author:
BECK, Judge:
      POPOVICH, Judge,

text:
    645 A.2d 1322
    Anselmo TORRES, Appellant, v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN and the Travelers.
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed July 15, 1994.
    Reargument Denied Sept. 8, 1994.

      David Deratzian, Philadelphia, for appellant.
    Dianne A. Dichter, Philadelphia, for appellees.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

Plaintiff-appellant Anselmo Torres appeals the order granting summary judgment in favor of the appellees, Pennsylvania Financial Responsibility Assigned Claims Plan (hereinafter “the Plan”) and Travelers Insurance Company (hereinafter “Travelers”). We affirm.

The facts of record are not in dispute. On April 15, 1989, Torres was walking across 16th and Wallace Streets in Philadelphia when he was struck by a vehicle owned by Harold Eugene Boyd and operated by Jose Vasquez. Torres’s investigation revealed that Boyd and Vasquez were uninsured motorists. Because of Torres’s own uninsured status, he filed a claim with the Plan’s assignee, Travelers, for benefits under Pennsylvania’s Motor Vehicle Financial Responsibility Law (hereinafter “MVFRL”).

Appellant also filed an action against the alleged tortfeasors, Boyd and Vasquez, but not until several months after the applicable statute of limitations had run. Boyd and Vasquez could not be found and served in the usual manner, and appellant complied with alternate service requirements authorized by the court. Nonetheless, Boyd and Vasquez have failed to enter an appearance or raise any affirmative defenses to the lawsuit.

Appellees refused to provide coverage to appellant on the basis that appellant “fail[ed] to protect the[ir] subrogation rights” by failing to file a timely savings action against Boyd and Vasquez. See Appellees’ Answer and New Matter, Paragraphs 19 and 30. Appellees then filed a motion for summary judgment reiterating their defense that appellant failed to preserve the Plan’s subrogation rights rendering Torres ineligible for the Plan’s benefits. The trial court agreed and granted the appellees’ motion for summary judgment. This appeal followed.

In examining the propriety of the grant of summary judgment, this court is required to determine whether there are genuine issues of triable fact, or whether the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035; Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754, 756 (1976). The sole issue posited for our review is whether Torres’s failure to file a timely savings action against the tortfeasors Boyd and Vasquez resulted in the impairment of the Plan’s subrogation rights, such that Torres is barred from recovering benefits under the Plan.

We conclude that Dyer v. The Travelers, 392 Pa.Super. 202, 572 A.2d 762 (1990) and Melendez v. Penna. Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989) dictate the result in this case, and we therefore affirm the trial court’s grant of summary judgment in favor of the appellees.

It is well established that the appellees’ right to subrogation against the actual tortfeasors, Boyd and Vasquez, is no greater than any right of recovery held by plaintiff-appellant Torres. Insurance Co. of N. America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971) (statute of limitations runs against subrogee insurer as it does against the plaintiff-insured). Torres failed to file a timely action against the tortfeasors, and instead has attempted to collect insurance benefits from the appellees through the Plan. There is no doubt that Torres’s late action has substantially impaired the appellees’ ability to maintain a successful subrogation action. Id. at 51, 284 A.2d at 729.

Torres argues, however, that because the defense of the statute of limitations is waivable, the trial court ought not to have presumed that the tortfeasors will raise the defense, when and if they enter an appearance. In other words, the mere inchoate availability of a waivable statute of limitations defense does not mean that the Plan’s subrogation right has been “extinguished.” As a result, Torres argues that he should be permitted to pursue recovery of benefits from the appellees.

However, our cases establish that we need not find literal “extinguishment” of the Plan’s subrogation right in order to preclude recovery by a plaintiff. Instead, the relevant inquiry is whether the plaintiffs action or inaction has so impaired or prejudiced the subrogation right as to effectively extinguish it. Melendez, supra; Dyer, supra.

In Melendez, the plaintiff was foreclosed from recovering from the Plan after she compromised her claim against the tortfeasors through settlement and release, thereby effectively eliminating the possibility of success of any subrogation action the Plan might have pursued. In Dyer, the plaintiff also was prohibited from recovery against the Plan, because she had participated in an arbitration and obtained an award against the tortfeasors without the knowledge or consent of the Plan. In each of these cases, the plaintiff had failed to protect the Plan’s subrogation right, contrary to the policy goal of allowing the Plan “to decide how to proceed against a tortfeasor in order to best preserve the funds in the Plan.” Dyer, 392 Pa.Super at 206, 572 A.2d at 764. See also Melendez, 384 Pa.Super at 50, 557 A.2d at 768. There can be no question that, by failing to file a timely savings action against Boyd and Vasquez, appellant Torres has so prejudiced the Plan’s right of subrogation as to effectively extinguish it.

Nevertheless, Torres claims that because the statute of limitations defense at issue in this case is waivable, Melendez and Dyer are not applicable. We note that the defenses of arbitration and award (in Dyer) and release (in Melendez) also are waivable. Pa.R.Civ.P. 1030, 1032. See Ruhe v. Kroger Co., 425 Pa. 213, 228 A.2d 750 (1967) (defense of release must be pleaded in new matter); Samuel J. Marranca Gen. Con. Co. v. Amerimar Cherry Hill Lim. Partnership, 416 Pa.Super. 45, 610 A.2d 499 (1992) (defense of arbitration and award must be pleaded in new matter or waived). The waivability of these defenses did not affect this court’s analysis of the viability of the Plan’s subrogation right. Therefore, in accordance with this court’s previous holdings in Melendez and Dyer, we affirm the trial court’s grant of summary judgment.

Order affirmed.

POPOVICH, J., files a Dissenting Opinion.

POPOVICH, Judge,

dissenting:

I cannot join the Majority’s affirmance of the motion for summary judgment in favor of the appellees, and, therefore, respectfully dissent.

The sole issue posited for bur inquiry is whether the appellant’s (Anselmo Torres’) failure to file a timely complaint against the tortfeasors (Harold Eugene Boyd and Jose Vasquez), which may result in the impairment of the subrogation rights of the Pennsylvania’s Assigned Claims Plan’s assignee, Travelers Insurance Company, bars entitlement to benefits under the Plan despite the absence of a statute of limitations defense being asserted by the tortfeasors?

In examining the propriety of a motion for summary judgment, this Court is required to determine whether there are genuine issues of triable fact. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754, 756 (1976). Further, “[i]n reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.” Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108, 109 (1983).

Torres argues that he has not prejudiced Travelers’ right of subrogation because no statute of limitations has been asserted as an affirmative defense (in fact, no defense has been offered) by the tortfeasors to date to his writ of summons. See note 2, supra. Therefore, continues Torres, a lawsuit against Boyd and Vasquez is still viable and not foreclosed by his (in)action. Alternatively, Torres contends that the lower court’s refusal to allow the entry of a default judgment against the tortfeasors, even though the statute of limitations permitting suit has expired, precludes the insulating effect of such judgment (to Travelers’ subrogation rights) from coming to fruition. Finding merit in the initial averment, I leave for another day the validity of the latter.

