author: CIRILLO, President Judge:

text:
    542 A.2d 147
    In re ESTATE OF William T. MATSON, Deceased. Appeal of Julia E. MATSON.
    Superior Court of Pennsylvania.
    Submitted Feb. 29, 1988.
    Filed April 29, 1988.

      Alfred S. Pierce, Nazareth, for appellant.
    Frederick, J. Lanshe, Allentown, for appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and WATKINS, JJ.
   CIRILLO, President Judge:

This is an appeal from the dismissal of appellant Julia Matson’s exceptions to an accounting rendered to the Orphan’s Court Division of the Court of Common Pleas of Lehigh County with respect to the estate of her deceased husband, William Matson. We reverse.

In reviewing findings of the Orphan’s Court, we must accept as true all evidence in the record supporting its findings and all reasonable inferences therefrom. Adoption of S.H., 476 Pa. 608, 383 A.2d 529 (1978). We will uphold its decision so long as it is supported by competent evidence and no abuse of discretion or error of law was committed. Id. At issue in the case at bar were two items of personal property: the ownership of a building and the right to a lease for the Forest Camp Site on which it stood.

We state at the outset that the decision in this case did not involve one of construction of a testamentary provision in order to give effect to the intention of the decedent. Rather, as an auditing court, it was presented with the question of the propriety of inclusion of certain assets in the estate. This determination required the trial court to decide questions of law regarding the manner in which the decedent held the property at issue and the legal effectiveness of an alleged inter vivos transfer.

In her exceptions to the accounting, Mrs. Matson sought to have the entire interest in the campsite lease, issued by the Bureau of Forestry of the Department of Environmental Resources (DER) of this Commonwealth pursuant to 71 P.S. § 510-6(4), included as an asset of her husband’s estate. It was undisputed among the parties that William Matson’s interest in the lease became an asset of his estate at his death. Mrs. Matson quarrels only with the extent of the interest in that asset adjudicated as includable in the estate by the trial court. That court found a completed inter vivos gift of a two-thirds interest in the lease to Matson’s brother and nephew.

Mrs. Matson also sought to be declared the owner of the cabin located on the leased premises by right of survivorship. As the petitioner, she had the burden of establishing her title to any items of which she claimed ownership. In re Gumbe’s Estate, 172 Pa.Super. 59, 92 A.2d 265 (1952). The auditing court found the building to be separate from the lease and owned solely by William Matson. As with the lease, it found a completed gift of a two-thirds interest in the cabin. It based its conclusions on the decedent’s expressed desire to make the gifts, on what it found to be compliance with DER’s “procedures for effecting transfer of a partial interest in the lease and the cabin”, and on Matson’s delivery to his brother of “all of the documentation he possessed concerning ownership of the cabin and lease”, which it deemed effective constructive delivery.

Mrs. Matson argues on appeal that she was a joint owner of the building, that her husband failed to transfer an interest in the leasehold, either at common law or under the applicable DER regulations, and that the failed leasehold assignment prevented the completion of the gift intended by her husband.

The lease, in essence a ground lease, and the improvement were purchased with $5800.00 from a joint account ($1400.00 for the lease; $4400.00 for the cabin) in 1974 subsequent to a joint remortgaging of the Matsons’ principal residence. At that time, DER’s Application For Transfer of the lease to William Matson was filed with DER in accordance with its requirements. A DER lease cannot be held except by the owner or owners of a cabin on the leased site, although there is no requirement that all owners be named in the lease, and cannot be sold or transferred separately. That application required a notarized statement by the lease applicant that he “has acquired possession of the cabin and improvements” and a statement by the seller, also notarized, that he “hereby sells, transfers or sets over to [the lease applicant] the cabin and other improvements placed on State Forest land under Forest Camp Lease No._No document was executed to show the change in ownership of the cabin. The transfer of the lease to William Matson was subsequently approved by DER and at the time of his death the lease remained in his name alone.

It is abundantly clear from the record that in 1982 William Matson expressed an intent to transfer a partial interest in the property to his brother and nephew. Four witnesses testified to conversations in which William Mat-son expressed that intent. In the spring of 1982 William Matson contacted DER to inquire as to the procedure for doing so. There are no specific DER forms to handle the situation presented by Mr. Matson’s desire to transfer less than an entire interest. He was told that in the absence of an outright transfer of a 100 per cent interest, which would call for DER’s Application For Transfer, a letter from him indicating his desire to add additional names to the lease, thereby entitling a group to enjoyment under its provisions, would suffice. Matson’s letter requested that his brother and nephew be added to the lease “with each having equal or lh parts of ownership to the cabin.”

DER requires that one person having a financial interest in the cabin occupying the leased site be designated to handle correspondence and other business arising in connection with the lease. Because Matson also wanted to make his brother the agent responsible for the lease, DER’s Application For Assignment, subheaded “when no change in ownership is involved”, was sent to him. This form states that the requested assignment “has been approved by a majority of the camp members”—presumably in accordance with the group by-laws required by DER guidelines of membership groups holding a lease—and calls for the listing of all persons who had a “financial interest” in the property. Matson’s brother and nephew were listed by him as such persons and their signatures attesting this fact were affixed. Following the submission to DER of this application, Matson delivered to his brother all of the paperwork he had concerning the lease and building—his original transfer papers, his original lease and a copy of the Application For Assignment—and told him to retain them so Mat-son’s intent to give them an interest in the property would be clear.

The processing by DER of this application, which under the terms of the lease required its approval, was not completed until after Matson’s death and it is undisputed that it was ineffective to assign the lease. It was DER’s position that, for its purposes, Matson’s letter adding additional names to the lease was sufficient to extend an interest in the building to the brother and nephew; only the assignment was invalid, making the lease, in its opinion, an asset of William Matson’s estate. However, DER requires nothing more than the unsupported statement of the designated lessee to reach the first conclusion and relies solely on its failure to approve the assignment for the second. The auditing court correctly noted that the lease did not control the validity of the transfer of the cabin.

We begin our review with the threshold issue of determining in what form of tenancy these assets were held. If they were, as the auditing court found, the sole property of William Matson, we must proceed to examine the record to determine if the auditing court was correct in concluding that a completed gift was made of a two-thirds interest in either or both. We need not reach the claim of gift, however, to the extent either of the assets in question is determined to have been held by the entireties. There is no question that, in Pennsylvania, personalty may be held by the entireties. Bramberry’s Estate, 156 Pa. 628, 629, 27 A. 405, 408 (1893); Madden et al. v. Gosztonyi Savings & Trust Co., 331 Pa. 476, 484, 200 A. 624, 628 (1938).

Mrs. Matson did not argue below and does not argue here that she had a survivorship interest in the lease. The auditing court dismissed Mrs. Matson’s claim of ownership of the cabin by right of survivorship on the basis that any contribution she made to the acquisition was presumed to be a gift. For this proposition it cited two cases: Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975), which holds that any time a husband or wife contributes towards purchase of entireties property, such contribution is presumed to be a gift to the other, and Falasco Estate, 6 Fiduc.Rep.2d 204 (O.C. Chester 1986) which the auditing court read to say that when combined funds are used to purchase an asset titled solely in the name of one spouse, there is a presumed gift by the other spouse to the extent of his or her contribution. The auditing court then went on to find that Mrs. Matson’s argument that she did not intend to make such á gift was insufficient to rebut this presumption, thereby establishing William Matson’s sole ownership of the assets as of the time of purchase.

We find Butler to be inapposite and the holding in Falasco misstated. Butler dealt with a divorcing wife’s request for the imposition of a constructive trust to the extent of her contribution to property held by the entireties and does not support this auditing court’s position that a tenancy by the entireties was not created by the Matson’s purchase of the assets in question. Butler expressly found that the application of different presumptions according to which spouse was named in the title to assets purchased with combined funds (gift from husband if titled in wife’s name; loan from or trust in favor of wife if titled in husband’s name) was unconstitutional after the passage of the Pennsylvania Equal Rights Amendment, Pa. Const. Art. I, § 28 (adopted May 18, 1971). Falasco addresses the situation where an asset acquired partially in exchange for a jointly held asset was titled solely in the name of the wife and holds, perhaps incorrectly in light of Butler, that the asset so acquired belongs solely to the wife since there is a presumed gift to the extent of the husband’s contribution. While the auditing court’s rendition of Falasco’s holding properly makes no distinction between the spouses, it, like the court in Falasco, incorrectly assumes that the presumed gift is to the other spouse. The correct application of the presumption results in a gift to the entireties. Butler, 464 Pa. at 529, 347 A.2d at 481 (in marital relationship, gift to entireties property is presumed for contributions made by either) (emphasis added).

It is clear from the record that the funds paid as consideration for the transfer of the lease and the purchase of the cabin were paid from the Matsons’ joint checking account. These funds represented the proceeds of a mortgage obligation assumed by both Mr. & Mrs. Matson which was secured by their jointly held primary residence. There can be no question that these funds constituted entireties property when they were obtained, when they were deposited into the joint account, and when they were withdrawn on the signature of either authorized depositor of that account. The character of these funds must be presumed to carry over and attach to that which is purchased with them. Bramberry’s Estate, 156 Pa. at 630, 27 A. at 408 (voluntary conversion of joint estate in land into personalty manifests their intent to resume their respective rights in the proceeds). Both spouses are presumed to have made a gift of their individual interests to the entireties, in whatever form that entireties interest takes.

