author: POPOVICH, Judge:

text:
    587 A.2d 749
    In re ESTATE OF Gary P. GREENWOOD, Deceased. Appeal of the ESTATE OF Gary P. GREENWOOD by Lois A. GREENWOOD, Administratrix.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1990.
    Filed March 11, 1991.

      James Hook, Waynesburg, for appellant.
    Linda Chambers, Washington, for participating party.

      Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case concerns an order entered on March 23, 1990, in the Court of Common Pleas of Greene County, Orphans’ Court Division, directing that blood samples of the decedent Gary P. Greenwood be made available to the Greene County Domestic Relations Division “for comparison testing”. The order is being appealed by Lois A. Greenwood, Administratrix of the Estate of Gary P. Greenwood. We affirm.

The record discloses that a Petition For Citation was filed by Lisa Joann Sowden alleging that she was the illegitimate daughter of the decedent Gary P. Greenwood and one Susan Jane Sowden.

Lois A. Greenwood, having been granted Letters and named the administratrix of her late husband’s estate on August 25, 1989, was notified that the petitioner intended to claim an intestate share of the estate as the decedent’s illegitimate child. Lois A. Greenwood, despite the petitioner’s submission of a birth certificate and affidavits of the decedent’s family and friends attesting to the decedent’s “acknowledg[ment] ... that he was the father of [petitioner”, indicated that “the only proof of paternity she w[ould] accept [wa]s proof through blood testing.” Paragraphs 6, 7 & 8. However, when the petitioner discovered that the Allegheny County Coroner was in possession of blood and tissue samples of the decedent, “due to a pending investigation into the cause of decedent’s death”, Lois A. Greenwood refused to authorize release of the samples to test for parentage. Id. at 9 & 10.

Based on the petition, the Orphans’ Court issued a citation to show cause why Ms. Greenwood should not be directed to release the samples for the purpose of paternity-testing, and a hearing was set to assess arguments on the issues raised. Subsequent thereto, in answer, Lois A. Greenwood denied the petitioner’s illegitimate status, averred the bar of the statute of limitations under 23 Pa.C.S.A. § 4343(b) for the petitioner’s failure to take any action to establish paternity within eighteen years of the date of her birth, and noncompliance with any of 20 Pa.C. S.A. § 2107’s conditions precedent to establishing her right to inherit even though she was born out of wedlock.

Additionally, in a brief submitted in support of her request for court-ordered testing, Lisa Joann Sowden recounted how the administratrix was cooperative, initially, in an effort to have the decedent’s blood and tissue tested to resolve the paternity question but, thereafter, did not respond to requests to obtain the samples from the coroner’s office of Allegheny County.

In the argument portion of the petitioner’s brief, it was urged that, albeit the petitioner would be presenting the testimony of her mother, friends and family of the decedent (to whom had been “acknowledged” by the decedent) on the question of paternity, she wanted the test results as “additional ‘clear and convincing evidence’ ” of her status as an heir. See 20 Pa.C.S.A. § 2107. Further, the inapplicability of 23 Pa.C.S.A. § 4343(b) was contended because of the absence of a “support” action, while the relevancy of 42 Pa.C.S.A. §§ 6131-6137 (“Blood Tests to Determine Paternity”) was discussed.

Thereafter, on February 26, 1990, the Orphans’ Court heard oral argument from counsel for both sides, and, after taking the case and briefs under advisement, entered an order directing the administratrix to authorize release of the decedent’s blood sample for genetic testing. This appeal followed, and, from our examination of the question posed, is not interlocutory. See Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), wherein a motion to quash an appeal from an order for blood testing to determine paternity, pursuant to 28 P.S. § 307.1 et seq. (known as the Uniform Act on Blood Tests to Determine Paternity and reenacted at 42 Pa.C.S.A. § 6131 et seq.) was denied. See also Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224 (1946), cited in Weston, and Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990), permitting an appeal from orders requiring a physical examination and blood testing, respectively.

The sole issue proffered for our consideration, which all parties and the court below agree is one of first impression, is:

CAN THE LOWER COURT ORDER THAT A BLOOD TEST BE [PERFORMED, AT THE REQUEST OF AN ILLEGITIMATE CHILD,] AFTER THE DEATH OF AN ALLEGED FATHER?

Appellant’s Brief at 2 (Bracketed language added).

Before addressing the merits of the issue posed, we deem an historical perspective is appropriate to appreciate our ruling. Accordingly, at the outset, we observe that the law involving the right of an illegitimate child to inherit through intestate succession has gone through a metamorphosis over the years. For example, at common law, an illegitimate child, who had not been legitimated was filius nullius (the child of no one) and incapable of inheriting from anyone. See Trimble v. Gordon, 430 U.S. 762, 768, 97 S.Ct. 1459, 1464, 52 L.Ed.2d 31 (1977); Stone v. Gulf American Fire and Casualty Co., 554 So.2d 346, 363 (Ala.1989) (quoting 1 Wendell’s Blackstone, 459).

In Pennsylvania, prior to November 26, 1978, Section 2107 of the Probate, Estates and Fiduciaries Code of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 2107, provided that a person born out of wedlock was to be “considered the child of his mother but not his father.” Estate of Hoffman, 320 Pa.Super. 113, 466 A.2d 1087, 1089 (1983). On November 26, 1978, Section 2107 of the Probate, Estates and Fiduciaries Code was amended to allow illegitimate children to inherit through or from their fathers as well as their mothers; to-wit:

(c) Child of father—For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any of the following ways:
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

Act 1978, November 26, P.L. 1269, No. 303, § 1, imd. effective. This amendment was enacted to conform with the United States Supreme Court decision in Trimble, supra, wherein the Court held that a classification based upon illegitimacy was required to bear a rational relationship to a legitimate state interest to be constitutional. See Estate of Hoffman, supra; Scott Estate, 23 Pa.D. & C.3d 236, 237-38 (Dauphin Cty., 1982). The present version of Section 2107 has been held not to violate the equal protection clause of the Fourteenth Amendment. Id.

No one disputes that Paragraphs (1) and (2) of Clause (c) of Section 2107 are not applicable to the case at bar. Thus, our inquiry is one of whether the court below had the authority to issue the order for “blood testing” so as to afford the appellee the opportunity to prove by “clear and convincing” evidence that the decedent was her father. 20 Pa.C.S.A. § 2107(c)(3).

On this point, the court below interpreted Section 2107(c)(3), in conjunction with 20 Pa.C.S.A. § 3538 (subjecting a child born out of wedlock to the same time restraints as applied to other heirs or claimants of an estate) and 42 Pa.C.S.A. § 6133 (permitting court to order the mother, child and alleged father to submit to blood tests where parentage is a relevant fact), to authorize the testing of the decedent’s blood samples “for comparison testing” with regard to the appellee’s parentage.

The appellant, taking a position contrary to the court below, argues that Lisa Joann Sowden, having attained the age of eighteen, is barred by the eighteen-year statute of limitations under 23 Pa.C.S.A. § 4343(b) from demanding testing of the decedent’s blood. We find the rationale of the appellant flawed.

First, the eighteen-year statute of limitations under Section 4343(b) is inapposite to the case at bar and cannot be made applicable to Chapter 21 of the intestate succession statute.

Section 4343(b)’s eighteen-year statute of limitations is found in Subchapter B (titled: “Support”), under the all inclusive Chapter 43 captioned: “Support Matters Generally”, and reads in pertinent part:

§ 4343. Paternity.

(a) Determination.—Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury unless either party demands trial by jury. The burden of proof shall be by a preponderance of the evidence.
(b) Limitation of actions.—
(1) An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

As amended 1989, December 20, P.L. 654, No. 81, § 1, imd. effective, 23 Pa.C.S.A. § 4343(a) & (b) (Supp.1990-91) (Emphasis added).

When Chapter 43 is reviewed in its entirety, giving it a common sense interpretation, the thrust of the language is geared toward resolving the question attendant to “a duty to support.” Id. at § 4301(a) et seq. Instantly, there is no intent on the part of the appellee to seek the recoupment of any “support” due her during minority. Rather, the main concern of the appellee is attempting to prove “[h]er right to inherit ...; paternity is not just a relevant issue in such matters, it is the primary issue.” Appellee’s Brief at 8 & 9.