Travelers’ right of subrogation, as the Plan’s assignee, is authorized by statute:

The Assigned Claims Plan or its assignee is entitled to recover, in accordance with the tort liability law of this Commonwealth, reimbursement for benefits or coverages paid, loss adjustment costs and any other sums paid to an eligible claimant under this subchapter.

75 Pa.C.S.A. § 1756 (Supp.1993).

The lower court believed and the Majority holds that the failure of the appellant to act timely to sue the tortfeasors prejudiced Travelers’ right of subrogation, and, consequently, the appellant was foreclosed from recovering benefits from Travelers under Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989). More specifically, the lower court stated:

The argument put forth by plaintiff in this matter, that the rights were not subrogated — the subrogation rights were not impaired because somehow the uninsured defendants failed to respond to the complaint and therefore a default judgment could be entered against them and somehow their rights to complain about the statute of limitations would somehow be cut off, the court finds that not to be a compelling argument and lacks merit.

N.T. 10/14/93 at 11-12. I disagree, and, in doing so, find Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985), to be instructive.

In Dash, the plaintiffs (Harry and Mollie Dash) instituted suit against the owner (Wilap Corporation) of property adjoining their land for injuries sustained by Mrs. Dash at the hands of one John Rightly. It appears that Rightly utilized the unkept condition of the Wilap Corporation tract to enter and exit, surreptitiously, the Dash home and assault Mrs. Dash.

The plaintiffs sued Wilap Corporation as the owner of the property through which Rightly made his ingress and egress to and from Dashs’ home. Wilap Corporation joined Rightly, who by this time had been arrested for the burglary and assault, as an additional defendant. Thereafter, Wilap filed a petition to discontinue its complaint against Rightly, and, additionally, have him dropped from the lawsuit.

The plaintiffs claimed that Rightly was a necessary party and should not be dismissed from the suit. The trial court disagreed and permitted Rightly’s removal. In allowing the discontinuance, the trial court “belie[ved] that ... joinder [by Wilap Corporation] took place after the two-year statute of limitations had run [42 Pa.C.S.A. § 5524(2) ] ... [and] any claims of the plaintiffs against the additional defendant would be time-barred ‘even if a jury brought in a verdict finding joint liability.’ ” 343 Pa.Super. at 591-92, 495 A.2d at 954 (Footnote omitted).

On appeal, we reversed that portion of the trial court’s order permitting Rightly’s removal on the theory that joinder was barred by the statute of limitations. In doing so, we quoted extensively Sykes v. Southeastern Pennsylvania Transportation Authority, 225 Pa.Super. 69, 310 A.2d 277 (1973), which reversed in part the trial court’s prohibition of an amendment to a complaint as violative of the statute of limitations; to-wit:

Apparently, the lower court put [Sykes] out of court because it believed that any attempts to amend would be barred by the statute of limitations. That is probably correct so far as the proposed amended complaint produced at argument, before us is concerned. Whether it be brought in assumpsit or trespass, a suit for breach of nonnegligent carriage is brought for injuries wrongfully done to the person and falls within the bar of the 2-year statute of limitations for personal injuries. Act of June 24, 1895, P.L. 236, § 2, 12 P.S. S34.

However, the statute of limitations ... is a waivable defense. See Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969); Smith v. Pennsylvania R.R., 304 Pa. 294, 156 A. 89 (1931). It is not a defense absolute which will be taken notice of by the court nor may it be raised by preliminary objection. Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971); Quaker City Chocolate & Confectionary Co. v. Delhi-Warnock Bldg. Ass’n, 357 Pa. 307, 53 A.2d 597 (1947). It was thus improper for the court below to foreclose plaintiffs from making any attempts to amend at that stage of the proceedings.

Our action does not mean that the defendant may not raise the defense of the statute of limitations, but only that it must be raised in a proper pleading.

Thus, the defendant will be able to plead the defense of the statute of limitations, if it so desires, in the new matter of its answer to the amended complaint. Pa.R.C.P. No. 1030, 12 P.S. Appendix.

225 Pa.Super. at 72-74, 310 A.2d at 279-280 (Emphasis added) (Footnote omitted).

As in Sykes, we hold that the trial court here acted prematurely in ruling in advance of the action sought to be taken that the statute of limitations would preclude recovery even if an award in favor of the plaintiffs and against Rightly were entered after a trial. This comports with the position of the courts of this Commonwealth on the subject; viz.:

The statute of limitations does not divest the court of jurisdiction over either the cause of action or the parties, but is merely a procedural bar to recovery which may be waived by consent or conduct implying consent. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969).

Rule 1030 of the Pennsylvania Rules of Civil Procedure requires that the statute of limitations “shall” be pleaded as an affirmative defense under New Matter; otherwise, the defense is waived. Royal Oil & Gas Corporation v. Tunnelton Mining Company, 444 Pa. 105, 282 A.2d 384 (1971). It has long been our rule that unless the statute is pleaded as a defense, it is waived. Heath v. Page, 48 Pa. 130, 142 (1864).

Thompson v. Southeastern Pennsylvania Transportation Authority, 280 Pa.Super. 193, 199-200, 421 A.2d 471, 474 (1980).

Instantly, it is undisputed that Rightly has neither entered an appearance nor has he, as a result, raised any objections or defenses to his inclusion in the suit. Therefore, since Rightly has failed to act, it is not the responsibility of the trial court to act as his advocate and proffer a defense to the plaintiffs’ request to seek an amendment to their complaint. This, of necessity, dispenses with the need to review the “prejudice” aspect, if any, of the order granting the defendant’s petition to discontinue as to Rightly. 343 Pa.Super. at 594-95, 495 A.2d at 955-956 (Emphasis added in part; footnote omitted).

Sub judiee, as in Dash, the object of the controversy (Boyd & Vasquez here, Rightly there) had neither entered an appearance nor, as a result, raised any objections or defenses to their inclusion in a lawsuit at the time the lower court opted to rely on the barring effect of the statute of limitations to prohibit continuation of the suit as to the non-appearing party(ies). This was presumptive. Id.

The statute of limitations is an affirmative defense which must be pleaded in order to garner its insulating effect. Absent such a presentment, be it at the pleading or trial stage, see id. at 595 n. 2, 495 A.2d at 956 n. 2, it is not the responsibility of the trial court to step into the shoes of the non-objecting party(ies) and act in his/her/their stead. Id.; Rogers v. Williams, 420 Pa.Super. 396, 616 A.2d 1031, 1033 (1992); MacGregor v. Mediq Inc., 395 Pa.Super, 221, 576 A.2d 1123, 1128 (1990); Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342, 1344 (1985); cf. Moore v. Mobile Oil Co., 331 Pa.Super. 241, 480 A.2d 1012, 1034 (1984), citing Commonwealth v. Walls, 481 Pa. 1, 5, 391 A.2d 1064, 1066 (1978) (Dissenting Opinion by Manderino, J.) (Neither trial nor appellate court is to act as an advocate for either litigant). This is what transpired at bar, and, under established case law, we should not permit it to stand.