In the case at bar, the fact that the lease was held solely in the name of William Matson may have been sufficient to rebut this presumption of entireties ownership. Pennsylvania law presumes that either holder of entireties property may act for both without specific authority so long as the benefit of such action inures to both. Bradney v. Sakelson, 325 Pa.Super. 519, 473 A.2d 189 (1984). However, neither spouse may appropriate to his own use property held by the entireties unless his actions are made in good faith and for the mutual benefit of both parties to the tenancy. Nachman v. Nachman, 417 Pa. 389, 208 A.2d 247 (1965) (appropriating entireties property to his own use was unlawful); Clingerman v. Sadowski, 335 Pa.Super. 514, 485 A.2d 11 (1984) (withdrawals from entireties account for the benefit of only one spouse is misuse of power). Mrs. Matson testified that her husband’s actions in placing the lease in his name alone were taken without her knowledge and consent and she might have argued that, in so doing, he impermissibly compromised her interest such that the entireties nature of the lease should be upheld. However, no such argument was advanced either below or on appeal. We, therefore, endorse the auditing court’s finding that Mrs. Matson had no interest in the lease and that William Matson’s interest in it was properly an asset of the estate.

If, as of the time of death, circumstances surrounding piece of property indicate that it belongs to the decedent, the burden of proof is on a claimant to prove otherwise. In re Clay’s Estate, 438 Pa. 183, 264 A.2d 632 (1970). Mr. Matson’s brother and nephew attempted to prove a valid inter vivos gift of a two-thirds interest in both the lease and cabin based on, inter alia, William Matson’s completion of DER’s Application For Assignment. Appellant argues that the DER lease is a special form of personal property which, like other state-granted privileges, is governed solely by the Commonwealth, in this case through DER, its conclusion as to transfer of lease rights conclusive. We find no support for this proposition or for distinguishing the lease in this case from ordinary ground leases, to which this lease is most similar.

Any lease is a contract and is, therefore, governed by its provisions. The lease in the instant matter reserved to the discretion of DER any assignment of the lease to a third party. DER’s legal counsel opined that William Mat-son’s offer to assign the lease, not having been accepted by DER, was extinguished at his death. The assignment being ineffective, the brother and nephew argue that a common-law gift of a two-thirds interest was made. Under the terms of the lease, any assignment of the lease without DER approval would result in forfeiture of the lease. Since only DER had the power to declare a forfeiture and did not, despite its awareness that William Matson intended to divest himmself of a two-thirds interest and had “added” two persons to the lease, the lease remained in William Matson and a gift at common-law was the only way Matson could possibly have transferred an interest.

Mrs. Matson argues that her husband’s attempt to assign the lease being ineffective, his intent to give a two-thirds interest away was not completed by delivery. We agree that the attempt by William Matson to divest himself of a partial interest in the lease was of no effect. He could not give away what he had as the benefit of his contract with DER—his status as lessee—without the approval by which he agreed contractually to be bound. At best, his was a conditional gift with his brother’s and nephew’s right to enjoyment dependent on acceptance by DER of William Matson’s proposal. Since this condition was never met, the gift failed, and the entire interest in the campsite lease became an asset of William Matson’s estate as of his death.

With regard to the cabin, however, the record is devoid of any evidence of title. There is no documentation pertaining exclusively to the transfer of or title in this building. In the absence of designated title, it must be presumed that the Matsons held the cabin as tenants by the entirety. The underpinnings of the entireties presumption come from the common-law which teaches that marriage creates a unified holding of property. Clingerman, 335 Pa.Super. at 519, 485 A.2d at 14. It is the actual marital status of the parties and not necessarily the words stated or omitted in any instrument that determines their right to take as tenants by the entirety. Holmes Estate, 414 Pa. 403, 406, 200 A.2d 745, 752 (1964).

The presumption of tenancy by the entireties in the cabin having been established, we must examine the record for evidence supporting its rebuttal. There must be clear and convincing evidence to rebut the presumption of entireties. Id., 414 Pa. at 405, 200 A.2d at 747; Margarite v. Ewald, 252 Pa.Super. 244, 381 A.2d 480 (1977). William Matson delivered nothing to his brother and/or nephew which had the effect of divesting him of dominion and control over any portion of the cabin. Only the notarized statement of the sellers in the Application For Transfer of the lease which reads “[buyer] hereby sells, transfers or sets over to William Matson the cabin and other improvements” arguably supports a finding of rebuttal. However, DER is not interested in the building outside of confirmation of its existence as a prerequisite to the granting of a lease. It does not view information provided on its forms as conclusive of any ownership interests in the building, leaving that matter to the group or individual holding the lease. Similarly, the addition of names to the lease does not, in its view, necessarily indicate the alteration of ownership of the cabin, only that such additional persons named are, at the designation of the original lessee, entitled to enjoyment of the same privileges extended to the him. Further, compliance or non-compliance with DER forms or guidelines is not legally dispositive of ownership. In finding a transfer of a partial interest in the property, the auditing court erred in relying on DER’s acceptance of William Matson’s bald statement that his brother and nephew were part owners of the cabin.

For these reasons, we find this statement on the Application For Transfer insufficiently clear and convincing to rebut the presumption of the creation of a tenancy by the entireties in the cabin. We note that, even if the presumption can be said to have been rebutted, because Mrs. Matson testified that she did know about and did not consent to her husband’s actions in having the assets put into his name alone, we would find that his attempt to declare himself sole owner was unlawfully done in derogation of his wife’s beneficial interest. See Nachman, supra; Bradney, supra; Clingerman, supra. While both parties live as husband and wife, termination of an entireties estate occurs only by their joint acts and no single tenant can, by his own act, affect the other’s right of survivorship. Clingerman, 335 Pa.Super. at 519, 485 A.2d at 14. In a similar situation where a husband caused entireties stock to be retitled to himself and his nephews without his wife’s knowledge or consent, our supreme court held that the entireties presumption had not been rebutted by the nephews’ claim of a completed gift. Holmes, 414 Pa. at 406, 200 A.2d at 747. In Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370 (1980), a completed gift to the entireties was found in a husband’s savings plan, even though it was titled in his name, because of the wife’s contribution to his ability to set aside that portion of his salary which went into the plan. Id., 491 Pa. at 121, 420 A.2d at 370.

Mrs. Matson very clearly contributed to the acquisition of the property in question. She did not consent to her husband’s attempt to give away a partial interest in the property and we are hard pressed to see that his doing so would in any way benefit his wife. By causing the lease to be issued in his name alone and, later, by attempting to give away a two-thirds interest in both the cabin and leasehold, William Matson improperly appropriated to his own use property in which his wife had a clear beneficial interest. In the absence of a title to the personalty acquired with joint funds, the character of the funds must be presumed to carry over and attach to that which is purchased with them. Because the cabin was purchased with funds held by the entireties and because no document of title or bill of sale in the name of William Matson was executed, the presumption arose that the cabin was held in tenancy by the entirety. The evidence on this record was not sufficient to rebut this presumption. We therefore disagree with the auditing court’s holding and find that Mrs. Matson did establish ownership of the cabin by right of survivorship. By so holding we recognize that a purchase of untitled personalty made with proceeds from a loan obtained on the credit of both spouses, especially when jointly held marital property secures that obligation, creates a presumption of entireties ownership.

We, therefore, do not reach the issue found to be dispositive by the auditing court, namely, effective constructive delivery of the attempted inter vivos gifts. Findings of the court at audit are entitled to great weight and should be rejected only in a clear case and only for good and sufficient reason. Estate of Korn, 332 Pa.Super. 154, 480 A.2d 1233 (1984). This is such a case. The evidence in the record does not support the findings of the auditing court and its conclusions were errors of law.

For the foregoing reasons the order dismissing Julia Matson’s exceptions is reversed and the matter remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . It would perhaps, be more accurate to say that the cabin was purchased and that consideration was paid for the assignment of the lease.

      . These guidelines never achieved the status of the regulations to which the lease, by its terms, was subject and, therefore, only provide information as to how DER intended its leases to operate. The guidelines require that any group wishing to hold a lease must submit its by-laws before receiving DER approval for the multi-party lease, and, that notification to DER of any change in membership must be accompanied by a formal resolution. The record shows that neither DER nor William Matson abided by the strict dictates of these guidelines in the instant case.


source: Caselaw Access Project

author: ROWLEY, Judge: BROSKY, Judge, MONTEMURO, Judge,

license: Public Domain

text:
    542 A.2d 154
    John D. DRISCOLL, Jr., Appellant, v. The TRAVELERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed June 1, 1988.

      Domenic P. Sbrocchi, Bangor, for appellant.
    Victor P. Stabile, Harrisburg, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ., en banc.
   ROWLEY, Judge:

This case involves a claim for work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act (“No-fault Act”), 40 P.S. § 1009.101 et seq. (repealed 1984). The trial court ruled that the claim was time-barred, and granted summary judgment in favor of appellee, The Travelers Insurance Company. Appellant contends that the trial court erred in using a gross work loss calculation, rather than a net work loss calculation, in determining the date on which the statutorially mandated accrued work loss of $15,000 was achieved. Appellant also claims he is entitled to 18% interest on the denied benefits and an award of reasonable attorneys’ fees. We affirm.