Continuing, the “right to inherit” in the case of intestacy is reserved exclusively to Chapter 21 of the Probate, Estates and Fiduciaries Code, as amended 1978, April 18, P.L. 42, No. 23, § 1, effective in 60 days, 20 Pa.C.S.A. § 2101 et seq. (Supp.1990). Within the ambit of the Act of 1978, as cited previously, a person born out of wedlock is not foreclosed from proving parentage, by clear and convincing evidence, after the person claimed to be the father dies.

No statute of limitations is set forth in the Probate, Estates and Fiduciaries Code of 1978 which controls the outcome of the case at bar. Cf. Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), where the Supreme Court of the United States ruled that Pennsylvania’s six-year statute of limitations, within which to prove paternity for support, was unconstitutional. In the course of doing so, the Court wrote in relevant part:

In a number of circumstances, Pennsylvania permits the issue of paternity to be litigated more than six years after the birth of an illegitimate child. The statute itself permits a suit to be brought more than six years after the child’s birth if it is brought within two years of a support payment made by the father. And in other types of suits, Pennsylvania places no limits on when the issue of paternity may be litigated. For example, the intestacy statute, 20 Pa.Cons.Stat. § 2107(3) (1982), permits a child born out of wedlock to establish paternity as long as “there is clear and convincing evidence that the man was the father of the child." Likewise, no statute of limitations applies to a father’s action to establish paternity. In re Mengel, 287 Pa.Super. 186, 429 A.2d 1162 (1981). Recently, the Pennsylvania Legislature enacted a statute that tolls most other civil actions during a child’s minority. 42 Pa.Cons.Stat. § 5533(b) (Supp.1987). In Pickett [v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983)] and Mills [v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982)] similar tolling statutes cast doubt on the State’s purported interest in avoiding the litigation of stale or fraudulent claims. 462 U.S. at 15-16, 103 S.Ct., at 2207-08; 456 U.S., at 104-105, 102 S.Ct., at 1557-58 (O’CONNOR, J., concurring); id., at 106, 102 S.Ct., at 1558 (Powell, J., concurring in judgment). Pennsylvania’s tolling statute has the same implications here.
A more recent indication that Pennsylvania does not consider proof problems insurmountable is the enactment by the Pennsylvania Legislature in 1985 of an 18-year statute of limitations for paternity and support actions. 23 Pa.Cons.Stat. § 4343(b) (1985). To be sure the legislature did not act spontaneously, but rather under the threat of losing some federal funds. Nevertheless, the new statute is a tacit concession that proof problems are not overwhelming. The legislative history of the federal Child Support Enforcement Amendments explains why Congress thought such statutes of limitations are reasonable. Congress adverted to the problem of stale and fraudulent claims, but recognized that increasingly sophisticated tests for genetic markers permit the exclusion of over 99% of those who might be accused of paternity, regardless of the age of the child. H.R.Rep. No. 98-527, p. 38 (1983). This scientific evidence is available throughout the child’s minority, and it is an additional reason to doubt that Pennsylvania had a substantial reason for limiting the time within which paternity and support actions could be brought.

486 U.S. at 464-465, 108 S.Ct. at 1915-16 (Emphasis added).

Similarly, the Supreme Court of Kentucky refused to adopt the time limitation for support actions to preclude a claimant-adult from establishing his paternity and status as the decedent’s heir; the Kentucky Court held, as is germane herein:

Appellants first contend that appellee’s claim is barred by KRS 406.031. This contention is wholly without merit as this statute merely places a time limitation upon the bringing of paternity actions for the purpose of establishing a duty of support during the minority of a child. In Sweat v. Turner, Ky., 547 S.W.2d 435, 436 (1977), we held that the Uniform Act on Probate, KRS 406, et seq., was
to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child. The statute also provides a device affording both the father and mother the right to acknowledge paternity. The statute does not afford the father the right to come into court to have his paternity determined.
Relying on Sweat v. Turner, supra, the Court of Appeals held that “[i]t (the Uniform Act on Paternity) bears no relationship to the laws governing intestate succession.” ... [W]e substantially agree with this conclusion____

Ellis v. Ellis, Ky., 752 S.W.2d 781, 782 (1988). Accord Stone, supra (Alabama’s Probate Code similar to Pennsylvania’s Probate, Estates and Fiduciaries Code at 20 Pa.C.S.A. § 2107(c)(3) in that clear and convincing evidence of paternity of father, after his death, has no time limitation in which to be instituted); Garza v. Maverick Market, Inc., 768 S.W.2d 273, 275 (Tex.1989) (Inappropriate to incorporate the requirements of legitimation under the Family Code into the Wrongful Death Act); Moore v. Goode, 375 S.E.2d 549, 555 (W.Va.1988) (Court declined to look to language in adoption statute as the means by which paternity was to be established for purpose of determining intestate succession).

A second reason for holding that the appellant’s logic is marred is that the standard of proof under the support statute vis-a-vis the intestate succession law is different.

The burden necessary to establish paternity by a child born out of wedlock for support purposes is by a “preponderance of the evidence.” 23 Pa.C.S.A. § 4343(a) (Supp. 1990-91); whereas, the standard of proof required by a child born out of wedlock to establish a right to intestate succession by, from and through a person alleged to be the father of the claimant rises to a level of “clear and convineing” evidence. 20 Pa.C.S.A. § 2107(c)(3); Estate of Hoffman, supra. Accord In re Estate of Odom, 397 So.2d 420, 425 (Fla.App.1981).

Given the fact that the appellee sought to establish only heirship in a probate court, in contrast to establishing liability for expenses, support payments or visitation rights of an unmarried parent, the intermingling of the support statute of limitations with the intestate succession laws is unjustified. See Henry v. Johnson, 292 Ark. 446, 730 S.W.2d 495 (1987); see also Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800, 802 (1988). Nor has the Pennsylvania Legislature indicated a melding of the two statutes in clarifying time restraints for bringing a cause of action under the intestate laws. On the contrary, the Legislature provided at 20 Pa.C.S.A. § 3538, as is herein appropriate:

... Except as herein otherwise provided, a person born out of wedlock shall have the same rights in an estate and shall be subject to such time limitations and to such procedures as are applied to any other heir or claimant against an estate.

Act of 1978, November 26, P.L. 1269, No. 303, § 2, imd. effective (Supp.1990-91).

At bar, we read the presence of no time.limitations that would have precluded the appellee from instituting the cause of action (“citation”) seeking a test of the decedent’s blood samples. See footnote 3, supra.

It is beyond peradventure that proof problems have always been in the forefront of counseling against condoning an illegitimate’s claim of paternal inheritance. This is an area with which the States have an interest of considerable magnitude. Trimble, supra, 430 U.S. at 771, 97 S.Ct. at 1465; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170, 92 S.Ct. 1400, 1404, 31 L.Ed.2d 768 (1972); Labine v. Vincent, 401 U.S. 532, 538, 91 S.Ct. 1017, 1020, 28 L.Ed.2d 288 (1971).

The interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate’s Court has observed: “[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove.” In re Ortiz, 60 Misc.2d 756, 761, 303 N.Y.S.2d 806, 812 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. “The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy.” Ibid, (emphasis in original); accord, In re Flemm, 85 Misc.2d 855, 861, 381 N.Y.S.2d 573, 576-577 (Surr.Ct.1975); In re Hendrix, 68 Misc.2d [439] at 443, 326 N.Y.S.2d [646] at 650 [(Surr.Ct.1971)]; cf. Trimble, supra, 430 U.S., at 770, 772, 97 S.Ct., at 1465, 1466.

Lalli v. Lalli, 439 U.S. 259, 268-69, 99 S.Ct. 518, 525, 58 L.Ed.2d 503 (1978). However, albeit “the lurking problems with respect to proof of paternity ... are not to be lightly brushed aside ...,” Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), “ ‘neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.’ ” Trimble, supra, 430 U.S. at 771, 97 S.Ct. at 1466.

We find that Trimble and its progeny were preoccupied with a “proof problem” that has been ameliorated by the advancements made in the medical field with regard to blood testing. See Alexander v. Alexander, 42 Ohio Misc.2d 30, 537 N.E.2d 1310 (Probate Court of Franklin Cty., Ohio, 1988). As our learned colleague Judge Tamilia observed in Nichols v. Horn, 363 Pa.Super 301, 525 A.2d 1242 (1987), on this exact topic of a state limiting intestate inheritance to a child born out of wedlock:

Formerly, an important consideration that mitigated against an extended window of legal susceptability [sic ], was the difficulty of proof as time passed. This has been consdierably [sic] reduced with the advent of sophisticated blood and tissue matching procedures such as the Homologous Lucocyte [sic ] Antigen test. In the foreseeable future, it is likely that techniques will be capable of establishing, with certainty, the identity of the father instead of indicating the probability of paternity or exclusion of a man as the child’s father. Thus the matter of proof is less a consideration than the need to have finality as to liability and reasonable expectation that a life and lives will not be badly disrupted after a certain time.

