, our Supreme Court has instructed that in selecting a sentence in accordance with Section 9721 of the Sentencing Code, “[a]t least two factors are crucial ... the particular circumstances of the offense and the character of the defendant. Commonwealth v. Martin, supra, 466 Pa. at 133, 351 A.2d at 658 (emphasis supplied). Accord: Commonwealth v. Riggins, 474 Pa. 115, 133 n. 24, 377 A.2d 140, 149 n. 24 (1977); Commonwealth v. Holler, 326 Pa.Super. 304, 307, 473 A.2d 1103, 1105 (1984); Commonwealth v. Weldon, 320 Pa.Super. 102, 105, 466 A.2d 1082, 1083 (1983); Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 896 (1980).

It is in light of these pronouncements by the Legislature and the courts of this Commonwealth that we must examine the challenge of appellant to the court’s statement of reasons for the sentence imposed. Even those philosophers who assert that virtue is its own reward would concede that a blameless life, whatever the calling or career or pursuit of the offender, is a most compelling favorable factor for the court to consider as it undertakes its assessment of the character of the offender. Thus, the fact that appellant had been a police officer should not have been considered an aggravating factor in the selection of sentence. Rather, the law abiding life that appellant had led for his fifty-one years should have been every bit as much a mitigating factor for appellant as it would have been for an offender who had pursued a career or profession other than government or public service.

Moreover, the Old Testament tells us that the fallen angels suffered most from the torture of their fall from glory and plummet from grace, beset with the constant and unyielding knowledge of abandoned magnificence, and consumed with the certainty that what was once can no longer be. And, of course, the higher the ascent, the sharper the fall, — the more precious the gift, the more shameful its loss.

We, therefore, hold:

That the fact that an offender has led a lawful life free of arrest and conviction, should be a mitigating factor in the reflection which the court devotes to the selection of an appropriate sentence.

That whenever (1) an offender has led a lawful life free of arrest and conviction, and (2) the misconduct which gave rise to the offenses of which he has been convicted cannot be demonstrated to have been but one episode in a pattern of criminal conduct, and (3) the sentencing judge finds the offender has experienced a sense of shame by reason of the disgrace that he has heaped upon his calling, other individuals and himself, the sentencing judge may consider the offender as partially punished, a conclusion to be considered in mitigation of the legal punishment to be imposed — for who can deny that those punished by their sins suffer more severly than those punished for their sins.

Therefore, for the reasons herein set forth, we vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated. Case remanded for resen-tencing. Jurisdiction relinquished.

      . The trial court, in placing upon the record the reasons for the sentence imposed, stated:
      It seems to me that it boils down to this. The final criteria is that a lesser sentence would depreciate the seriousness of the crime of the defendant. And I think that a lesser sentence would depreciate the seriousness of the crime because of your status as a police officer. ******
      Now, I want to make this clear for the record, what I consider to be the crux of this case, and that is that Mr. Lowe here was a state trooper for more than 20 years or more than 30.
      ******
      In fact, he rose to the rank of a sergeant there. As I consider the sentencing guidelines, which I am obliged to do, I think the fact that you were a police officer is an aggravating factor under the guidelines. In your role as a police officer, you were to have set the example, you were to be — your conduct was to be exemplary, maybe not perfect, because none of us are certainly perfect, but at least exemplary. And in the language of today’s — language we use today is I guess I would say you should have been a role model.

      . The sentencing judge concluded that appellant was of a mind that the $35,000 would produce counterfeit currency totalling $3,500,000. There is some, but by no means a certain, basis for this conclusion. Other portions of the record, including the affidavit of arrest, indicate the object of the scheme was to produce counterfeit currency that would double the $35,000 contribution of appellant. Appellant asserts this finding of the court was incorrect and that the sentence was thereby illegal. While, as we have noted, the record is far from clear, we are unable to state with certainty that the finding of the court was incorrect. In any event, however, we are convinced that this finding by the sentencing" court was not a principal factor in the nature and terms of the sentence selected.

      . The facts of this case must be distinguished from those situations where "the defendant abused his position of trust, public office, or fiduciary obligation to facilitate the commission of the offense.” 204 Pa.Code § 313.1(e).

      . We also note that the sentence of from one year to two years imprisonment imposed upon the offense of filing a false report is not valid since it is in excess of the one year maximum sentence permitted by statute for misdemeanors of the third degree. See: 18 Pa.C.S. § 1104(3). Further, the sentencing transcript, as well as the sentencing guidelines form, incorrectly indicate that the sentencing guideline ranges for filing a false report, a misdemeanor of the third degree, 18 Pa.C.S. § 4906(B), are 0 to 12 months for the minimum range. The minimum range for misdemeanors of the third degree with a prior record score of zero is 0-6 months in the minimum range, non-confinement in the mitigated minimum range, and the statutory limit in the aggravated range, subject of course, to the provisions of Section 9756(b) of the Sentencing Code, 42 Pa.C.S. § 9756(b) (minimum sentence shall not exceed one-half of the maximum sentence). See: 204 Pa.Code § 303.9; Commonwealth v. Parrish, 340 Pa.Super. 528, 532, 490 A.2d 905, 907 (1985).

      . Nor should the sentencing court which finds evidence of shame and contrition as a mitigating factor, be precluded from such a conclusion by reason of the failure of the offender to become an informant for law enforcement agencies.
      Penitence has for centuries been a factor of mitigation, and the offender who bares his soul and confesses all of his own misdeeds is entitled to quite some mitigation. However, the failure of the offender to implicate others must not be considered an aggravating factor that will serve to increase the severity of sentence. Thus, the sentencing court is free to consider the pleas of the prosecution that an offender is entitled to leniency by reason of his cooperation with the authorities. See 240 Pa.Code § 303.1(e). But the sentencing court should summarily reject the demands of prosecutors or agents, fancying themselves avengers, that an offender merits more severe punishment by reason of a refusal to become an informer — "... for it is upon the informer that conscience unleashes its most dreaded demons” (Mervin G. Sneath, "Conscience and Morality”, April 28, 1985). Such exactions are antithetical to the very concepts of penance and punishment, and are to be banned from confessional and court alike. "In other societies law-abiding behaviour is encouraged by penalizing citizens who fail to spy on their neighbors or report infractions. Our country, thankfully, has never chosen that path. As highly as we value the directives of any criminal laws, we place their enforcement in the hands of public officers and we do not give those officers the authority to impress the citizenry into the prosecution enterprise.” Roberts v. United States, 445 U.S. 552, 571-572, 100 S.Ct. 1358, 1369-1370, 63 L.Ed.2d 622 (1980) (Dissenting Opinion by Marshall, J.)


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    522 A.2d 618
    George F. BROOKS, Administrator of the Estate of Terri L. Brooks, Deceased, Appellant, v. MARRIOTT CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed March 16, 1987.

      Stephen B. Harris, Warrington, for appellant.
    Joseph T. Bodell, Jr., Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and BECK, JJ.

       Judge Wickersham did not participate in the final disposition of this case.

   BECK, Judge:

This is an appeal from the decree of July 8, 1986, entered by the Honorable Isaac S. Garb, President Judge of the Court of Common Pleas of Bucks County, dismissing appellant’s complaint. We reverse and remand for proceedings consistent with this opinion.

Appellant is the administrator of the estate of his daughter, Terri L. Brooks, who was employed by Roy Roger’s Restaurant, a restaurant owned by appellee, located in Bucks County, Pennsylvania. On February 4, 1984, Ms. Brooks was working in the restaurant when she was severely beaten and stabbed to death by unknown persons following a robbery of the restaurant. Appellant commenced this action by writ of summons on January 8, 1986, naming appellee as defendant.

A complaint was filed on May 21, 1986 against.appellee, alleging that the restaurant was located in an area which had been subject to frequent robberies; that this particular restaurant had been robbed on two prior occasions; that appellee and its agents failed to warn or advise the decedent of the danger of employment in the restaurant; and that no specific provisions had been made to protect decedent from attack while she was working in the restaurant. Appellee filed preliminary objections in the nature of a demurrer on May 30, 1986. Thereafter, on July 8, 1986, the lower court entered a decree sustaining the preliminary objections and dismissing appellant’s complaint.

Appellant then filed a petition to reconsider, which was denied. This timely appeal followed.

On appeal appellant raises the following issues for our review:

1. Whether the trial court erred in concluding that the appellant’s complaint failed to state a cause of action not barred by the exclusive remedy provision of the Pennsylvania Workmen’s Compensation Law?
2. Whether the trial court erred in declining to grant the plaintiff leave to amend his complaint?