The facts are not in dispute. On August 16, 1980, appellant was injured while operating his employer’s tractor-trailer in the scope of his employment as a truck driver. At the time, appellant’s gross monthly salary was $2725.90. From August 17, 1980 until November 9, 1982, appellant was completely unable to work. However, appellant was compensated for a portion of his lost wages by his employer under the Pennsylvania Workmen’s Compensation Act, 77 P.S. §§ 1-1603. In addition, on May 2, 1985, appellant was awarded social security disability benefits for the period of August 16, 1980 to May, 1983, with the exception of a five-month waiting period.

At the time of the accident appellant did not own a car and was not otherwise insured under the No-fault Act. On April 11, 1984, he filed a claim for basic loss benefits with the Pennsylvania Assigned Claims Plan (“Plan”), 40 P.S. § 1009.204(a)(5). The Plan assigned appellant’s claim to appellee, which denied the claim on the ground that it was time-barred. Appellant commenced this action on May 15, 1984 by writ of summons and filed a complaint on January 25, 1985. Appellee filed a motion for summary judgment contending that appellant’s suit had been filed beyond the time allowed by the applicable statute of limitations. The trial court granted appellee’s motion, and this appeal followed.

The statute of limitations on actions to recover benefits under the Nó-fault Act states, in pertinent part:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1) (emphasis added); see Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982). Our Supreme Court has determined that the phrase, “suffers the loss,” in the context of work loss benefits, does not refer to the occurrence of the accident, but to the date the victim suffers work loss. Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983). The Court in that decision noted that “work loss” is “economic detriment resulting from inability to work and earn a living, e.g., loss of a paycheck. Id., 503 Pa. at 540, 469 A.2d at 1384. The Court further stated that the No-fault Act contemplates a continuing series of losses as paychecks are missed throughout the period that the victim is unable to work. Id. In support of its position, the Court cited § 1009.106(a)(1) of the No-fault Act: “ ‘No-fault benefits are payable monthly as loss accrues. Loss accrues not when injury occurs, but as ... work loss ... is sustained.’ ” Id., 503 Pa. at 540-41, 469 A.2d at 1384 (quoting 40 P.S. § 1009.106(a)(1)). Thus, in construing the statute of limitations for the No-fault Act, the Court concluded that:

where as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to have been caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years from any time the victim suffers work loss as a result of the accident, ... (b) within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000, 40 P.S. § 1009.202(b)(2) and (c) not later than four years after the accident.

503 Pa. at 541, 469 A.2d at 1384.

It is not disputed that appellant commenced his suit within four years of the accident. However, we must determine whether, for the purpose of § 1009.106(c)(1), appellant commenced the action within two years after his accrued, work loss equaled $15,000, within the meaning of § 1009.106(a)(1). Because of the amounts involved in this case, we are called upon to decide whether the term “accrued work loss,” is to be calculated by net income loss, e.g. gross income minus work loss received from other sources and tax benefits, or gross work loss.

To reiterate, appellant was injured on August 16, 1980, but did not commence this action until May 15, 1984. On the basis of foregone gross income of $2,725.90 per month, appellant’s cause of action would have accrued by February 1, 1981. Stipulation of Facts at 6. Thus, the suit would have been time-barred as of February 1, 1983, pursuant to § 1009.106(a)(1), (b). Utilizing a net loss analysis, however, by subtracting workers’ compensation, social security disability and tax benefits, appellant would not have reached the $15,000 threshold until the last week of May, 1984. Consequently, appellant contends that the phrase “accrued the loss” refers to his net work loss, whereas appellee argues that “accrued work loss” refers to loss of gross income.

In determining whether a gross income or net income approach is mandated, we look to three sources. First, we examine the language of the No-fault Act. Section 1009.-106(c)(1), quoted above, does not specifically refer to the terms “work loss” or “net loss.” It merely refers to “loss.” However, “sections of statutes are not to be isolated from the context in which they arise such that an individual interpretation is accorded one section which does not take into account the related sections of the same statute.” Commonwealth v. Revtai, 516 Pa.Super. 53, 63, 532 A.2d 1, 5 (1987). In the definitions section of the No-fault Act, the term “loss” is defined as “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.” 40 P.S. § 1009.103 (emphasis added). In the same section, “work loss” is defined as “loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of this act.” Id. (emphasis added). Finally, section 205 states in relevant part:

§ 1009.205. Work Loss
(a) Regularly employed.—The work loss of a victim whose income prior to the injury was realized in regular increments shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim sustains loss of income during the accrual period.
(d) Definitions.—As used in this section: “Probable annual income” means, absent a showing that it is or would be some other amount, the following: (A) twelve times the monthly gross income earned by the victim from work in the month preceding the month in which the accident resulting in injury occurs ...

40 P.S. § 1009.205 (emphasis added). Thus, a straightforward reading of the No-fault Act leads to the incontrovertible conclusion that the legislature intended to equate “loss,” and thus “work loss,” with “gross income” for purposes of the statute of limitations. For this reason, we can find no justification for appellant’s position that a net income calculation should be used.

Second, there exists support for the gross income approach from the Pennsylvania Supreme Court. In Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983), discussed above, the Pennsylvania Supreme Court was called upon, as here, to address the timeliness of an action to recover work loss benefits under the No-fault Act. In interpreting the term “loss,” as used in § 106(c)(1), the Court applied the definitions of “loss” and “work loss” found in 40 P.S. § 1009.103. The Court found that “[t]he pertinent provision of the Act defines ‘work loss’, in the case of a victim who is not self-employed, as ‘loss of gross income.’ ” Id., 503 Pa. at 540, 469 A.2d at 1384. Thus, for us to hold that the statute of limitations should be calculated under a net income method, would be to directly contravene the Supreme Court’s interpretation of the term “loss.”

Third, we look to the panel decision of this Court in Miller v. Prudential Property and Casualty Insurance Co., 344 Pa.Super. 28, 495 A.2d 973 (1985), allocatur denied, in which it was held that for purposes of the statute of limitations, the No-fault Act mandates usage of a gross income analysis. While we recognize that the portion of the trial court’s decision which is quoted in Miller contains flawed legal reasoning, the holding is sound.

We are faced, nevertheless, with a conflicting decision by a panel of this Court in Augostine v. Pennsylvania Nat’l Mut. Casualty Ins. Co., 338 Pa.Super. 15, 487 A.2d 828 (1984), allocatur denied. In that case, the victim of an accident sought no-fault benefits from his no-fault insurer. The trial court granted summary judgment in favor of the insurer on the ground that the victim’s claim was filed more than two years after he had suffered the loss. This Court reversed, concluding that the victim’s claim had been timely under the Kamperis rule. Id., 338 Pa.Superior Ct. at 19, 487 A.2d at 830. Justice Roberts, writing for the panel, concluded that “[ejxcusive of workers’ compensation benefits he has received, appellant’s accumulated work loss reached the $15,000 statutory maximum on January 1, 1978. Under Kamperis, this date may be treated as the date on which appellant’s work loss claim accrued.” Id. (emphasis added). The panel in Augostine, without explanation or analysis, subtracted workers’ compensation benefits in determining when the appellant’s accrued work loss reached $15,000 for purposes of the statute of limitations under the No-fault Act. This was clearly error. Thus, to the extent that Augostine is in conflict with Kamperis, our decision today, and the unambiguous provisions of the No-fault Act, it is hereby overruled.

We have no doubt that there are compelling reasons why a net loss analysis might be preferable to a gross loss analysis in computing the time of limitation for bringing the action. The loss for which a victim seeks recovery, for example, is a net work loss, as computed pursuant to § 1009.206. However, such a modification is for the legislature to make. In construing any legislative enactment the primary objective of the court is to ascertain and effectuate the intention of the legislature. Borysowski v. State Farm Mutual Automobile Insurance Co., 368 Pa.Super. 399, 534 A.2d 496 (1987); 1 Pa.C.S. § 1921(a). The intention of the legislature is that a gross loss analysis be applied in computing the time period, for statute of limitations purposes.

Summary judgment affirmed.

BROSKY, J., files a dissenting opinion.

MONTEMURO, J., files a dissenting opinion in which CIRILLO, President Judge, and McEWEN, J., join.

BROSKY, Judge,

dissenting:

I respectfully dissent from the majority’s view. We are called upon, according to the majority, to decide whether accrued work loss is to be calculated by net income loss or gross income loss for purposes of determining the period of limitation.

The majority states “we must determine whether, for the purpose of § 1009.106(c)(1) [the limitations section], appellant commenced the action within two years after his accrued work loss equaled [sic] $15,000, within the meaning of § 1009.106(a)(1).” It is very important to note that nowhere in the limitations section of the No-fault Act is there language allowing for the bringing of an action within two years after the victim’s accrued work loss equals $15,-000. This particular approach to addressing the timeliness of the action was born of judicial construction by our Supreme Court in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983). The Kamperis Rule, as it has been called, was created when the court considered the two separate limitations periods under the Act—two years from loss and four years from date of accident—in connection with the $15,000 work loss limitation of the Act, and also in connection with the fact that work loss is construed as a continuing series of losses, one occuring each and every time a victim misses a periodic paycheck. For the reasons that follow, I believe that to the extent the limitations section of the Act is going to be construed to allow an action to be commenced within two years of accrual of $15,000 in work loss, the $15,000 figure must be calculated to be consistent with recoverable work loss benefits.