As the case now exists, the insurer/Travelers has not had its subrogation rights “extinguished,” as unquestionably was the case in Melendez, supra, and Dyer v. Travelers, 392 Pa.Super. 202, 572 A.2d 762 (1990), wherein the claimants had signed a release and obtained an arbitration award (all without the insurer’s knowledge), respectively. This has not occurred here.

As a result, the lower court should not have been so quick to act on behalf of the tortfeasors by asserting the statute of limitations defense for them. This was premature. See Dash, supra.

If, and when, the tortfeasors appear to defend against any civil suit instituted against them, their success in averring the statute of limitations defense will be evaluated at that time. Id. The insurer, if the case is ruled in favor of the tortfeasors on the statute of limitations defense, will have recourse against the appellant to recover payments made because then, and only then, will it be evident whether the insurer’s right to subrogation will have been “extinguished” by the appellant’s tardiness in commencing suit so as to “prejudice” its subrogation rights. Contrast Dyer, supra; Melendez, supra. Thus, the public’s interest in preserving the integrity of the Plan’s funds is not lost, but remains intact for purposes of recoupment against the appellant if and when Boyd and Vasquez decide to act. Id.

For the lower court to act in advance of such facts was pure speculation. It remains to be seen whether Boyd and Vasquez will defendant against a suit. This void creates a genuine issue of material fact yet unresolved, and appellees are not entitled to summary judgment as a matter of law. See Dash, supra.

For the reasons hereinstated, I would reverse the order of the lower court.

      . Travelers is the assigned insurer under the Plan. Travelers evaluates and handles assigned applications for benefits in accordance with the MVFRL. See Appellees' Answer and New Matter, Paragraph 3, citing 75 Pa.C.S. § 1701 et seq.

      . The statute of limitations in this case is two years. 42 Pa.C.S. § 5524. With Torres’s injury arising on April 15, 1989, his instituting suit against Boyd and Vasquez in September 1991 clearly exceeds the period within which to bring a timely action. Appellant filed the suit against the tortfeasors only after notification by appellees that appellees would not pay his claim.

      . Travelers’ right of subrogation, as the Plan’s assignee, is authorized by statute:
      The Assigned Claims Plan or its assignee is entitled to recover, in accordance with the tort liability law of the Commonwealth, reimbursement for benefits or coverages paid, loss adjustment costs and any other sums paid to an eligible claimant under this subchapter.
      75 Pa.C.S. § 1756 (Supp.1993).

      . Moreover, Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985) and Sykes v. Southeastern Penna. Trans. Auth., 225 Pa.Super. 69, 310 A.2d 277 (1973), the cases relied upon by the dissent for the proposition that the trial court ought not to have raised the statute of limitations defense prematurely, are inapplicable to our facts. Both Dash and Sykes involved the amendment of complaints after the applicable statute of limitations had run on the proposed amended cause of action. We held in these cases that the statute of limitations, a waivable’defense, would not be presumptively applied to prohibit the amendments. In other words, the trial court should not act as the defendant-tortfeasors’ advocate by proffering a defense on their behalf. Dash, 343 Pa.Super. at 596, 495 A.2d at 956.
      Although this reasoning is correct within the context of Dash and Sykes, it does not apply to the trial court’s actions in this case. The operative issue here is whether the Plan's subrogation right has been impaired by the plaintiff's actions; the availability of the statute of limitations defense, as the availability of the arbitration/award and release defenses in Melendez and Dyer, surely will prejudice the Plan in its pursuit of subrogation.
      Nor would the entry of default judgment against Boyd and Vasquez cure the prejudice against the appellees under the circumstances of this case. The late filing of the lawsuit would provide a basis for opening the judgment, thereby allowing the tortfeasors to assert their affirmative defenses to the action.

      . The conditional term "may” is used to define the possibility of a statute of limitations defense being asserted because no such "affirmative defense” has been proffered even though a writ of summons was filed by the appellant against Boyd and Vasquez in September of 1991. See Exhibit "B” attached to the Appellees' Memorandum of Law in Support of the Motion for Summary Judgment; see also N.T. 10/14/93 at 3.
      The statute of limitations in this case is two years. See 42 Pa.C.S.A. § 5524. With the appellant’s injury arising on April 15, 1989, his instituting suit against Boyd and Vasquez in September of 1991 clearly exceeds the period within which to bring a timely suit. Nonetheless, our inquiry is not at an end with a determination that the statute of limitations has expired. See discussion infra.

      . It appears from the record and the appellant's brief that Torres has had difficulty serving Boyd and Vasquez, to the extent of seeking approval for extraordinary service of process from the lower court. See Pa.R.Civ.P. 430.

      . Parenthetically, I would note that the entry of a default judgment would still be subject to attack by a petition to open/strike judgment. Cf. Pa.R.Civ.P. 2959 (STRIKING OFF OR OPENING JUDGMENT. PLEADINGS. PROCEDURE). However, I will not speculate on the outcome of such posturing by the litigants, but make mention of it to show that the appellant would still be exposed to repayment of any monies received from the Plan's assignee if Boyd and/or Vasquez were moved to file such a petition, as would be the case if either proffered a defense of the statute of limitations to a lawsuit naming them as defendants.
      In either scenario, the outcome is not guaranteed but must await action on the part of Boyd and Vasquez. Presently, I am without insight as to what course is preferred by the appellant. I do know that whichever avenue is pursued, the appearance of Boyd and Vasquez will place into question the appellant's entitlement to retain any monies obtained from the Plan's assignee. In other words, repayment would be in the offing under either course should Boyd and/or Vasquez take action to defend, successfully, their interests. See Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989).


source: Caselaw Access Project

author:
JOHNSON, Judge:
      CERCONE, Judge,

license: Public Domain

text:
    645 A.2d 1328
    COMMONWEALTH ex rel. James R. POWELL v. Ray E. ROSENBERRY, Warden Franklin County Prison, Chambersburg, PA, Appeal of James R. POWELL.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1994.
    Filed July 18, 1994.

      David R. Breschi, Chambersburg, for appellant.
    John F. Nelson, III, Dist. Atty., Chambersburg, for appellee.
    Before OLSZEWSKI, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal from the order denying a Petition for Writ of Habeas Corpus, we are asked to determine whether the trial court had jurisdiction to enter an order extending a parole period. Because more than 30 days had passed since entry of the original sentencing order, we find that the trial court lacked jurisdiction to modify the judgment of sentence. 42 Pa.C.S. § 5505. Accordingly, we reverse the trial court’s order and direct that the petitioner be discharged from all obligations arising subsequent to the expiration of his original parole period.

In May, 1990, James R. Powell pled guilty to the charge of driving under the influence of alcohol (DUI), at Docket No. 181 of 1990, in the Court of' Common Pleas of Franklin County. On July 25, 1990, the trial court sentenced Powell to a term of imprisonment of 10 days to 23 months. At the expiration of the minimum sentence, Powell was to be paroled for 22 months and 20 days on various conditions, including that he consume no alcohol. In addition, Powell was to pay a fíne plus costs. On August 3, 1990, Powell began his period of parole.