Our standard of review on an appeal from the dismissal of a complaint by preliminary objections in the nature of a demurrer has been summarized as follows:

Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom. Conclusions of law, however, are not admitted by a demurrer. It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks. If the plaintiff does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action.

Acme Markets, Inc. v. Valley View Shopping Center, Inc., 342 Pa.Super. 567, 569-70, 493 A.2d 736, 737 (1985) (quoting Cunningham v. Prudential Prop. & Cas., 340 Pa.Super. 130, 133, 489 A.2d 875, 877 (1985) (en banc)).

Applying this standard, we find that appellant’s complaint failed to state a cause of action against appellee for its own intentional tort. However, we do find appellant’s complaint stated a cause of action against appellee based on its failure to prevent the foreseeable attack of a third party. Therefore, the trial court erred in granting appellee’s preliminary objections as they related to the attack of a third party. In light of our reversal of the dismissal of appellant’s complaint, we do not consider appellant’s second issue.

Pennsylvania enacted its Workmen’s Compensation Act on June 2, 1915. The Act was based on a theory of “trade-offs.” The Act provides certain compensation for the disability or death of an employee caused by an injury or occupational disease arising out of and in the course of employment. In return for these guaranteed payments, the employer was given immunity from common law suits by employees. Pa.Stat.Ann. tit. 77, §§ 481(a), 1403.

The exclusivity of the Act’s provisions, however, has always been subject to exceptions. Where the Act does not apply, an employee is free to pursue any common-law remedy against the employer available to him.

The allegations in appellant’s complaint suggest two possible bases for recovery against appellee, one under the judicially-created “intentional torts” exception to the Act, and a second pursuant to the § 411(1) exclusion from the Act’s coverage of injuries caused by third parties acting out of personal animus. We consider each possible exception in turn.

I. INTENTIONAL TORT EXCEPTION

Appellant argues that an intentional injury upon an employee by an employer is actionable as an exception to the exclusive protection provided by the Workmen’s Compensation Act. In support of this theory appellant cites Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 495 A.2d 203 (1985), and Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963).

We recently discussed the meaning of “intentional tort” and “intentional wrong” in McGinn v. Valloti, — Pa.Super. —, 525 A.2d 732 (1987), in which we held that an employee’s cause of action for intentional fraudulent misrepresentation against a co-employee company doctor is not barred by the immunity provisions of Pa.Stat.Ann. tit. 77, § 72. We held that the legislature intended the Workmen’s Compensation Act to cover hazards normally expected to be present in the workplace, such as danger caused by an employer’s knowing neglect of safety precautions, Higgins v. Clearing Machine Corp., 344 Pa.Super. 325, 496 A.2d 818 (1985); Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969), and was the exclusive remedy for injuries caused by those hazards. However, other hazards, such as an employer’s physical assault on his employee, Readinger, supra, or intentional infliction of emotional distress, Jones v. PMA Insurance Co., supra, were not normally expected to present themselves in the workplace, and were therefore actionable.

However, we find that the intentional acts of appellee here caused only a hazard normally expected to be present in the workplace, and are therefore not actionable under the intentional torts exception. Appellant alleges that appellee intentionally concealed knowledge of previous burglaries and intentionally failed to provide adequate security, resulting in Ms. Brooks’ death. It is well-settled, however, that an employer is not liable under the intentional tort exception for knowing neglect of safety precautions, Higgins, supra, or nondisclosure of the hazards of a particular workplace. See Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985).

II. EXCEPTION FOR INJURIES INTENTIONALLY INFLICTED BY A THIRD PARTY

While we find that appellant’s cause of action against appellee for appellee’s own intentional tort is barred, appellant argues that his allegations state a cause of action against appellee under the third party attack exception to the Workmen’s Compensation Act. The Act specifically excepts from the definition of compensable injury an injury caused by “an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment.” Pa.Stat.Ann. tit. 77, § 411(1) (Purdon Supp. 1986). In such a case, the employee is permitted to maintain a common-law action against his employer, typically on the theory that the employer was negligent in failing to take precautions necessary to prevent a foreseeable attack by the third party. McBride v. Hershey Choc. Corp., 200 Pa.Super. 347, 188 A.2d 775 (1963); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980).

Appellant contends that his complaint sets forth allegations sufficient to establish a cause of action against appel-lee under this exception and that the lower court erred in dismissing his complaint. We agree.

This exception to the coverage of the Act applies to situations in which the third party’s acts were motivated by a feeling of animus against the particular person injured. If the third party would have attacked a different person in the same position as the injured employee, that attack falls outside the exception and is covered exclusively by the Act. See “Injury Inflicted by Third Person for Personal Reasons,” 99 C.J.S. § 159, p. 540; Mike v. Borough of Aliquippa, supra.

In his complaint, appellant avers that:

5. On or about February 4, 1984, Terri L. Brooks, while at the Restaurant, was severely beaten and stabbed to death by an unknown person or persons following the conclusion of a robbery of the Restaurant.
6. The acts of the unknown person or persons who beat and stabbed Terri Brooks to death were intended to kill Terri L. Brooks because of reasons which were personal to such unknown person or persons, and were not directed against Terri L. Brooks as an employee of the Defendant or because of this employment.
7. The Defendant knew or should have known that the personal safety of persons occupying the Restaurant was at risk on or about February 4, 1984.
8. The Defendant knew or should have known that the Restaurant was located in an area which was subject to frequent violent crimes against similar restaurants.

R.R. at 52a. (emphasis added) Viewing these allegations and all inferences fairly deducible therefrom as true, we conclude that appellant has sufficiently set forth a cause of action within the third party exception of Section 411(1). Appellant may find it difficult to prove at trial that Terri Brooks was killed after the accomplishment of the robbery, for reasons not connected with her status as an employee. Appellant would have to prove that the killer had personal animus against the victim and the personal animus was the motivation for the stabbing. However, his allegations are sufficient to withstand preliminary objections.

In conclusion, the trial court properly sustained the preliminary objections as to appellant’s allegation of an intentional tort inflicted by appellee, but erred in dismissing appellant’s claim as it relates to the intentional tort of a third party.

We reverse and remand for proceedings consistent with this opinion.

      . "If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.” Pa.Stat.Ann. tit. 77, § 72 (Purdon Supp.1986).

      . Appellee argues here, as did appellees in Higgins and McGinn, that the exception for an employer’s intentional torts did not survive the 1972 amendments to the Act. We disagree. See McGinn v. Valloti, J. 74045/86, slip op. at p. 7, f. 3. The continued validity of the intentional tort exception was recognized in Jones v. PMA Insurance Co., supra, a case decided well after the 1972 amendments. Even more recently, this court explicitly stated: "[A]n action can lie against the employer itself if it harmed its employee through an intentional wrongful act.” Boris v. Liberty Mutual Insurance Company, 356 Pa.Super. 532, 539, 515 A.2d 21, 24-25 (1985). To hold otherwise, as appellee would have us do, would be to interpret the legislature’s 1972 amendments as declaring that an employer could commit any manner of intentional tort upon an employee, including physical assault, without incurring a common-law tort liability toward the employee. This we decline to do. The legislature could not have intended to restrict the employee to his remedies under the Workmen’s Compensation Act under these circumstances.


author: KELLY, Judge:

text:
    522 A.2d 622
    COMMONWEALTH of Pennsylvania v. Robert William HANES, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed March 9, 1987.

      James L. Martin, Ridgway, for appellant.
    Vernon D. Roof, District Attorney, Ridgway, for Com., appellee.

      Before BROSKY, KELLY and ROBERTS, JJ.
   KELLY, Judge:

In this case of first impression, we are called upon to determine whether the trial court erred in treating evidence of an alleged oral contract price for stolen property as conclusive evidence of value. We find that the trial court erred, and announce that, although proof of the retail or contract price of stolen property is prima facie evidence of value in a theft case, such evidence is not conclusive. Accordingly, a defendant may present any evidence, direct or circumstantial, which bears upon the market value of the same or similar items in the open market at the time and place of the theft to rebut the prima facie evidence presented.

Appellant appeals from his June 25, 1985 conviction for the theft of a truckload of live red oak logs following a jury trial. The jury set the value of the stolen logs at two thousand dollars ($2,000.00); accordingly, the theft was graded as a first degree misdemeanor.

