author: McEWEN, Judge:

text:
    455 A.2d 130
    Ruth LEVIN, Appellant v. Allan SHAPIRO, a Minor by his Parent and Natural Guardian, Marilyn Shapiro LEVIN, and Samuel Levin.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed Jan. 7, 1983.

      Diane Rothberg Pevar, Philadelphia, for appellant.
    Lewis Kates, Philadelphia, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which sustained the Preliminary Objections of appellees and dismissed the complaint of appellant for lack of service. We affirm.

Appellant filed a complaint in trespass against appellees on March 16, 1972, alleging a claim for personal injuries sustained as a result of an alleged assault and battery on June 23, 1970 by appellees Samuel Levin, the ex-husband of appellant, and Allan Shapiro, the stepson of Samuel Levin. At the time the action was commenced Allan Shapiro had not yet attained his majority and the complaint against him named Marilyn Shapiro Levin, his mother, as his parent and natural guardian. The complaint listed the addresses of appellees, Samuel Levin and Allan Shapiro as 791 Barnes Willow Lane, Huntingdon Valley, Montgomery County, Pennsylvania. The sheriff attempted to make service at this address within the thirty day period after the complaint was filed but was unsuccessful. Appellant then timely reinstated the complaint and directed the sheriff to serve Samuel Levin and Allan Shapiro at their residence, “Apartment 833 Meadowbrook Drive, Huntingdon Valley, Pennsylvania.” The order for service completed by the sheriff indicated that service was attempted on a number of occasions and was finally made on May 18, 1972, to a Mrs. Levin, at “Apt. 504, 833 Meadowbrook Drive, Huntingdon Valley”, which, of course, differs somewhat from the address that plaintiff had designated to the sheriff. The return of the sheriff listed the relationship of the Mrs. Levin served with the complaint as wife of Samuel Levin and person in charge of Allan Shapiro.

Appellant filed, almost two years later, on May 6, 1974, a praecipe for the entry of a default judgment for failure to file an answer to the complaint. The default judgment was entered and a notice of the entry of the default judgment was mailed to Samuel Levin at 791 Barnes Willow Lane, Huntingdon Valley. Appellant had the matter listed for trial for assessment of damages on February 27, 1980, almost six years after the entry of default judgment. Appellees received a notice dated February 14, 1980 from the Court Administrator of Montgomery County that the case was listed for trial for February 27, 1980. Appellees claimed that they did not have any knowledge of the existence of the lawsuit until the receipt of this notice from the Court Administrator and at that time engaged counsel who filed a petition to strike or in the alternative to open the judgment. Appellant filed a responsive pleading and the court directed depositions to be taken within thirty days. Appellees took the depositions of seven person, including themselves.

Carl F. Burkhart, a deputy sheriff of Montgomery County, testified that his territory for service of process included the Meadowbrook Apartments and that there is no address known as Apartment 504, 833 Meadowbrook Drive, Huntingdon Valley. He claimed that such an address was non-existent explaining that there could be either an apartment 504 Meadowbrook Drive or an apartment 833 Meadowbrook Drive but that there could be no combination of the two. He further testified that the street address for each apartment on Meadowbrook Drive is the same as the apartment number. It was established during the deposition of deputy sheriff Burkhart that Joseph Pergine, the deputy sheriff who had served the complaint, had died in the interim. Counsel for the parties agreed during the course of this deposition “[t]hat the deputy sheriff that filled it [the order for service] in wrote in the apartment 504 where the service was made” as well as the other data in a different color ink than that used for the 833 Meadowbrook Drive address set forth in the order for service. (R. 115a).

Richard Fare, the first deputy prothonotary of Montgomery County, testified that the office of the prothonotary mailed the notices of entry of judgment to appellees in envelopes prepared by appellant. These notices were addressed to appellees at the Barnes Willow Lane address.

The deposition of Rita Ann Jobs, the general manager of Meadowbrook Apartments, established that neither the manager nor the person in charge of the apartments lived in apartment 504 and confirmed that every person who lives in the Meadowbrook Apartments has an address of Meadow-brook Drive and that each apartment has a street address which corresponds to the number of the apartment. She further confirmed that the address of apartment 504 in the Meadowbrook Apartment complex would have an address of 504 Meadowbrook Drive and that apartment 833 would have a corresponding street address of 833 Meadowbrook Drive. Mrs. Jobs further testified that, from the time when she became assistant manager of the complex in January 1975, she had personal knowledge that the tenants who resided in apartment 504 Meadowbrook Drive were another Samuel Levin and his wife Florence and that they were original residents and became tenants in 1969 or 1970 when the complex was built. Her testimony was that this other Samuel Levin, together with his wife Florence, resided in apartment 504 on May 18, 1972, the date of service of the complaint but could not produce records to confirm her testimony since they had either been discarded or destroyed in a flood.

Appellee Samuel Levin testified that he resided in the Meadowbrook Apartment complex from September of 1971 to September of 1974, and that his address was 833 Meadowbrook Drive during that period. He testified that he never lived at apartment 504 and that his ex-wife knew where he lived in the complex and had visited him several times there. He further testified that it was not until mid-February of 1980 that he became aware of the existence of the instant lawsuit when he received an envelope from the Montgomery County Court Administrator which contained the civil trial list for February 27, 1980.

Marilyn Levin, the wife of Samuel Levin, testified that she was employed fulltime for a corporation located in New Jersey and had never taken a day off from the time she was employed in 1967 to the time of her deposition on April 24, 1980. She denied that she had ever been served with a copy of the complaint and confirmed that on the purported date of service her address was apartment 833, 833 Meadow-brook Drive.

Allan Shapiro, stepson of Samuel Levin, testified that he first became aware of the lawsuit in March of 1980 and further corroborated the addresses at which he had lived with his stepfather and mother.

The Common Pleas Court ordered the judgment opened on November 14, 1980 and appellee thereafter filed Preliminary Objections challenging, inter alia, the jurisdiction of the court, on grounds that proper service of the original complaint had never been made. Appellees further requested that the court dismiss the complaint for the reason that the statute of limitations for reinstatement of the complaint had long since expired. The trial court concluded that service was not made at the residence of the defendant on the basis of a stipulation by the parties during the deposition of deputy sheriff Burkhart to the effect that apartment 504 Meadowbrook Drive was the place where service was actually made. The Common Pleas Court sustained the preliminary objections of appellees by order dated February 23, 1981 and, subsequently, by amended order dated March 16, 1981, the court reiterated that it had sustained the preliminary objections of appellees and dismissed the action. This appeal followed.

Appellant first argues that the lower court erred in finding that the return of the sheriff, on its face, showed that proper service of the complaint of appellant had never been made. Appellant argues that service was properly effected in accordance with Pennsylvania Rule of Civil Procedure 1009(b) which in pertinent part provides:

(b) When the defendant is an individual, the writ of summons, or the complaint if the action is commenced by complaint, may be served
(1) by handing a copy to the defendant or,
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with which he resides; but, if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

Appellant claims that the return of the sheriff states that date, time and place of service and that service was made upon a Mrs. Levin who stated that she was the wife of Samuel Levin and the person in charge of Allan Shapiro. She claims that the return of the sheriff, in the absence of fraud, is conclusive and immune from attack by extrinsic evidence. Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). We do not agree. It is clear that a sheriffs return is conclusive and immune from attack as to facts stated therein of which the sheriff presumptively has personal knowledge. However, the conclusiveness of the return of the sheriff does not extend to facts of which the sheriff does not have personal knowledge. Hollinger v. Hollinger, supra; Liquid Carbonic Corp. v. Cooper and Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979). It is clear in this case that the facts upon which appellant relies in arguing that the sheriffs return is immune from attack are facts which were not presumptively within the personal knowledge of the sheriff. Contrary to appellant’s assertion that the appellees failed to present any evidence to refute or contradict the information in the sheriff’s return, the depositions taken by appellees established: (1) that the complaint was never served upon appellees; (2) that appellees never received notice of the lawsuit until mid-February, 1980, when they received a notice that the matter was scheduled for trial for assessment of damages on February 27, 1980; (3) that service of the complaint was made upon another Mrs. Levin who resided in apartment 504, and not the Mrs. Levin who resided in apartment 833; (4) that all notices concerning the action following the service of the complaint at apartment 504 were mailed to an address where appellees no longer resided; (5) that the sheriff did not presumptively have personal knowledge of the identity of the Mrs. Levin served with the complaint as the wife of appellee Samuel Levin and the person in charge of appellee Allan Shapiro; and (6) that the parties stipulated that the sheriff made service of the complaint at apartment 504 which was not the residence of appellees. We conclude that proper service of the complaint was never made and that the preliminary objections were properly sustained by the Common Pleas Court.