By June 22, 1992, the end of his parole period, Powell, however, had failed to pay the balance due on his fines and costs. Powell’s parole officer then informed Powell that he could either “obtain an extension of parole which would give him more time to pay, or appear before the court at a hearing at which he would be vulnerable to having his parole revoked.” Opinion and Order, dated April 24,1993, at 18. Consequently, on June 30, 1992, Powell filed a Petition and Stipulation requesting a two year extension of his parole to afford him an opportunity to pay his fines. On July 2, 1992, the trial court issued an order extending Powell’s parole to June 30, 1994, or until all sums were paid in full.

In August, 1992, after the expiration of the original parole period but before the extended parole period expired, Powell again was arrested for DUI. Following a violation hearing on October 14, 1992, the trial court found Powell in violation of his parole and ordered him to serve the balance of the sentence imposed on July 25, 1990. On October 26, 1992, Powell’s counsel filed a motion to modify the sentence, but it was denied as untimely. On November 17, 1992, defense counsel filed a Petition for Writ of Habeas Corpus. Before ruling on the Petition, the court issued an order dated January 7, 1993, placing Powell on parole for a period of 19 months, 20 days. On January 28, 1994, the trial court issued an order terminating Powell’s parole after determining that he had satisfied the conditions of his parole. However, prior to the issuance of that order, the trial court denied Powell’s Petition for Habeas Corpus. This appeal is from the order denying his Petition for Habeas Corpus.

On appeal, Powell argues that the July 2, 1992, order extending his parole should be vacated because (1) the trial court improperly exercised jurisdiction over his sentence after the expiration of the 30 day period in which the court must act to modify a sentence; (2) the extension exceeded the maximum sentence which he could have received for DUI; (3) the extension violated prohibitions against double jeopardy; and, (4) the order resulted from a waiver illegally coerced by the probation officer.

Preliminarily, we recognize that at the time this case was submitted to our panel on February 22, 1994, Powell’s parole had been terminated. “Normally, the existence of an actual controversy is essential to appellate jurisdiction and, if an event occurs which renders it impossible to grant any relief, the issue is moot.” Commonwealth v. Bernhardt, 359 Pa.Super. 413, 417, 519 A.2d 417, 419 (1986). However, there are instances in which this Court will decide questions which have otherwise been rendered moot. Such situations arise where “(1) the question involved is capable of repetition but likely to evade review or; (2) the question involved is one of public importance.” Id. at 417-18, 519 A.2d at 420; see also Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445 (1984).

In the present case, the record reveals that the Petition and Stipulation for a parole extension is set forth on a standard printed form. Moreover, in its Opinion, the Court of Common Pleas of Franklin County states that the “use of [such] petitions ... is far from unusual in this county. According to the statistics maintained by the probation department, in 1992 ... [a] total of 156 defendants executed similar petitions and stipulations in lieu of appearing before the court for violation hearings.” Opinion and Order, supra, at 21. Further, a panel of this Court recently was presented with the same issue raised in the present case and, without analysis, affirmed the order denying habeas corpus relief on the trial court opinion. Commonwealth ex rel. Bumbaugh v. Rosenberry, No. 356 Harrisburg 1993, slip memorandum (filed March 17, 1994). Doubtless, we will be confronted with this case scenario again. This appears to be a common practice in Franklin County. Thus, we will address the merits of Powell’s appeal since it is clear from the record that this issue is capable of repetition. Bernhardt, supra; Smith, supra.

The writ of habeas corpus is used to determine whether a petitioner is entitled to an immediate release from an unlawful confinement. Habeas corpus allows release when imprisonment results from a criminal proceeding in which fundamental errors were committed that made the proceeding a nullity and rendered the trial court without jurisdiction to impose sentence. In this appeal, we must determine whether the trial court lacked jurisdiction to modify a criminal sentence by extending parole after the 30 day time limit set forth in § 5505 had expired and, thus, committed a fundamental error of law in extending Powell’s parole. With this standard in mind, we will review Powell’s claims.

In his first issue, Powell asserts that the trial court lacked jurisdiction to extend his parole because it did not act within 30 days of the date of its original sentencing order. We agree. In this Commonwealth, if no appeal has been taken, a common pleas court has jurisdiction to modify or rescind any order for a 30 day period after the order in question has been entered. 42 Pa.C.S. § 5505; Commonwealth v. Bogden, 364 Pa.Super. 300, 528 A.2d 168 (1987), appeal denied, 520 Pa. 595, 552 A.2d 249 (1988).

This has been interpreted to mean that a sentencing court has only thirty days from the imposition of sentence within which to act to modify the sentence. The failure of the sentencing court to act within the thirty-day appeal period will normally result in the loss of jurisdiction to modify sentence____

Bogden, at 304, 528 A.2d at 169-70 (citations omitted);

In the present case, on July 25, 1990, the trial court sentenced Powell to a term of 10 days to 23 months’ imprisonment, and, after serving the minimum 10 days, Powell was placed on parole for the remainder of the sentence. This established June 22, 1992, as the expiration date of his parole period. However, on July 2, 1992, nearly two years after the original sentence was imposed, and ten days after the expiration of the original sentence, the trial court entered an order extending Powell’s parole for an additional two years or until his fine was paid. This was a modification of Powell’s judgment of sentence which clearly occurred after the 30 day period following entry of the judgment.

Nevertheless, the trial court maintains that the original July 1990 sentence was never modified. Rather, the court stated that “the parole period was merely extended at [Powell’s] request.” Opinion and Order, supra, at 14. The court further stated that it could “extend a defendant’s parole period without a violation hearing where the defendant has ... waived his right to a hearing, and sign[ed] a petition and stipulation requesting additional time in which to comply with the payment conditions of his parole.” Supplemental Opinion, dated June 24, 1993, at 2-3. The trial court, however, directs us to no authority, nor are we aware of any, which permits a court to extend a parole period beyond the time provided in the original sentencing order. Indeed, the trial court admits that “there is no case law or statutory authority which directly addresses [the] question ... [of whether] a defendant [can request and receive] an extension of his parole period for the purpose of satisfying a condition of his parole in order to avoid [serving] the balance of his original sentence.” Opinion and Order, supra, at 10.