Post-verdict motions were argued and denied, and on September 4, 1985, appellant was sentenced to a term of imprisonment in the Elk County Prison of not less than three (3) months nor more than eighteen (18) months with the privilege of work release. He was also ordered to pay restitution to Mr. Erlanson in the amount of two thousand dollars ($2,000.00). Timely notice of appeal was filed. Although appellant has raised five issues on appeal, we address only the issues as to the sufficiency of the evidence and the admissibility of defense evidence to rebut the Commonwealth’s prima facie showing of value.

I.

Appellant first contends that the evidence was insufficient to sustain his conviction. Appellant argues that the circumstantial evidence was insufficient to establish beyond a reasonable doubt that he (and no other person) stole the logs. Appellant argues further that the Commonwealth failed to establish the value of the stolen logs beyond a reasonable doubt, in that its calculation of value was based upon estimates as to the quantity and quality of the logs stolen. We cannot agree.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Reddix, 355 Pa.Super. 514, 519, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy, 355 Pa.Super. 145, 154-55, 512 A.2d 1253, 1260-61 (1986).

A.

A review of the record discloses sufficient evidence from which the jury could find that appellant stole the logs. Mr. Erlanson testified that: his was the only outfit cutting live red oak logs in the Quehanna area at the time of the theft; he passed appellant hauling a load of live red oak logs along the road leading from his logging site in the Quehanna area late in the afternoon on the day of the theft; as an experienced logger, he could tell whether the logs on a passing truck were live or dead; he knew appellant and appellant’s truck from previous business dealings; he noticed that dust raised by some other truck had not yet settled along the dirt road which led to his logging site; when he arrived at his logging site minutes later, there were distinctive tire tracks from the type of truck which is used to haul timber, there were impressions left in the ground from stabilizers which are used in the loading of timber, and a load of live red oak logs was missing from the landing area; he suspected theft, but could not be sure until he checked with Mr. Monroe Johnson, who worked for Mr. Erlanson, to see if he had hauled the logs away; and his suspicions of theft were confirmed by Mr. Monroe Johnson the following day. (N.T. 6/25/85 at 14-41).

Mr. Monroe Johnson testified that the landing area was filled with live red oak logs when he left the logging site at about. 4:30 p.m. on the day of the theft. He also corroborated Mr. Erlanson’s testimony that an experienced logger could easily tell whether the logs on a passing truck were live or dead red oak logs. (N.T. 6/25/85 at 102-140).

Appellant admitted that he was at Mr. Erlanson’s logging site minutes before he passed Mr. Erlanson’s truck on the highway. (N.T. 6/25/85 at 211). Appellant explained that he had gone to Mr. Erlanson’s logging site to tell Mr. Erlanson about a tract of timber which was for sale and to see if Mr. Erlanson was interested in buying the tract and hiring him to haul the timber. (N.T. 6/25/85 at 211, 255-57). Appellant claimed that the logs on his truck were dead red oak logs he was hauling for Mallery Lumber Company. (N.T. 6/25/85 at 209-61; see also N.T. 6/25/85 at 168, 185, 261).

Appellant argues that proof of his presence at the scene of the crime was not sufficient to sustain his conviction. However, cases cited by the appellant in support of this proposition are inapposite. The evidence (viewed in the light most favorable to the Commonwealth as the verdict winner), and the reasonable inferences deducible therefrom, established more than appellant’s mere presence at the scene of the crime. Indeed, the evidence was sufficient to establish that Mr. Erlanson had witnessed the appellant in the act of hauling away the stolen logs.

B.

Appellant further contends that the evidence was insufficient to establish the value of the logs beyond a reasonable doubt. Appellant argues that the jury’s determination of value was invalid because it was calculated based upon estimates of the quantity and quality of the logs taken. Appellant concludes that the value assigned by the jury amounted to speculation and conjecture. We cannot agree.

Under Pennsylvania law, gradation of theft offenses is based upon the value of the stolen property. 18 Pa.C.S.A. § 3903. Consequently, the burden to establish the value of the stolen property is upon the Commonwealth. See Commonwealth v. Stauffer, 239 Pa.Super. 463, 465, 361 A.2d 383, 384 (1976); Commonwealth v. Warlow, 237 Pa.Super. 120, 123, 346 A.2d 826, 827 (1975). “Value” for the purposes of gradation of theft offenses must be ascertained with reference to the applicable provisions of 18 Pa.C.S.A. § 3903(c). Section 3903(c)(1) provides:

(c) Valuation. — The amount involved in a theft shall be ascertained as follows:
(1) Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.

“Market value has been defined as the price which a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell____” Commonwealth v. Warlow, supra, 237 Pa.Superior Ct. at 124, 346 A.2d at 828.

Testimony of the owner or an employee of the owner is admissible to establish the market value of the stolen property. Commonwealth v. Warlow, supra, 237 Pa.Superior Ct. at 126, 346 A.2d at 829 (applying the rule from civil law); see also Commonwealth v. Walentoski, 300 Pa.Super. 559, 565 n. 2, 446 A.2d 1300, 1303 n. 2 (1982) (employee’s statement as to value); Commonwealth v. Stafford, 272 Pa.Super. 505, 510, 416 A.2d 570, 573 (1979) (proprietor’s statement as to value). “The theory which underlies these cases is that an owner, by reason of his status as owner, is deemed qualified to give estimates of the value of what he owns.” Commonwealth v. Warlow, supra, 237 Pa.Superior Ct. at 126, 346 A.2d at 829 (citing cases) (emphasis added).

When the property is stolen from a merchant, the retail or contract price is prima facie evidence of market value. Commonwealth v. Walentoski, supra, 300 Pa.Superior Ct. at 565 n. 2, 446 A.2d at 1303 n. 2. (order price); Commonwealth v. Warlow, supra, 346 A.2d at 829 (value of stock in trade); accord State v. Sorrell, 95 Ariz. 220, 388 P.2d 429 (1964); People v. Cook, 233 Cal.App.2d 435, 43 Cal.Rptr. 646 (1965); Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968); Lee v. People, 137 Colo. 465, 326 P.2d 660 (1958); State v. White, 37 Conn.Sup. 796, 437 A.2d 145 (1981); People v. Fognini, 374 Ill. 161, 28 N.E.2d 95 (1940); State v. McDonald, 312 Minn. 320, 251 N.W.2d 705 (1977); State v. Moody, supra; State v. King, 164 NJ.Super. 330, 396 A.2d 354 (1978); State v. Hill, 153 NJ.Super. 558, 380 A.2d 722 (1977); People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959).

In the instant case, Mr. Erlanson testified that he had oral contracts to sell his live red oak logs to Mr. Larry Johnson for $500.00 per thousand board feet of saw board grade wood and to Webb Veneer for $1.00 per board foot of veneer grade wood. (N.T. 6/25/85 at 27-28). Both Mr. Erlanson and his employee, Mr. Monroe Johnson, testified that a full load of logs had been taken and that an average load contained 3,000 board feet. (N.T. 6/25/85 at 28, 115). Mr. Monroe Johnson also testified that at least two-thirds of the logs were veneer grade wood and that only one-third was saw board grade. (N.T. 6/25/85 at 115).

Appellant contends that because the calculation of the market value of the stolen logs was made from estimates of the quantity and quality of the logs stolen, the Commonwealth failed to establish the market value of the stolen logs beyond a reasonable doubt. Appellant, however, misconstrues the Commonwealth’s burden. The Commonwealth is not required to establish the precise market value of the stolen property. Rather, the Commonwealth must present evidence from which a reasonable jury may conclude that the market value was at least a certain amount.

In the instant case, the Commonwealth presented opinion evidence from the owner and an employee of the owner of the stolen property which could have supported a finding that the market value of the logs was as high as two thousand five hundred dollars ($2,500.00). Had the jury used this figure as the market value of the stolen logs, the theft would have been graded as a third degree felony rather than a first degree misdemeanor. 18 Pa.C.S.A. § 3903. However, the jury gave the appellant the benefit of all of their reasonable doubts regarding the accuracy of the estimates as to the quantity and quality of logs stolen, and set the value of the stolen logs at two thousand dollars ($2,000.00). We find the evidence sufficient to support this finding.

II.

Appellant further contends that, even if the Commonwealth’s evidence was sufficient to establish a prima facie showing of value, the trial court erred in treating the testimony as conclusive evidence of value. Specifically, appellant contends that he was entitled to present evidence of a competitor’s price for similar logs at the time of the theft to rebut Mr. Erlanson’s uncorroborated testimony as to the price he was to receive for his logs pursuant to his alleged oral contracts. We agree.