Appellant further contends that the trial court erred in finding that the parties to the actions stipulated to the place where service was actually made. We disagree. Counsel for the parties entered into the stipulation during the deposition testimony of Deputy Sheriff Carl Burkhart following the production by counsel for appellant of the order for service made upon the reinstatement of the complaint. Counsel for the parties, at that time, engaged in the following discussion:

MR. KATES: Diane, can we agree that P-1 has the designation, ‘apartment 504’?
MRS. PEVAR: In my opinion, the same ink which is written apartment 504, is also the ink which was used to fill in the information by the Deputy Sheriff upon service. It’s a different color ink than that used for the 838 Meadowbrook Drive, Huntingdon Valley, Pennsylvania address.
MR. KATES: O.K. What we are agreeing then, is that the Deputy Sheriff that filled it in wrote in the apartment 504 where the service was made.
MRS. PEVAR: Correct.
MR. KATES: That’s all we are agreeing to, O.K. No further questions. (R. 114a-115a).

Appellant contends that this conversation did not represent a stipulation as to where service was made but, rather, an agreement as to the color of the ink used by the Sheriff to fill in various portions of the order for service. Even if we were to agree with the contention of appellant, it is clear that the deputy sheriff who provided the details of service upon the order for service himself wrote in “apartment 504” above the 833 Meadowbrook Drive address to which service was directed to be made. The place of service was a matter of which the sheriff presumptively had personal knowledge and the inscription “apartment 504”, written in the same color ink as that used to fill in the information on the order for service form, establishes that service was in fact made at apartment 504 rather than at apartment 833. Therefore, we find no error with the finding of the court that the parties stipulated that service was made at apartment 504.

Appellant next contends that the trial court erred in considering inadmissible hearsay evidence presented by appellees concerning the residents of apartment 504. We find no merit to this argument. First, our review of the record indicates that Rita Jobs, the general manager of the Meadowbrook Apartment, complex testified that she had personal knowledge that the residents of apartment 504 were Samuel and Florence Levin and, further, that she had personal knowledge that they were original residents of the complex who had resided there since the end of 1969 or the beginning of 1970. Second, even if we were to conclude that the deposition testimony of Ms. Jobs was based upon hearsay, it is clear that the decision of the trial court to sustain the preliminary objections of appellee and dismiss the complaint did not depend upon this testimony since the stipulation of the parties and the deposition testimony of the remaining witnesses irrefutably and independently established that proper service of the complaint was not made.

Appellant finally contends that the dismissal of this action was improper and overly harsh in light of the circumstances of the case. We believe the dismissal was proper. More than seven years had elapsed from the time the complaint had been reinstated and served at the wrong address and the time the action was dismissed by the Common Pleas Court. The statute of limitations governing actions in trespass is two years. Proper service of the complaint was not effected. The Common Pleas Court lacked jurisdiction to hear the case because of the failure of service and the expiration of the applicable statute of limitations. It is clear that the issue of the expiration of the statute of limitations, an affirmative defense, should “be pleaded in a responsive pleading under the heading ‘New Matter’.” Pa.R.C.P. 1030. Appellee has raised the defense of the statute of limitations by a demurrer in preliminary objections filed after the judgment was opened. Since the statute of limitations defense here was not a non-waivable defense within the meaning of Pa.R.C.P. 1017(b)(4), it should have been pleaded under new matter as prescribed by Pa.R.C.P. 1030.' However, we have reached the merits of the statute of limitations defense at this time for the reasons stated by our distinguished colleague Judge Gwilym A. Price, Jr. in Cooper v. Downihgtown School District, 238 Pa.Super. 404, 357 A.2d 619 (1976):

First, it was briefed, argued, and considered in the lower court. Secondly, once the statute of limitations is raised in new matter, appellee’s right to a judgment on the pleadings based on the statute of limitations, will be clear. See Pa.R.C.P. 1034. Therefore, we see no reason to remand this case for further pleadings. Id., 238 Pa.Superior at 407, 357 A.2d at 621. (footnote omitted).

Accordingly, we affirm the order of the learned Judge Horace A. Davenport.

      . Pa.R.C.P. 1017(b)(4) provides in pertinent part that "preliminary objections are available to any party and are limited to a demurrer, which may include the bar of a nonwaivable statute of limitations ... which bars or destroys the right of action and the applicability of it appears on the face of the complaint or counterclaim.”


source: Caselaw Access Project

author: VAN der VOORT, Judge: HESTER, Judge,

license: Public Domain

text:
    455 A.2d 135
    ROYAL INDEMNITY COMPANY, v. Kenneth L. ADAMS and Marion J. Adams, and Aetna Life and Casualty Life Insurance Company. Appeal of AETNA LIFE AND CASUALTY LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Jan. 7, 1983.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.

      Alvin B. Lewis, Jr., Lancaster, for appellant.
    Richard L. Kearns, Harrisburg, for Royal, appellee.
    Anthony Schimaneck, Lancaster, for Adams, et al., appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This appeal is another in a long series of appeals involving the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. 1009.101, et seq. (Hereafter referred to as the No-Fault Act). The instant appeal raises a very novel question: does a No-Fault policy remain in effect after the listed insured vehicle is no longer owned by the named insured and he has failed to make the required premium payments. To properly frame this issue, it is first necessary to gain an insight into the factual development of this case.

Kenneth Adams, a minor, co-owned with his father (Mr. Adams) a Chevrolet, which he sold on March 17, 1977. His insurance carrier was so notified. Subsequently, Adams purchased a 1969 Fiat, his mother Marion Adams (Mrs. Adams) was listed as co-owner; and he acquired insurance through the Gross Agency. The initial payment was tendered and accepted. The Automobile Insurance Plan assigned this policy to Royal Indemnity; the policy period was from May 9, 1977 to May 9, 1978. The premium installments due on July 9, 1977, August 9, 1977, and September 9, 1977, were never paid. In August 1977, Adams sold his Fiat; he did not advise either the Gross Agency or Royal Indemnity of such sale. On September 26, 1977, Adams was injured while riding as a passenger in a vehicle operated by Peter Hellinger. The Hellinger vehicle, as well as two owned by Mr. and Mrs. Adams were insured by Aetna Life and Casualty Insurance Company (hereafter referred to as Aetna).

The day after the accident, Royal Indemnity informed Adams that it was cancelling his policy with Royal Indemnity, effective October 12, 1977. On January 4, 1978, Royal sent a premium amendment notice to the Adams; the notice also stated that the policy had been cancelled October 12, 1977. Marion Adams sent a check to Royal for the amount due which was accepted and cashed. Royal later refunded the sum explaining it had been accepted in error. While investigating Mrs. Adams claim on behalf of her son, Kenneth Adams, Aetna discovered the existence of the Royal Indemnity policy. The September 26, 1978 accident came to Royal Indemnity’s attention by way of the Gross Agency when such agency learned of it while dealing through another agency. Thereafter Marion Adams, prompted by inquiries from Royal Indemnity filed a claim on her son’s behalf, with Royal Indemnity. Royal Indemnity denied the claim and petitioned for a declaratory judgment to determine which insurer should pay Adams’ basic loss benefits. The lower court found for Royal Indemnity and against Aetna and this appeal followed.

Section 204 of the Act, 40 P.S. § 1009.204 states:

(a) Applicable Security—The security for the payment of basic loss benefits applicable to an injury to:
(2) an insured is the security under which the victim or deceased victim is insured;

An insured is defined by § 1009.103 as

(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative of a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of the named insured if—
(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this Act; and
(ii) in residence in the same household with a named insured.
(Emphasis added)

When the above is applied to the parties at hand, the following situation results, Aetna as insurer of Mr. and Mrs. Adams is also insurer of Kenneth Adams, unless he is the identified named insured in another policy, which he was if the Royal Indemnity policy was in effect on September 26, 1977. The issue we must decide is straightforward: was the Royal Indemnity policy in effect on September 26, 1977, however the resolution of the issue is elusive. The lower court found that the fact that the insured vehicle was no longer owned by the insured was controlling and held that the Royal Indemnity Policy, was no longer in effect.

Appellant-Aetna views the current controversy as being two fold:

I. Does the sale of the motor vehicle named in a no-fault insurance policy automatically terminate the whole policy?

II. May a no-fault insurance policy be terminated by the company during its stated term without giving notice to the insured in accordance with the policy and statutory provisions?

I.

The No-Fault Act does not address itself to the problem at hand. However in resolving this matter we must keep in mind the purposes of No-Fault. Section 1009.102(b) provides:

Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

“Victim” is then defined as an individual who suffers an injury arising from the maintenance or use of a motor vehicle, § 1009.103.

Looking to the policy between Royal Indemnity and Adams we find that the policy contains three different coverages. Part A, liability coverage reads:

We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted.
“Covered person” as used in this Part means:
1. You or any family member for the ownership, maintenance or use of any auto or trailer.
2. Any person using your covered auto.
3. For your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.
4. For any auto or trailer, other than your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of you or any family member for whom coverage is afforded under this Part. This provision applies only if the person or organization does not own or hire the auto or trailer.
(Underscoring supplied).

Exclusion number 9, which is relevant, states that the insurer does not provide liability coverage:

For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.

Under this provision, ownership of “your covered auto” is not necessary for coverage to attach under one and four above.