We are constrained to conclude that the trial court committed an error of law when it extended Powell’s parole for an additional two year period, because, in this Commonwealth, a court lacks jurisdiction to modify an order beyond the 30 day time limit set forth in 42 Pa.C.S. § 5505. Moreover, the willful refusal to pay a fine may be considered a technical parole violation for which a parolee may be re-incarcerated. See Commonwealth ex rel. Parrish v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973) (imprisonment of a non-indigent person who willfully fails to pay fines is permissible); accord Lawson v. Commonwealth of Pennsylvania Board of Probation & Parole, 105 Pa.Cmwlth. 427, 524 A.2d 1053 (1987); Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308 (1984). There is no indication in the record that Powell has willfully refused to pay his fine. If the Commonwealth suspected otherwise, it could have requested a parole revocation hearing at which Powell would have been entitled to establish his present inability to pay the fine, and work out a payment schedule or some other alternative. Dorsey, supra. We do not imprison the poor solely for their inability to pay fines. Pa.R.Crim.P. 1407(a); see Cliff, supra. Instead of devising a payment schedule, the trial court modified Powell’s sentence to extend his parole period for two years, ostensibly to give Powell an opportunity to pay his fine. Powell need not be on parole to pay his fine, and the Commonwealth need not keep him on parole to insure payment. The Commonwealth could have collected the fine in any manner provided by law, see 42 Pa.C.S. §• 9728(a), including holding Powell in contempt for failure to pay his fine. See Commonwealth v. Rosser, 268 Pa.Super. 116, 407 A.2d 857 (1979). While it may be convenient to threaten Powell with re-incarceration should he not pay, it is hardly necessary. And if maintaining that leverage means modifying Powell’s sentence two years after it was originally imposed, it is illegal as well. In light of these conclusions, we need not address Powell’s remaining issues.

Accordingly, we find that the trial court erred in denying Powell’s Petition for Writ of Habeas Corpus. Therefore, we reverse the order of April 24, 1993, denying Powell’s Petition. We direct that Powell be discharged from all obligations arising subsequent to the expiration of his original parole period, June 22, 1992, unless separate charges have been brought.'

Order Reversed.

CERCONE, J. files a Concurring Opinion.

CERCONE, Judge,

concurring:

Although I agree with the majority that the trial court improperly modified appellant’s sentence beyond the maximum sentence originally imposed, I reach this conclusion for reasons other than those cited by the majority.

On July 25, 1990, the trial court sentenced appellant to a term of imprisonment of not less than ten (10) days, nor more than twenty-three (23) months. Appellant served ten days in jail, then was paroled for the remainder of his sentence. Towards the end of appellant’s period of parole, his parole officer informed him that he had not paid the fines and costs imposed in his judgment of sentence. Thus, appellant faced the probability of a parole violation hearing and the possibility of incarceration for the unserved portion of his twenty-three month sentence. Rather than risking recommitment, appellant requested and received a two-year extension of his parole for an opportunity to pay his fines. The majority finds that by granting appellant’s request for an extension of his parole, the trial court violated 42 Pa.C.S.A. § 5505 by modifying appellant’s sentence beyond the thirty-day time limit.

I agree with the majority’s finding that the extension of appellant’s parole constituted an improper modification of his sentence. However, I do not agree that the trial court may not, under any circumstances, extend the parole period at the request of a defendant. Under Pennsylvania law, the authority to parole convicted offenders is shared between the court of common pleas and the Pennsylvania Board of Probation and Parole. When, as in the instant case, the offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant and revoke parole is vested in the Parole Board. 61 P.S. § 331.17, 331.21, 331.26; Commonwealth v. McDermott, 377 Pa.Super. 623, 630-31, 547 A.2d 1236, 1236 (1988).

Parole is an established variation on imprisonment and is primarily concerned with rehabilitation and restoration of the parolee to useful life. Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d. 494, 496 (1980). This court has stated:

A “parole” is not an act of clemency obliterating the crime or forgiving the offender, but is a penological measure for disciplinary treatment of prisoners apparently capable of rehabilitation outside prison, and it does not set aside or affect the sentence.

Commonwealth ex rel. Forsythe v. Myers, 200 Pa.Super. 636, 639, 189 A.2d 920, 921 (1963) [emphasis added]. Accord Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 285-86, 590 A.2d 782, 784 (1991).

However, even though parole is a form of imprisonment, a defendant is not entitled to count time served on parole towards his maximum sentence upon recommitment for a parole violation. See Commonwealth v. Cole, 222 Pa.Super. 229, 231, 294 A.2d 824, 825 (1972) (maximum period for which appellant could be sentenced after revoking parole set for charges was limited to maximum term under which appellant was originally sentenced because increase of original sentence would violate double jeopardy). Accord Commonwealth v. Bischof, 420 Pa.Super. 115, 122, 616 A.2d 6, 10 (1992).

In the instant case, the trial court extended appellant’s parole beyond the maximum unserved term of imprisonment set forth in the trial court’s judgment of sentence dated July 25, 1990. Specifically, appellant served ten days of the maximum twenty-three months imprisonment. By imposing parole which would extend beyond the remaining unserved sentence of twenty-two months and twenty days, I believe that the trial court improperly “modified” appellant’s sentence in violation of 42 Pa.C.S.A. § 5505. This period extended beyond the possible time for which appellant could be recommitted if, after a hearing, he was found to be in violation of his parole. It is for this reason that I would find that the trial court improperly modified appellant’s original judgment of sentence.

Upon review of 42 Pa.C.S.A. § 5505, I find nothing that would prevent a trial court, in the exercise of its discretion, from accepting the request of a criminal defendant to forego a parole violation hearing and the possibility of recommitment in favor of an extension of parole. In fact, such action by the trial court is consistent with its continuing authority to grant or revoke parole more than thirty days after judgment of sentence. In this way, the trial court may determine whether recommitment or extended parole would best suit appellant’s rehabilitative needs. However, I believe that the parole should not extend beyond the period for which appellant could be recommitted if he were found to be in violation of his parole after a hearing on the matter.

Accordingly, I concur with the majority’s finding that the trial court’s imposition of parole beyond twenty-two months and twenty days constituted an improper modification of appellant’s sentence.


author: BROSKY, Judge.

text:
    645 A.2d 1333
    In re ESTATE OF Herman J. ISRAEL, Late of the City of Lower Burrell, Westmoreland County, Pennsylvania, Deceased. Appeal of Betty Ann TAYLOR, an Individual and Henry L. Israel, an Individual.
    Superior Court of Pennsylvania.
    Argued April 5, 1994.
    Filed July 27, 1994.

      Robert O. Lampl, Pittsburgh, for appellants.

      Gerald E. Arth, Philadelphia, for Ins. Com’n, participating party.
    Before McEWEN, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order of the trial court which granted appellee-insurance Commissioner’s motion to compel deposition answers/'produce documents and denied appellant-executors’ motion for a protective order.

Appellants present the following issues for review: (1) whether the trial court erred in granting appellee’s discovery motion to compel appellants to answer questions and produce their private/personal records where appellants, in their individual capacities, are not parties to this action; (2) whether the trial court erred in granting appellee’s discovery motion because it is overbroad; (3) whether the trial court erred in granting appellee’s discovery motion where appellee failed to establish good cause to support her discovery request; and (4) whether the trial court erred in granting appellee’s discovery motion to compel the production of appellee’s personal documents where compliance will cause unreasonable annoyance, embarrassment, and expense to appellants. For the reasons set forth below, we quash this appeal.