363 Pa.Super. at 308, 525 A.2d at 1245. Additionally, our Supreme Court has acknowledged that Human Leucocyte Antigen (HLA) blood grouping tests establish, in the opinion of experts interpreting the results, as high as a 99.99 percent probability that the blood of the person tested was the biological father of the illegitimate offspring. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). And, as such, the HLA test, although not conclusive, may be introduced as “some evidence of paternity.” Id., 511 Pa. at 426, 515 A.2d at 529. Accord Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983). The appellant-administratrix concedes as much in her brief to us, yet she seeks to withhold permission to test the decedent’s blood in the belief that by doing so she can avoid having “conclusive” proof of paternity presented to the Orphans’ Court. It is almost as if the appellant is saying: “I will withhold evidence that may potentially prove beneficial to the appellee and detrimental to me”, see appellee’s brief at 8 where it is written:

The Administratrix denied the use of the blood sample and continues to make that objection even though under 42 Pa.C.S.A. § 6136 we understand that if the tests exclude her husband as the father, that fact can be introduced to prove non-paternity. However, because of the case of Turek v. Hardy[,] 458 A[.]2d 562 [312 Pa.Super. 158] (1983) ... the Superior Court has ruled that the blood test results could be introduced as proof of paternity. Therefore, to eliminate any other conclusion we will continue to resist use of the blood sample.

Thus, we find both statutory and public policy considerations justifying an affirmance of the court’s order.

Initially, we observe that 42 Pa.C.S.A. § 6133 authorizes a court to order a “mother, child and alleged father to submit to blood tests” where, in “any matter subject to th[e] subchapter [known as Uniform Act on Blood Tests to Determine Paternity] in which paternity, parentage or the identity of a child is a relevant fact,” the court can act sua sponte or at the initiation of a claimant to resolve the question left open. Relevancy is extant.

Secondly, public policy is in favor of eliminating the stigma of illegitimacy, and one of the means by which to do so is by HLA testing ordered by the court and the admission of the results as “some evidence of paternity.” See Turek, supra; see also Ptaszkiewicz Estate, 5 Pa.Fid.Rptr.2d 208, 210 (O.C.Allegheny Cty., 1985).

Sub judice, the appellee “is prepared to not only lay a proper foundation for any scientific testing performed to establish paternity[] but, is also prepared to present documentary and testimonial evidence as well” to prove that the decedent, Gary P. Greenwood, was her biological father and, as such, entitles her to inherit from his intestate estate. See Appellee’s Brief at 7.

Our reading of the statutes and case law indicates that where a decedent’s blood sample is available for testing, which might conclusively eliminate him as the father or be used as some evidence of paternity, it is a “relevant” factor which should not be withheld from the testing mechanisms of today’s medical procedures to facilitate a resolution on an issue of paternity since “th[is] form[] of proof ... do[es] not compromise the State[’s] interests.” Trimble, supra, 430 U.S. at 772 n. 14, 97 S.Ct. at 1466 n. 14.

More particularly, there is no evidence that the Commonwealth of Pennsylvania’s concern with the accurate and efficient disposition of the decedent’s property would be compromised or jeopardized by allowing the blood test ordered by the court at bar, nor is there any indication that the protection against spurious claims of paternity is undermined. Cf. Matters of Erbe, 457 N.W.2d 867, 870 (S.D. 1990), quoting In re Estate of Blumreich, 84 Wis.2d 545, 267 N.W.2d 870, 877 (1978) (“Information about his blood, which might conclusively eliminate him as the father, might not be available to his estate. His death ... require[d] that a posthumous claim of paternity be supported by the types of documented evidence approved under [the State statute].”); Estate of Hoffman, supra (Illegitimate claimant and decedent had different blood types which, along with other evidence, failed to prove by clear and convincing evidence a claim to estate property).

We have no intention at this time, nor could we if we so desired, of assessing the weight of the appellee’s evidence to determine whether she can prove her claim by clear and convincing evidence. Nonetheless, we do note that the passage of time (one month following the grant of Letters the appellee sought a citation to obtain a rule to show cause to establish heirship) did not prejudice the appellant; notification to the appellant came by letter (dated September 26, 1989) once the Letters of Administration were granted (August 25, 1989). See Appellee’s Petition For Citation, Paragraphs 4 & 5; Appellant’s Answer To Petition For Citation, Paragraphs 4 & 5. In such a case, neither the Commonwealth’s legitimate interest in the orderly administration of estates nor in finality will be affected by the outcome of the case. Also, the two preceding reasons cannot be urged seriously as causes justifying the application of the eighteen-year statute of limitations for support to the intestate succession statute. Cf. Henson v. Jarmon, 758 S.W.2d 368, 371 (Tex.App.1988). Accordingly, we see no reason to look solely to the support statute in evaluating the right of an illegitimate to inherit by intestate succession, nor the statute of limitations contained therein for doing so. See Manuel v. Spector, 712 S.W.2d 219 (Tex.App.1986).

Consequently, we deem the order of the Orphans’ Court, directing the administratrix to relinquish the blood samples of her deceased husband held by the Allegheny County Coroner for testing, to be just and proper.

Order affirmed.

      . Through the years, various appellations have been used to describe this class of individuals. Initially, the term "bastards" was thought fitting. This was superseded by "illegitimate children", and this has largely given way to the nomenclature "children born out of wedlock.” See Moore v. Goode, 375 S.E.2d 549, 553 n. 2 (W.Va.1988), citing 6 Ninth Decennial Digest (Part 2) Table I and Matter of Legitimation of Locklear by Jones, 314 N.C. 412, 334 S.E.2d 46 (1985).

      . The 1972 version of Section 2107 was declared unconstitutional in a consent decree because it improperly discriminated against illegitimate children. See Matthew For Butler v. Bowen, 640 F.Supp. 886, 888 (E.D.Pa.1986).

      . Paragraph (3) of Clause (c) of Section 2107 specifically reads that paternity may be proven by clear and convincing evidence, i.e., "that the man was the father of the child”. (Emphasis added) The use of the term ("was”) in the past tense (versus "is” the father of the child) discloses to this Court that the Legislature intended that paternity could be proven "after” the putative father’s death. Contrast this scenario to Paragraphs (1) and (2) of Clause (c), which are written in such terms to imply that the events, more likely than not (but not in absolute terms), would transpire before the illegitimate's eighteenth birthday, or at least during his/her lifetime and that of the alleged parent(s).
      From our scrutiny of the statute in question, there is no indication in the Probate, Estates and Fiduciaries Code, save for the time restraints for filing a claim with an estate before a final decree of distribution is issued, that the Legislature intended to establish a barrier to an illegitimate’s right to prove paternity beyond the purported father’s lifetime so as to inherit by, from and through the decedent. Contrast Dickson v. Simpson, 781 S.W.2d 723, 724 (Tex.App.1989) (Appellant’s contest of the probate of the will of her alleged father was barred by the general four-year statue of limitations of Texas); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988) (180 days after father’s death a child claiming right to inherit as illegitimate had to be commenced or claim would be barred; no violation of Equal Protection Clause); Ganim v. Roberts, 204 Conn. 760, 529 A.2d 194 (1987) (Putative father who did not establish paternity during lifetime of child, pursuant to dictates of statute, could not recover as heir of child’s intestate estate).
      To hold otherwise would visit upon the heads of the children the sins of the parents for not acting in a timely manner. This we will not do, see Bowen v. Gilliard, 483 U.S. 587, 625, 626, 107 S.Ct. 3008, 3029, 3030, 97 L.Ed.2d 485 (1987) (" ‘Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as unjust—way of deterring the parent.’ ” (Citations omitted)), absent a clear signal from the Legislature that a time constraint, be it in the form of the Support statute's eighteen-year period of limitation or an enactment of a statute of limitations applicable to the Probate, Estates and Fiduciaries Code, is apposite or forthcoming by Legislative promulgation. We find neither circumstance present to alter our decision at bar. Cf. Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 1915-16, 100 L.Ed.2d 465 (1988) (Pa. has no statute of limitations for permitting illegitimate child to prove paternity under the intestacy statute, 20 Pa.C.S.A. § 2107(c)(3)).