Likewise, Part B, medical payments coverage, the determination whether coverage attaches is dependent on the circumstances. That part of the policy reads:

We will pay reasonable expenses incurred for necessary medical and funeral services because of bodily injury caused by accident and sustained by a covered person. We will pay only those expenses incurred within three years from the date of the accident.
“Covered person” as used in this Part means:
1. You or any family member while occupying, or as a pedestrian when struck by, a motor vehicle designed for use mainly on public roads or by a trailer of any type.
2. Any other person while occupying your covered auto. (Underscoring supplied).

Under point 1. above, medical coverage is provided irregardless of the ownership of the vehicle involved; while under point 2. above, coverage is dependent on occupancy of the covered auto.

Part C of the policy states as follows:
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
Any judgment for damages arising out of a suit brought without our written consent is not binding on us.
“Covered person” as used in this Part means:
1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

(Underscoring supplied)

“Covered person” is not, except for point 2 defined in terms of “covered auto.”

In reading the insurance contract at hand, it becomes readily clear that coverage in many instances is independent of any connection or causal relationship with the “covered auto.” We find support for this conclusion from other jurisdictions. In Emick v. Dairyland Insurance Company, 519 F.2d 1317 (4th Cir.1975), the court found that medical payment coverage and uninsured motorist coverage focus on the person rather than on his liability arising out of the operation of a particular vehicle. In contrast bodily injury liability coverage must arise from the ownership, maintenance, or use of an insured vehicle. Similarly, the Maryland Court of Appeals, in Oarr v. Government Emp. Ins. Co., 39 Md.App. 122, 383 A.2d 1112 (1978) held that unlike medical payment and uninsured motorist coverage, liability insurance is directly related to and requires the involvement of an insured vehicle. The court held that the medical payment and uninsured motorist provisions were in the nature of a personal accident policy, while the liability provision was based on the automobile. Likewise in Government Employees Insurance Company v. Sweet, Fla.App., 186 So.2d 95 (1966), the medical payment coverage was found to be applicable to all injuries arising from an automobile accident (except when the insured was injured while occupying a car used regularly by him but not described in his policy). The public liability and property damage provisions were attributed to the vehicle causing the damages. Recovery for medical payments was deemed to be completely independent of liability on the part of the insured.

We must acknowledge that our analysis of the current insurance policy differs in one major respect from that of the other jurisdictions. The policy here cannot simply be interpreted as providing liability insurance dependent upon the vehicle and personal injury coverage based on the individual. All three coverages as listed in Parts A., B. and C. may in one set of circumstances be dependent upon the motor vehicle while under different circumstances the same coverage is in effect dependent upon the person. Nonetheless, the distinction between personal and vehicle related insurance is applicable here. Point 1. of part B., of the policy provides coverage to: “You [the insured] ... while occupying ... a motor vehicle.” The clear inference to be drawn is that this coverage pertains to any motor vehicle as distinguished from “your covered auto” contained in point 2. of Part B. Accordingly, the coverage is personal and not dependent upon the ownership of the vehicle.

A final point we must address is the policy’s definition of “your covered auto”, which Royal Indemnity contends precludes recovery. “Your covered auto” is defined as:

(a) Any vehicle shown in the Declarations.
(b) Any of the following types of vehicles of which you acquire ownership during the policy period, provided that you ask us to insure it within thirty days after you become the owner:
(1) a private passenger auto.
(2) if not used in any business or occupation, a pick-up, sedan delivery or panel truck.
If the vehicle replaces one shown in the Declarations, you have to ask us to insure it within thirty days only if you wish Damage to Your Auto Coverage to apply to the replacing vehicle.
(c) Any trailer you own.
(d) Any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its breakdown, repair, servicing, loss or destruction. (Underscoring supplied)

This definition, and in particular subsection (b) should be interpreted as applying to coverage involving “your covered auto”. When applied to part B, medical payments coverage, “your covered auto” is not pertinent as the named insured is covered for injury arising from any motor vehicle.

In conclusion, under the circumstances of this case, Adams’ transfer of the insured vehicle did not terminate the medical payment coverage as it pertains, to him. This is of course, dependent upon the contract still being in effect even though the premiums had not been paid up to the date of the accident.

II.

The assigned risk plan under which the Royal Indemnity policy issued is statutorily required. Section 105(a) of the No-Fault Act requires the insurance commissioner to establish such a plan to provide coverage for those who are otherwise unable to obtain insurance. Subsection (b) of section 105 provides:

(b) Cancellation, refusal to renew, or other termination of insurance.—Cancellation, refusal to renew and other termination of insurance shall be provided for in accordance with the provisions of the act of June 5, 1968 (P.L. 140, No. 78), entitled “An act regulating the writing, cancellation of or refusal to renew policies of automobile insurance; and imposing powers and duties on the Insurance Commissioner therefor.”
1974 July 19, P.L. 489, No. 176, Art. 1, § 105, effective in 12 months.
(Hereafter we shall refer to the Act of June 5, 1968 as the Act of 1968.)

Accordingly at first glance it would appear that assigned risk policies may only be cancelled in accordance with the Act of 1968.

Section 1008.5 of the Act of 1968 reads:

Cancellation, refusal to renew, notice.
No cancellation or refusal to renew by an insurer of a policy of automobile insurance shall be effective unless the insurer shall deliver or mail, to the named insured at the address shown in the policy a written notice of the cancellation or refusal to renew. Such notice shall:
(1) Be approved as to form by the Insurance Commissioner prior to use;
(2) State the date, not less than thirty days after the date of such mailing or delivering on which such cancellation or refusal to renew shall become effective, except that such effective date may be fifteen days from the date of mailing or delivery when it is being cancelled or not renewed for the reason [of nonpayment of premium.] (Footnotes omitted)

However, Section 1008.1 of the Act of 1968 excludes assigned risk policies from its provision:

As used in this act the following definitions shall apply: (1) “Policy of automobile insurance” or “policy” means a policy delivered or issued for delivery in this Commonwealth insuring a natural person as named insured or one or more related individuals resident of the same household, and under which the insured vehicles therein designated are of the following types only: (i) a motor vehicle of the private passenger or station wagon type that is not used as a public or livery conveyance for passengers and is not rented to others; or (ii) any other four-wheel motor vehicle with a gross weight not exceeding nine thousand pounds which is not principally used in the occupation, profession or business of the insured other than the farming: Provided, however, That this act shall not apply to any policy issued under an automobile assigned risk plan, nor to any policy insuring more than four automobiles, not to any policy covering garage, automobile sales agency repair shop, service station or public parking place operation hazards. (Underscoring supplied).

It therefore appears that the various sections of the No-Fault Act and the Act of 1968 are clearly inconsistent. Section 105(a) of the No-Fault Action establishes the assigned risk plan; subsection (b) provides that the procedure for cancellation be in accordance with the Act of 1968. The act of 1968 provides for cancellation for the nonpayment of premiums § 5, but not for such in assigned risk policies, § 1. However, we find that there is no inconsistency, but just poor organization by the draftsman.

When interpreting statutes, they should be interpreted as being in harmony with each other and construed as a component of the whole statutory structure. Com. Dept, of Public Welfare v. Woolf 276 Pa.Superior Ct. 433, 419 A.2d 535 (1980). When laws pertain to the same subject matter, they should be construed, where possible, as one. Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978); see 1 Pa.C.S. § 1932. In determining the intent of the general assembly, we must consider similar legislation, the object to be attained and the result of a given interpretation. Com. Depart, of Transportation v. Von Altimus, 49 Pa. Commonwealth Ct. 245, 410 A.2d 1303 (1980).

To read § 1009.105(b) as applying only to assigned risk situations would at first blush appear to negate the existence of the Act of 1968 as it does not apply to assigned risks. The legislature could not have intended to enact a nullity. Instead we find that No-Fault § 1009.105(b) is independent of 1009.105(a) and is a general provision regarding the cancellation of No-Fault policies. Subsection (b) should not be read in conjunction with 1009.105(a). The end result of this analysis is that the insurer of an assigned risk policy need not abide by the fifteen day notice requirement contained in § 1008.5. This was the intent of the legislature as demonstrated by its revision of such section subsequent to the passage of the No-Fault Act, retaining the exclusion of the assigned risk policies. Therefore, as the statute lacks directive, we must review the contrast at hand to determine the cancellation procedure it required.

The Royal Indemnity policy contained the following provisions:

6. TERMINATION
A. Cancellation. This policy may be cancelled during the policy period as follows:
1. The named insured shown in the Declarations may cancel by returning this policy to us or by giving us advance written notice of the date cancellation is to take effect.
2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy.
(a) at least 10 days notice
(1) if cancellation is for nonpayment of premium; or
(2) if notice is mailed during the first 60 days this policy is in effect and this is not a renewal or continuation policy;
(b) at least 20 days notice in all other cases.
3. After this policy is in effect for 60 days and this is not a renewal or continuation policy, we will cancel only:
(a) for nonpayment of premium; or
(b) if your driver’s license or that of any other driver who lives with you or customarily uses your covered auto has been suspended or revoked during the policy period; or if the policy period is other than one year, since the last anniversary of the original effective date.