At trial, appellant sought to introduce the price list of a local competitor, Mallery Lumber Company, for similar logs. The Commonwealth objected upon grounds of relevance, and counsel for appellant responded:

If it please the Court, I think it’s most relevant, pertinent testimony to show to the jury what the normal price for red oak was at the time of this purported theft, and let the jury draw the conclusion as to whether or not they can believe Erlanson at the $500 and $1000 a thousand board feet or they can believe a price list from a reliable company from [sic] Mallery Lumber Company.

(N.T. 6/25/85 at 180-181). Thus, the evidence was offered both to contest the Commonwealth’s evidence of value, and to impeach the credibility of the prosecution’s primary witness, Mr. Erlanson.

The trial court rejected counsel’s argument, sustained the objection, and explained:

The Court disagrees with you firmly for this reason, what another company would pay for a given product is not what the alleged victim is claiming. He is claiming what he lost, and much ado [sic] made today about how many, many different sawmills or lumber companies there are around this area. What someone else pays, what the hauling distance, range is, I don’t know, but I don’t think we should speculate when a definite claim is based upon a contract testified to by the alleged victim.

(N.T. 6/25/85 at 181). The trial court’s ruling that there was no issue as to the value of the stolen property foreclosed any further inquiry on the part of defense counsel as to the authenticity or reasonableness of Mr. Erlanson’s alleged contract price.

Although this is a case of first impression, we have little difficulty in finding that Mr. Erlanson's testimony was not conclusive as to value. “A proprietor’s statement of the value of stolen good is sufficient to establish the value of those goods in criminal cases and the weight to be accorded to such testimony is for the finder of fact.” Commonwealth v. Stafford, supra, 272 Pa.Superior Ct. at 510, 416 A.2d at 570, citing Commonwealth v. Warlow, supra. (Emphasis added). There is a wide chasm between “sufficient” and “conclusive” evidence; and it would be a rare case, indeed, where a trial court could direct the jury to base its verdict, or any part of a verdict, upon the testimony of a single witness, regardless of contrary evidence offered or admitted. See Patton v. Franc, 404 Pa. 306, 308, 172 A.2d 297, 298 (1961).

We are unable, however, to discover any reported case in Pennsylvania which discusses the issue of what evidence may be admitted to rebut the Commonwealth’s prima facie evidence of value. We are guided, though, by the cogent and well-reasoned opinions of our sister states upon this subject.

In the leading case of People v. Irrizari, supra, the New York Court of Appeals explained:

Where, then, the property is stolen from a department store, the price at which it is there listed ordinarily reflects its market value. We do not, of course, mean to imply that such price is necessarily conclusive. The vital finding which the jury must make is the price at which the property would have been sold if it had not been stolen, and any evidence bearing on that question may properly be considered. It would be open to the accused to show, for instance, that the ■ list price was much higher than the price being paid for similar merchandise in the vicinity, for such evidence bears on whether the goods would actually have found buyers at list price even in the store from which they had been taken.

182 N.Y.S.2d at 364, 156 N.E.2d at 71. (Emphasis added).

Following the reasoning in Irrizari, the New Jersey Superior Court stated:

Presumptively at least, the sales price represents the retailer’s opinion of what a member of the buying public will be willing to pay. But that is not the end of the matter. The fact that the State has met its burden of proof by proving salesprice does not, in our view, foreclose defendant from attempting to overcome the prima facie case by proof that the sales price was not the fair retail price. State v. Hill, supra, for example, suggests that such proof might take the form of showing that the list price of the article in question exceeds the sales price posted by other shops in the vicinity for similar articles or that the retailer whose merchandise has been stolen customarily offers discounts of the posted sales price of the article in question.... In our view wholesale price may be a relevant consideration if disproportionately low in relationship to the listed sales price or if otherwise inconsistent with the victim-retailer’s customary mark-up practices.

State v. King, supra, 396 A.2d at 356-57. (Emphasis added).

The Supreme Court of Minnesota has reasoned:

Although testimony as to the price on the price tag ordinarily would be sufficient to justify a finding that that was the retail market value of the item taken, it is not conclusive, for the price charged by the store from which the item is taken may not accurately reflect the market value of the item. People v. Tijerina, 1 Cal.3d 41, 81 Cal.Rptr. 264, 459 P.2d 680 (1969). A defendant is free to introduce direct and circumstantial evidence bearing on the value of the item in the retail market and thus, as here, may call other witnesses to testify that other stores sell the item for less, Husten v. United States, 95 F.2d 168 (8 Cir.1938); People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959); or he may introduce evidence suggesting that the item does not have much of a market any more as, for example, where an item has been on the shelf unsold for a long time. People v. Fognini, 374 Ill. 161, 28 N.E.2d 95 (1940).

State v. McDonald, supra, 251 N.W.2d at 707. (Emphasis added). See also State v. Sorrell, supra; Maisel v. People, supra; State v. White, supra; People v. Fognini, supra; State v. Moody, supra. We are persuaded by the opinions of our sister states; and in light of the foregoing, we find that the trial court erred in refusing to admit the proffered evidence.

A defendant in a theft case may present any evidence, direct or circumstantial, which is relevant to show the market value of the same or similar items at the time and place of the theft, to rebut the Commonwealth’s prima facie evidence of value. Such evidence may include, but is not limited to, evidence which tends to show: (1) there are no willing buyers at the alleged price; (2) even though there is a willing buyer at the alleged price, the price is unreasonable in light of local competitor’s prices for the same or similar items; or (3) that the seller customarily sold the property at a discounted price. It is for the fact-finder to access the weight of such evidence. Commonwealth v. Stafford, supra.

Because relevant evidence of value was excluded, we must set aside the jury’s determination of value. In doing so, we invalidate the trial court’s gradation of the offense and the basis upon which the sentence and restitution order were imposed. Moreover, we recognize that if Mr. Erlanson had been successfully impeached on the issue of the value of the stolen logs, the jury might have viewed his testimony regarding other elements of the offense differently. Consequently, the taint of the improper evidentiary ruling permeates the verdict, and we have no choice but to reverse and remand for new trial. See Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985) (improper restriction of cross-examination of Commonwealth witness required a new trial); Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986) (improper exclusion of evidence offered to impeach the key Commonwealth witness required a new trial).

Judgment of sentence is vacated, the case is remanded to the trial court for a new trial. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3921(a).

      . 18 Pa.C.S.A. § 3903. Grading of theft offenses
      (a) Felony of the third degree. — Theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
      (b) Other grades. — Theft not within subsection (a) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
      (1) the amount involved was fifty dollars ($50) or more but less than two hundred dollars ($200) the offense constitutes a misdemeanor of the second degree; or
      (2) the amount involved was less than fifty dollars ($50) the offense constitutes a misdemeanor of the third degree.

      . Specifically, the appellant argues: 1) the evidence was insufficient to sustain the verdict that the appellant unlawfully took the logs belonging to Erlanson Logging, Inc. and the evidence was insufficient as to the quality and value of the logs allegedly stolen; 2) the verdict was against the weight of the evidence; 3) the court erred in allowing the jury to speculate as to the value of the logs; 4) the court erred in failing to allow the defense to present evidence regarding the market value of the logs; and 5) the court erred in failing to grant the appellant’s motion for a mistrial because of misconduct on the part of the District Attorney.

      . Appellant's remaining claims are rendered moot by our finding that a new trial is required.

      . Appellant cites: Commonwealth v. Tribble, 502 Pa. 619, 467 A.2d 1130 (1983); Commonwealth v. Lowry, 306 Pa.Super. 277, 452 A.2d 552 (1982); and Commonwealth v. Keller, 249 Pa.Super. 384, 378 A.2d 347 (1977).

      . The conflict in the testimony as to whether appellant was hauling live or dead red oak logs was clearly for the jury to resolve. Where the evidence is conflicting, it is the province of the fact-finder to determine the credibility of the witnesses. Commonwealth v. Arms, 489 Pa. 35, 39, 413 A.2d 684, 686 (1980); see also Commonwealth v. Duffy, supra, 355 Pa.Superior Ct. at 159, 512 A.2d at 1261. “In exercising this prerogative, ‘the fact-finder is free to believe all, part, or none of the evidence.’ ” Commonwealth v. Arms, supra, 489 Pa. at 39, 413 A.2d at 686, quoting Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). In reviewing the sufficiency of the evidence to support the verdict, we must assume that the conflict was resolved in favor of the Commonwealth and that the jury found that the logs were live red oak. Cf. Pro v. Pennsylvania Railroad Co., 390 Pa. 437, 442, 135 A.2d 920, 922 (1957).