It is necessary to recount the facts and history of this case. In 1968, Herman J. Israel and other individuals assumed ownership of the Rockwood Insurance Company (RIC) following its release from rehabilitation by the Insurance Commissioner. Mr. Israel’s and the other owners’ management of the company subsequently spawned investigations by the United States Attorney’s Office and the Pennsylvania Insurance Department during the mid-1970s. As a result of these investigations, Mr. Israel ultimately entered into consent agreements with the federal and state authorities pursuant to which he was to divest himself of stock and resign his position as chairman of RIC’s board of directors. Mr. Israel further agreed not to accept a position as an officer, director or employee of RIC. Notwithstanding his agreement, Mr. Israel and the other RIC directors/officers reorganized the company in' 1981 such that it became a wholly-owned subsidiary of Rockwood Holding Company (RHC).

Following the reorganization, RHC created the Rockwood Energy and Mineral Corporation (REMCORP), which was a wholly-owned subsidiary of RIC. In 1984, REMCORP purchased mining equipment from Mr. Israel for the sum of $750,000. RHC/RIC later determined that the equipment sold to REMCORP was not worth this amount. Consequently, RHC’s directors recommended that Mr. Israel execute a promissory note in the sum of $500,000 in favor of REM-CORP. Mr. Israel executed the note in 1985, but made it payable to RHC rather than REMCORP. No payments were made on the note, despite demand from RHC. RHC did not institute proceedings to collect on the note.

After the reorganization of RIC, the officers and directors of RHC engaged in a series of business transactions which resulted in substantial economic losses to RIC and REM-CORP. In addition, several audits disclosed that RIC was grossly underreserved. By 1990, the Insurance Commissioner placed RIC into rehabilitation pursuant to a joint voluntary petition between RIC and the Insurance Commissioner. The rehabilitation plan was unsuccessful and the Insurance Commissioner thereafter placed RIC into liquidation. As RIC’s liquidator, the Insurance Commissioner instituted suit in Commonwealth Court against Herman Israel as well as the directors and officers of RHC. See Insurance Commissioner of the Commonwealth of Pennsylvania, as Liquidator of Rock-wood Insurance Co. and Rockwood Energy and Mineral Corp. v. Rockwood Holding Company, et al., 158 Pa.Cmwlth. 258, 632 A.2d 335 (1993).

In the course of his involvement with RHC, RIC and REMCORP, Mr. Israel engaged in' certain mining operations which resulted in the pollution of streams near the mine. Consequently, actions have been instituted by the Pennsylvania Department of Environmental Resources (DER) and others against Mr. Israel and REMCORP. See Ingram Coal Company, et al. v. Commonwealth of Pennsylvania, Depart ment of Environmental Resources. No. 88H507 (compliance order issued by DER); A. J. Palumbo v. Clark Ingram, et al. v. Herman Israel, No. 86-1681-CD (Clearfield County): Clark Ingram v. Herman Israel and REMCORP, No. 89-108 (Elk County).

Mr. Israel also obtained a loan for the sum of $50,000 from First Seneca Bank (FSB) in 1983. Payments on the FSB loan were current until Mr. Israel’s death. Notwithstanding the existence of the FSB loan, the promissory note to RHC, and the other various actions, Mr. Israel began making large gifts of cash and personalty to appellants, Henry L. Israel and Betty Ann Taylor, as well as to Mrs. Taylor’s husband and son in 1983. These gifts continued until Herman Israel’s death on September 28, 1989.

Herman Israel died testate; his will nominated appellants as the executors of his estate. Following issuance of letters testamentary and submission of the will for probate, FSB and RHC filed claims against the estate. The executors filed an account in November, 1992 to which FSB, DER, and the Ingrams objected. Objections were also filed by appellee, the Insurance Commissioner of the Commonwealth of Pennsylvania, Cynthia Maleski, in January, 1993. After pleadings pertaining to the propriety of the objections were filed, the trial court dismissed appellants’ petitions and agreed to hear the objections.

The parties thereafter attempted to engage in discovery, and both Henry Israel and Betty Ann Taylor were scheduled to be deposed. During Mrs. Taylor’s deposition, she was instructed by her counsel not to answer any of appellee’s questions relating to the gifts which she had received from her father. Mrs. Taylor also refused appellee’s request to produce documents involving these transactions. As a result, appellee filed a motion to compel appellants’ compliance with the discovery request. Appellants opposed this motion and responded with a motion for protective order. After argument-on the motions, the trial court granted appellee’s motion but denied appellants’ request for a protective order. Appellants’ thereafter initiated this appeal from the trial court’s order.

It is a fundamental principle of law that an appeal will lie only from a final order unless otherwise permitted by rule or statute. Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1183 (1990) (en banc). See also 42 Pa.C.S.A. § 742 (providing that the Superior Court shall have exclusive appellate jurisdiction over all appeals from final orders of the courts of common pleas). We must therefore ascertain whether the trial court’s order is a final appealable order because the question of appealability implicates the jurisdiction of our court. Motheral v. Burkhart, 400 Pa.Super. at 414, 583 A.2d at 1183-1184; 42 Pa.C.S.A. § 742, supra. The appellate courts have defined a final order as:

one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant out of court. Whether an order is final and appealable is a judicial determination which cannot be made without an examination of the order’s practical ramifications. In making this determination, we are guided by the Supreme Court’s statement that a pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss.

Motheral v. Burkhart, 400 Pa.Super. at 414-415, 583 A.2d at 1184 (citations and quotation marks omitted).

As applied here, it is clear that the trial court’s order neither ends the litigation nor puts the parties out of court. Rather, the order does nothing more than direct appellants to comply with appellee’s discovery request. The appellate courts have long held that discovery orders are interlocutory and unappealable. See, e.g., Pennsylvania Human Relations Commission v. Jones & Laughlin Steel Corp., 483 Pa. 35, 36, 394 A.2d 525, 526 (1978); Kine v. Forman, 412 Pa. 163, 165, 194 A.2d 175, 176 (1963); Mackowain v. Gulf Oil Corp., 369 Pa. 581, 582, 87 A.2d 314, 314 (1952); Young v. Bradford County Telephone Co., 346 Pa. 90, 94, 29 A.2d 533, 535 (1943); Joyce & Associates v. Pivirotto, 358 Pa.Super. 50, 51-52, 516 A.2d 763, 764 (1986); McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 408-410, 493 A.2d 84, 86-87 (1985). Consequently, the trial court’s order cannot be classified as being final and appealable.

However, our inquiry is not at an end as we must consider whether the order may be deemed final and appeal-able under the collateral order doctrine. Pursuant to this principle, an order may be appealed if: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (quoting Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528,1536 (1949)). All three elements must be satisfied for an order to qualify under Cohen. Fried v. Fried, 509 Pa. 89, 95, 501 A.2d 211, 214 (1985). See also Pugar v. Greco, 483 Pa. at 74, 394 A.2d at 545 (although order denying leave to appeal without payment of the arbitration fee was collateral to the basic liability action and involved a right too important to be denied review, the Supreme Court held that the order was interlocutory because it did not adversely affect a claimed right which would be irreparably lost if review is postponed); Gottschall v. Jones & Laughlin Steel Corp., 333 Pa.Super. 493, 500, 482 A.2d 979, 983 (1984), cert. denied, 474 U.S. 845, 106 S.Ct. 134, 88 L.Ed.2d 110 (1985) (court declined to consider the remaining elements where the plaintiff could not satisfy the first requirement of the three-part Cohen test; since the first prong was not met, the court deemed the order to be interlocutory and quashed the appeal).