The above provision is clear; Royal Indemnity had the right to cancel the Adams’ policy after Adams missed the payment due July 9, 1977. However, such right was expressly conditioned on first notifying the insured at least ten days prior to the cancellation for nonpayment of premium. This Royal Indemnity did not undertake to do until the day after the accident, at which time it was too late to relieve itself of its contractual liabilities for the accident of September 26, 1977. The Pennsylvania Automobile Insurance Plan, which was established pursuant to § 105 of the No-Fault Act, and of which a copy has been placed in the record, permits a carrier to cancel an assigned risk policy by giving notice as required in the policy. Sec. 18 B. But Royal Indemnity failed to give timely the notice required by the contract. Under the well established law of Pennsylvania, when notice of cancellation is required by statute or the policy, an insurer’s failure to follow such requirement results in the continuation of coverage. Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Levan v. Pottstown, P. Ry. Co., 279 Pa. 381, 124 A. 89 (1924); Scheel v. German American I. Co., 228 Pa. 44, 76 A. 507 (1910).

As the insured’s transfer of the named insured car did not terminate in the context of this case Royal Indemnity’s contractual obligations and Royal Indemnity failed to cancel the policy in accordance with its policy, we must vacate the judgment of the lower court since the Royal Indemnity policy was in effect on September 26, 1977.

Judgment vacated and case is remanded for further proceedings not inconsistent with this Opinion.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. The motor vehicle covered by the Royal Policy was sold by the owner,. Adams, in August, 1977. He did not advise Royal of the sale. The premiums on the Royal policy covering the Gross vehicle were in default as of July 9, 1977. Adams was injured on September 26, 1977, while riding as a passenger in a motor vehicle operated by one Peter Hellinger. In view of these undisputed facts, I would hold that the Royal No-Fault Policy did not remain in effect after the listed insured vehicle was no longer owned by the named insured Adams, particularly in view of the fact that Adams had failed to make the premium payments. In retrospect, there was no need for Adams to pay the premium due September 9, 1977, he no longer owned the vehicle covered by the policy, he was not an insured under the Royal policy.

I would affirm on the Opinion of Judge Mueller of the court below. He concluded that:

“Once one no longer owns the automobile or uses it, one no longer has an insurable interest in the car, and the insurer is not obligated to make payments under the policy.”

      . At various places through the record and the briefs filed in this case the car is referred to as a 1970 or 1971 model.

      . For cases dealing with the related situation, where the named insured vehicle is transferred and subsequently involved in an accident and the insurance was held not assignable, see Allstate Ins. Co. v. Smith, 442 F.Supp. 89 (E.D.Okl.1977); Semple v. State Farm Mutual

        Automobile Insurance Co., 215 F.Supp. 645 (E.D.Pa.1963); and McKinney v. State Farm Mut. Auto. Ins. Co., Ala. 349 So.2d 1091 (1977).

      . Footnote in the original, Section 1008.1 et seq. of title 40 P.S.

      . This section was amended October 5, 1978, P.L. 1060, No. 248 § 1, to be effective in 90 days. The amendment was not in force at the date in question in this appeal.

      . See footnote 4.

      . The issue of Aetna's obligations versus Royal Indemnity’s obligations were not raised before this court and therefore we do not address them.


author:
      VAN der VOORT, Judge:
      BECK, Judge, HESTER, Judge,

text:
    455 A.2d 142
    Glenn W. SMILEY, Administrator of the Estate of Sandra L. Smiley, Deceased, Glenn W. Smiley, in His Own Right, Betty S. Smiley and Glenn Douglas Smiley, Appellants at No. 628 v. OHIO CASUALTY INSURANCE CO., Appellant at No. 629.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1982.
    Filed Jan. 7, 1983.

      William M. Radcliffe, Pittsburgh, for appellants (at No. 628) and for appellees (at No. 629).
    Stephen Paul McCloskey, Washington, for appellant (at No. 629) and for appellee (at No. 628).
    Before HESTER, BECK and VAN der YOORT, JJ.
   VAN der VOORT, Judge:

This is a No-fault auto insurance case arising out of the death of Sandra L. Smiley, who was killed in an automobile accident in Fayette County on July 30, 1978. She survived the accident by approximately two (2) hours, during which time she was removed by ambulance to a local hospital. On December 5, 1978, Ohio Casualty Insurance Company, hereinafter the insurer, reimbursed, the estate of the deceased victim in the sum of $695 for ambulance and hospital bills and $1,500 for funeral expenses.

Sandra was survived by her father Glenn W. Smiley, her mother, Betty S. Smiley, and a brother, Glenn Douglas Smiley, hereinafter the claimants. On January 7, 1980, the claimants filed an assumpsit action against the insurer in the Court of Common Pleas of Fayette County for work loss benefits on behalf of Glenn W. Smiley as administrator of his daughter’s estate or, alternatively, on behalf of the father, mother, and brother, as survivors of the deceased victim.

On July 24, 1980, the Complaint was amended to include a claim by the three family members for survivor’s benefits. On both counts, the claimants ask for interest at the rate of 18% per anum for the period of delay in payment beyond the statutory deadline for payment, 40 P.S. § 1009.106(a), and for allowance of a reasonable attorney’s fee. The insurer filed a responsive answer denying liability for either work loss or survivor’s benefits, and later pleaded the statute of limitations as a bar to recovery on both counts, and moved for judgment on the pleadings.

In support of it’s motion for judgment on the pleadings, the insurer took the deposition of Glenn W. Smiley, the father of the deceased victim. He testified that Sandra had lived at home with her parents, had been a full time teacher with the Albert Gallatin School District, that she had paid no rent to her parents, but had contributed money from time to time for household items and incidentals, had occasionally helped her brother pay for maintenance items on his car, and might have helped pay for his college education, although there had been no understanding with her about such help.

The lower court accepted the testimony of Sandra’s father as true, and concluded that, while the deceased victim provided occasional assistance to the claimants, she was by no means actually supporting either her parents or her brother, and that none of them was dependent on her.

In ruling upon a motion for summary judgment, the record is to be examined in the light most favorable to the nonmoving party, Hankin v. Mintz, 276 Pa.Super.Ct. 538, 540, 419 A.2d 588 (1980); and summary judgment is to be allowed only if the pleadings and depositions show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law, Pa.R.C.P. 1035(b).

In light of these guidelines, the lower court sustained the eligibility of Sandra’s estate to recover work loss benefits, but ruled that the claim was barred by § 1009.106(c)(2) of the No-fault Act because the action had not been brought within one year after death.

The court denied the claim for survivor’s benefits, because the uncontradicted testimony of Sandra’s father established that none of her family had been dependent on her at the time of her death. The court rejected the contention that it was sufficient to establish the daughter’s probable financial contributions to the claimants in future years.

The court also ruled that the claim for work loss benefits bore interest at the rate of 18% per anum for the period of delay in payment, but that the allowance of attorney’s fees depended upon a showing of bad faith by the insurer, and was an issue inappropriate for determination on summary judgment. The court concluded by dismissing the Complaint, and both the claimants and the insurer have appealed.

The insurer contends that an estate can only recover work loss benefits if one or more of the beneficiaries of the estate are survivors of the deceased victim who were financially dependent upon the victim at the time of her death.

A work loss benefit is not a form of survivor’s benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident. 40 P.S. § 1009.103.

Survivor’s benefits, by way of distinction, are what a survivor might reasonably have expected to receive from the victim in money or services, had the victim not sustained the fatal injury. 40 P.S. § 1009.103.

Each is a separate type of benefit, the work loss benefit intended to reimburse the estate of the victim for lost earnings, and survivor’s benefits to reimburse surviving family members for what they would have received had the victim lived. Both may be claimed in a single action. A work loss claim is comparable to a survival action and a survivor’s claim is comparable to a wrongful death action. These conclusions were fully developed in Heffner v. Allstate Insurance Co., 265 Pa.Superior Ct. 181, 190, 401 A.2d 1160 (1979), affirmed, 491 Pa. 447, 421 A.2d 629, 636 (1980), and further reaffirmed and clarified in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982). Freeze has been followed in Wingeart v. State Farm Mutual Auto Insurance Co., 302 Pa.Super.Ct. 524, 449 A.2d 40 (1982), and Reynolds v. Nationwide Mutual Insurance Co., 303 Pa.Super.Ct. 31, 449 A.2d 62 (1982); Hartleb v. The Ohio Casualty Insurance Company, 305 Pa.Superior Ct. 231, 451 A.2d 506 (1982); Miller v. United States Fidelity and Guaranty Company, 304 Pa.Superior Ct. 43, 450 A.2d 91 (1982).

While it is true that a recovery of both work loss benefits and a survivor’s loss claim may involve some of the same potential earnings of the victim in both claims, any duplication is corrected by deducting the decedent’s contribution of income under survivor’s loss recovery from the amount recovered on behalf of the estate under work loss. Allstate Insurance Co. v. Heffner, 491 Pa. 447, 459-60, 421 A.2d 629 (1980).

We conclude that the estate of the victim has a right to recover work loss benefits without regard to the status of any of the claimants as survivors.