      . This definition has otherwise been stated:
      Such value is market value, or the price at which the property will bring in the fair market, after fair and reasonable efforts have been made to find a purchaser who will give the highest price for it.

        See State v. Moody, 113 N.H. 191, 304 A.2d 374, 375 (1973), citing State v. James, 58 N.H. 67 (1877).


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    522 A.2d 628
    Lynn HAUCK, Individually and on Behalf of all Others Similarly Situated, Appellant, v. The OHIO CASUALTY GROUP OF INSURANCE COMPANIES.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1986.
    Filed March 13, 1987.

      Michael P. Malakoff, Pittsburgh, for appellant.
    John C. Conti, Pittsburgh, for appellee.

      Before CIRILLO, President Judge, and CAVANAUGH, WICKERSHAM , ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH and JOHNSON, JJ.

       This decision was reached prior to the resignation of Wickersham, J.

   JOHNSON, Judge:

Once again, we are presented with a narrow issue under the Pennsylvania No-fault Motor Vehicle Insurance Act, (No-fault Act) Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq. 40 P.S. § 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

On this appeal, we must determine whether a collateral insurer under the No-fault Act is obligated to reimburse an automobile accident victim for the difference between (1) the amounts accepted by the health care providers in full satisfaction of their bills and (2) the amounts shown as customary charges on bills provided to the victim for use in obtaining a double recovery. We conclude that the amount which a provider of goods and services accepts in exchange for the goods or services provided represents the best gauge of the reasonable charges actually incurred. Accordingly, we affirm the order denying recovery of unobligated customary charges.

In 1982, the victim, Lynn Hauck, was injured in an accident while a passenger in a motor vehicle. She was entitled to no-fault benefits under her father’s insurance policy with Ohio Casualty. She also enjoyed Blue Cross/Blue Shield (BC/BS) coverage under a separate medical benefits group policy held by her father. The father had not elected, under Section 203(b) of the No-fault Act (40 P.S. § 1009.203(b)), to make the BC/BS group insurance the primary insurer in the event of medical claims, a process which would have resulted in a lower premium on the Ohio Casualty policy.

A victim may twice recover the charges incurred for medical care, when, as here, the victim may have BC/BS or other similar coverage which is available to pay the same charges for which the no-fault insurer is liable. Steppling v. Pennsylvania Manufacturers Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984).

As a result of the injuries sustained, the victim received medical treatment and services resulting in total billings of $25,265.69. Blue Cross/Blue Shield paid $10,475 in accordance with reduced payment agreements it had with the health care providers. Pursuant to the agreements between BC/BS and the providers, the reduced payments were accepted by the providers as fully discharging all of the billings which occurred as a result of the care which had been rendered the victim.

The victim thereafter submitted written claims to the collateral insurer, Ohio Casualty, for $25,265.69. Ohio Casualty paid the victim $10,475, the same amount already paid by BC/BS to the providers in full satisfaction of all claims.

The victim instituted this class action against Ohio Casualty, seeking: (1) declaratory relief that she and other class members were entitled under the No-fault Act to the full amount billed by providers; (2) an injunction prohibiting Ohio Casualty from paying less than the full amount billed; (3) damages equal to the difference between amounts paid and the full amounts of the bills in each instance; (4) interest on those amounts; and (5) costs and reasonable attorney fees. Ohio Casualty responded with preliminary objections in the nature of a demurrer and a motion for a more specific pleading. The Honorable Silvestri Silvestri sustained the demurrer, denied the motion for a more specific pleading and dismissed Hauck’s complaint without leave to amend. This appeal followed.

We believe that this case must be determined by construing the language contained in Section 103 of the No-fault Act, which provides in pertinent part:

§ 103. Definitions

As used in this act:

“Allowable expense” means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for:
(A) professional medical treatment and care;
(B) emergency health services;
(C) medical and vocational rehabilitation services;

Looking to this section, the victim argues on appeal that the measure of allowable expense must be the reasonable value of medical treatment and care. She would have us ignore the reasonable charges incurred, and focus on the “reasonable value” language; since BC/BS paid all of her medical bills, the dispute in this case should not involve any charges directly incurred by the victim. Her contention is that Ohio Casualty should not be permitted to limit its payable benefits simply because she did not incur any economic loss and did not pay the reasonable value of the service rendered to her. She also argues that the language of Ohio Casualty’s policy, which limits medical expense benefits to the reasonable charges incurred, is inconsistent with the No-fault Act.

Ohio Casualty does not dispute that the victim is entitled to receive basic loss benefits, nor does it dispute that she is entitled to the allowable expense. In fact, payment of $10,475 has already been made by the insurer. It does, however, disagree with the victim’s interpretation of the measure of reasonable value.

We decline to analyze the issue before us on the basis of the meaning of “reasonable value” since the language of the statute is clear as to the proper criteria to be applied. Section 103 defines allowable expense as the reasonable charges incurred for medical treatment, care and services. It is only where no charges are incurred that we are permitted to consider the reasonable value of the services.

The victim would have us ignore the fact that charges were incurred and then paid by BC/BS to the providers. Her argument is that we should focus on the alternative statutory language, “the reasonable value of (where no charges are incurred)” rather than the clear mandate, “ ‘Allowable expense’ means reasonable charge incurred.”

As we pointed out in Fandray v. Nationwide Mutual Insurance Co., 313 Pa.Super. 186, 191 n. 2, 459 A.2d 801, 804 n. 2 (1983), in the course of interpreting the definition of “replacement services loss” in the No-fault Act, “it can be inferred that the word ‘incurred’ requires an actual expenditure or liability for service.” The victim does not disagree with this point. However, she asks us to hold that no expenditure was made and no liability arose in this case, such that the allowable expense can be measured by the reasonable value of services. Faced with the fact that the providers received $10,475 for their services, we refuse to find either a lack of liability on the part of the victim or lack of payment on her behalf. In the context of the case before us, we also define “incurred” as the actual expenditure made on the victim’s behalf.

Since we know that the charges incurred were $10,475, we have no difficulty in determining the allowable expense to which the victim is entitled under the No-fault Act.

The victim seeks to rely on Johnson v. State Farm Mutual Auto. Insurance Co., 339 Pa.Super. 112, 488 A.2d 335 (1985) as support for her contention that she is entitled to the difference between amounts actually expended on her behalf and the customary higher billings of the providers. We find that case to be inapposite. In Johnson, we were faced only with the net loss of the victim and the question of whether a no-fault insurer could escape payment of the full amount previously satisfied by BC/BS on a theory of joint obligors under Section 204(b) of the No-fault Act. We held that BC/BS was not an obligor under the Act and thus the motor vehicle insurer was not entitled to share the net cost of medical expenses with the health insurer. There is nothing in Johnson to suggest that an obligor under the Act may be required to pay more than the actual charges incurred in a case involving double recovery.

The victim also argues that since no election was made pursuant to Section 203(b) of the No-fault Act to make Ohio Casualty’s coverage secondary to BC/BS, she is entitled to receive full benefits under both policies. The short answer to this contention is that the extent of full benefits is controlled by the proper definition of “allowable expense” as set forth above. Where the statute provides a clear standard by which to measure full benefits, namely, the reasonable charges actually incurred, it is of no consequence that bills may be generated which exceed the amounts actually paid in full satisfaction of all claims.

Appellant did not allege in her complaint that she would have been liable for the face amount of the bills, and concedes that she is not required to pay the difference between the Blue Cross/Blue Shield payment and the face amount of the bills. As such, the “reasonable charges incurred” could not logically exceed the amount the providers accepted from Blue Cross/Blue Shield as payment in full to discharge appellant’s obligation to the health care providers.

We find no ambiguity or lack of clarity in Section 103 of the No-fault Act. Were it to be suggested that the Act should be interpreted otherwise than we now declare, we would submit that the conclusion reached by the distinguished trial judge in this case, the Honorable Silvestri Silvestri, is well founded. Judge Silvestri determined that the no-fault system was designed to promptly reimburse victims for the cost of services actually incurred, and to restore these victims to their pre-accident status. He reached this conclusion from reading the language of the No-fault Act in harmony with the Act’s goals of restoration, adequate compensation and reasonableness. We agree with the trial court that allowing the victim to recover the difference between the amount billed and the amount accepted as payment in full would contravene the notion of compensating and restoring motor vehicle accident victims, because the victim would thereby receive more than provided for under the Act.