In the instant case, the first prong of the Cohen test has not been met because the order appealed from is not separable from and collateral to the proceedings. The underlying action involves objections to the account filed by appellants and other parties. Among other things, one question to be decided is whether the account, as filed, is in error because the executors failed to include assets which were allegedly fraudulently transferred by the decedent prior to his death. To resolve the objections, the lower court must necessarily determine whether the transfers were fraudulent within the meaning of the Uniform Fraudulent Conveyance Act (UFCA), 39 P.S. § 351- § 363. Appellants were the primary beneficiaries of these transfers, and thus, have information of the circumstances and documentation regarding the transactions. By virtue of their position as the executors of the decedent’s estate, appellants also may have knowledge of Mr. Israel’s financial affairs during the relevant time-period prior to his death. The material sought to be discovered by appellee therefore has the potential to definitively determine the ultimate issues in this case, i.e., whether the transfers were fraudulent. Compare Gottschall v. Jones & Laughlin Steel Corp., supra (order which placed discovery material under seal had the potential to determine the ultimate issues of liability, or in the alternative, to disqualify the plaintiff from pursuing the actions was held to directly relate to the main cause of action); Hutchison v. Luddy (II), 414 Pa.Super. 138, 157, 606 A.2d 905, 914 (1992), appeal discontinued, 531 Pa. . 640, 611 A.2d 712 (dissenting opinion by Johnson, J.), (discovery of material in church’s secret archive relating to sexual misconduct of defendant-priest and other priests of the Altoona-Johnstown Diocese with male children was relevant to underlying claims against the defendants). See also Commonwealth, Department of Environmental Resources v. Texas Eastern Transmission Corp., 130 Pa.Commw. 655, 657-658, 569 A.2d 382, 383-384 (1990) (hereinafter “DER v. TETC ”) (discovery of documents from the DER had the potential to determine the ultimate issues in the case, and thus, were not separable and collateral); Doe v. Commonwealth, Department of Public Welfare, 105 Pa.Commw. 482, 486-87, 524 A.2d 1063, 1065 (1987) (hereinafter “Doe v. DPW”) (discovery of documents regarding the actions taken by the defendants had the potential to determine the ultimate issues of liability in a negligence action). But see Hutchison v. Luddy (II), 414 Pa.Super. at 143-144, 606 A.2d at 907 (majority opinion) (denial of request for protective order regarding materials in secret church archive deemed collateral to the plaintiffs main tort action against the defendants). We accordingly find that the first prong of the Cohen test has not been met.

Appellants likewise have not satisfied the second element as they have failed to identify any right involved which is too important to be denied review. In fact, appellants do not specifically address this requirement, but rely upon the reasoning of Hutchison v. Buddy (II), supra (majority opinion) in support of their position that the order in this case is final and appealable pursuant to the collateral order doctrine. In Hutchison (II), the defendant Roman Catholic Church claimed that the requested materials were privileged and confidential under Canon law. Id., 414 Pa.Super. at 142, 144, 606 A.2d at 906, 907.

Unlike the Hutchison (II) defendants, appellants do not assert any type of statutory, constitutional or other privilege as a bar to discovery. Appellants instead suggest that the discovery order should be deemed “final and appealable” because they are not parties to this action in their individual capacities. Appellants refer us to International Coal Mining Co. v. Pennsylvania Railroad Co. (No. 1), 214 Pa. 469, 470, 63 A. 880, 880 (1906) in support of this premise. Contrary to appellants’ conclusion that International Coal Mining remains good law, however, our Supreme Court has apparently rejected this view. See Pennsylvania Human Relations Commission, 483 Pa. at 36-37, 394 A.2d at 526 (quashing appeal from an order enforcing a subpoena issued by an administrative agency against a non-party witness; in reaching this result, the Supreme Court expressly stated that the holding in International Coal Mining has been discarded); In re: Petition of Specter, 455 Pa. 518, 519-520, 317 A.2d 286, 287 (1974) (quashing appeal from an interlocutory order which denied a motion to quash a grand jury subpoena even though non-party witness averred that the subject matter of the proposed questioning was beyond the scope of the convening petition and charge to the investigative grand jury). But see Steel v. Weisberg, 347 Pa.Super. 106, 111, 500 A.2d 428, 431 (1985) (suggesting in dicta that a non-party witness could arguably appeal from an order directing the party to be deposed).

Notwithstanding appellants’ attempt to distinguish their individual and executive capacities, we note that appellants’ capacities are inextricably intertwined in light of their roles as executor/beneficiary of the decedent’s estate and the fact that they were the recipients of the allegedly fraudulent transfers. Because of appellants’ unique status and their participation in these proceedings as the executors, we are not persuaded that appellants, in their individual capacities, are non-parties for the purpose of rendering the discovery order final and appeal-able. Since appellants have not presented any reason, privilege or right which is too important to be denied review, the second Cohen requirement has not been satisfied.

The third and final element requires us to ascertain whether the claimed right will be irreparably lost if review is postponed until final judgment. This element has not been met. As previously explained, appellants have asserted no right or privilege other than their attempt to separate their executive and individual capacities. Thus, no right will be irreparably lost if review is postponed until final judgment.

Moreover, appellants have at their disposal other remedies for obtaining review of the discovery order prior to the entry of judgment, regardless of their capacity. An individual who is aggrieved by the entry of an order compelling discovery may either: (a) refuse to comply with the discovery order and litigate the propriety of the order in the event that contempt or similar proceedings are brought; or (b) seek permission to institute an interlocutory appeal. See Pennsylvania Human Relations Commission, 483 Pa. at 37, 394 A.2d at 526 and In re: Petition of Specter, 455 Pa. at 519, 317 A.2d at 287 (party must either comply with subpoena or refuse to comply and litigate the propriety of the subpoena in the event that contempt or similar proceedings are brought); McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. at 408, 493 A.2d at 86 (this court lacks jurisdiction to review an order declaring a party in contempt unless sanctions are imposed); 42 Pa.C.S.A. § 702(b), and Pa.R.A.P., Rules 312 and 1301-1323, 42 Pa.C.S.A. (governing interlocutory appeals). Both alternatives provide an aggrieved person with a means of obtaining review prior to the entry of final judgment. Under these circumstances, we conclude that the third Cohen factor has not been met. Because none of the requirements of the collateral order doctrine have been satisfied, and because the lower court’s order is otherwise interlocutory and unappealable, we quash this appeal.

Appeal quashed.