From a logical standpoint, the Kamperis rule would have to be thought of as either a modification of either or both of the limitations provisions of the Act, or an interpretation of the date a victim “suffers the loss”, perhaps this itself being a modification of sorts, as the critical point in starting the two-year limitation provision. The majority’s position, too, would have to be considered as such if it is given that pre-Kamperis the period began running on the first lost paycheck. Although not posed by the majority, the Kamperis rule could be construed to possibly shorten the outer limitation of four years by mandating that the suit be brought within two years of accruing a $15,000 work loss. Yet no decisions of our appellate courts have construed the Kamperis case in this fashion. Instead, all the decisions, as does the majority’s today, appear to recognize the rule as allowing a victim more than two years from the first lost paycheck to file an action without prejudice. In essence the start of the two year period is delayed until the victim hits a work loss total of $15,000. In this respect, we must conclude that the limitations section was being construed in Kamperis in a pro-victim fashion. Although it is not clear in Kamperis whether the court contemplated the $15,000 work loss figure be computed based upon gross work loss or compensable loss under the Act, I believe logic and policy require a holding that compensable loss controls.

If the Kamperis rule is construed as defining the date of loss in work loss cases as the date when the compensable maximum is reached, and further loss will not be compensable under the Act, many positive things could result. The victim would be granted the customary two year period to bring an action but that period would begin at the time his claim matures and his entitlement is cognizable. This prevents the victim from being put in a position where he has to negotiate or take other steps to collect his entitlement during a time when that entitlement is continually changing and still uncertain due to the continuing series of losses. It would also appear to prevent an artificial limitation on recovery resulting from the fact that an individual might suffer an ultimate net work loss of $15,000, but not within any two year period due to receiving other off-setting benefits.

As has become apparent, the Act is quite capable of confusing both lay people and the legal profession as to the accruing of benefits and rights under the Act, especially when the victim is receiving collateral benefits from other sources. Undoubtedly, if the two year period is started on the date of the first lost paycheck, the victim’s claim will remain in a state of flux and uncertainty for much of the two year period, hampering effective assessment of the claim and recovery efforts as well. However, by preserving the four year limitation, the insurer is not unduly prejudiced by delinquent actions.

In contrast, if the Kamperis rule is computed on a strictly gross loss analysis, irrespective of compensable work loss, the rule would very often promote no logical end or goal. The present case illustrates the relative incongruity of using strictly a gross loss analysis. Appellant would have reached the $15,000 gross loss limit prior to missing six months of work. Yet due to receiving workmen’s comp benefits his entitlement under the Act would be substantially below that figure. Upon reaching $15,000 in gross loss, it would be extremely difficult to predict what appellant’s eventual entitlement would be.

Indeed, under the gross loss approach, it is possible that appellant’s entitlement would not be knowable until just prior to the period running or even possibly after the period ran. Would there be any logic in allowing appellant an additional six months to bring an action for work loss benefits under such circumstances? Would appellant really be any better off than if the two year limitation had begun running on the first missed paycheck? Under such circumstances the gross loss analysis would result in a rather arbitrary extension of six months yet would neither benefit the victim nor the insurer to any noticeable extent. Contrast appellant’s situation with that of an individual who was earning only $750 per month in gross wages and missed work due to an accident. If this individual were receiving no other benefits which would adjust his compensation under the Act, his gross work loss would coincide with his entitlement under the Act. It would then take 20 months for him to reach $15,000 in gross wage loss and under the majority’s interpretation, he would be extended another 24 months to bring an action. Why should this hypothetical individual be treated differently than appellant simply because, by fortuity, his gross loss is not as great as appellant’s and is the same as his entitlement under the Act? Further, to the extent this hypothetical individual is given a full two years from the date in which his entitlement would have reached the statutory maximum of $15,-000, why should appellant not be afforded the same courtesy or benefit?

The majority’s position is flawed, I believe, by its insistence upon construing Kamperis by inserting Act definitions. The majority examines the Supreme Court’s statement that an action may be commenced “within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000 ...” The majority then concludes that the legislature equated the terms “loss”, “work loss” and “gross income” in drafting the No-fault Act and intellects that perceived meaning of the term “accrued work loss” into the Supreme Court’s statement or interpretation of when an action may be commenced. This may be a logical step if the $15,000 accrued work loss provision was, itself, set forth in the Act. However, it was not, but was instead set forth in Kamperis. The Supreme Court does not indicate with any specificity that this $15,000 figure should be computed on a gross loss basis, nor do they indicate that accrued work loss should be defined according to terms in the Act.

Consequently, it does not necessarily follow that an isolated definition in the Act should control the judicial construction of the starting date for limitations purposes as set forth in Kamperis. It is equally appealing, in my opinion, that for purposes of limitations periods, the Court was choosing to treat the “continuing series of losses” as one loss in a state of flux maturing at the time of the “last loss”. Further, when the Court states “within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for loss, ...” the court could just as well have been focusing on the point where one reaches maximum entitlement under the Act.

As this case shows, one could reach a point of loss of gross wages of $15,000 without being anywhere close to reaching the “maximum amount recoverable under the Act.” Construed in this fashion, reaching the point of maximum entitlement, a recoverable work loss of $15,000, would always be a relevant event. However, as this case demonstrates, reaching $15,000 in gross lost wages could be totally irrelevant to entitlement under the Act, provide little predictive value as to eventual entitlement, as well as provide for very arbitrary limitations periods. Although, as the majority points out, the Supreme Court does refer to Act definitions earlier in the Kamperis opinion, they then embark upon a discussion of the broad remedial purpose of the Act in an apparent attempt to reconcile the limitations period of the Act with the fact that one suffers a continuing series of losses. 469 A.2d at 1384. Then, recognizing the limits upon recovery for work loss, the Court sets forth the limitations provision under discussion here. Inasmuch as the Court was apparently attempting to effectuate the broad remedial purposes of the Act, it does not follow that they would wish the narrowest possible construction of the so-called Kamperis rule, which is what the majority has propounded here.

In short, I believe a careful analysis of the Kamperis rule will reveal that applying a' gross income loss analysis in every case would result in arbitrary extensions of the two-year period for filing an action while not necessarily advancing any recognizable goal or purpose. Secondly, I believe that, while upon a first reading the attempt to construe such terms as “accrued work loss” according to the definitions in the Act sounds logical, a closer reading will indicate this is not necessarily so when the accrued work loss of $15,000 rule is born of judicial construction and not set forth in the Act itself, and where this rule was born in the spirit of construing the Act to further broad remedial purposes. Thirdly, it is apparent that this issue was not present in the Kamperis case as Mr. Kamperis was killed in the accident which brought rise to that case, and, as such, there was not a situation where an individual was receiving periodic workmen’s compensation benefits.

In contrast, if the $15,000 accrued work loss is construed as the point where one’s entitlement under the Act “equals the maximum amount recoverable under the Act for work loss, $15,000 ... ”, then that point in time would always be relevant as the point where one’s entitlement has been exhausted and the claim against the insured fully matured. The insurer’s interest in timely claims would be protected by either the two year limitation from maturation of the claim or the four year limitation from date of accident. This construction would also serve the goal of allowing the claimant the customary two years to negotiate a settlement or take other steps necessary to recover his claim after the full extent of his claim is known while making sure the claimant is fully compensated for allowable work loss benefits to the extent of the Acts’ $15,000 limitation.

Lastly, I believe we should not be too quick to disregard and overrule the decision in Augostine v. Pennsylvania National Mutual Casualty Insurance Co., 338 Pa.Super. 15, 487 A.2d 828 (1984). At this point I hope I have demonstrated that the key issue before us today is not how the term accrued work loss would be construed under definitions in the Act, but what was within the Supreme Court’s contemplation when it construed the limitation provision of the Act to allow commencement of a suit “within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000 ...” As such, the Supreme Court’s understanding is the controlling factor in the case before us.

It should not escape notice that Augostine was authored by Justice Roberts, sitting specially on the Superior Court, who participated in the Kamperis decision as Chief Justice of our Supreme Court. Justice Roberts indicates in Augostine that application of the Kamperis rule requires exclusion of workmen’s compensation benefits. Having participated in the development of the Kamperis rule, I would defer now, as I did in Augostine, to Justice Robert’s understanding of the proper application of that rule. For the above stated reasons, I dissent.

MONTEMURO, Judge,

dissenting:

I cannot agree with the majority’s holding that a gross loss calculation, rather than a net loss calculation, should be employed in determining the date on which the accrued work loss reached the $15,000 maximum. Contrary to the majority’s assertion, I believe that the legislature’s intent, which can be gleaned from construing the provisions of the No-fault Act in pari materia, was that a net loss analysis be utilized in calculating the date on which the $15,000 mark is reached. I therefore respectfully dissent.

I believe that the primary flaw in the majority’s analysis is that it approaches the problem with blinders. Instead of looking at the entire No-fault Act, the policies behind the act, and the interrelationship of the various provisions, the majority improperly focuses its attention on the definition of “work loss” contained in 40 P.S. § 1009.103. Our primary goal in construing any statutory provision is to ascertain and effectuate the intent of the legislature. 1 Pa.C. S.A. § 1921(a). In ascertaining legislative intent we must consider the entire statute and avoid according an individual provision an interpretation which does not take into account related sections of the same statute. Id.; Causer v. Mandarino, 338 Pa.Super. 564, 488 A.2d 36 (1985).

