author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    537 A.2d 29
    Robert M. WITTIG and Jane Wittig, his wife, Appellants, v. Ralph CARLACCI and Anna Mae Carlacci, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1987.
    Filed Feb. 4, 1988.

      William R. Lee, Scranton, for appellants.
    Walter T. Grabowski, Harrisburg, for appellees.
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Because of a property line dispute, Robert M. Wittig and Jane Wittig, husband and wife, commenced an action in ejectment against their neighbors, Ralph and Anna Mae Carlacci. After trial without jury, the court, on December 5, 1986, found that the disputed strip of land was owned by the Carlaccis and dismissed the Wittigs’ action. The Wittigs filed a motion for post-trial relief on December 23, 1986, but the motion, following argument, was denied, and judgment was entered on the adjudication of the trial court. This appeal followed by the Wittigs.

Initially, there is an issue which must be resolved regarding the timeliness of the Wittigs’ motion for post-trial relief. Pa.R.C.P. 227.1(c)(2) requires that post-trial motions shall be filed within ten days after “notice of ... the filing of the decision or adjudication in the case of a trial without jury or equity trial.” Pa.R.C.P. 1038(c) requires that notice of the trial court’s decision be given by the prothonotary; and Pa.R.C.P. 236(b) requires the prothonotary to note in his docket the giving of such notice. Pursuant to these rules, the time for filing post-trial motions does not commence until such notice has been given and the date thereof recorded in the prothonotary’s docket.

In the instant case, the trial court’s adjudication was dated December 5, 1986. However, the prothonotary’s docket fails to disclose that notice of the filing of the trial court’s decision was ever given to appellants or their counsel. Under these circumstances, post-trial motions filed on December 23, 1986 were timely. See: Ruh v. Ruh, 268 Pa.Super. 82, 407 A.2d 447 (1979). See also: Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 562 n. 2, 434 A.2d 1292, 1293 n. 2 (1981); Brodsky v. Philadelphia Athletic Club, 277 Pa.Super. 549, 554, 419 A.2d 1285, 1288 (1980); State Farm Mutual Auto Ins. Co. v. Schultz, 281 Pa.Super. 212, 214 n. 1, 421 A.2d 1224, 1225 n. 1 (1979). The trial court apparently recognized this, for its opinion states specifically that appellant’s post-trial motions were filed timely. We find nothing in the record that would cause us to disagree.

The rule requiring that post-trial motions be filed within ten days after notice of filing is a procedural rule; it is not jurisdictional. A trial court has broad discretion to entertain untimely procedural motions. See: Karpe v. Borough of Stroudsburg, supra; Brodsky v. Philadelphia Athletic Club, supra 277 Pa.Super. at 553, 419 A.2d at 1287; Plato v. City of Pittsburgh, 71 Pa.Cmwlth. 463, 466 n. 2, 454 A.2d 1196, 1198 n. 2 (1983). See also: S.N.T. Industries, Inc. v. Geanopulos, 512 Pa. 330, 516 A.2d 705 (1986) and S.N.T. Industries, Inc. v. Geanopulos, 363 Pa. Super. 97, 99-100 n. 1, 525 A.2d 736, 737-738 n. 1 (1987) (Supreme Court reversed and remanded for consideration of merits where Superior Court had declined to consider merits of appeal, even though considered by trial court, because of late filing of supplemental post-trial motions); Gutman v. Rissinger, 334 Pa.Super. 259, 482 A.2d 1324 (1984). In the instant case, the appellees neither objected nor alleged prejudice because of the date on which the post-trial motions were filed. As a result, the trial court could, as it did, consider the merits of the post-trial motions and thereby preserve such issues for appellate review.

Because the present appeal is properly before this Court, we undertake a review of the substantive issues raised by the appellants.

Grace Kile and her husband, now deceased, acquired title to a ten acre tract of land in Newton Township, Lackawanna County, in 1951. In 1952, the property was surveyed and subdivided. In 1956 or 1957, the Kiles built a fence between the land on which their residence was located and the adjoining land. In 1959, the Kiles conveyed the adjoining land to Nelson Major and June Major, husband and wife, who, in turn, conveyed it in 1961 to Ralph Carlacci and Anna Mae Carlacci, the appellees herein. In 1964, the Kiles sold the land on which their residence was located to Robert Wittig and Jane Wittig, the appellants. The Wittigs maintained the land up to the fence line until 1982, when the Carlaccis tore down a portion of the fence and removed a tree. The Carlaccis contended that their property line, as determined by survey and the description in their deed, was located a foot or more on the Wittigs’ side of the fence.