We next address the claim of the father, mother, and brother of the deceased victim to survivor’s benefits. The lower court ruled that these family members did not qualify for survivor’s benefits because “when the victim and surviv- or do not share a spousal relationship, then the survivors must affirmatively demonstrate that they were dependent upon the deceased victim for support in order to recover survivor’s loss benefits.” On appeal, the insurer supports this position, while the Smiley family contends that a partial dependency on the deceased victim qualifies them for recovery of survivor’s benefits. Neither of these positions reflect current decisional law on the subject.

Dependency is not a requirement for recovery of survivor’s benefits if the survivor is a parent or a brother, as here. It was quite recently ruled by this Court, sitting en banc, in Chester v. Government Employees Insurance Company, 302 Pa.Superior Ct. 356, 448 A.2d 1080 (1982):

We hold today that the word “dependent” contained in the definition of “survivor” in Section 103 of the No-Fault Act, does not modify the entire sub-section, i.e. the words “child, parent, brother, sister,” but was intended by the General Assembly to modify only the word immediately preceding it—“relative.”

Dependency on the deceased victim, either total or partial, was not a condition precedent to the recovery of survivor’s benefits in this case, and the claim for such benefits should not have been stricken as insufficient because dependency was insufficiently claimed. It should be noted, in fairness to the trial court and the litigants on appeal, that Chester was decided subsequent to the lower court’s decision and the argument on appeal.

The insurer contends that both claims, work loss benefits and survivor’s benefits, are barred by the time limitations on claims found in the No-fault Act, 40 P.S. § 1009.106(c). The lower court sustained this contention with respect to the estate’s claim for work loss benefits, but did not rule on the applicability of the time limitations to the family’s claim for survivor’s benefits because the court held that claim to be without merit because none of the claimants had been financially dependent on the victim at the time of her death.

On appeal, the insurer presses its claim that both causes of action are barred because not brought within the time limitations of the No-fault Act. The statute provides, § 1009.106(c):

(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore 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. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.
(2) If no-fault benefits have not been paid to the deceased victim or his survivor or survivors, an action for survivor’s benefits may be commenced not later than one year after the death or four years after the accident from which death results, whichever is earlier. If the surviv- or’s benefits have been paid to any survivor, an action for further survivor’s benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits. If no-fault benefits have been paid for loss suffered by a victim before his death resulting from the injury, an action for survivor’s benefits may be commenced not later than one year after the death or six years after the last payment of benefits, whichever is earlier. (Emphasis added).

We conclude that the time limitation imposed upon the estate’s claim for work loss benefits is controlled by the last sentence of paragraph (1) of § 1009.106(c). It is controlling because no-fault benefits have been paid in this case for “loss arising otherwise than death”, namely, the ambulance and hospital bills of $695, which were incurred before death as a result of the accident. Sachritz v. Pennsylvania Mutual Casualty Insurance Co., 293 Pa.Super.Ct. 483, 439 A.2d 678 (1981). Reimbursement to the estate for these expenses was paid by the insurer on December 5, 1978. The claim for work loss benefits was filed on January 7, 1980, well within the two year statute of limitations imposed by the statute.

However, the time limitation on a suit for survivor’s benefits is controlled by § 1009.106(c)(2), rather than (c)(1), because of the specific exclusion on “survivor’s benefits” from the last sentence of paragraph (1). The third sentence of § 1009.106(c)(2) provides:

If no-fault benefits have been paid for loss suffered by a victim before his death resulting from the injury, an action for survivor’s benefits may be commenced not later than one year after the death or six years after the last payment of benefits, whichever is earlier. (Emphasis added).

The victim incurred her debt for ambulance and hospital bills in the two hours between the accident and her death. The accident occurred on July 30, 1978, and the insurer reimbursed the estate of the victim for these expenses on December 5, 1978. The Complaint was amended to include no-fault benefits, on July 24, 1980.

The reimbursement for ambulance service and hospital costs was obviously a “no-fault benefit”, which is defined in the No-fault Act to mean “basic loss benefits, added loss benefits or both”. “Basic loss benefits”, in turn, are defined as “benefits provided in accordance with this act for the net loss sustained by a victim____” 40 P.S. § 1009.103.

The payment for ambulance and hospital bills was reimbursement for a loss suffered before death (but paid after death). The statute imposed a limitation of one year after death “if no-fault benefits have been paid for loss suffered by a victim before his death____” The claimants contend that this limitation is inapplicable because payment of the claim was not made before death. This poses the issue of whether “before his death” modifies only the immediately antecedent words “loss suffered by a victim” or whether it modifies “paid” as well.

This appears to be an issue of first impression. It is an elementary principle of interpretation, and an accepted canon of statutory construction, that qualifying words or phrases are to be applied to the words, phrases, or clauses immediately preceding them, but that they do not extend to or include other words, phrases, or clauses more remote, unless such extension or inclusion is clearly required by the intent or meaning of the context or required by an examination of the entire statute. Buntz v. General American Life Insurance Co., 136 Pa.Superior Ct. 284, 285, 289, 7 A.2d 93 (1939); Chesler, 302 Pa.Superior Ct. at 356, 448 A.2d 1080; Midboe v. State Farm Mutual Automobile Insurance Company, 495 Pa. 348, 359, 433 A.2d 1342 (1981).

We find nothing in the sentence or in the paragraph of which it is a part which suggests that the words “before his death” should modify not only the immediately antecedent “loss suffered”, but the remote word “paid” as well. The claimants offer no explanation of why their interpretation is required by the intent or the context of the sentence. Had the claimants’ interpretation been intended, the sentence would more appropriately have been worded, “if no-fault benefits have been paid before death for loss suffered by the victim”; but it was not so worded.

If we were to accept the claimants’ interpretation and apply “before his death” as a limitation both on the immediately antecedent words “loss suffered” and on the earlier words “paid” as well, it would take the claim for survivor’s benefits entirely out of the statute of limitations contained in the No-fault Act, § 1009.106(c), and, as a consequence, put it under the general six year statute of limitations which applied to contract actions. 42 Pa.C.S. § 5527.

This would be disruptive of good administration of the No-fault Act in two respects: 1) It would weaken the prompt payment of benefits mandated by No-fault Act § 1009.106(b), by substituting a six year limitation for a one year period; 2) It would also permit a claim for survivor’s benefits to be brought several years after actions for work loss benefits arising from the same accident, but controlled as to timeliness by § 1009.106(c)(1). This would permit claims for survivor’s benefits to be made several years after claims for work loss benefits had been paid, thereby eliminating the opportunity to prevent duplication of payments from the same potential earnings by deducting the duplication from the work loss payments, as directed by Allstate, 491 Pa. at 459-60, 421 A.2d 629.

As we read the various time limitations contained in No-fault section 1009.106(c), we sense an attempt to cover all possible claims under the No-fault Act and to establish an interrelationship between the several sentences which state those limitations. Despite the fact that at least two situations have arisen which were not covered by the Act and, therefore, fell under the general six-year limitation relating to contract actions, Wright v. Allstate Insurance Co., 271 Pa.Superior Ct. 559, 414 A.2d 395 (1979), and Guiton v. Pa. National Mutual Casualty Insurance Co., 301 Pa.Superior Ct. 146, 447 A.2d 284 (1982), we should not strain statutory language to increase the number of such unintended exceptions. We concluded that the claimants’ action for survivor’s benefits is governed and barred by § 1009.106(c)(2) of the No-fault Act. Death occurred on July 24, 1978, and the claim was made on July 20, 1980, more than one year after death.

The insurer has appealed the ruling that the victim’s estate is entitled to interest at the rate of 18% per annum for the time that payment has been delayed beyond the due date for payment as defined by § 1009.106(a) of the No-fault Act. The insurer contends that good faith resistance to a claim, based on a reasonable cause, should be read into the Act as a defense to the payment of interest. It was ruled otherwise in Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981), and Motley v. State Farm Mutual Automobile Insurance Co., 303 Pa.Superior Ct. 120, 449 A.2d 607 (1982). In those cases, we held that § 1009.106 was unambiguous and valid in its requirement that 18% interest is owed on any overdue payment, regardless of the good faith of the insurer or the reasonableness of the cause of delay.

The insurer challenges the refusal of the lower court to rule on the right of the claimants to a reasonable attorney’s fee under § 1009.107(3) of the Act. It contends that the claimants have presented claims so clearly without merit that their request for a reasonable attorney’s fee should have been denied on the insurer’s motion for judgment. The claimants contend that resolution of the issue should await a trial and development of relevant facts.

The No-fault Act limits such allowances to situations where the insurer has refused payment “without reasonable foundation”. The lower court ruled: “[Wjhether defendant acted in good faith in denying benefits remains a material issue of the fact. As such, disposition of this issue by summary judgment is inappropriate”. We concur.

The order of the court below is vacated, and the case is remanded for further proceedings consistent with this Opinion.

BECK, J., files a concurring opinion.

HESTER, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring:

I agree with the majority opinion that the estate’s claim for work loss benefits is not barred by the statute of limitations of the No-Fault Act 1009.106(c), but on a different basis.