In any action under the No-fault Act it is important to recognize that what the claimant is claiming and what the insurer is required to provide is “basic loss benefits.” 40 P.S. §§ 1009.102(b), 1009.104. Section 201 of the No-fault Act entitles any “victim” of an accident or survivor of a deceased victim to recover “basic loss benefits” in accordance with the provisions of the Act. 40 P.S. § 1009.201; McGilley v. Chubb and Son, Inc., 369 Pa.Super. 547, 535 A.2d 1070 (1987). One of the provisions with which the claimant must comply is the time limitations requirements contained in Section 106(c)(1). That section provides in pertinent part:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1) (emphasis added). This portion of Section 106(c)(1) requires claimants to file their initial claim for “no-fault benefits” within two years from the date of “loss”. Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982); Borysowski v. State Farm Mutual Automobile Insurance Co., 368 Pa.Super. 399, 403, 534 A.2d 496, 498 (1987). The term “no-fault benefits” is defined in Section 103 of the act as “basic loss benefits, added loss benefits, or both.” 40 P.S. § 1009.103. Basic loss benefits are further defined by Section 103 as follows:

‘Basic loss benefits’ means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle.

40 P.S. § 1009.103 (emphasis added).

Reading the limitations provision of Section 106(c)(1) in conjunction with the definition of “basic loss benefits” leads to the inescapable conclusion that an action for basic loss benefits, which are to be computed by a net loss analysis, may be commenced not later than two years after the victim “suffers the loss....” The question still remains as to when the victim “suffers the loss” for purposes of determining the date on which the two year limitations provision of Section 106(c) begins to run. This question was answered by our supreme court in Kamperis v. Nationwide Mutual Insurance Company, 503 Pa. 536, 469 A.2d 1382 (1983). In Kamperis, the court construed the term “suffers the loss” in the context of a claimant seeking basic loss benefits for work loss sustained. In formulating the test to determine whether an action seeking basic loss benefits for work loss is timely, the court read the limitations provision in Section 106(c)(1) in conjunction with Section 202(b). Section 202(b) provides, in pertinent part, “Work loss, as defined in section 103 shall be provided ... (2) up to a total amount of fifteen thousand dollars ($15,000).” 40 P.S. § 1009.-202(b)(2). Kamperis, supra at 541, 469 A.2d at 1384. Reading this section as a qualification on the general limitations provision provided in Section 106(c)(1), the court set forth a three part test for determining whether a timely action for work loss benefits had been commenced. The court opined:

Thus, the period of limitations provided in § 106(c)(1) must be construed to mean that, where as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to be caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years after the victim suffers the loss as a result of the accident; (b) within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000, and (c) not later than four years after the accident.

Kamperis, supra, 503 Pa. at 541, 469 A.2d at 1384 (emphasis added) (citations omitted).

I believe that the majority misconstrues Kamperis as mandating a gross loss method of computation of the $15,-000 maximum under the second prong of the test. A careful reading of Kamperis reveals that the court spoke in terms of equating the date on which the victim suffered the work loss with the date on which he missed his next expected paycheck only with reference to the first prong of the test. Thus, the court’s reference to the definition of work loss as “loss of gross income ...” was merely meant to convey that for purposes of determining when an individual sustains economic detriment, e.g., loss of paycheck, and for purposes of initially computing the “continuing series of losses” (of paychecks) under the first prong, a gross method of computation is appropriate. See 40 P.S. § 1009.205. The question presented in this case, not specifically addressed by Kamperis, is the proper method of calculating under the second prong of the test whether the $15,000 maximum amount recoverable for work loss has been reached. The answer to this question can be inferred from the language used in the second prong of the test, the only place where the court factored into its analysis the $15,000 limit on work loss contained in section 202(b)(2). I believe that the court’s reference to the point where work loss equals “the maximum amount recoverable under the Act ...” implies that a net loss method of computation be used in determining when the $15,000 maximum has been reached.

In computing the amount that a victim can recover under the Act, Section 206 provides as follows:

§ 1009.206. Net loss
(a) General—Except as provided in section 108(a)(3) of this act, [Section 1009.108 of this title] all benefits or advantages (less reasonably incurred collection costs) that an individual receives or is entitled to receive from social security (except those benefits provided under Title XIX of the Social Security Act [42 U.S.C.A. § 1396 et seq.] and except those medicare benefits to which a person’s entitlement depends upon use of his so-called 'life-time reserve’ of benefit days) workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits (except the proceeds of life insurance) received by or available to an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.
(b) Tax deduction—If a benefit or advantage received to compensate for loss of income because of injury, whether from no-fault benefits or from any source of benefits or advantages subtracted under subsection (a) of this section, is not taxable income, the income tax saving that is attributable to such loss of income because of injury is subtracted in calculating net loss for work loss. Subtraction may not exceed twenty per cent (20%) of the loss of income and shall be in such lesser amount as the insurer reasonably determines is appropriate based on a lower value of the income tax advantage.

40 P.S. § 1009.206.

Section 206 clearly contemplates that Workmen’s Compensation benefits be deducted from gross work loss in determining basic loss benefits recoverable under the Act. In Motley v. State Farm Mutual Insurance Company, 502 Pa. 335, 466 A.2d 609 (1983), our supreme court was presented with an opportunity to construe Section 206 in conjunction with the $15,000 maximum work loss requirement of Section 202(b)(2). In Motley, the insured was injured in an accident in the course of his employment. His total combined weekly income at the time of the accident was $282.96 per week. Following the accident the insured received $163.84 a week in Workmen’s Compensation benefits. The court first noted that Section 206(a) of the No-fault Act mandated that Workmen’s Compensation benefits be subtracted from gross work loss. Id. at 339, 466 A.2d 611. Reading this section with reference to the $15,000 limit on work loss contained in Section 202(b), the court stated:

We hold that where an injured claimant is receiving Workmen’s Compensation benefits, excess no-fault benefits are to be computed by deducting the Workmen’s Compensation benefits from the insured’s actual wage, the difference being the benefits to which he is entitled. Section 1009.202(b) of the No-fault Act limits the amount of work loss benefits which the insurance company mil be required to pay.

Id. (emphasis added) (footnote omitted).

Again, it must be emphasized that what the insurance company insures against and what is compensable under the Act is “basic loss benefits” for work loss sustained. While work loss is initially computed by a gross computation method under Section 205, basic loss benefits for work loss sustained, which is what the insurer will be required to pay, is calculated on a net loss basis under Section 206 by offsetting certain enumerated benefits from the insured’s actual or gross wages. The court in Motley implicitly recognized that a net analysis is the proper method by which to calculate the $15,000 maximum in its statement that Section 202(b) places a $15,000 limit on the amount that the insurer will be required to pay under the Act. Consequently, I believe that the second prong of the Kamperis test, that is, the calculation of the date on which the victim’s accrued work loss equals the $15,000 maximum amount recoverable under the Act, contemplates calculation by the net loss formula contained in Section 206.

I would therefore hold that for purposes of determining the date on which the $15,000 maximum for work loss has been reached, a net computation method is appropriate. Unlike the majority’s analysis, which narrowly focuses on the definition of work loss, this interpretation gives effect to all of the provisions of the No-fault Act as well as to supreme court precedent. In addition, the net loss calculation method would promote judicial economy as well as the broad remedial purposes behind the No-fault Act. Because an individual may only recover basic loss benefits, which are computed by offsetting certain benefits to which he is entitled, it may often turn out that after offsetting these benefits the victim is entitled to nothing under the Act. The majority’s gross computation method would require the victim, in an effort to toll the limitations period, to institute an action as soon as his gross work loss approached the $15,000 limit, even though the subsequent court proceeding would merely determine that the victim sustained no compensable loss under the Act because the benefits received completely offset actual work loss. The net computation method would provide a victim with the opportunity to evaluate whether or not he will be entitled to benefits under the Act without necessitating the commencement of a lawsuit, with its attendant expense, in an attempt to preserve a right which may ultimately prove to be nonexistent. Additionally, the courts of this Commonwealth have consistently stated that in close or doubtful cases, provisions of the No-fault Act should be construed in favor of extending coverage. See Allstate v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). Because the net computation method provides a longer time period before the $15,000 maximum is reached and the right to compensation is extinguished, I believe that it is also consistent with the broad remedial purposes behind the No-fault Act.

Accordingly, I would find that Workmen’s Compensation and Social Security benefits should have been offset from appellant’s actual work loss in calculating the date on which the $15,000 limit was reached, and that his action for excess no-fault benefits was timely filed. In so doing, I would expressly overrule Miller v. Prudential Property and Casualty Company, 344 Pa.Super. 28, 495 A.2d 973 (1985), and would endorse the analysis set forth in Augostine v. Pennsylvania Mutual Casualty Insurance Company, 338 Pa. Super. 15, 487 A.2d 828 (1984).

CIRILLO, President Judge, and McEWEN, J., join.

      . We would note that this case followed the Supreme Court’s decision in Kantperis by three years. The panel specifically refers to Kamperis in its decision. The Supreme Court had an opportunity to review Miller, but chose not to grant allocatur.