      . The clear and convincing standard of proof is higher than a preponderance of the evidence, but it is less than the requirement of establishing proof beyond a reasonable doubt.

      . Section 6133 reads in its entirety:
      § 6133. Authority for test.
      In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.
      Act of 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S.A. § 6133 (1982). Because the identity of the child and father is germane, Section 6133 is activated and can be implemented as was done instantly. The results of the test, however, are not an absolute indication of paternity (as believed by the appellant), but only some evidence of the parent-child genetic linkage. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986).

      . See Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983).

      . The appellant’s challenge premised upon the claimed violation of the Fourth Amendment (illegal search and seizure) need not be reviewed as to foundation since it was not proffered before the court below. It is found waived. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527, 530 (1986).

      . For cases evaluating the evidence necessary to establish clear and convincing proof of paternity, see: Matthew For Butler v. Bower, 640 F.Supp. 886 (E.D.Pa.1986) (Testimonial evidence offered by plaintiff, her daughter and the decedent’s brother did not achieve the level of strict proof required by Estate of Hoffman, infra); Moore v. Goode, 375 S.E.2d 549 (W.Va.1988) (Summary judgment affirmed for pleadings failed to establish by clear and convincing evidence that the appellant was the daughter of the decedent so as to collect under his estate; e.g., pleadings, Justice of Peace complaint, ancient document of compromise, birth certificate, marriage license, and deposition testimony all were flawed in some respects so as to undermine admissibility or credibility referred to therein); Estate of Hoffman, 320 Pa.Super. 113, 466 A.2d 1087 (1983) (Decedent’s statements, insurance policy, census records, decedent’s watch and bible, letter and non-matching blood types were not clear and convincing evidence of paternity).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    587 A.2d 757
    FOUNTAIN HILL MILLWORK BUILDING SUPPLY COMPANY v. John H. BELZEL, and John Belzel, for Betty Jo M. Belzel, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1991.
    Filed March 11, 1991.

      Cregg E. Mayrosh, Hellertown, for appellants.
    John R.K. Solt, Allentown, for appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   HESTER, Judge:

John and Betty Jo Belzel, appellants, appeal from the August 9, 1990 order of the Northampton County Court of Common Pleas denying their petition to open a confessed judgment. The sole issue raised on appeal is whether the trial court erred in ruling that the parol evidence offered by appellants was inadmissible to establish the discharge of a cognovit judgment note upon which appellee confessed judgment against appellants. We find error in the trial court’s ruling and consequently, we reverse the order of the trial court and open the judgment.

On or about October 8, 1987, appellants signed a cognovit note in which they agreed to pay Fountain Hill Millwork Building Supply Company, appellee, the sum of $40,000 in ninety days. Appellants further agreed to permit appellee to confess judgment against them if they defaulted on their obligation under the agreement. Appellants executed the note in connection with a construction mortgage transaction involving First Lehigh Bank (hereinafter “bank”) as lender, appellee as builder and mortgagee, and appellants as owners and mortgagors. The bank agreed to finance appellee’s construction of appellants’ home under a form of construction loan agreement which provides for a series of payments by the bank to the builder. However, the bank and appellee were uncertain that the mortgage funds obtained by appellants in connection with the underlying construction contract would be sufficient to cover the total cost of construction if extra costs not contained in the original plans arose. Consequently, the bank required appellants to establish an escrow account in the amount of $40,000 from appellants’ own, unencumbered funds.

Appellants did not have the cash on hand, but expected to receive the money in the near future from an income tax refund and employee benefit payment. In lieu of the immediate posting of the additional cash escrow, appellee agreed to defer receipt of $40,000 of the construction mortgage step payment proceeds on the condition that appellants assign to appellee their interest in the two debts owed to them, which would total $40,000. Appellants also had to execute and deliver to appellee a cognovit note in the amount of $40,000 to guarantee payment of the sum assigned by appellants in case appellants did not receive the anticipated money. The cognovit note represented appellee’s security that full payment on the basic construction contract would be made. However, the note did not reveal the existence of an oral agreement which appellants made with appellee at the time of the execution of the note. The agreement was that appellants would not be liable for the $40,000 and that appellants’ mortgage and $40,000 cash escrow fund were sufficient to cover the total cost of construction.

Thereafter, in accordance with the oral agreement, appellants paid into the required escrow account approximately $32,000 and with the bank’s consent, directly paid to a supplier approximately $8,000 for cabinets not included in the original construction contract. Appellee ultimately was paid $24,000 of the fund contained in the escrow account in addition to the mortgage loan proceeds from the bank. Despite receiving these sums, appellee confessed judgment against appellants on August 1, 1988, for the principal amount of $40,000 pursuant to the confessed judgment clause contained in the cognovit note. On August 5, 1988, appellants filed a petition to open judgment. They amended their petition on June 19, 1989, and on August 9, 1990, the trial court denied their request to open the judgment. This timely appeal followed.

Initially, as we reiterated in Christie v. Open Pantry Food Marts, 237 Pa.Super. 243, 245, 352 A.2d 165, 166 (1975), a petition to open a judgment by confession is an appeal to the discretion of the trial court whose ruling may be reversed upon a showing of an abuse of that discretion. Furthermore, it is well-settled that a party seeking to open a judgment by confession must act promptly and allege a meritorious defense. Fidelity Bank v. Act of America, 258 Pa.Super. 261, 392 A.2d 784 (1978); Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977). Rule 2959(e) of the Pennsylvania Rules of Civil Procedure provides further that “in a proceeding to open a confessed judgment, if evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment.” 42 Pa.C.S.A. § 2959(e).

The basis of appellants’ argument in support of their petition to open was their compliance with the terms of the oral agreement with appellee. They argued that the cognovit note was no longer valid since the balance in the escrow account contained the agreed-upon sum of $40,000. They contended that their compliance with the oral agreement between the parties effectually discharged their obligation under the note. Appellee contended, and the trial court agreed, that the parol evidence rule barred the introduction of evidence that the parties had agreed at the time of the execution of the note that appellee would not enter judgment on the note if appellants’ mortgage and escrow funds were sufficient to cover the construction costs. Upon review of the record and based upon the principles enunciated in the aforementioned cases, we conclude that the parol evidence rule has no application to the facts of this case.

In the landmark case of Gianni v. Russell & Company, 281 Pa. 320, 323, 126 A. 791, 792 (1924), the supreme court set forth Pennsylvania’s version of the parol evidence rule as follows:

Where the parties without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations, and verbal agreements are merged in and superceded by the subsequent written contract ... and unless fraud, accident, or mistake be averred, the writing constitutes the agreement between the parties and its terms cannot be added to nor subtracted from by parol evidence.

We cited Gianni in a more recent case, Gitt v. Myers, 273 Pa.Super. 310, 417 A.2d 664 (1979), in which we upheld the decision of the trial court refusing to allow the introduction of parol evidence to vary the terms of a promissory note. Appellee relies upon Gitt in support of its argument that parol evidence is inadmissible to alter the terms of a contemporaneous written agreement in the absence of fraud, accident, mistake or an admission by the opposing party. While we agree with appellee’s interpretation in general, we find Gitt to be distinguishable from the facts of the case herein in that the note in Gitt was “absolute and complete on its face, and sufficiently comprehensive to embody the aim and object of the parties.” Id., 273 Pa.Super. at 314, 417 A.2d at 666.

In stark contrast to the comprehensive agreement in Gitt, the document upon which appellee herein confessed judgment against appellants is so attenuated that it does not even set forth the essentials of a simple contract. It contains no statement of obligation on the part of appellee in exchange for appellants’ promise to pay the sum of $40,000 to appellee. It contains no explicit date upon which appellants’ obligation matures. Finally, the confessed judgment clause contained in the note is completely unrestricted in that it apparently authorizes the entry of a confessed judgment even in the absence of a default by appellants on their obligation on the note. Thus, the document which appellee claims to be the entire agreement between the parties is not the type of fully integrated agreement under which the parties in Gitt agreed to be bound. It is, in fact, a small slip of paper containing a standardized confession of judgment clause preceded by a single sentence in which appellants agreed to pay appellee the sum of $40,000 within ninety days of some unspecified date in exchange for no undertaking on the part of appellee. Under appellee’s position, the note would have been operative and enforceable in the absence of any service performed by him. Such a writing, we are confident, does not approach the type of fully integrated contract envisioned by the supreme court when it restricted parties to the four corners of the document in resolving disputes over its contents.