The majority reasons that the last sentence of paragraph 1 of 106(c) allows the instant claim for work loss benefits because no-fault benefits have been paid for “loss arising otherwise than from death” (the $695 paid on December 5, 1978 for ambulance and hospital costs) and therefore a two year statutory limit runs from the December 1978 payment.

In Sachritz v. Pennsylvania Mutual Casualty Insurance Co., 293 Pa.Super. 483, 439 A.2d 678 (1981) we held that post-mortem work loss benefits may not be covered by 1009.106(c) and may be subject, instead, to the general six year statute of limitations for contract actions. The claim was barred in Sachritz because some work loss benefits had been paid before death, and therefore the action was covered by the two year rule in that last sentence of paragraph 1 of 106(c). In Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 301 Pa.Super. 146, 447 A.2d 284 (1982) our Court allowed a claim for post-mortem work loss benefits that did not meet the two year limit. We held that since no work loss benefits had been paid before death (although funeral expenses, ambulance costs, and survivors losses had been paid before death) the six year statute governed.

Sandra L. Smiley claimed no work loss benefits before her death, and therefore the facts of her case are governed by Guitón. Since her claim is well within the six year limit, it must be allowed.

HESTER, Judge,

concurring and dissenting:

I respectfully dissent from that portion of the majority opinion which holds that the estate of the deceased victim is entitled to recover work loss benefits under the No-Fault Act. I dissent for the reasons set forth in my Dissenting Opinion in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super.Ct. 344, 447 A.2d 999 (1982). In Freeze, this court held that the right of an estate of a deceased victim to recover no fault benefits was authorized by the Pennsylvania Supreme Court’s opinion in Allstate Insurance Company v. Heffner; Pontius, Administrator of the Estate of Janet A. Pontius, Deceased, 491 Pa. 447, 421 A.2d 629 (1980). This is not so. In the Heffner portion of that appeal, the Supreme Court affirmed this court’s opinion in Heffner v. Allstate, 265 Pa.Super. 181, 401 A.2d 1160 (1979) wherein we held that the surviving spouse was entitled to recover Work Loss Benefits under No-Fault “as the surviv- or of a deceased victim”, 188 of 265 Pa.Superior, 1163 of 401 A.2d. Our holding, I repeat, authorized recovery of Work Loss Benefits by the widow as a “Survivor”, not as Administratrix of the Estate of the deceased victim.

In the very brief portion of its Opinion dealing with the fact situation in the Pontius appeal, the Supreme Court merely recites a history of the case, pages 448-449 of 491 Pa., page 630 of 421 A.2d, and then “affirms the Orders of the Superior Court,” 460 of 491 Pa. 636 of 421 A.2d. The only order of this court pertaining to the Pontius case was entered by Judge Wieand, dated July 3, 1979 which reversed and remanded to the Common Pleas Court of Dauphin County. The Supreme Court’s opinion does not hold that the estate of a deceased victim is entitled to Work Loss Benefits. The No-Fault Act makes no such provision.

By awarding Work Loss Benefits to the Estate of a deceased victim, the majority in Freeze, supra, created a situation that makes it possible for Work Loss Benefits to be paid to individuals and/or institutions far removed beyond the legislative definition of “survivors”. It is very possible that a deceased victim, in the provisions of a Will, could devise all or a portion of his or her estate to the American Nazi Party, the Ku Klux Klan, the P.L.O. or a similar organization. Are we to believe that this was the intent of the Legislature when they created the benefits set forth in the No-Fault Act? The answer is obvious.

I therefore dissent from that section of the majority opinion which would award Work Loss Benefits to the Smiley Estate. I would authorize the award of Work Loss Benefits to the father, mother and brother of the deceased victim as survivors as defined in the No-Fault Act.

I concur in the remainder of the majority opinion.

      . Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.-106(a).


author:
      HESTER, Judge:
      McEWEN, Judge,

text:
    455 A.2d 149
    Robert W. SCHULTZ v. ERIE INSURANCE EXCHANGE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed Jan. 14, 1983.
    Petition for Allowance of Appeal Granted May 18, 1983.

      Mark R. Bosniak, Philadelphia, for appellant.
    James F. Mundy, Philadelphia, for appellee.
    Before CERCONE, P.J., and HESTER and McEWEN, JJ.
   HESTER, Judge:

We here review an appeal.from an order denying a petition of appellant to open a default judgment entered against it in an action in assumpsit for failure to comply with the Pennsylvania No-Fault Act.

Appellant was served with the complaint in assumpsit at its Erie, Pennsylvania office on February 14, 1979. Appellee provided for the entry of a default judgment in favor of the plaintiff twenty-eight days thereafter, on March 14, 1979. Appellant proceeded to secure representation, but the matter was not received in the office of its Philadelphia County counsel until March 8, 1979, twenty days after service. While counsel for appellant acted on March 15, 1979 to secure a routine extension, that effort was delayed by administrative difficulties in the office of appellant’s counsel until March 26, 1979. Counsel for appellant learned of the default judgment on March 28 and proceeded to file the petition to open, although it is not clear as to whether that petition was filed on March 30, 1979, as alleged by counsel for appellant, or on April 10, 1979, as alleged by counsel for appellee, or April 12, 1979, as reflected by the docket.

The parties agree that a petition to open a judgment is addressed to equity and is a decision within the judicial discretion of the chancellor who must be persuaded by the petitioner that three prerequisites have been fulfilled: (1) the petition to open must have been promptly filed; (2) the petitioner must show a meritorious defense; and (3) the petitioner must provide a reasonable explanation for the failure to file an answer in timely fashion. Commonwealth v. Dept. of Transp. v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982); Balk v. Ford Motor Corp., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971).

While the parties differ as to the date upon which counsel for appellant initiated the proceedings to open the judgment, we share the conclusion of the chancellor, the Honorable Edward Rosenwald, that the petition to open was promptly filed.

A review of the claim of appellee and the purported defense indicates there is a valid legal dispute between the parties. While appellee dismisses the claimed defense as meritless, appellant fervently contends the defense is not only meritorious but is absolute. An examination of the defense reveals that a trial court will be confronted with issues concerning statutory interpretation of the no-fault laws of both Pennsylvania and also New Jersey and as well with the need to rule upon issues involving conflicts of law.

The remaining requirement, namely, that the petitioner provide a reasonable explanation for his failure to file an answer in timely fashion, requires the chancellor to carefully engage in his most basic duty—a balancing of the equities. It is true that appellant did not proceed in expeditious fashion to refer the matter to counsel and again failed to proceed with dispatch to notify its counsel of the default judgment. On the other hand, appellee had engaged in discussions with officials of appellant concerning the claim and knew, as is clear from the letter of December 22, 1978, from appellant to counsel for appellee, that appellant was convinced of the validity of the defense that we earlier mentioned. It is also likely that counsel for appellee was aware when the complaint was filed of the identity of counsel whom the appellant would select. In any event, appellee entered the default on the twenty-eighth day, without any prior attempt to communicate with appellant, without any prior attempt to determine the identity of counsel for appellant and then communicate with such counsel as to the reason for any delay by appellant, and without any notice to appellant of an intent to proceed to default.

A petition to open judgment is addressed to the equitable powers of the court and the court’s decision will not be disturbed on appeal in the absence of a clear or palpable abuse of discretion. Ashton v. Ashton, 257 Pa.Super. 134, 138, 390 A.2d 282, 284-285 (1978); Carducci v. Albright Galleries, Inc., 244 Pa.Super. 48, 366 A.2d 577 (1976). See also McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). However, the exercise of equitable powers implies the obligation of the court to consider equities which militate in favor of opening a default judgment and to act with the conscience of a court of equity. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Ashton v. Ashton, 257 Pa.Super. 134, 138, 390 A.2d 282, 285 (1978). In this regard, foremost in the court’s mind should be the law’s principal purpose in permitting judgments by default to be taken. As we stated in Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 445, 368 A.2d 802, 804 (1976):

“The purpose of the rule in authorizing the entry of default judgment is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim. The rules are not primarily intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation. Kraynick v. Hertz, supra [443 Pa. 105, 277 A.2d 144 (1971)]; Ashton v. Ashton, 257 Pa.Super. at 139, 390 A.2d at 285; Slott v. Triad Distributors, Inc., 230 Pa.Super. 545, 327 A.2d 151 (1974).”

In light of the purpose of default judgments, this Court has indicated on numerous occasions in the past that judgments taken without notice to opposing counsel of plaintiff’s intention to do so are looked upon with disfavor. See, e.g., Ashton v. Ashton, 257 Pa.Super. at 139, 390 A.2d at 285; Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. at 445 n. 2, 368 A.2d 802 n. 2; Williams v. Allegheny Union Plaza, Inc., 231 Pa.Super. 170, 332 A.2d 493 (1974); Highway Equipment Co. v. Hamlin Coal Co., 230 Pa.Super. 311, 326 A.2d 570 (1974); Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974). In the instant case, as previously stated, appellee entered the default on the twenty-eighth day, without any prior attempt to communicate with appellant, without any prior attempt to determine the identity of counsel for appellant and then communicate with such counsel as to the reason for any delay by appellant, and without any notice to appellant for an intent to proceed to default. As we stated in Silverman v. Polis, 230 Pa.Super. at 370-71, 326 A.2d at 454-55:

“One very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment ....
[I]t is patently obvious that attempts to utilize every niggling procedural point for maximum advantage demean the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof, is properly made a significant factor in reaching a just decision.”