Although double recovery allows a victim to receive compensation in excess of actual damages, this phenomenon exists because insurance law dictates that someone who has paid two separate premiums for separate policies covering the same potential liability is entitled to recover under each policy. The Ohio Casualty policy here under review tracks the language of the Act in requiring payment by the insurer for all reasonable charges incurred. We thus conclude that payment by the insurer of allowable expenses as fixed by the amounts accepted by the health care providers as payment in full discharge of the victim’s entire liability constitutes full compliance with the mandate of the No-fault Act.

Accordingly, we affirm the order which dismissed the individual and class action suit without leave to amend.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

With the greatest respect to my colleagues, I find I must dissent from the Opinion of the Majority in this case.

I believe that the analysis in the previously filed Opinion by Judge Harry Montgomery is a correct analysis of the factual situation and I quote that herein at length.

“The instant appeal raises a question of first impression in the appellate courts of our Commonwealth concerning certain obligations of an insurer under the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984. The Plaintiff-Appellant, Lynn Hauck, instituted this class action against The Ohio Casualty Group of Insurance Companies, the Defendant-Appellee, seeking the recovery of additional payments for medical charges she incurred as a result of injuries she suffered in a motor vehicle accident. Her theory of recovery, as more fully discussed below, was the subject of a preliminary objection in the nature of a demurrer filed by the Appellee. The lower court sustained that preliminary objection, and dismissed the Complaint without leave to amend.
“It is well-established that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material factual averments, as well as all inferences fairly deducible therefrom, but not conclusions of law, or unjustified inferences. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 450 A.2d 36 (1982); DeSantis v. Swigart, 296 Pa.Super. 283, 442 A.2d 770 (1982). In addition, we note that in the instant case the lower court also considered certain facts which were admitted by both parties, which facts have also been reasserted by the parties in the course of the instant appeal. Accordingly, we derive the factual background in this case from both the Appellant’s Complaint, and from relevant facts which have been agreed to and asserted by both parties. Thus, it appears that on November 13, 1982, Ms. Hauck was injured in an automobile accident while a passenger in a motor vehicle operated by Bernard Gray, III. On the date of the accident, Hauck resided with her father, Robert, who had motor vehicle insurance issued by the Appellee, in a policy providing benefits required by the No-fault Act. The coverage of that policy extended to Mrs. Hauck, who was then also covered by a Blue Cross/Blue Shield (hereinafter referred to as ‘BC/BS’) medical benefits group policy under which her father had coverage. It bears mention that Robert Hauck had never made an election under Section 203 (40 P.S. § 1009.203) of the No-Fault Act to make the BC/BS group insurance the primary carrier in the event of medical claims, a process which would have resulted in a lower premium on his No-fault policy from the Appellee.
“The Appellant incurred significant medical bills from various health care providers as a result of the injuries she received in the automobile accident. While the total billings by such health care providers amounted to $25,265.69, BC/BS was able to take advantage of reduced payment agreements it had with such health care providers, so that it only paid $10,475.00 for the care rendered by such providers. Pursuant to the agreements between BC/BS and the health providers, the reduced payments were accepted by the providers as fully discharging all of the billings which occurred as a result of the care which had been rendered to the Appellant.
“Thereafter, Ms. Hauck submitted written claims to the Appellee for $25,265.69, the total amount of the charges submitted by the health care providers. The Appellee paid the Appellant only the $10,475.00 which the health care providers had accepted in full payment from BC/BS under their agreements with that insurer. The instant class action suit was thereafter instituted by Ms. Hauck, on behalf of herself and all those similarly situated, seeking: declaratory relief that she and other class members were entitled under the No-fault Act to the full amount billed by health care providers; an injunction prohibiting the Appellee from paying its insureds less than the full amount billed by providers; damages equal to the difference between what the Appellee paid and full amount of health care providers’ bills in each instance; interest on said amounts; and costs and reasonable attorney fees.
“In proceedings before the lower court, and again on this appeal, the parties have agreed that when a health care provider is involved in a participation agreement with BC/BS, such provider agrees to accept a fixed fee from BC/BS for a service, which is ordinarily lower than the customary amount charged by the health care provider to any other payer for the same service. Further, the health care provider agrees not to bill the patient for the difference between the amount paid by BC/BS, and the customary fee which would have ordinarily been charged to the patient or other payer.
“The obligations of the Appellee No-fault insurer in the instant case, and the Appellant insured’s right to recover, arose under specific provisions of the No-fault Act. Section 202, 40 P.S. § 1009.202 permitted a recovery for four types of losses, including “allowable expenses”. The term “allowable expense” was defined in Section 103, 40 P.S. § 1009.-103, in pertinent part, as follows:
“Allowable expense” means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for:
(A) professional medical treatment and care;
(B) emergency health services; ...
“It is pertinent to note that this Court has held that under the aforesaid statutory provisions, a claimant may recover the charges incurred for medical care twice, when, as here, he or she may have BC/BS or other similar coverage which is available to pay the same charges for which the No-fault insurer was liable. See Steppling v Pennsylvania Manufacturers Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984). Thus, the existence of alternative coverage which may pay all or part of the medical costs incurred by a No-fault claimant does not defeat the right of that claimant to recover the full amount of the benefits provided under the No-fault policy. The only exception is when the insured has elected to make the alternate coverage primary in payment responsibility, under Section 203, as mentioned earlier, and derives a lower No-fault premium as a result.
“In resolving the central issue in the instant case of whether or not an insured like the Appellant was entitled to recover the full amount of the customary charges assessed by the medical providers who furnished care and/or supplies to her as a result of her motor vehicle related injuries, or only the reduced amount paid such medical providers by BC/BS because of its special contractual relationship which such providers, the Court of Common Pleas of Allegheny County determined that the terms of the Act quoted above only required the insurer to pay the reduced amount paid by BC/BS. The lower court’s order was entered on March 19, 1985. The Appellant has pointed out to us that two other Courts of Common Pleas have thereafter reviewed the identical issue in other cases, and have reached a conclusion opposite to that of the Allegheny County Court. In the case of Brower v. Nationwide Mutual Insurance Company, in the Court of Common Pleas of Blair County, at No. 1283 C.P. 1983, the court concluded that the injured plaintiff was entitled under the No-fault Act to recover the full amount of the hospital bill arising from her motor vehicle-related rather than the reduced amount which represented the actual payment by BC/BS pursuant to its agreement with the hospital. Similarly, examining an identical fact situation in the case of Spera v. General Accident Fire and Life Assurance Corporation, Ltd., filed at No. 79-21673, the Court of Common Pleas of Montgomery County, Civil Division, held that the No-fault carrier was responsible for the full amount of the hospital bill, and was not entitled to benefit by the savings arising from the lesser payment by BC/BS as a result of its contractual arrangement with the hospital. In their respective opinions, the Courts of Common Pleas of Blair and Montgomery Counties each recognized the existence of the holding of the Court of Common Pleas of Allegheny County in the instant case, but both rejected its reasoning.
“After a thorough review, we are also constrained to conclude that the lower court in the instant case has erroneously construed the applicable provisions of the No-fault Act. Our conclusion is based upon the specific language of the Act, as well as upon guidance we perceive in other cases construing that statute.
“It can safely be said that there is no statutory language whatsoever which specifically provides or even implies that a No-fault insurer is entitled to the benefit of a payment by any other applicable coverage, with the sole exception of the situation wherein an insured elects to reduce the cost of the no-fault coverage by electing to make another basic loss coverage plan primary in the event of any loss, under Section 203. Therefore it is evident that there was no legislative intent to allow a No-fault insurer to limit its obligations, in the absence of a Section 203 election by the insured, to pay the full “reasonable charges incurred”. This conclusion regarding the intent of the legislature to make No-fault insurers fully liable is buttressed in further language in Section 103, where it is provided that the ‘allowable expense’ which the insurer had an obligation to pay would even include the ‘reasonable value of’ medical products, services and accommodations, even ‘where no charges are incurred’ by the insured. The lower court’s allowance of a reduced obligation by the Appellant insurer in this case is inconsistent with the clear legislative intent to avoid reduced payment obligations by insurers in situations covered by the No-fault Act.
“In a situation like that presented in the instant case, where the insured did not elect to make his No-fault coverage secondary to BC/BS, or any other coverage plan, he must be deemed to have elected to have a double recovery in the event of an injury covered under both his BC/BS plan, and the insurance he purchased from the Appellee. It is evident that Mr. Hauck paid for double coverage, and a consequential full right of recovery for all available benefits from each insurer. No doubt the BC/BS policy which covered him and his daughter provided that BC/BS would fully cover medical liabilities incurred as the result of personal injuries suffered by its insureds, within the circumstances presented by the unfortunate accident which involved the Appellant. With regard to the Appellee, Mr. Hauck presumably fully paid for the policy coverage which he received, which entitled him and his daughter to recover the full ‘reasonable charges incurred for’ professional medical treatment and care and emergency health services arising out of a motor vehicle injury. To award less in these circumstances from the Appellee would not be consistent with the terms of the agreement under which Mr. Hauck and his insured family members enjoyed coverage from that insurer.
“On this appeal, the Appellee does not dispute the Appellant’s right to a double recovery. However, it does maintain that it has a right to benefit by the reduced amount of payment made by BC/BS. There is no suggestion whatsoever in the record of this case that the customary charges of the Appellant’s medical providers were not ‘reasonable’, or otherwise within the stated qualifications of ‘allowable expenses’ under the No-fault Act. Moreover, if the Appellant did not enjoy the benefit of BC/BS coverage through her father’s policy, there can be no question that she would have been fully obligated to pay the customary charges of the medical providers, or that the Appellee would have paid such charges in full had it made payment directly to the providers itself. Thus, the only basis for a reduced payment by the Appellee in this case is the special arrangement negotiated by BC/BS with the providers, wherein they agreed to accept a lesser payment from BC/BS, and it alone, in full satisfaction of their bills. One may not logically deduce that the higher customary charges of the providers must be considered ‘unreasonable’, within the meaning of Section 103 of the Act, merely because of the existence of participation agreements between the providers and BC/BS.
“While we understand the rationale of the Allegheny County Court, we simply do not agree with it. In our review, we cannot ignore that where the construction of insurance provisions is involved, there is a longstanding policy in our Commonwealth to liberally construe them in favor of the insured in any close or doubtful case. See Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 455 A.2d 122 [1222], 1225, n. 3 (1982), citing Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 186-188, 401 A.2d 1160, 1162-63 (1979), aff’d, Allstate Insurance Co. v. Heffner, 491 Pa. 447, 454-455, 421 A.2d 629, 633 (1980). Adopting, as we must, that standard of construction in the instant case, we are further convinced that the lower court has erred in its determination that the Appellee was entitled to pay less than the amounts charged by the medical providers, merely because another insurer had a special contractual relationship with such medical providers which allowed the payment of a lesser amount in full satisfaction of the amounts ordinarily billed. There may be many reasons why medical providers would agree to accept such reduced amounts from a particular insurer, especially when that insurer involved has such a wide scope of coverage of a large segment of the population in a given coverage area. In essence, the lower court appears to have determined that the acceptance of a lesser amount by the medical providers who furnished care to Ms. Hauck must mean that the ordinary charges asserted by the medical providers for such care were ‘unreasonable’. We cannot adopt such a finding, especially at the preliminary objection stage of the case, when there is a complete absence of any evidence in the record to support such a conclusion.
“The lower court’s opinion declares that the result it reached will help avoid the receipt of a “windfall” by Ms. Hauck. However, our Court has clearly held that when an insured has paid for the cost of duplicate coverage, it is proper and permissible that he or she enjoy the full benefits of such double payment or reimbursement. See Johnson v. State Farm Mutual Automobile Insurance Co., 339 Pa.Super. 112, 488 A.2d 335 (1985), a particularly analagous case in which the insurer attempted to share the cost of medical expenses with a health care provider, but this Court required a full double recovery by the insured. See also Steppling v. Pennsylvania’s Manufacturers Association Insurance Co., supra. Therefore, in light of the appellate guidance available to the lower court in this case, its finding that a full recovery by the Appellant from the Appellee would constitute a windfall must be considered irrelevant to the determination of whether such recovery would be proper under the terms of the applicable statute.”