In the Wittigs’ action in ejectment, they alleged that it was they who held title up to the fence line. They had acquired title, they alleged, by deed, or by adverse possession, or by a long-standing fence which constituted a consentable boundary line. Following trial without jury, the trial court determined that record title for the disputed strip of land was in the Carlaccis by virtue of their deed description and the description contained in the deed from the Kiles to the Carlaccis’ predecessor in title. Appellants’ claims of title by adverse possession and by consentable line were rejected because appellants had been in possession of their tract for only eighteen years. Moreover, the court held, appellants could not tack on the possession of their predecessor because there was no evidence that the Kiles had intended to effect an adverse and hostile possession of any part of the land which, several years after erection of the fence, they had conveyed to the Carlaccis’ predecessor in title.

The law pertaining to the doctrine of consentable lines was stated in Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976), where the court explained:

Our courts have long recognized ... that a boundary line may be proved by a long-standing fence without proof of a dispute and its settlement by a compromise. In Dimura v. Williams, [446 Pa. 316, 286 A.2d 370 (1972) ], the court noted:
It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not. Id. 446 Pa. at 319, 286 A.2d at 371.
In such a situation the parties need not have specifically consented to the location of the line. Dimura v. Williams, supra, 446 Pa. at 319, 286 A.2d at 371. It must nevertheless appear that for the requisite twenty-one years a line was recognized and acquiesced in as a boundary by adjoining landowners. See Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A. 211 (1914); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1012 (1896). As the court in Reiter noted, “[t]he value of such a fence does not rest upon the acts of him who alleges its existence merely, but upon its recognition and maintainance, [sic] by the owners of the farms which it separates, as the line between them.” Id., 173 Pa. at 85, 33 A. at 1012.

Id., 241 Pa.Superior Ct. at 163, 360 A.2d at 215-216 (footnote omitted). See also: Norwich v. Beaver, 326 Pa.Super. 456, 474 A.2d 329 (1984); Burns v. Mitchell, 252 Pa.Super. 257, 381 A.2d 487 (1977).

In the instant case, the Wittigs were in possession of their land only for eighteen years. To claim title, therefore, it was essential that their predecessor’s possession be tacked on to the time during which the Wittigs were in possession. The evidence showed that, although the fence had been erected in 1956 or 1957, the Kiles’ 1959 deed to the Carlaccis’ predecessor in title included the fence within the boundaries of the land conveyed. Moreover, when the Kiles later conveyed to the Wittigs, the description in the deed did not include the land immediately adjacent to the fence.

In Castronuovo v. Sordoni, 357 Pa.Super. 187, 515 A.2d 927 (1986), a panel of this Court reviewed the applicable law as follows:

The possession of successive occupants may be tacked, but only where there is privity between them. Masters v. Local Union No. 472, United Mine Workers, 146 Pa.Super. 143, 22 A.2d 70 (1941). For our purposes, “privity” refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. Stark v. Lardin, 133 Pa.Super. 96, 1 A.2d 784 (1938).
But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed * * * The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor.
Gerhart v. Hilsenbeck, 164 Pa.Super. 85, 88, 63 A.2d 124, 126 (1949) (quotations omitted). Our court has held that acceptance of a deed describing boundary lines confined the premises to the area within the boundaries, and that such a deed did not convey inchoate rights acquired by incompleted adverse possession. Masters, supra. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it. Shaffer v. Lauria, 50 Pa.Super. 135 (1912).

Id., 357 Pa.Superior Ct. at 193-194, 515 A.2d at 930-931 (footnote omitted).

Thus, a grantee cannot tack his grantor’s possession of land when the grantor does not convey such land to him. The only recognized exception occurs where an intent to convey more land than that described may be inferred from the circumstances or the deed itself. Castronuovo v. Sordoni, supra, 357 Pa.Superior Ct. at 193 n. 7, 515 A.2d at 931 n. 7. In the instant case, both the Kile deed to the Wittigs and the testimony of Mrs. Kile established that the deed from her and her husband had been intended to convey only that land described in the deed. It matters not that she mistakenly believed that the deed description included all land adjacent to the fence. Mrs. Kile testified that both the Carlacci and Wittig deeds accurately described the land which she and her husband intended to convey. Therefore, this was not a case in which there was an intent to convey more than the Kiles owned; the period of the Kiles’ occupancy could not be tacked on to the eighteen years in which the Wittigs held possession of the land up to the fence.