        . The trial court incorrectly concluded that 40 P.S. § 1009.206 applies only to social security provisions.

      . This could occur because the two year limitation has been construed to limit recovery to recoverable losses occurring within the preceding two year- period rather than mandating the bringing of an action within two years of the first loss. See Murphy v. Prudential Property & Casualty Insurance Co., 503 Pa. 528, 469 A.2d 1378 (1983) and Miller v. Prudential Property & Casualty Insurance Co., 344 Pa.Super. 28, 495 A.2d 973 (1985). Consequently, if one waited until suffering §15,000 in net loss of earnings, and this figure was out reached within two years of the first loss, then recovery would be limited to the net loss suffered in the two years preceding the bringing of the action. See Miller.

      . Victim is defined as "an individual who suffers injury arising out of the maintenance or use of a motor vehicle." 40 P.S. § 1009.103.

      . It is clear that appellant in this case is seeking compensation for basic loss benefits from the assigned claims carrier. As a result the term "no fault benefits” is synonymous with the term "basic loss benefits" in the instant matter.


author: WIEAND, Judge: BECK, Judge,

text:
    542 A.2d 164
    Marcia Stillman DASHER, Appellee, v. Paul R. DASHER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1987.
    Filed June 2, 1988.

      Michael E. Fingerman, Philadelphia, for appellant.
    Jonathan Braff, Philadelphia, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The principal issue in this appeal from a decree awarding equitable distribution of marital property is whether the trial court erred when it allowed interest on the distributive award made to one of the spouses for the period between separation and the entry of the decree of distribution.

Marcia Stillman Dasher, appellee, and Paul R. Dasher, appellant, were married on June 30, 1957. The couple separated in September of 1971, when the wife-appellee left the marital residence. She instituted two divorce actions, one in 1971 and one in 1978, both of which were dismissed for lack of prosecution. She commenced a third divorce action on August 11, 1980, after enactment of the Divorce Code of April 2, 1980, P.L. 63, 23 P.S. § 101 et seq.

The trial court, following a trial de novo, entered a decree awarding wife-appellee fifty (50%) percent of the marital property, minus a sum which the wife had previously removed from a joint savings account. The total award to the wife was $61,700.00. To this, the trial court added interest for the fourteen (14) year period between the separation of the parties and the entry of the court’s decree. This interest, according to the court’s computation, was $65,076.00 and increased the amount payable by husband-appellant to $126,776.00.

Whether prejudgment interest may be awarded as part of a decree of equitable distribution is an issue which has not been addressed by the appellate courts of this Commonwealth. As a general rule, however, a successful litigant is entitled to interest beginning only on the date of the verdict. Sands v. Pennsylvania Ins. Guaranty Ass’n., 283 Pa.Super. 217, 227, 423 A.2d 1224, 1229 (1980). See also: 42 Pa.C.S. § 8101. “[Pjrejudgment interest is compensation allowed by law or fixed by contract for the use or detention of a plaintiffs property by the defendant.” Verner v. Shaffer, 347 Pa.Super. 206, 210, 500 A.2d 479, 481 (1985). Prejudgment interest for breach of contract is recoverable “[i]f the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value.” Id., quoting Restatement (Second) of Contracts, § 101. It may also be awarded when a “defendant holds money or property which belongs in good conscience to the plaintiff, and the objective of the court is to force disgorgement of his unjust enrichment.” Sack v. Feinman, 489 Pa. 152, 164, 413 A.2d 1059, 1065 (1980), quoting D. Dobbs, Remedies 169-170 (1973). Prejudgment interest in such cases is a part of the restitution necessary to avoid injustice. See: Restatement of Restitution, §§ 156 and 157.

The courts of other jurisdictions have refused to award prejudgment interest in cases involving the equitable distribution of marital property between spouses. The reason generally given for this rule is that the individual rights of the parties to specific property or funds is not established until distribution has been determined by the court. Until a decree of distribution is entered, the spouse in possession of marital property cannot know what amount is owed and, therefore, cannot be in default for failing to deliver the same to the other spouse. See: Cockrill v. Cockrill, 139 Ariz. 72, 676 P.2d 1130 (1983) (until judgment, amount to which spouse is entitled not ascertainable); Appelbe v. Appelbe, 76 N.C.App. 391, 333 S.E.2d 312 (1985) (same); Watt v. Watt, 312 N.W.2d 707 (S.D.1981) (“division of property in a divorce action is designed to settle with finality the property rights of the parties as of the time of entry of judgment____ Each party is entitled to their respective property as of that date.” Id. at 711, quoting Lien v. Lien, 278 N.W.2d 436, 444 (S.D.1979). Cf. Riley v. Riley, 385 N.W.2d 883 (Minn.App.1986) (interest accrues on money awarded as part of property settlement only on unpaid balance from time payment due until payment made; prejudgment interest specifically prohibited by statute); Ashbrenner v. Ashbrenner, 156 Mich.App. 373, 401 N.W.2d 373 (1986) (where statute authorizing prejudgment interest applies only to money judgments in civil actions and not to property distributions in divorce judgments, trial court lacked authority to award such interest, however, court, in exercise of its discretion, could award interest pursuant to property division where specific amount ordered to be paid was overdue); Lawrence v. Lawrence, 150 Mich.App. 29, 388 N.W.2d 291 (1986) (same); Saber v. Saber, 146 Mich. App. 108, 379 N.W.2d 478 (1985) (same). Contra: Morris v. Morris, 724 P.2d 527 (Alaska 1986) (award of prejudgment interest in divorce proceedings within discretion of trial court).

Although the appellate courts of this Commonwealth have not previously considered the issue of prejudgment interest in the context of a decree equitably distributing marital property between spouses, the Supreme Court has considered whether prejudgment interest is recoverable in proceedings to dissolve a business partnership. In reversing an award of prejudgment interest in Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975), the Court said, “[ijnterest should not be allowed on partnership accounts before there has been an accounting or settlement of the same unless under the peculiar facts of the case the equities demand that interest be charged.” Id., 465 Pa. at 193, 348 A.2d at 421, quoting from Greenan v. Ernst, 408 Pa. 495, 512, 184 A.2d 570, 579 (1962).

In the instant case, neither party was entitled to receive specific marital assets until the date of the decree. Moreover, there were no special circumstances which demanded that prejudgment interest be awarded to the wife-appellee in order to avoid unjust enrichment to the husband-appellant. It was the wife who left the marital home and allowed the marital property to remain in the possession of the husband. Thereafter, she twice filed actions in divorce which were subsequently dismissed because she failed to prosecute them. It was only after the Divorce Code of 1980 had been enacted that she finally prosecuted an action for divorce in which she sought, inter alia, a decree of equitable distribution. Although the record indicates that some portion of the delay involved in this action may be chargeable to the husband-appellant, the trial court made no finding of bad faith or dilatory conduct on his part. From the record, it appears that the husband was no more responsible for the fourteen year span between separation and final decree than the wife. Moreover, during the intervening years the husband-appellant made spousal and child support payments in accordance with various support orders. Although the record does not permit a precise determination of the amounts paid prior to April, 1981, it does appear that since that time he has been paying alimony pendente lite to the wife-appellee in accordance with an agreed order of seventy ($70.00) dollars per week. These circumstances do not disclose a situation in which prejudgment interest is necessary to achieve equity between the parties.

Contrary to the expressed belief of the trial court, prejudgment interest is not essential to correct economic disparity between the parties. The means for remedying economic disparity between spouses are contained within the provisions of the Divorce Code. If a court has availed itself of the means provided by statute, it will not be necessary to add prejudgment interest in order to achieve an equitable result between the parties. This is particularly evident here. During fourteen years in which the parties were separated, the wife-appellee’s several divorce actions languished and were dismissed for failure to prosecute them. During the same period, husband-appellant was required to pay either spousal support or alimony. During that period, the husband-appellant did not wrongfully withhold marital property to which wife-appellee was entitled. Prejudgment interest, under these circumstances, was not warranted merely because the husband-appellant, by hard work and business acumen, had been able to parlay a fractional interest in a small, family business into full ownership of a successful and profitable shirt business during the period of separation.

The trial court awarded each spouse one-half of the marital property in existence on the date of separation. By adding pre-judgment interest to the wife’s award, the court almost doubled the wife’s interest in the marital estate, while reducing the husband's share to less than one-twelfth thereof. This was improper.

The trial court has suggested in its opinion that it would have directed a different distribution if it had not awarded pre-judgment interest. It has said that because of its award of pre-judgment interest it did not make an award for the rental value of the marital home which the husband-appellant occupied for approximately six years following the parties’ separation. Appellee has requested, therefore, that we remand for further consideration in view of our rejection of the award of pre-judgment interest. After careful consideration, we have determined to accede to this request. Our remand is not made to permit the trial court to award pre-judgment interest in the guise of an altered distribution but to reconsider its decree in the light of all factors and circumstances mandated by statute in order to achieve a more equitable decree.

Appellant’s remaining contentions are lacking in merit. The trial court did not err when it found that the marital property included the value of the marital home and the value of husband’s business interests at the time of separation. Neither can it be said that the trial court’s award of alimony and counsel fees constituted an abuse of discretion. These were proper awards. Because they were intended to achieve economic justice, however, they highlight the lack of any need for an additional award of prejudgment interest.