Here, appellant has satisfied all three requirements for opening a default judgment in an assumpsit action. Further, we, like the courts in Ashton, Moyer, Williams, Highway Equipment Co., and Silverman must look in disfavor upon default judgments taken without notice to opposing counsel. Also, the upholding of the default judgment by the lower court does not advance the purpose of the rules authorizing the entry of default judgments.

We, therefore, conclude that the lower court abused its discretion when it refused appellant’s petition to open judgment. Accordingly, the lower court’s order refusing to open the default judgment is reversed.

Order reversed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

While the majority has provided a thorough analysis and a clear statement of position, I must nonetheless, very respectfully, dissent. As disposed as an appellate court might be to conclude that the petitioner had a meritorious defense and that the petitioner has provided a reasonable explanation for failure to file a timely answer, an appellate court may not reverse the ruling of the chancellor unless there is a clear, manifest abuse of discretion. Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). Therefore, while there may be a sound basis for findings contrary to the conclusions of the chancellor, this court has a limited scope of review and I cannot pronounce as a conclusion that the decision of the Common Pleas Court was a clear, manifest abuse of discretion. For that reason, I would affirm the order of the distinguished Judge Edward Rosenwald.

      . It is to be noted that the default judgment taken in the present case was filed prior to the enactment of Pa.R.C.P. § 237.1 which requires that the notice of intention to file the praecipe for entry of default judgment be sent to both the adverse party and his attorney.


author: ROWLEY, Judge:

text:
    455 A.2d 153
    COMMONWEALTH of Pennsylvania v. Alfred COSTANZO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 6, 1981.
    Filed Jan. 14, 1983.

      George J. Blasco, Easton, for appellant.
    Donald Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and LIPEZ, JJ.

       This case was reassigned to the above-named panel on October 21, 1982.

   ROWLEY, Judge:

This is an appeal from an order of the trial court denying appellant’s claim for relief pursuant to the Post Conviction Hearing Act (hereafter “PCHA”).

Appellant was tried before a jury and on September 13, 1977, was found guilty of third degree murder in the shooting death of one Stewart Beatty. This court affirmed the conviction on direct appeal, Commonwealth v. Costanzo, 269 Pa.Super. 413, 410 A.2d 324 (1979). The Pennsylvania Supreme Court denied appellant’s petition for allowance of appeal on January 21, 1980. Thereafter, on July 30, 1980, appellant filed a pro se PCHA petition raising claims of ineffectiveness of both trial counsel and appellate counsel. New counsel was appointed to represent appellant. After a hearing at which both trial and appellate counsel testified, the PCHA court concluded that neither counsel had been ineffective and denied the requested relief. This appeal followed. We affirm.

Appellant has been represented by four different counsel at various stages of these proceedings: preliminary hearing, trial, direct appeal and post conviction. In his brief to this court appellant states the sole question presented as follows:

Whether trial counsel was ineffective by his failure to pursue pre-trial motions challenging the warrantless arrest of his client or the warrantless search of his dwelling and seizure of evidence used against him. (Emphasis added.)

In the absence of a claim that appellate counsel was ineffective we may find that the claim as to trial counsel’s ineffectiveness has been waived because:

[Ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977).

However, in this case appellate counsel’s alleged ineffectiveness was fully litigated before the PCHA court: it was raised in appellant’s pro se petition, brought to the attention of the court at the outset of the PCHA hearing, appellate counsel testified at some length, and both appellant and the Commonwealth, in their briefs to this court, have argued the appeal on its merits without raising any claim of waiver. While we may consider the waiver issue sua sponte, Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977), Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981), under the present circumstances we attribute the narrowness of the question presented by appellant to clerical error or oversight rather than an intentional abandonment of a claim of error. Because we conclude that appellant has challenged the effectiveness of appellate counsel and preserved the issue for review, we will consider the merits of appellant’s claim. See Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) and Commonwealth v. Hubbard, 472 Pa. at 277 n. 7, 372 A.2d at 695 n. 7.

In reviewing the trial court’s denial of PCHA relief, we note initially that “the burden of proving ineffectiveness must be shouldered by the appellant at the PCHA proceedings.” Commonwealth v. Helvy, 278 Pa.Super. 458, 462, 420 A.2d 631, 633 (1980).

In reviewing the PCHA court’s determination, our task is not to engage in a de novo evaluation of the testimony presented at the PCHA hearing. Rather, we look to whether the PCHA court’s determination is supported by evidence of record and is otherwise free of legal error. The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. Consequently, this court will not disturb its findings if they are supported in the PCHA record. This is true even when the record could support a contrary holding. Commonwealth v. Stanton, 294 Pa.Super. 516, 526, 440 A.2d 585, 590 (1982) (citations omitted).

See also Commonwealth v. Stokes, 294 Pa.Super. 529, 536, 440 A.2d 591, 595 (1982). Furthermore, in assessing claims of ineffectiveness of counsel, we must examine the PCHA record in light of the two-tiered analysis enunciated in Commonwealth v. Hubbard, 472 Pa. 259, 277-278, 372 A.2d 687, 695-696 (1977).

In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):
“[C]ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.”
The initial factor which must be considered in applying this reasonable basis standard is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis.... It is only when the claim which was foregone was of some arguable merit that we must make an inquiry into the basis for the post-trial counsel’s decision not to pursue the matter. Thus, the starting point of our inquiry is whether there were reasonable grounds upon which to advance the ... claims which were not advanced. (Emphasis in the original.)

Where, as here, appellant asserts that appellate counsel was ineffective for failure to raise trial counsel’s ineffectiveness,

the threshold question is whether the allegations of trial counsel’s ineffectiveness would have been frivolous. If so, we need engage no further in exploration of the basis of post-conviction counsel’s omission. Id., 472 Pa. at 281, 372 A.2d at 697.

In applying this principle to claims of successively ineffective counsel, we are guided by the Hubbard Court’s method of analysis. There, the court undertook an examination of trial counsel’s conduct to ascertain whether the actions omitted by trial counsel were “arguably important and had a chance of succeeding.” Id., 472 Pa. at 285, 372 A.2d at 699. Only if we conclude that the omissions were important and stood a chance of succeeding are we required to inquire into trial counsel’s reasons for failing to act. If there were no reasonable basis for trial counsel’s failure, we would then apply the two-step analysis to appellate counsel’s course of conduct. Id. Finally, although “the failure to file a suppression motion may be evidence of ineffective assistance of counsel,” if the basis for the motion is meritless counsel cannot be deemed ineffective. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979).

Upon examining the record in light of the foregoing standards, we find that the omissions by trial counsel, about which appellant now complains, were not shown to have “a chance of succeeding.” Thus, any claim on direct appeal that trial counsel had been ineffective would have been frivolous. Appellate counsel could not, therefore, have been ineffective on the grounds here asserted by appellant. We therefore affirm the order of the trial court.

First, there is no reasonable basis upon which trial counsel could have attacked appellant’s arrest as being without probable cause. Appellant summoned the police to his home, admitted that he shot the victim and, upon request, delivered to a police officer the weapon he had used, a rifle. Appellant consistently claimed that he had used the rifle only in self-defense, but this self-serving statement, without more, does not eliminate the existence of probable cause. On direct appeal, Judge Wieand made an observation as to the jury’s ability to infer certain facts which we find pertinent in this context as well.

[T]he jury could find that the rifle did not belong in the basement and that its presence at the time of the shooting was not consistent with its use to protect against an unexpected knife attack. Commonwealth v. Costanzo, 269 Super, at 418, 410 A.2d at 326.

There is no reason that the police officer could not draw these same inferences. The standard applicable to a probable cause determination is, and must be, less strict than the standard of proof beyond a reasonable doubt by which a jury must abide. The PCHA court properly concluded that sufficient facts were available to the arresting officer to justify a man of reasonable caution to believe that a crime had been committed and that the appellant was the probable perpetrator. Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974). Appellant’s argument to the contrary is totally without merit. Thus post-trial counsel reasonably refrained from alleging trial counsel’s ineffectiveness on this ground. Appellate counsel was therefore not ineffective.

Second, we likewise cannot agree that trial counsel had any reasonable basis for challenging the searches and seizures which took place in appellant’s home subsequent to his arrest. At the PCHA hearing trial counsel testified that, after the preliminary hearing, he had interviewed appellant, appellant’s wife, prior counsel and the police. He further stated that he had concluded on the basis of the information given him that the police had obtained a valid consent to perform the searches and seize the evidence. Appellant put on no witnesses to challenge trial counsel’s testimony and conclusion. His testimony stands essentially unrebutted upon the PCHA record. This testimony fully warranted the conclusion reached by the PCHA court that appellant failed to carry his burden of showing that a motion to suppress stood “a chance of success” because, of course, consent is an exception to the warrant requirement. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, appellate counsel was, on this record, not shown to have been unreasonable in refraining from alleging trial counsel’s ineffectiveness on this ground as well.