When the supreme court enunciated the parol evidence rule in its landmark decision in Gianni v. Russell & Co., supra, it limited application of the rule to writings which were determined to be the entire contract between the parties.

The writing must be the entire contract between the parties if parol is to be excluded and to determine whether it is or not the writing will be looked at and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking, were reduced to writing.

Id., 281 Pa. at 323, 126 A. at 792. Similarly, we emphasized the comprehensive nature of the note before us in Gitt v. Myers, supra, when we affirmed the trial court’s application of the parol evidence rule in refusing to open the judgment against the appellants therein. We stated that the promissory note in the case was “clear, comprehensive and complete on its face.” Id., 273 Pa.Super. at 314, 417 A.2d at 666. In a more recent case, Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985), we reversed the trial court and concluded that parol evidence of a prior oral agreement between the parties should have been admitted since the writing at issue clearly was not the entire agreement between the parties.

Thus, it is clear that the parol evidence rule has no application to a writing which does not state fully the entire agreement among the parties. We are convinced that the slip of paper purported to be the full agreement between the parties herein does not state fully the entire agreement between appellee and appellants. Moreover, we also are convinced that the writing in dispute does not constitute a valid contract. “In order to exclude parol evidence the writing must be a complete contract, importing a full legal obligation ...” Rosenfeld v. Rosenfeld, 390 Pa. 39, 49, 133 A.2d 829, 834 (1957). The writing herein sets forth no obligation on behalf of appellee in exchange for the payment of $40,000 by appellants. In other words, the note evidences a failure of consideration. Consequently, the parol evidence rule should not have been applied to exclude the evidence of a contemporaneous oral agreement between the parties.

We conclude that with the admission of the parol evidence of the oral agreement, appellants established sufficient evidence “which in a jury trial would require the issues to be submitted to a jury.” See Pa.R.Civ.P. 2959(e). Therefore, the judgment must be opened. See Christie v. Open Pantry Food Marts, supra.

Even if we determined that the writing at issue constituted a valid and complete contract between the parties, parol evidence of the oral agreement still would have been admissible under an exception to the parol evidence rule. The parol evidence rule is not applicable where the parol testimony establishes that the written contract did not come into existence because a condition precedent to its existence as a contract never occurred. See Gitt v. Myers, supra; Lewis v. Mears, 297 F.2d 101 (3rd Cir.1962); International Brotherhood of Electrical Workers v. Control Products Co., 330 F.Supp. 250 (W.D.Pa.1971). The parol testimony herein would have established that the note between the parties did not become operative due to appellants’ deposit of the agreed sum into the escrow account established pursuant to the oral agreement. According to appellants’ parol testimony, the obligation to pay under the note only became operative if the escrow funds were not deposited and if appellee performed services and was not otherwise paid. Thus, even if the writing arguably were interpreted as a complete contract between the parties, the parol evidence rule would have been inapplicable.

Order reversed; judgment opened; and jurisdiction relinquished. .

      . Although the document does specify that the note was to become due in ninety days, it does not identify a date when the ninety days was to commence.


author: CIRILLO, Judge:

text:
    587 A.2d 761
    LIBERTY BANK, Appellant, v. Jay S. RUDER, Esquire, Herbert Bass, Esquire and Fox, Rothschild, O’Brien & Frankel.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1991.
    Filed March 13, 1991.

      Arnold E. Cohen, Philadelphia, for appellant.

      Curtis P. Cheyney, III, Ardmore, for appellees.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

Liberty Savings Bank (“Liberty”) appeals the order entered June 11, 1990, in the Court of Common Pleas of Philadelphia County dismissing without prejudice Liberty’s legal malpractice action against Jay S. Ruder, Esquire, Herbert Bass, Esquire, and Fox, Rothschild, O’Brien & Frankel (collectively, “Fox”). We reverse.

The procedural history of the case is as follows. On November 30, 1989, Liberty instituted an action against Fox alleging legal malpractice based in tort and breach of contract. Fox filed preliminary objections in the nature of a demurrer, in the nature of a motion for more specific pleading and in the nature of a motion to strike impertinent factual allegations. On June 11, 1990, the Honorable Samuel M. Lehrer entered an order dismissing Liberty’s action without prejudice. The order states:

The action is- dismissed without prejudice to Plaintiff’s right to reinstate the action without Bar of the Statute of Limitations when all other remedies against the primary debtor have been exhausted and a loss sustained. Such remedies include, inter alia, foreclosure and execution on the unlimited surety of individual guarantors George W. Brown, III and Frank Hart, collection and/or execution on liens on all of the corporation’s assets including but not limited to intangibles, accounts receivable, inventory, furniture, fixtures, machinery and equipment.

In its memorandum in support of its order, the trial court held:

[t]he Court will not rule on the underlying basis of the Complaint that the failure of Defendants to ensure that the proper Touche Ross inventory evaluation was included in the final loan documents does not make out a cause of action. Therefore, Preliminary Objections in the nature of a demurrer will not be sustained at this juncture.
However, Plaintiffs cause of action is premature under the circumstances of this case. A loss has not yet been sustained. To force Defendant to defend now would constitute an expense and hardship that may be unnecessary. The primary legal and moral obligation to pay is on the debtors. To allow this proceeding to continue would discourage or negate that obligation.

Following timely notice of appeal by Liberty the trial court issued an opinion concerning only the finality of its order. Judge Lehrer opined that his June 11, 1990 order was interlocutory in nature and therefore unappealable. Liberty presents two issues for our review:

1) Whether the trial court’s order which dismissed Liberty’s action is a final and appealable order.
2) Whether the trial court erred in dismissing Liberty’s action on the basis that Liberty had not sustained a loss and had not exhausted all other remedies against the primary debtor.

In this Commonwealth, it is axiomatic that “an appeal will lie only from final orders unless otherwise expressly permitted by statute.” Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 125, 539 A.2d 360, 361 (1988) (citing T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977)). In determining what constitutes a final order “we must look beyond the technical effect of the adjudication to its practical ramifications.” Urban v. Urban, 332 Pa.Super. 373, 377-78, 481 A.2d 662, 664 (1984) (citing Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981)). See also Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975); T.C.R. Realty, supra; Schaffer, supra. “We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’ ” Schaffer, 372 Pa.Superior Ct. at 125, 539 A.2d at 361 (citations omitted). “Out of court,” however, is not synonymous with “final” and is not to be interpreted literally. Gordon v. Gordon, 293 Pa.Super. 491, 499, 439 A.2d 683, 687 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982) (citations omitted). Rather than be bound by a hard and fast rule, we have repeatedly found that “[cjertain orders which have not put a litigant ‘out of court’ or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable because the effect of the order has been to preclude the litigant from [presenting her claim].” Urban, 332 Pa.Super. at 377-80, 481 A.2d at 664-65 (citations omitted). We find that the order at issue falls within this category.

It is well-settled that an order sustaining preliminary objections and dismissing the complaint is a final and appealable order. Brandywine Area Joint School Authority v. VanCor, Inc., 426 Pa. 448, 233 A.2d 240 (1967); Free v. Lebowitz, 463 Pa. 387, 344 A.2d 886 (1975); Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (1988). Similarly, an order which dismisses a complaint with prejudice ends the litigation, puts the litigant out of court and is final and therefore appealable. Alessandro v. State Farm Mutual Automobile Insurance Company, 487 Pa. 274, 409 A.2d 347 (1979); Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Boden v. Tompkins, 306 Pa.Super. 494, 452 A.2d 833 (1981). Instantly, we note that the order before us did not sustain Fox’s preliminary objections in the nature of a demurrer nor was the complaint dismissed with prejudice. These indices of an interlocutory, and therefore, unappealable order are, however, misleading.

The trial court’s order conditions Liberty’s action against Fox on Liberty’s pursuing “all other remedies” against the “primary debtor.” Presumably, if Liberty is wholly successful in this action it will not have a cause of action for legal malpractice against Fox. Liberty, however, insists it has a cause of action against Fox now and that Fox’s alleged negligence is independent of Liberty’s success or failure to recoup its losses from the primary debtor. We agree. An action for legal malpractice is not derivative; it does not owe its existence to another harm, and is not dependent upon another legal action. Black’s Law Dictionary 399 (5th ed. 1979). It is a wholly independent cause of action which either stands or fails based upon the evidence presented at that time. See Quick v. Swem, 390 Pa.Super. 118, 568 A.2d 223 (1989).