Reversed and remanded for further consideration in accordance with the foregoing opinion.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

Although I concur in the majority’s disposition of this case, I disagree with the majority’s view of pre-judgment interest in equitable distribution.

The majority appears to recognize that under Pennsylvania law, pre-judgment interest may be awarded where the “defendant holds money or property which belongs in good conscience to the plaintiff, and the objective of the court is to force disgorgement of his unjust enrichment.” Sack v. Feinman, 489 Pa. 152, 164, 413 A.2d 1059, 1065 (1980). Thus, pre-judgment interest is clearly a general equitable remedy designed to provide restitution for unjust enrichment. The majority then analyzes the facts of this case and determines that equity does not demand a pre-judgment interest award to the wife. However, the majority also appears to opine that pre-judgment interest is not only inappropriate under the facts of this case, but is never advisable in equitable distribution cases. The majority so concludes because “.. .prejudgment interest is not essential to correct economic disparity between the parties. The means for remedying economic disparity between spouses are contained within the provisions of the Divorce Code.”

I disagree. I find nothing in the Code that precludes an award of pre-judgment interest in those cases where special circumstances make it the most effective remedy to prevent unjust enrichment of one spouse at the expense of the other. The Code not only does not preclude the use of general equitable remedies, but in fact specifically reserves to the court “full equity power” and permits it to “grant such ... relief or remedy as equity and justice require against either party____” Pa.Stat.Ann. tit. 23 § 401(c) (Purdon Supp.1987).

I would hold that the decision whether pre-judgment interest is appropriate in an equitable distribution case is vested in the discretion of the trial court. The Supreme Court of Alaska reached the same conclusion in Morris v. Morris, 724 P.2d 527 (Alaska 1986). In Morris, the court advised the trial court to consider factors such as the following in deciding whether pre-judgment interest was to be awarded in dividing marital property:

1. length of separation
2. whether the marital property itself earned interest during separation
3. undue delay in bringing about final judgment.

I agree that these are the kinds of considerations that should guide the trial court’s discretion. Applying these considerations to the case sub judice, I conclude that for the reasons cited by the majority, there are not present the special circumstances necessary to justify a pre-judgment interest award. Thus, the order of the trial court should be reversed and remanded for reconsideration of the equitable distribution of the parties’ marital property in light of our disapproval of an award of pre-judgment interest.

      . A prior hearing had been held before a master.

      . The parties are agreed that the trial court's computation of interest was incorrect. The correct interest for a period of fourteen years is $51,828.00.

      . Similar reasoning was employed by the Court of Common Pleas of Lebanon County when it denied prejudgment interest in Strohm v. Strohm, 21 Leb.Co.L.J. 151 (1984).

      . It is asserted in appellant’s brief that these payments were in excess of $100,000.00.


author: WIEAND, Judge:

text:
    542 A.2d 167
    In re Linda HAWTHORNE, a Minor. Appeal of Linda HAWTHORNE. In re Pauline GIORGI, a Minor. Appeal of Pauline GIORGI.
    Superior Court of Pennsylvania.
    Argued April 5, 1988.
    Filed June 2, 1988.

      William F. Coyle, Philadelphia, for appellants.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

Linda Hawthorne and Pauline Giorgi, both minors, were adjudicated delinquent and were placed on non-reporting probation following a finding that they had committed the crime of theft by unlawful taking in violation of 18 Pa.C.S. § 3921. On appeal from the juvenile court’s dispositional order, Hawthorne and Giorgi contend that the evidence showed nothing more than that they had been present at the scene of the crime. This, they argue, was insufficient to establish that they had participated in the commission of a theft. We agree and, therefore, reverse the order of the juvenile court.

In reviewing a challenge to the sufficiency of the evidence, we view all evidence received at the hearing, as well as all reasonable inferences therefrom, in the light most favorable to the Commonwealth. We then determine whether “the trier of fact could have found that each element of the offensef] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See: In the Interest of LaMore, 356 Pa.Super. 322, 514 A.2d 633 (1986). See also: Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987); Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987).

The Commonwealth’s evidence was stated by the juvenile court as follows:

At approximately 8:25 p.m. on Sunday, May 3, 1987, Officer Scott Drissel responded to a radio call to proceed to the 3300 block of Grant Avenue, Philadelphia, where a Pep Boys auto appliance store is located. Officer Drissel proceeded to the rear of the store and saw a tractor-trailer parked up against a loading platform. One white male, holding a box, was on the platform and the female co-defendants, Linda Hawthorne and Pauline Giorgi, were standing beside him. When the male looked in the direction of Officer Drissel and his partner as they drove up in a marked police wagon, he dropped the box off the platform. The defendants who had been standing next to him disappeared from the view of Officer Drissel behind the trailer. While Officer Drissel’s partner arrested the male, Officer Drissel proceeded to the back of the platform on the other side of the trailer where he observed the defendants coming down the platform steps. The defendants were apprehended by Officer Drissel and other policemen who arrived on the scene.
Officer Drissel testified that the box which the young male had dropped contained chrome wire-wheel covers. The defendants were not observed by Officer Drissel with anything in their hands. Officer Drissel testified that in addition to the boxes of auto parts lying about the platform, there were also numerous cases behind the wall adjoining the platform. He estimated that from the tractor-trailer there were approximately eight (8) cases on the platform outside the trailer and four (4) or five (5) on the ground below. Officer Drissel testified that the lock and seal on the trailer door had been forced open and that the door had been raised to approximately eight (8) feet. Officer Drissel described the loading platform to be approximately six (6) feet off the ground and located twenty-five (25) feet from the sidewalk. He also testified that a set of approximately six (6) or seven (7) steps must be taken in order to get to the top of the platform.
The store manager testified that when he last checked his store, Saturday, May 2, 1987, around 6:00 p.m., everything was secure, including the lock and seal on the tractor-trailer door. The manager also testified that approximately twenty (20) cartons of merchandise had been taken from the trailer. It was stipulated by counsel that whatever was in the boxes belonged to Pep Boys and that there was no authorization to enter the store, or take anything out of the store, given to defendants, or anyone else, on the day in question. Thus, there was no authorization given to the defendants to remove any merchandise from the property.

Based upon this evidence, the juvenile court concluded that the Commonwealth had presented evidence sufficient to prove beyond a reasonable doubt that appellants had committed theft.

Although it is true that a conviction for theft can be based on circumstantial evidence, mere suspicion or conjecture will not suffice. See: Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Frey, 264 Pa.Super. 212, 215, 399 A.2d 742, 743 (1979); Commonwealth v. Manson, 230 Pa.Super. 527, 530, 327 A.2d 182, 183 (1974). Moreover, “[i]t is well established that a showing of mere presence at the scene of a crime is insufficient to support a conviction: evidence indicating participation in the crime is required.” Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983). See also: Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. Blankenbiller, 362 Pa.Super. 477, 524 A.2d 976 (1987); Commonwealth v. Johnson, 355 Pa.Super. 372, 513 A.2d 476 (1986); Commonwealth v. Key, 342 Pa.Super. 31, 492 A.2d 48 (1985); Commonwealth v. Weaver, 309 Pa.Super. 509, 455 A.2d 1199 (1982). Even presence at the scene of a crime in the company of its perpetrator has been held to be insufficient to sustain a conviction. See: Commonwealth v. Roscioli, supra 454 Pa. at 63-64, 309 A.2d at 399; Commonwealth v. Garrett, 423 Pa. 8, 12-13, 222 A.2d 902, 905 (1966); In re Amos, 287 Pa.Super. 446, 449, 430 A.2d 688, 690 (1981).

“To be guilty of theft by unlawful taking or disposition, a criminal defendant must unlawfully take or exercise control over the movable property of another with intent to deprive him thereof.” Commonwealth v. Crawford, 285 Pa.Super. 169, 176, 427 A.2d 166, 170 (1981). See also: 18 Pa.C.S. § 3921(a); Commonwealth v. Deeters, 255 Pa.Super. 343, 386 A.2d 1034 (1978); Commonwealth v. Richardson, 238 Pa.Super. 410, 357 A.2d 671 (1976). In the instant case, there was no evidence to establish that appellants had taken, exercised control over, or even touched any of the merchandise belonging to Pep Boys. Cf. Commonwealth v. Whitner, 444 Pa. 556, 281 A.2d 870 (1971) (mere proximity to stolen goods insufficient to show possession as element of larceny). Similarly, there was no evidence which tended to show that appellants had been acting in concert with or had aided in any way the male whom police observed in possession of Pep Boys’ merchandise. Cf. Commonwealth v. Flowers, 479 Pa. 153, 387 A.2d 1268 (1978) (mere presence during commission of a crime does not constitute aiding and abetting); Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975) (mere presence at scene of crime not sufficient to establish that one is an active partner in another’s intent to commit the crime). The Commonwealth’s evidence showed merely that appellants, who resided in the same neighborhood, had been observed by police as they stood on Pep Boys’ loading platform in close proximity to a young man who was in unlawful possession of Pep Boys’ property. Although their presence might cause one to be suspicious of their activity, case law firmly establishes that it was an insufficient basis on which to find that they were participants in the illegal activity. See, e.g.: Commonwealth v. Keblitis, supra; Commonwealth v. Goodman, supra; Commonwealth v. Roscioli, supra; Commonwealth v. Garrett, supra. Therefore, we reverse the order of the juvenile court and discharge the appellants.