Because the omissions of trial counsel were not shown to have any chance of succeeding, appellate counsel had no reasonable grounds upon which to assert trial counsel’s ineffectiveness upon appeal. Appellate claims as to trial counsel’s ineffectiveness on these grounds would have been frivolous. Therefore, the claim that appellate counsel was ineffective is without merit. We need not inquire into appellate counsel’s reasons for failing to raise these issues on appeal for counsel cannot be found ineffective for failure to raise meritless claims. Commonwealth v. Hubbard, 472 Pa. at 278, 372 A.2d at 696.

Order affirmed.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(2) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.

      . On direct appeal, appellant challenged the admission of the evidence seized during these searches, but only upon the ground that it was irrelevant. There was no objection on the ground that the evidence was the product of an illegal search.

      . Appellant’s arguments are based primarily upon testimony given at the preliminary hearing. But trial counsel testified that his investigation occurred after the preliminary hearing and, accordingly, that, in making his determination not to press any pre-trial motions, he relied upon more information than provided in that transcript. We also emphasize that it is the PCHA record which we review and the credible testimony produced at the PCHA hearing which supports the PCHA court’s determination which we are required to search out. Once we conclude that there is evidence to support the determination of the PCHA court and that that court’s ruling is otherwise free from error, we will uphold that determination.


author: SPAETH, Judge:

text:
    455 A.2d 156
    COMMONWEALTH of Pennsylvania ex rel. Jean Marie DeWALT v. Scott W. DeWALT, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed Jan. 21, 1983.
    Ronold John Karasek, Bangor, for appellant.
    Dennis A. DeEsch, Easton, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This appeal is from an order awarding “temporary alimony” under Section 401(b) of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 F.S. § 101 et seq. The order was entered by the lower court in the first instance; it was not on a master’s recommendation. Appellant filed no exceptions. For procedural purposes, alimony awarded under section 401(b) of the Code is like alimony pendente lite. We have concluded that under Pa.R.C.P. 1920.1(b) and 1920.52, when a court in the first instance enters an order awarding alimony pendente lite, exceptions must be filed in order to preserve an issue for review. Since appellant filed no exceptions, he has preserved no issue for our review. We therefore affirm.

On April 1, 1981, the lower court entered a decree of divorce only; the court reserved the issues of alimony and equitable distribution for later decision. On April 27 appellee filed a petition seeking “temporary alimony.” On June 10, after a hearing, the lower court granted the petition and awarded alimony of $45 a week. Appellant filed no exceptions to the order but instead appealed at once to this court.

The lower court entered its order pursuant to section 401(b) of the Divorce Code. Section 401(b) provides that “[a]ny decree granting a divorce ... shall include ..., where these matters are raised ..., an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters ....” The court is not, however, required to enter a single decree finally disposing of all of these matters at one time. It may instead enter a decree of divorce only, and “order alimony, reasonable counsel fees and expenses pending final disposition of the [other] matters” that have been raised and are still at issue, such as the parties’ property rights. Id. That is what the court did here.

It is apparent that as used in section 401(b), “alimony” means two different things. In the first instance, referring to the court’s duty to dispose of “existing property rights and interests between the parties, ... alimony and any other related matters,” “alimony” means the sort of alimony that the court may award pursuant to section 501(b) of the Code, which provides that “[t]he court may allow alimony ... if it finds that the party seeking alimony ... lacks sufficient property ... to provide for his or her reasonable needs ... and ... is unable to support himself or herself through appropriate employment.” This sort of alimony is awarded, if at all, as an incident of the final adjudication of all of the disputes between the parties, the award being made either as part of the decree of divorce or later. In the second instance, referring to the court’s power to award “alimony ... pending final disposition” of such matters as were not disposed of as part of the decree of divorce, “alimony” means what the lower court here, and also, appellee’s petition, characterized as “temporary alimony.” This sort of alimony is awarded from the date of the entry of a decree of divorce only to the date of entry of other orders finally adjudicating the parties’ other disputes.

This brings us to the question whether a party wishing to obtain appellate review of an order awarding “temporary alimony” must file exceptions to the order.

We may start by noting that this question can’t be answered directly, for the Rules of Civil Procedure don’t use the term “temporary alimony”; they refer only to “alimony” and “alimony pendente lite.” However, since “temporary alimony” and “alimony pendente lite” are alike in being awarded for a limited period, which ends with the final adjudication of the disputes between the parties, they should for procedural purposes be treated alike. We therefore conclude that as used in the Rules, “alimony pendente lite” includes “temporary alimony.”

Pa.R.C.P. 1920.51 permits claims for alimony pendente lite to be referred to a master. If the claim is referred to a master, exceptions to the master’s recommendation may be filed; if not filed, any objections are waived. Pa.R.C.P. 1920.54-1920.55. If the claim is not referred to a master but is decided in the first instance by the court, as was done here, the relevant procedure is set forth in Pa.R.C.P. 1920.-52, which reads as follows:

Rule 1920.52 Hearing by Court. Decision. Decree
(a) In claims involving
(1) marital property,
(2) enforcement of marital agreements,
(3) custody,
(4) alimony,
(5) paternity,
(6) a contested action of divorce, or
(7) a contested action for annulment,
the trial judge shall enter a decision which shall state the reasons therefor. The practice and procedure thereafter shall be in accordance with Rule of Civil Procedure 1038(d) and (e) except that a court en banc shall not be required.
(b) In claims involving
(1) child support,
(2) alimony pendente lite,
(3) counsel fees, costs and expenses,
(4) an uncontested action of divorce, or
(5) an uncontested action for annulment,
the decision of the trial judge may consist only of
general findings.
(c) The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.
(d) In all cases, the court shall enter a decree separately adjudicating each claim.

Since “alimony pendente lite” includes “temporary alimony,” appellant’s claim is within subsection (b) of Rule 1920.-52.

Pa.R.C.P. 1920.1(b) relates to actions in divorce. It provides that:

(a) Except as otherwise provided in this chapter, the procedure in the action shall be in accordance with the rules relating to the action in assumpsit.

The pertinent rule “relating to the action in assumpsit” is Pa.R.C.P. 1038, which governs trial without jury. Subsections (d) and (e) provide that in order to preserve objections to the trial judge’s decision, exceptions must be filed within 10 days, and if not filed, judgment may be entered on the decision.

Therefore, to recapitulate: “Temporary alimony” is a form of “alimony pendente lite.” A claim involving alimony pendente lite is within Pa.R.C.P. 1920.52(b). Although Pa. R.C.P. 1920.52(b) does not specify whether exceptions must be filed to preserve objections to an order awarding alimony pendente lite, Pa.R.C.P. 1920.1(b) provides that the rules relating to an action in assumpsit apply. One of these rules, Pa.R.C.P. 1038, provides that to preserve objections to the decision in an assumpsit action, exceptions must be filed. Accordingly, appellant was required to file exceptions to the lower court’s order awarding temporary alimony. Since he did not file exceptions, he has preserved no objection to the order.

Affirmed.

      . The procedural history of this matter in the lower court is rather complex, but we have decided that we may confine our consideration of it to this footnote. At the hearing on appellee's petition for temporary alimony the lower court had before it by stipulation both appellant’s petition to modify an existing unallocated order of support and appellee’s petition for temporary alimony. The existing order had been entered prior to the divorce decree and was docketed on the domestic relations docket at No. 5680, as was appellant’s petition to modify the order. Appellee’s petition for temporary alimony was filed at the same docket number as the divorce action, No. 87 October Term 1974, but the order of June 10 granting temporary alimony was docketed on the domestic relations docket. Later, however, the order granting temporary alimony was also docketed on the divorce docket. Appellant's notice of appeal lists only the domestic relations docket number. It would have been better if the order had been immediately listed on both dockets, and the appeal taken accordingly.

      . A recent treatise on the Divorce Code of 1980 also characterizes the alimony authorized by section 401(b) as "temporary alimony.” N. Perlberger, Pennsylvania Divorce Code § 7.13 (1980).

      . Various changes in the Divorce Rules have been proposed by the Civil Procedural Rules Committee. See 12 Pennsylvania Bulletin 2022-30 (July 3, 1982). However, these proposed changes do not include any alteration of Rule 1920.52.

      . It will be observed that exceptions must also be filed to an order awarding "alimony"—as distinguished from an order awarding “alimony pendente lite” or "temporary alimony.” For a claim involving "alimony” is within subsection (a) of Rule 1920.52, and by the terms of that subsection, "[t]he practice and procedure [of a claim involving alimony] shall be in accordance with Rule of Civil Procedure 1038(d) and (e)____" There is, however, a difference in practice, which may indirectly affect the sort of exceptions that will be filed. In a claim involving "alimony,” "the trial judge shall enter a decision which shall state the reasons therefor.” Pa.R.C.P. 1920.52(a). In a claim involving "alimony pendente lite," and, therefore, “temporary alimony," "the decision of the trial judge may consist only of general findings.” Pa.R.C.P. 1920.52(b).