What the Majority has done in this case in adopting a view contrary to that expressed by Judge Montgomery as set forth above is to effect a change in the definitions contained in the statute. Section 103 of the No-fault Act provides that “allowable expense means reasonable charges incurred for ... ” in my view, that refers to the charges incurred by the claimant/insured and not by a third-party insurer such as Blue Cross/Blue Shield for the same services. When the Majority says “we conclude that the amount which a provider of goods and services accepts in exchange for the goods or services provided represents the best gauge of the reasonable charges actually incurred.” (Opinion at page 372) the Majority is first adding words to the definition sections (the word “actually”) and, two, ignoring that the amount of the bill incurred by the claimant in this case is for the full amount of the hospital bill and not the amount negotiated between Blue Cross/Blue Shield and the health care provider. For these reasons, I respectfully dissent.

      . The lower court simultaneously denied the Appellees’ preliminary objection seeking a more specific pleading from the Appellant. That ruling was not appealed by the Appellee, and is therefore not in issue before us on this appeal.


text:
    522 A.2d 635
    Dorothy E. BROWER v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1986.
    Filed March 13, 1987.

      Karen E. Pfeffer, Altoona, for appellant.
    Richard M. Serbin, Altoona, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, WICKERSHAM , ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH and JOHNSON, JJ.

       This decision was reached prior to the resignation of Wickersham, J.

   JOHNSON, Judge:

This case presents the question of whether Section 203 of the Pennsylvania No-fault Motor Vehicle Insurance Act, (No-fault Act), Act of July 19, 1974, P.L. 489, No. 176, § 203, 40 P.S. § 1009.203, repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984, affords any basis for requiring an insurer to pay collateral benefits in excess of the reasonable charges incurred for medical treatment by a motor vehicle accident victim. We think it does not. We reverse the order which granted summary judgment to the victim.

In March of 1983, Dorothy E. Brower (Brower) sustained serious injuries as a pedestrian when struck by a motor vehicle insured by Nationwide Mutual Insurance Company (Nationwide). Brower, who lived alone, did not own a motor vehicle. She did maintain coverage under a medical benefits group policy with Blue Cross/Blue Shield (BC/BS).

As a result of the injuries sustained, Brower received medical treatment and services at the Nason Hospital resulting in total billings of $31,148.35, after subtracting a minor sum for television services ($27) which was paid by Brower. Of this amount, BC/BS paid $9,000 directly to the hospital, following a reduction write-off of $17,106.35 based upon a reduced payment agreement between the hospital and BC/BS. A final payment by BC/BS in the sum of $300 was made to the hospital.

Brower made a demand upon Nationwide for payment to her in the sum of $26,106.35, representing the aggregate of the actual payment first made by BC/BS to the hospital ($9,000) and the write-off or allowance ($17,106.35). In response, Nationwide tendered its check to Brower for $9,000 pointing out that it was prepared to satisfy any final cash balance due the hospital after all BC/BS payments and allowances were completed. Nationwide refused to pay Brower for the amount of the write-off which BC/BS had allowed to the hospital pursuant to the agreement between BC/BS and the hospital.

This suit was instituted against Nationwide to recover the amount of the write-off. Following the close of pleadings, the trial court granted Brower’s motion for summary judgment, holding that Section 203(a) of the No-fault Act enti-tied Brower to receive back from Nationwide “the savings of the $26,106.35 occasioned by her BC/BS insurance coverage.” We reverse.

In a companion case Hauck v. Ohio Casualty Group of Insurance Companies, 361 Pa.Super. 370, 522 A.2d 628 (1987) (Opinion by Johnson, J.) we determined that double recovery, while permitted under the law set forth in Step-pling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984), is limited to an amount not exceeding the reasonable charges actually incurred by the victim. We held therein that the amount which a provider of goods and services accepts in discharge of all claims against the patient-victim represents the best gauge of the charges incurred.

While appellant Hauck in the companion case did argue that she was entitled to recover an amount above and beyond the actual payments to the hospital on the basis that no election had been made by the insured under Section 203(b) of the No-fault Act, we were not required to construe the language contained in Section 203 since the determination of the “allowable expense” is governed by the definition of that term in Section 103 of the Act.

In the case now before us, both the trial court and Brower, the appellee, have read Section 203 hs requiring payment of benefits beyond an amount equal to the charges actually incurred. We reject that analysis. Section 203(a) provides as follows:

If benefits other than no-fault benefits are provided to an individual through a program, group, contract or other arrangement for which some other person pays in whole or in part that would inure to the benefit of a vicitm or the survivor of the deceased victim injured as a result of an accident in the absence of no-fault benefits, then any reduction or savings in the direct or indirect costs to such person of such benefits resulting from the existence of no-fault benefits shall be returned to such individual or utilized for his benefit, (emphasis added).