Furthermore, postponing Liberty’s action against Fox until all other remedies against the primary debtor have been exhausted effectively puts Liberty “out of court” for an indeterminate amount of time. Liberty is effectively precluded from presenting the merits of its claim, as that claim now exists, to the trial court. Cf. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (“An order is a ‘final order’ if it precludes a party from presenting the merits of his claim to the lower court.”) See also T.C.R. Realty, supra; Urban, supra. Simply stated, justice delayed is justice denied. Judge Lehrer’s well intentioned effort to preserve Liberty’s action against Fox by dismissing the claims without prejudice and by tolling the statute of limitations does not remedy the injury created by delaying indefinitely Liberty’s right to pursue its action against Fox.

Moreover, were we to affirm the trial court’s order we would, in effect, be telling all other potential plaintiffs who wish to pursue a legal malpractice action that they should file “prematurely” in order to prevent a later bar because the statute of limitations had run on their claims. This result is inconsistent • with the purpose of a statute of limitations, which is to limit the amount of time in which a party may file a specific cause of action. “The purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims----” Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971). See also Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983). For the foregoing reasons we conclude that the trial court’s order of June 11, 1990 is final, and therefore appealable.

We next address Liberty’s second claim of trial court error. Judge Lehrer stated in his memorandum in support of his June 11, 1990 order, “Plaintiffs cause of action is premature ... [a] loss has not yet been sustained.” Implicitly, the trial court has effectively sustained Fox’s preliminary objection in the nature of a demurrer. Therefore, we address Liberty’s second claim by applying the same standard of review to be used when reviewing the grant of a preliminary objection in the nature of a demurrer. In determining whether a preliminary objection in the nature of a demurrer was properly granted,

we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts____ Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible.

Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 405, 565 A.2d 1170, 1172 (1989) (citations omitted). We further note that “[preliminary objections in the nature of a demurrer should be sustained and the complaint dismissed only in cases that are free from doubt.” Ei Bon Ee Baya Ghananee v. Black, 350 Pa.Super. 134, 139, 504 A.2d 281, 283 (1986). With this standard in mind, we address Liberty’s claim of trial court error.

The essential elements which must be demonstrated to state a cause of action for attorney malpractice are: the employment of the attorney or other basis for duty; the failure of the attorney to exercise ordinary skill and knowledge; and that such negligence was the proximate cause of damage to the plaintiff. Schenkel v. Monheit, 266 Pa.Super. 396, 398, 405 A.2d 493, 494 (1979). In applying the professional negligence standard to Liberty’s claims of attorney negligence, the trial court concluded that Liberty had not yet sustained a loss. Presumably, the trial court found that Liberty had not sufficiently demonstrated the third element, actual loss, in the nature of damages, as a result of Fox’s negligence. See Duke and Company v. Anderson, 275 Pa.Super. 65, 418 A.2d 613, 618 (1980). We disagree. “Damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.” Pashak v. Barish, 303 Pa.Super. 559, 561-62, 450 A.2d 67, 69 (1982) (citations omitted).

Liberty’s alleged damages are that but for Fox’s negligence Liberty would not have entered into a contract to loan $1,000,000.00 to the debtor who later defaulted. Furthermore, Liberty claims that it has suffered damage because it has been “denied the benefit of its bargain” and will have to bear the costs of pursuing the debtor and guarantors of the loan. Liberty correctly states that a jury should determine the amount of damage which Liberty will be required to prove at trial. Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 25, 521 A.2d 451, 455 (1987) (emphasis added).

Accepting as true all the well-pleaded material facts set forth in Liberty’s complaint and all reasonable inferences deducible from those facts, we conclude that Liberty has successfully stated a cause of action which, if proven, would entitle them to relief. Field, supra; Ei Bon Ee Baya Ghananee, supra. It is unnecessary for Liberty to prove a specific damage amount at this preliminary stage of the proceedings. Curran, supra. Accordingly, we reverse the trial court order dismissing Liberty's action.

Order reversed and remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


author: KELLY, Judge:

text:
    587 A.2d 765
    SCHOOL DISTRICT OF the BOROUGH OF ALIQUIPPA and Lumbermens Mutual Casualty Company, Appellants, v. MARYLAND CASUALTY COMPANY and Transamerica Insurance Company, Appellees, v. HOSACK, SPECHT, MUETZEL & WOOD, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1990.
    Filed March 13, 1991.

      S. Asher Winikoff, Pittsburgh, for appellants.
    David M. Neuhart, Pittsburgh, for Hosack, appellees.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether Lumbermens Mutual Casualty Company [hereinafter “Lumbermens”], a private corporation, as subrogee of the School District of the Borough of Aliquippa [hereinafter “Aliquippa School District”], may assert nullum tempus occurrit regi to defeat the applicable statute of limitations in a negligence action against the auditors, Hosack, Specht, Muetzel & Wood [hereinafter “Hosack, Specht”], of the Aliquippa School District for, inter alia, alleged failure to properly perform audits which Lumbermens alleges resulted in the long-term misappropriation of funds by the tax collector and in the subsequent payment by Lumbermens, as bonding company, of $522,000.00 to Aliquippa School District. The trial court found that Lumbermens could not assert nullum tempus to defeat the statute of limitations and was therefore time-barred from pursuing its negligence claim. Summary judgment was entered in favor of Hosack, Specht. Lumbermens with Aliquippa School District filed this timely appeal. We find that Lumbermens may not invoke nullum tempus to defeat the applicable statute of limitations. Hence, we affirm.

FACTS AND PROCEDURAL HISTORY

John T. Atkinson was employed by the Aliquippa School District and the Borough of Aliquippa as the tax collector from 1974 until November of 1984. At all times the Aliquippa School District bonded Mr. Atkinson. During the period from 1974 until 1978, Maryland Casualty Company [hereinafter “Maryland”], acted as surety for Mr. Atkinson. During the period from February 17, 1978 until April 26, 1984, Transamerica Insurance Company [hereinafter “Transamerica”], acted as surety for Mr. Atkinson. During the remainder of Mr. Atkinson’s tenure, April 26, 1984 until November of 1984, Lumbermens acted as surety for Mr. Atkinson. Hosack, Specht, a public accounting firm, was employed by the Aliquippa School District to audit the accounts and records of the Aliquippa School District for each of the years from 1975 through 1984.

From 1974 until late October of 1984, Mr. Atkinson misappropriated funds, fraudulently concealed funds and failed to faithfully collect, pay over and/or account for tax funds entrusted to him as tax collector. Mr. Atkinson resigned in November of 1984.

The Aliquippa School District, on January 28, 1985, had judgment entered against Lumbermens for the amount of the shortage. Pursuant to the confessed judgment, Lumbermens paid $522,000.00 to Aliquippa School District.

On May 14, 1986, Lumbermens and Aliquippa School District filed a complaint against Transamerica and Maryland alleging statutory and contractual indemnification, equitable subrogation, indemnification and unjust enrichment/restitution, to recover the sums representing the tax monies misappropriated during the years Mr. Atkinson was bonded by Maryland and Transamerica along with a proportional amount of interest, costs and attorneys’ fees. Pursuant to Pa.R.Civ.P. 2252, Transamerica filed a complaint to join Hosack, Specht as additional defendants on April 6, 1987. On April 21, 1987, Hosack, Specht filed preliminary objections alleging that Transamerica had failed to state a cause of action upon which relief may be granted and that Transamerica’s claim was barred by the doctrine of superior equities. The preliminary objections were overruled by the trial court in an order entered July 20, 1987.

On March 28, 1989, a pre-trial conference was held and the trial court entered an order directing the case to be placed on the June, 1989 trial list. On June 6, 1989, the trial court entered an order granting the petition of Lumbermens and the Aliquippa School District for leave to amend their complaint and directing the case to be stricken from the June, 1989 trial list and placed on the September, 1989 trial list. Lumbermens and the Aliquippa School District filed their amended complaint on June 6, 1989, adding a count of negligence against Hosack, Specht.