The adjudication of delinquency is reversed, and appellants are discharged.

      . The juvenile court found Hawthorne and Giorgi not guilty on charges of receiving stolen property and conspiracy.

      . A demurrer by defense counsel at the conclusion of the Commonwealth’s case-in-chief was denied by the juvenile court.


author: BROSKY, Judge:

text:
    542 A.2d 170
    Anthony MALISZEWSKI and Josephine Maliszewski, H/W, Appellants, v. Dr. Roberto RENDON, Dr. Gordon Van Den Noort, Dr. Albert Wagman.
    Superior Court of Pennsylvania.
    Argued March 1, 1988.
    Filed June 6, 1988.

      Arnold J. Wolf, Philadelphia, for appellants.
    Mary C. Driscoll, Norristown, for appellees.
    Before BROSKY, BECK and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from an order denying appellants’ motion for a new trial. Appellees were granted summary judgment at the close of appellants’ case, the trial court finding that appellants had failed to prove an essential element of their case.

Appellants present six issues for our consideration: (1) whether their informed consent case was properly dismissed for failure to provide expert testimony asserting appellants had suffered injury additional to the back surgery itself; (2) whether a non-surgeon physician was properly dismissed where he provided inaccurate information regarding the probability of success of the proposed back surgery; (3) whether the lower court erred in excluding portions of medical records because they contained medical opinions; (4) whether the trial court erred in preventing cross-examination of the defendants by reference to an authoritative text; (5) whether the trial court erred in limiting cross-examination as to the cause of appellants’ post-surgical back pain; and (6) whether the trial court erred in denying a requested continuance. Upon consideration of arguments advanced by both parties, we affirm the order appealed from.

In the last week of April of 1977, appellant, Mr. Maliszewski, injured his head and back at work. In the first week of May he experienced a foot drop evidenced by loss of sensation and control. At the recommendation of his family physician he consulted Dr. Wagman, a neurologist, on June 21, who recommended hospitalization. After further consultation with his family physician appellant was admitted to Abington Memorial Hospital on June 23, and placed under the care of Dr. van den Noort, a neurosurgeon. Following an examination Dr. van den Noort concurred with Dr. Wagman’s earlier diagnosis of an intervertebral herniated disk at L4-5, and ordered a myelogram and nerve conduction studies to confirm his findings.

The myelogram results were abnormal indicating a small defect at L4-5 on the right; however, they did not confirm the diagnosis of a herniated disk. The electromyogram demonstrated electrical abnormality in the muscles supplied by a nerve root in the lumbar spine. No impairment was present in the peripheral nerves, ruling out peroneal nerve palsy.

Based on Mr. Maliszewski’s clinical presentation, examination and the testing results, Dr. van den Noort determined that surgery was advisable to explore and remove any diseased disks, as any delay would decrease the chances of appellant obtaining a return of power to his right foot. However, Dr. van den Noort still perceived the probability of regaining use of the foot as remote. Appellant consented to surgery to prevent the worsening of his foot paralysis.

During surgery Dr. van den Noort excised an abnormal disk located at the fourth and fifth lumbar vertebrae. Thereafter, according to medical records, Mr. Maliszewski’s foot drop steadily improved and ultimately disappeared by August of 1977, yet reoccurred a few months later.

Appellant brought suit against appellees alleging, primarily, a lack of informed consent. Trial was scheduled but continued twice. After the second continuance in October of 1986, it was mutually agreed to list the case for early February of 1987. Official notice of the trial date was sent on December 19, 1986. However, appellant requested a continuance due to the unavailability of his expert approximately two weeks prior to the scheduled trial. This request was denied and appellant went to trial without benefit of an expert witness. Appellant testified that, at the time of admission to the hospital, he did not suffer from back pain. He further testified that after surgery he suffered a great deal of back pain, which has not diminished. His foot paralysis, according to his testimony, remained unchanged for a couple of months after surgery, but greatly improved almost overnight at that time. However, several months later he suffered a recurrence of the paralysis. He was later diagnosed as having peroneal palsy, which had been ruled out by appellees prior to surgery. Appellant called Drs. van den Noort and Rendon in his case in chief. Dr. Van den Noort testified that they were unable to come to a clear cut diagnosis of a herniated disk and that he had proceeded to surgery on a “strong clinical hunch.” He also indicated that he felt that there was only a remote chance appellant would regain use of the foot due to the amount of time which had passed from the onset of the paralysis, but that it was almost inconceivable that his condition could worsen by undergoing surgery. Dr. van den Noort maintained his belief that the diagnosis was correct and indicated that he found and removed a “bulging disk” at the suspected point of trouble, L4-5.

Although appellants’ complaint listed several counts, they abandoned at time of trial any theory that the surgery was performed below medical standards. They went to trial on a stance that appellant would not have had the surgery performed had he been properly informed of the risks and the low probability of success. He also' testified that he had been told, contrary to the truth, that there was a high likelihood of success from the operation. Appellant sought damages for the sustaining of severe back pain, and incapacitation due to pain, allegedly suffered solely as a result of the back surgery. Just prior to trial the court was asked to rule upon an outstanding motion for summary judgment. The court declined to do so at that time without prejudice to appellees to renew the motion at the close of appellants’ case. The central issue addressed the lack of expert testimony tying appellant’s back pain to the surgery. Appellants maintained a position that they were not required, prior to sending the case to the jury, to show any injury additional to undergoing the surgery itself. At the close of appellants’ case, the motion was renewed and appellants’ case was dismissed.

We are called upon to once again discuss the necessity or lack of necessity of expert medical testimony in informed consent cases. In Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986), this court issued an opinion designed to help clarify when expert testimony was needed in informed consent cases. We explained in Festa that, although expert testimony was not required to establish the materiality of risks, it was required to establish the existence of risks, the existence of alternative treatments and the feasibility of these alternatives in the patient’s case. 511 A.2d at 1377. In Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987), we clarified this requirement even further stating that once medical testimony establishes a risk of which the patient was not informed and which is experienced after surgery, it is for the jury to determine whether the omission was material to an informed consent. In neither Festa nor Jozsa did we explicitly discuss the need for expert testimony to establish causation: we do so today.

It goes without citation that as a part of a tort action the plaintiff must prove that the injury claimed to have been sustained and for which recovery is sought was caused by the tortious act or force of the tortfeasor. With regard to claims of physical injury or impairment, expert medical testimony is necessary to establish the causal nexus of the injury to the tortious conduct in those cases where the connection is not obvious. This is due to the complicated nature of the medical field which is beyond the knowledge of the average juror. Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974). We cannot conclude that this requirement is changed at all for informed consent cases.

As was pointed out in Festa, Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971), merely exempted plaintiffs from presenting expert testimony to establish the materiality of the risks. Cooper does not exempt plaintiffs from providing expert testimony as to all aspects of the case when it would otherwise be necessary. The Jozsa case, supra, at least implicitly, recognizes the necessity for finding a causal connection between the lack of informed consent and the suffering of the injury as well as the distinct possibility that expert testimony will be required to establish it. We stated:

... once expert testimony establishes the existence of an undisclosed risk of a recommended medical procedure ... it is the role of the jury to decide whether that type of harm if it occurs, is a risk which a reasonable patient would consider in deciding on whether to undergo or reject the procedure.

(Emphasis added). We also stated in Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987), that it was essential for recovery to show that:

... as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed, or the patient actually suffers an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment.

Consequently, in order for appellant to have recovered for the disabling back pain he allegedly suffers, he was required to prove that this type of back pain was an undisclosed risk of the surgery he underwent and that it was caused by the surgery. This he has failed to do.

Although appellant testified that he was not experiencing back pain upon seeking treatment from appellees, there was much evidence contradicting this fact. Appellant presented no medical expert testimony showing a causal connection between the surgery and the back pain he complained of. Appellant did attempt to show, through appellee van den Noort’s testimony, that there existed a possibility that one could sustain scarring at the nerve roots which in turn is capable of producing pain. However, Dr. van den Noort did not testify that appellant’s pain was caused by such scarring, or even that appellant had experienced scar formation. Dr. van den Noort did testify, however, that he could not conceive that the back surgery appellant underwent could worsen the back pain he had been experiencing prior to surgery. Appellant apparently had hoped to introduce records of his medical expert which would have attributed appellant’s pain to scarring. However, these reports were properly refused admission by the trial court as they contained medical opinions and diagnoses and as the doctor was unavailable to testify. See Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987). Consequently, we must find that appellant failed to carry his burden as to the issue of causation. The record clearly reveals that the cause of appellant’s back pain was a disputed issue and far from obviously caused by the back surgery itself. Without medical expert testimony establishing the causative element, any jury award would have been speculative and improper. For the above reasons, we affirm the order appealed from.

Order affirmed.

BECK, J., concurs in the result.

      . We note that appellee had moved for a "summary judgment" which motion was ultimately granted. However, the nature of the motion was essentially that of a compulsory non-suit. For purposes of considering timeliness of appeals we must look beyond the title to the contents and substance of the motion in order to characterize it. See, Abramson v. Commonwealth, Public Utility Commission, 489 Pa. 267, 414 A.2d 60 (1980), and Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). Thus, we find this appeal to have been properly perfected.

      . We find appellant’s remaining issues either rendered moot by our determination of the first or adequately treated in the opinion of the trial court.