      . The DER action was appealed to the Environmental Hearing Board, at EHB docket No. 88-291-F, and the Commonwealth Court, Nos. 1075 and 1091 C.D. 1990, 141 Pa.Commw. 324, 595 A.2d 733 (1991). Further appeals were denied by the Pennsylvania and United States Supreme Court. See Ingram v. DER, 530 Pa. 648, 607 A.2d 257 (1992); Ingram v. DER,-U.S.-, 113 S.Ct. 329, 121 L.Ed.2d 248 (1992).

      . Clark Ingram, George Ingram, Gary Ingram and Gregory Ingram (the Ingrams) were involved in the operation of Ingram Coal Company, which was acquired by REMCORP.

      . Henry L. Israel and Betty Ann Taylor are the adult children of Herman Israel.

      . Neither FSB, DER, the Ingrams nor the Estate of Herman Israel are participants in this appeal. After filing their appeal, appellants filed a motion for stay of proceedings pending appeal. The lower court denied this motion. Motions for supersedeas filed both in this court and Supreme Court have likewise been denied. In addition to these motions, appellee filed a motion to quash the appeal. This court denied the motion without prejudice to appellee to address this matter in oral argument.

      . We are cognizant of the changes made to the Pennsylvania Rules of Appellate Procedure concerning the finality and appealability of orders. See Pa.R.A.P., Rules 311, 313 and 341, 42 Pa.C.S.A. and notes thereto (as amended/adopted May 6, 1992, effective July 6, 1992). As initially promulgated, the amended rules only applied to orders entered in actions or proceedings which originally commenced after July 6, 1992. See id.; Noll v. Harrisburg Area YMCA, 537 Pa. 274, -n. 2, 643 A.2d 81, 84 n. 2 (1994). However, the Supreme Court subsequently directed that the amended rules shall apply to all cases in which orders were entered on or after the effective date, regardless of the date on which the action or proceeding was originally commenced. See Order of January 10, 1994, effective March 1, 1994, reprinted in Notes to Rules 311, 313 and 341, supra. The January 10 order of the Supreme Court is inapplicable here since these proceedings were commenced in 1989 when the decedent’s will was submitted for probate, and the trial court's order was entered on September 28, 1993. See id. (providing that the Supreme Court’s Order of January 10 does not affect orders entered after July 6, 1992 but before March 1, 1994 where the case originally commenced on or before July 6, 1992). We must accordingly ascertain whether this order may be appealed pursuant to the pre-July 6, 1992 rules and caselaw.

      . The UFCA was repealed and re-enacted by the Act of December 3, 1993, P.L. 479, No. 70, § 1, codified at 12 Pa.C.S.A. § 5101-§ 5110. The UFCA was renamed the Uniform Fraudulent Transfer Act (UFTA). See the Act of December 3, 1993, P.L. 479, No. 70, § 1, codified at 12 Pa.C.S.A. § 5101(a).

      . Appellants dispute this element and suggest that some of the requested material is irrelevant to the main cause of action because an action under the UFCA/UFTA is barred by the applicable statute of limitations. We disagree with appellants’ analysis. The statute of limitations and laches are affirmative defenses which must be raised in an appropriate pleading. See Pa.R.C.P., Rule 1030 (requiring all affirmative defenses, including the defenses of laches and statute of limitations to be pleaded in a responsive pleading under the heading "New Matter.’’) and Rule 1509(b), (providing that objections of laches may be raised by preliminary objection, answer or reply), 42 Pa.C.S.A. A party waives all affirmative defenses which he does not present by preliminary objection, answer or reply. Pa.R.C.P., Rule 1032 and 1509(b), 42 Pa.C.S.A. After reviewing the certified record, we are unable to find therein any presentation of the defenses of laches or the statute of limitation. Even if this matter has been properly plead, the determination of whether a UFCA/UFTA action is barred by either or both of these defenses has yet to be litigated in the lower court and is not properly before us at this stage of the proceedings. In any event, the Cohen test does not make the scope of discovery contingent upon the continued existence or viability of a particular cause of action. Instead, the test is whether the information sought to be discovered has the potential to determine the ultimate issues of liability. See Gottschall v. Jones & Laughlin Steel Corp., supra; DER v. TETC, and Doe v. DRW, infra. Because it would be premature for this court to ascertain whether the affirmative defenses of laches or the statute of limitations bars, let alone even applies, in the context of this particular case, we cannot definitively conclude that appellee's discovery request is irrelevant and unrelated to the ultimate issues to be decided.

      . We question the soundness and continued vitality of the Hutchison (II) court’s determination that the order was separable and collateral. The majority reached its cursory conclusion without any attempt to relate the requested discovery material to the litigation. Hutchison v. Luddy (II), 414 Pa.Super. at 143-144, 606 A.2d at 907. Instead, the majority relied upon a similar analysis contained in a prior appeal between the parties. Id., 414 Pa.Super. at 143 n. 1, 606 A.2d at 907 n. 1 (citing Hutchison v. Luddy (I), 398 Pa.Super. 505, 510-511, 581 A.2d 578, 581 (1990), in which this court found that an order denying a motion to seal the record was independent of the principal action, even though it was expressly acknowledged that the information sought might impact on the principal actions). However, the Supreme Court reversed the Hutchison (I) court’s conclusion and held that the trial court’s denial of the motion to seal the record was not final and • appealable under Pugar v. Greco, supra. See Hutchison v. Luddy (I), 527 Pa. 525, 594 A.2d 307 (1991). The Hutchison (II) majority’s reasoning also overlooked the above-cited appellate decisions which unequivocally hold that an order is not separable and collateral from an action where it has the potential to determine the ultimate issues in the action. See Gottschall v. Jones & Laughlin Steel Corp., DER v. TETC, and Doe v. DRW, supra.

      . Appellants’ assert that they have now been made parties to this action in their individual capacities. See Appellants’ Reply Brief at 6. This fact is outside the duly certified record submitted to this court and cannot be considered. Dile v. Dile, 284 Pa.Super. 459, 465 n. 5, 426 A.2d 137, 141 n. 5 (1981) (Superior Court is bound to consider only those facts which are in the certified record and may not consider those facts interjected in counsel’s brief). In any event, this occurrence renders appellants’ argument moot. As appellants, in their individual capacities, are now parties to this action any rights which they may have will not be irreparably lost and review of the discovery order can be postponed until the entry of a final order, judgment or decree.

      . Our conclusion is not inconsistent with our holding in Commonwealth v. Miller, 406 Pa.Super. 206, 593 A.2d 1308 (1991). Miller may be factually distinguished from the instant case in that the women’s rape crisis center aggrieved by the trial court’s discovery order asserted a statutorily created privilege which precluded disclosure of the requested materials without the victim’s written consent. Id., 406 Pa.Super. at 212-213, 593 A.2d at 1311. The victim whose records were sought also asserted a right to privacy and confidentiality in her relationship with the rape crisis center. Id. 406 Pa.Super. at 210, 593 A.2d at 1310. Appellants have asserted no type of privilege or right in this case. We also note that, unlike the circumstances presented here, the remaining prongs of the Cohen test were satisfied in Miller. Id., 406 Pa.Super. at 210, 593 A.2d at 1309-1310.