On September 18, 1989, the trial court entered an order which granted the parties’ motion for a continuance and directed Hosack, Specht to file its motion for summary judgment within seven days. On September 22, 1989, Ho-sack, Specht filed its answer and new matter to the amended complaint. In its new matter, Hosack, Specht alleged that the amended complaint was time-barred and that the Aliquippa School District and Lumbermens were contributorily negligent. On September 25, 1989, Hosack, Specht filed its motion for summary judgment alleging that the amended complaint was time-barred. On December 18, 1989, the trial court entered an order granting the motion for summary judgment filed by Hosack, Specht and limiting its potential to the amount of any potential liability of Transamerica. On January 12, 1990, this timely appeal was filed by Lumbermens and the Aliquippa School District.

Lumbermens and the Aliquippa School District raise the following issues for our consideration:

1. Did the Trial Court err in allowing a late filing of the Answer of Hosack, Specht on the day of trial?
2. Are the claims of the Plaintiffs subject to the Statute of Limitations?
3. Does the Doctrine of nullum tempus apply?

Appellants-Lumbermens and the Aliquippa School District’s Brief at 7. Upon review of the parties’ briefs, the record, the applicable statutory authority and the relevant case law, we affirm the order of the trial court granting summary judgment in favor of Hosack, Specht and thus limiting any potential liability of the accounting firm to that of any potential liability subsequently imposed upon Transamerica.

STANDARD OF REVIEW

Our standard of review of an appeal from an order granting summary judgment is well established.

Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party. It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party.

Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 373-74, 528 A.2d 203, 205 (1987), citing Melmed v. Motts, 341 Pa.Super. 427, 429-30, 491 A.2d 892, 893 (1985) (citations omitted). The question of whether a statute of limitations has run on a claim is usually a question of law for the trial judge, but, at times, a factual determination by the jury may be required. Smith v. Bell Telephone Co., 397 Pa. 134, 142, 153 A.2d 477, 481 (1959); Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 140, 471 A.2d 493, 502 (1984) (en banc). With this standard in mind, we shall address the issues raised on appeal.

I. LATE FILING OF ANSWER

Appellants-Lumbermens and the Aliquippa School District first contend that the trial court erred in allowing a late filing of the answer of Hosack, Specht. Appellants assert that on May 31, 1989, they moved for leave to amend their complaint to file a direct cause of action against Hosack, Specht, which was presented on June 2, 1989, and which was verbally granted by the trial court on that date. The amended complaint was filed on June 6, 1989. On September 18, 1989, immediately before the start of trial, appellants claim that Hosack, Specht indicated that it would file an answer to the amended complaint raising the defense of the statute of limitations. The trial court, according to appellants, improperly granted a delay and ordered Hosack, Specht to file a motion for summary judgment. On December 15, 1989, the trial court entered an order granting summary judgment in favor of Hosack, Specht.

We note initially that we may only consider the facts which have been duly certified in the record on appeal. Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988). Moreover, it is the duty of the appellant to supply this Court with a record which is sufficient to permit a meaningful appellate review. Fox v. Gabler, 377 Pa.Super. 341, 346, 547 A.2d 399, 401 (1988). A failure by an appellant to insure that the original record certified for appeal contains sufficient information to conduct a meaningful appellate review constitutes a waiver of the issue sought to be reviewed. See Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 648, 557 A.2d 730, 738 (1989).

We have reviewed the entire original record certified for this appeal and have not found any support for appellants’ contention. While the September 18, 1989 order directed Hosack, Specht to file a motion for summary judgment, there is no transcript available for us to review appellants’ claim that Hosack, Specht’s intention to file its answer caused the trial court to enter the order granting the continuance and directing Hosack, Specht to file a motion for summary judgment.

Additionally, from our review, we fail to see where appellants raised this issue in the trial court. It is well established that in order to preserve an issue for appellate review, it must be raised at the trial level. Dilliplaine v. Lehigh Trust Co., 457 Pa. 255, 258, 322 A.2d 114, 116 (1974); Pa.R.A.P. 302(a). Thus, we find this issue to be waived.

II. STATUTE OF LIMITATIONS

In the case sub judice, the trial court found that upon payment of the $522,000.00, Lumbermens was subrogated to the Aliquippa School District’s right to demand indemnification from Maryland and Transamerica. (Tr.Ct.Op. at 3). As subrogee, Lumbermens sought to recover damages from Hosack, Specht for their alleged negligence in their performance of their auditing duties to Aliquippa School District. Lumbermens contends that its cause of action against Hosack, Specht did not arise until payment of the $522,000.00. We do not agree.

Subrogation is an equitable doctrine. Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 730 (1971); Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 354, 180 A.2d 414, 421 (1962). Subrogation places the ultimate discharge of a debt upon the party who in fairness should bear it. Topelski v. Universal South Side Autos, Inc., supra, 407 Pa. 354, 180 A.2d at 421; Potoczny v. Vallejo, 170 Pa.Super. 377, 380, 85 A.2d 675, 677 (1952). The equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated. Allstate Insurance Company v. Clarke, 364 Pa.Super. 196, 201, 527 A.2d 1021, 1024 (1987). No new equitable rights are created in the subrogee. Insurance Company of North America v. Carnahan, supra, 446 Pa. 51, 284 A.2d at 730. A subrogee is therefore bound by the statute of limitations as it accrues against the subrogor. Id., 446 Pa. 51, 284 A.2d at 730; Harleysville Mutual Insurance Company v. Smith, 352 Pa.Super. 174, 177, 507 A.2d 828, 829 (1986); see also 91 A.L.R.3d 844, 850 (1979) (and Supplement 1990 at 36). Hence, we find that Lumbermens is bound by the Aliquippa School District’s statute of limitations.

Lumbermens further contends that, as subrogee to the Aliquippa School District, it may defeat the applicable statute of limitations by asserting nullum tempus occurrit regi. We must determine the statute of limitations applicable to the cause of action between the Aliquippa School District and Hosack, Specht. Only after determining whether the statute of limitations has run must we determine whether Lumbermens may assert nullum tempus occurrit regi. Keeping the appellate standard of review for summary judgment in mind, we examine the record to determine to the applicable statute of limitations.

Our review of the record reveals the following. In appellants’ complaint filed May 14, 1986, against Transamerica and Maryland, appellants alleged the following:

11. In every year from 1974 until 1984, Atkinson did improperly and illegally fail, to perform the duties imposed upon him by law and did misappropriate funds and did fail to truly collect, pay over and/or account for tax funds entrusted to him as Tax Collector for the Plaintiff School District.
12. Said misappropriations and failure to truly collect, pay over and/or account for School District funds, accumulated from year to year, but by fraudulently concealing and failing to faithfully collect and account for the true nature of the shortages, Atkinson was able to disguise said misappropriations until they were discovered in late October, 1984.

(Complaint filed 5/14/86 at 3) (emphasis added). These allegations were incorporated into the amended complaint filed on June 6,1989. {See Amended Complaint filed 6/6/89 at 1).' The amended complaint also incorporated allegations contained in paragraph 9 of Transamerica’s complaint to join Hosack, Specht as additional defendants. Id. at 2. Paragraph 9 of Transamerica’s complaint alleged the following:

9. If the allegations set forth in plaintiff’s Complaint are true, the misappropriations made by John T. Atkinson went undetected because of a failure upon the part of additional defendant to perform its duties in a good and workmanlike manner generally, and as is more particularly set forth in the following lettered subparagraphs.
(a) In failing to perform the audit in conformity with principles and procedures established in the Manual of Accounting and Related Financial Procedures; and
(b) In failing to perform such test of the accounting records and other auditing procedures as were necessary in the circumstances; and
(c) In failing to audit the accounts of John T. Atkinson in detail; and
(d) In failing to perform a reasonably competent review of the records maintained by John T. Atkinson; and
(e) In failing to make a comparison between the records relating to the receipts and those related to the deposits maintained by John T. Atkinson; and
(f) In failing to warn the School District that Mr. Atkinson was misappropriating money; and
(g) In failing to warn the School District of the necessity for the establishment of the internal controls; and
(h) In failing to warn the School District of the ease with which money could be misappropriated by a tax collector acting in the dual capacity as tax collector for the School District and tax collector for the Borough; and
(i) In failing to possess the skill and diligence customarily employed by accountants auditing tax collectors; and
(j) In failing to exercise and employ the skill and diligence customarily employed by accountants auditing tax collectors; and
(k) In otherwise failing to exercise due care and caution under the circumstances.

(Complaint filed 4/6/87 at 2-4). The trial court ruled that Transamerica had “stated a claim upon which relief may be granted under a negligence theory.” (Tr.Ct.Op. filed 7/20/87 at 5). Our review of the record thus reveals that appellants-Lumbermens and the Aliquippa School District have also stated a cause of action against Hosack, Specht upon which relief may be granted under a negligence theory-

The statute of limitations for a negligence cause of action is found in 42 Pa.C.S.A. § 5524, which provides in pertinent part:

The following actions and proceedings must be commenced within two years:
(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitations specified in this sub-chapter.