We read Section 203(a) as a legislative command that a provider of health insurance benefits may not realize a savings in the costs associated with providing a group contract, if those cost savings result from the existence of no-fault insurance benefits, without either passing on those savings in costs to the consumer or enhancing the program of benefits available at the same premium price. Applying Section 203(a) to the facts in the instant appeal, Blue Cross/Blue Shield would have been obligated to return any premium savings to Brower, to the extent that BC/BS determined that they could provide the same level and scope of coverage at a lower premium by virtue of the economically ameliorative effects of a no-fault insurance plan within the Commonwealth.

In the instant case, Brower did not even purchase no-fault insurance coverage. Standing alone, this would not preclude her entitlement to a reduction in her BC/BS premiums upon a showing that the existence of no-fault benefits did, in fact, reduce the costs surrounding her health insurance coverage. However, no facts have been averred which would permit us to reach such a conclusion.

We do not know the premium cost which Brower, or someone on her behalf, has paid for her BC/BS coverage. However, we can conclude from the record before us that that cost, whatever it might have been, was not reduced as a direct result of the existence of no-fault benefits. We assume that some direct relationship exists between the premium paid for group benefits and the total amounts which the group insurer expends to satisfy claims under any given plan. Brower’s receipt of collateral benefits under the tortfeasor’s motor vehicle insurance policy in no way determined or affected the BC/BS payments made to the Nason Hospital. All the payments made by BC/BS were determined strictly on the basis of the charges appearing on the hospital bill and the reduced payment agreement between the hospital and BC/BS.

The mere fact that double recovery without setoff is permitted, or required, under Steppling, supra, suggests that the likelihood of a possible reduction or savings in the direct or indirect costs to Brower of her BC/BS package is non-existent.

Appellee Brower would have us replace the term “cost” with the term “reasonable value” in interpreting Section 203(a) of the Act. Finding no lack of clarity in the statute, we decline to do so.

The record suggests that there may be some minor sums remaining due the victim following final payment by BC/BS to the Nason Hospital of the reasonable charges incurred. Brower is entitled to receive from Nationwide a sum equal to the amounts paid by BC/BS in final satisfaction of her hospital bill. She is not entitled to receive any sum representing the difference between the actual charges incurred and the original hospital statement.

We reverse the order granting summary judgment to the appellee, Brower, and remand for further proceedings consistent with this opinion.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

With the deepest respect to my colleagues, I must dissent from their determination in this case. I might point out that my reasons for taking the opposite view have been set forth in Hauck, v. Ohio Casualty Group of Insurance Companies, 361 Pa.Super. 370, 522 A.2d 628 (1987), (Dissenting Opinion by Del Sole, J.) and I continue to adhere to that view. Specifically, the Majority once again says “we determine that double recovery, while permitted under the law ... is limited to an amount not exceeding the reasonable charges actually incurred by the victim.” The Majority then, in my view, erroneously, defines reasonable charges actually incurred by the victim as being the amount the victim’s insurer under a Blue Cross/Blue Shield plan pays a health care provider, that amount being totally unrelated to the reasonableness of the charges incurred by the victim but based upon comprehensive business relationship between the hospital and Blue Shield. It is my view, quite simply, that incurred by the victim does not mean paid by the victim’s health care insurer. For these reasons and those set forth in my Dissenting Opinion in Hauck, I dissent.


author: CAVANAUGH, Judge:

text:
    522 A.2d 638
    Nancy McGOUGH, Appellee, v. Henry A. McGOUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1986.
    Filed March 19, 1987.

      Daniel C. Barrish, Norristown, for appellant.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of court requiring appellant, Henry A. McGough, to pay the sum of $163.00 per week for the support of his three minor children, plus $5.00 per week toward arrearages.

The parties were divorced on December 14, 1984. Prior to the divorce, they entered into a written property settlement agreement which provided that appellant was to make child support payments of $140.00 per week, plus an annual lump sum payment of $400.00 for each of the three children. The divorce decree provided that the property settlement agreement was incorporated into the decree. It further provided that the settlement agreement “shall not merge with but shall survive” the divorce decree and order.

Subsequently, appellant filed a petition to modify the order of support with the Domestic Relations Office of Montgomery County, claiming that changed circumstances warranted a decrease in the amount of weekly support appellant was required to pay. Thereafter, appellee filed a petition seeking to increase support payments, citing increased costs of caring for the children. A Master in Support found that the property settlement agreement did not merge, but survived the decree and order in divorce and left standing appellant’s support obligation as previously described. Both appellant and appellee filed exceptions to the determination of the master.

At a hearing before the Honorable Albert R. Subers, the Master’s determination was upheld and this appeal followed.

At issue in this case is what appellant contends is a conflict within the divorce decree itself. This decree states, in pertinent part:

AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED, pursuant to Pa.R.C.P. 1920.1, et seq. § Act 26-1980, 23 P.S. § 1, et seq., “The Divorce Code”, that the terms, provisions and conditions of a certain property settlement agreement between the parties dated November 13, 1984, and attached to this Decree and Order as Exhibit “A” is hereby incorporated into this Decree and Order by reference as fully as though the same were set forth at length. Said agreement shall not merge with but shall survive this Decree and Order.

Appellant argues that since the divorce decree expressly incorporates a pre-divorce property settlement agreement, the agreement merges into the decree and is completely modifiable, as are all orders of support, upon a showing of materially changed circumstances. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983), Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). It is appellee’s position that the portion of the decree declaring that the property settlement agreement did not merge with, but survived the decree, is controlling. Consequently, the property settlement agreement is not open to modification by the courts, and may be enforced against either party under well-established principles of contract law.

Appellant urges that our recent holding in Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984) mandates that we resolve this apparent ambiguity in his favor. That case involved a situation similar to the case at bar. A pre-divorce property settlement plan, which included a provision for support payments, was expressly incorporated into the divorce decree. Later, the husband sought a downward modification of the support obligation, claiming that his income had decreased while his former wife’s income had risen. We held that the agreement had merged with the divorce decree and should no longer be given independent effect as a binding contract between the parties. It was also pointed out that although a number of jurisdictions distinguish between incorporation and merger, no Pennsylvania court had recognized such a distinction in the context of the petition to modify child support.

The presence of a non-merger provision in the divorce decree, however, is an important characteristic distinguishing the facts in the case at bar from those in Tokach. It therefore seems clear that our holding in Tokach is inapplicable to the present situation.

In determining if the settlement agreement merged with the divorce decree, we must establish whether or not a merger was intended by the parties. This determination is made by analyzing the terms of the agreement itself. Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985), Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983).

The terms of the property settlement agreement demonstrate a clear intent on the part of both parties to enter into a binding contract. The document contains the statement “Husband and Wife now desire to settle and determine for all time their mutual property rights”. Immediately prior to the covenants providing for marital property division and support obligations, there is a statement of the parties’ intent to be legally bound. As was the case in our recent holding in Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985), the agreement was a detailed contract covering all aspects of the economic relationships of the parties and the amount of support provided was not unfair or inadequate. Both spouses were represented by counsel and the agreement reached cannot be termed one-sided.

From the foregoing it is evident that both appellant and appellee fully intended to enter into an enforceable contract in accordance with the terms of the property settlement agreement of November 13, 1984. Nothing suggests that this agreement was entered into with an understanding that it would later merge into a divorce decree and thereby be rendered modifiable by the courts. To the contrary, the agreement suggests that appellee relinquished valuable property rights and potential claims for counsel fees and costs in exchange for and in reliance upon certain promises made by her husband — including his promise to pay a fixed amount of child support per month.

We note further that the divorce decree, despite the arguable inconsistency, was quite explicit in stating that there would be no merger and that the property settlement agreement would survive as an enforceable contract. Appellant contends that the divorce decree at issue was a “form” which he was required to use by the Montgomery County courts and had no say whatever in the wording employed. This argument, however, has been waived by appellant for failing to raise it in the court below.

Order affirmed.

      . We note in passing that regardless of the understanding of either party as to modifiability, a court is not precluded by the terms of a property settlement agreement from increasing the amount of child support provided for in the agreement. Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983).

      . Because we hold there was no merger and the property settlement agreement survived as an enforceable contract, we need not address appellant’s claim that the trial court erred in failing to consider his remarriage as a factor in the petition to modify the order of support.