42 Pa.C.S.A. § 5524(7). In Pennsylvania, the statute of limitations is triggered upon occurrence of the alleged breach of duty. Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 497, 524 A.2d 980, 984 (1987); Moore v. McComsey, 313 Pa.Super. 264, 270, 459 A.2d 841, 844 (1983).

In the case sub judice, by appellants’ own complaint, appellants were aware of the misappropriation of funds as early as October of 1984. Appellants had two years therefore from October of 1984 to determine whether Hosack, Specht were negligent in their auditing duties. We find therefore that the statute of limitations expired as of October of 1986.

Moreover, the trial court noted that appellant-Lumbermens attempted to join Hosack, Specht in another related action which was stricken on June 5, 1985. (See Tr.Ct.Op. filed 12/18/89 at 3). Therefore, even assuming that the statute of limitations did not begin to run until that date, it expired June 5, 1987, long before the amejnded complaint was filed. In conclusion, examining the record in the light most favorable to the non-moving party, we determine that the amended complaint was filed after the statute of limitations had expired.

III. NULLUM TEMPUS OCCURRIT REGI

Appellants-Lumbermens and the Aliquippa School District next contend that if the amended complaint is time-barred, Lumbermens, as subrogee of the Aliquippa School District, may invoke the doctrine of nullum tempus to defeat the statute of limitations. We do not agree.

The doctrine of nullum tempus occurrit regi (“time does not run against the king”) has long been followed in Pennsylvania. Commonwealth, Department of Transportation v. J. W. Bishop & Company, Inc., 497 Pa. 58, 62, 439 A.2d 101, 103 (1981). Our Supreme Court, in Bishop, supra, explained that:

[w]henever the Commonwealth invokes the doctrine of nullum tempus, it is seeking as a plaintiff to vindicate public rights and protect public property. Thus, since its adoption in this country, the rationale for the doctrine of nullum tempus has been “the great public policy of preserving public rights, revenues and property from injury and loss.” United States v. Hoar, 26 Fed.Cas. 329, 330 (C.C.D.Mass.1821) (No. 15,373) (Story, J.). See [Commonwealth v.] Musser Forests [394 Pa. 205, 146 A.2d 714 (1958)], supra (nullum tempus “matter of important public policy”). Moreover, the benefits and advantages of the doctrine of nullum tempus extend “to every citizen, including the defendant whose plea of ... limitations its precludes.” Guaranty Trust [Co. of New York v. United States ], supra, 304 U.S. [126] at 132, 58 S.Ct. [785] at 789 [82 L.Ed. 1224 (1938)].

Id., 497 Pa. at 64, 439 A.2d at 104. When the Commonwealth, as a plaintiff, brings an action for which the statute of limitations has run, the doctrine of nullum tempus may be invoked. Under nullum tempus, statutes of limitations do not apply to the plaintiff Commonwealth unless the statute specifically provides that it does. Id., 497 Pa. at 65, 439 at 105; Northampton County Area Community College v. Dow Chemical, U.S.A., 389 Pa.Super. 11, 19, 566 A.2d 591, 595 (1989). Our Supreme Court has held that:

[i]t is true that, unless otherwise provided, statutes of limitations cannot be pleaded against such political subdivisions when they are seeking to enforce strictly public rights, that is, when the cause of action accrues to them in their governmental capacity and the suit is brought to enforce an obligation imposed by law as distinguished from one arising out of an agreement voluntarily entered into by the defendant.

City of Philadelphia v. Holmes Electric Protective Co. of Philadelphia, 335 Pa. 273, 278, 6 A.2d 884, 887 (1939); see also Pocono Township v. Hall, 127 Pa.Cmwlth. 116, 121, 561 A.2d 53, 55 (1989) (same); Borough of West Fairview v. Hess, 130 Pa.Cmwlth. 385, 391-93, 568 A.2d 709, 713 (1989) (“unless a municipality is exercising a governmental function or there is an express provision to the contrary, a statute of limitation will apply to the governmental unit,”); but see Northampton County Area Community College v. Dow Chemical, U.S.A., supra, 566 A.2d at 596 (concluding that statute and caselaw in this Commonwealth have rejected a “governmental vs. proprietary function” test and that such tests have been rendered obsolete by recent legislative definitions and classifications of Commonwealth parties).

It is within this framework that Lumbermens is contending that as subrogee to the Áliquippa School District, it should be permitted to invoke this awesome doctrine and defeat the two year statute of limitations to assert a negligence claim against Hosack, Specht. This we refuse to do. We find that the damages Lumbermens seeks to recover from Hosack, Specht are not an attempt to vindicate public rights or to protect public property. The public interests have been made whole. The matter is now between two private litigants. Lumbermens filed its amended complaint after the expiration date of the applicable statute of limitation. It may not now invoke nullum tempus to defeat it. See Couch on Insurance 2d (1983) at § 75:38 (“although surety is subrogated to claim of state, it is not entitled to exemption of state from operation of statute of limitations”); 147 A.L.R. 457, 460 (1943) (same); see also Fidelity & Deposit Co. v. First National Bank, 165 Tenn. 395, 54 S.W.2d 964 (1932) (same).

In conclusion, we find that there is no genuine issue of material fact which remains in dispute regarding Lumbermens’ negligence action against Hosack, Specht. Lumbermens’ action against Hosack, Specht is time-barred and it may not invoke nullum tempus to defeat the statute of limitations. Hence, we affirm the grant of summary judgment limiting Hosack, Specht’s potential liability to any potential liability which may be subsequently imposed upon Transamerica.

Order Affirmed.

      . On September 19, 1989, a stipulation to settle and discontinue as to Maryland, signed by counsel for Lumbermens and the Aliquippa School District, was filed with the trial court. Hence, Maryland is no longer a party to this action.

      . Appellants-Lumbermens and the Aliquippa School District’s brief is not in conformity with the Pennsylvania Rules of Appellate Procedure, particularly Pa.R.A.P. 2118 and 2119(a). While we do not condone this lack of conformity, it has not hampered our review.

      . The Pennsylvania Rules of Appellate Procedure provide an alternative method for an appellant who for some reason did not have proceedings in the trial court transcribed. See Pa.R.A.P. 1923, 1924.

      . While it is clear that the amended complaint sounds in negligence, any attempt by appellants to claim breach of contract and thereby extend the applicable statute of limitations to four years pursuant to 42 Pa.C.S.A. 5525 is waived for failure to properly plead. Garcia v. Community Legal Services Corp., supra, 524 A.2d at 982 (1987) (“If a plaintiff fails to properly plead separate causes of action, the cause he did not plead is waived.”); Bachman v. Artinger, 285 Pa.Super. 57, 60, 426 A.2d 702, 703 (1981). Moreover, the four year statute of limitations would have expired in October of 1988, or using June 5, 1985 as the accrual date, June 5, 1989; either way, the statute of limitations expired prior to the filing of the amended complaint.

      . Hosack, Specht, in its appellate brief, attempts to distinguish the appellants: Lumbermens and the Aliquippa School District, noting that the application of nullum tempus may vary according to which of the appellants is attempting to assert it. Lumbermens is attempting to recover from Hosack, Specht the monies expended when it paid $522,000.00 pursuant to the confessed judgment. The Aliquippa School District is attempting to recover from Hosack, Specht the monies expended in investigative and legal costs in discovering Mr. Atkinson’s illegal activities. See Hosack, Specht’s appellate brief at 12. However, a careful reading of the portions of the complaint filed May 14, 1986, which were incorporated into the amended complaint filed June 6, 1989, the appellants’ answer to Hosack, Specht’s motion for summary judgment and the brief filed for this appeal does not make any such distinction. The Aliquippa School District did not plead a separate cause of action against Hosack, Specht on its own for recovery of its alleged investigative and attorneys’ fees. As such, we limit this holding to the negligence claim asserted by Lumbermens, as subrogee of the Aliquippa School District, against Hosack, Specht. Moreover, it would not appear that the Aliquippa School District could itself invoke nullum tempus to defeat the expired statute of limitations. See Borough of West Fairview v. Hess, supra, (holding that borough could not invoke nullum tempus to assert untimely claim against auditors for alleged negligence).