It appears, therefore, that the adjudication of the trial court was correct and that the judgment entered thereon must be affirmed.

Judgment affirmed.

OLSZEWSKI, J., files a concurring statement.

OLSZEWSKI, Judge,

concurring:

I concur in the result only. While I agree with the trial court’s determination regarding the filing date of the post-trial motions, it is my opinion that the holding should be limited to the facts of this case. Therefore, I believe that Pa.R.C.P. 227.1(c)(2) should be strictly applied except in cases, analogous to the one at bar, in which (1) the appellant establishes lack of notice of the filing of the trial court’s decision, and (2) the appellees do not object or allege prejudice because of the date on which the post-trial motions were filed. It is my opinion that more expansive interpretation regarding Rule 227.1(c)(2) is within the strict purview of our Supreme Court’s rule-making province.

      . Pa.R.C.P. 1517(b) establishes a similar requirement with respect to adjudications in equity.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    537 A.2d 32
    COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth JONES, a/k/a Kenneth Johnson, a/k/a Robert Johnson, Appellee.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1987.
    Filed Feb. 1, 1988.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
    Alonzo Burney, McKeesport, for appellee.
    Before MONTEMURO, WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellee was convicted, following a jury trial, of robbery, theft by unlawful taking or disposition, and criminal conspiracy. The appellee filed a pro se Motion for a New Trial and/or In Arrest of Judgment, wherein he raised, inter alia, several claims of trial counsel’s ineffectiveness. A counseled post-verdict motion was subsequently filed by trial counsel on the appellee’s behalf, in which she raised issues of her own ineffectiveness in representing the appellee. The trial judge appointed the Public Defender of Allegheny County to represent the appellee in post-trial matters. On June 25, 1984, the trial court apparently held an evidentiary hearing to inquire into the claims of ineffective assistance and also entertained oral argument on the appellee’s post-verdict motions. The appellee’s trial counsel testified as a Commonwealth witness regarding the quality of her representation on the appellee’s behalf. At the conclusion of the argument, the trial judge took the appellee’s motions under advisement. Subsequently, on May 15, 1987, an order was filed by the trial court granting the appellee’s motion for a new trial and denying the appellee’s motion in arrest of judgment. This appeal by the Commonwealth was timely pursued. For the reasons which follow, we reverse the order of the trial court.

In granting the appellee’s motion for a new trial, the court noted that the appellee’s trial counsel testified at the evidentiary hearing and that “she admitted her ineffectiveness in several respects.” However, in the trial court’s opinion, dated July 20, 1987, the court stated:

After a review of the record, the Court issued its order and was satisfied that ineffectiveness of trial counsel had been established and that such was prejudicial to the defendant. Although, any one of the allegations of ineffectiveness may not have been sufficient, the cumulative effect of the several allegations did establish the ineffectiveness.

The sole issue presented by the Commonwealth is whether the court erred in concluding that the appellee was denied effective representation due to the cumulative effect of counsel’s conduct, although each individual claim of ineffectiveness when analyzed separately, fails to substantiate such a finding.

Initially, we must consider whether this order is an appealable order. The Commonwealth submits that while the order from which this appeal is taken is an interlocutory order, it is appropriately before this Court because the question involved herein is purely a matter of law. See, Commonwealth v. White, 482 Pa. 197, n. 2, 393 A.2d 447, n. 2 (1978); Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977). See also, Pa.R.A.P. 311(a)(5). We agree that the issue involved in this appeal is purely a question of law and that we therefore have jurisdiction to decide it.

The decision of the trial court to grant a new trial will not be reversed absent an abuse of discretion or an error of law. Commonwealth v. Palmer, 319 Pa.Super. 56, 465 A.2d 1050 (1983). However, after careful review, we conclude that the learned trial court erred when it found that the cumulative effect of the several allegations of ineffective assistance established counsel’s ineffectiveness even though it also found each individual claim insufficient.

When our Supreme Court first articulated the standard which would be employed in evaluating the constitutional effectiveness of counsel’s stewardship, it also was faced with multiple allegations of ineffective assistance. See, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Today, some twenty years later, this approach to claims of ineffective assistance has not changed. Recently, our Supreme Court had occasion to again define this approach. “First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit.” Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987). (Citations omitted) The defendant must then demonstrate that counsel’s ineffectiveness prejudiced his case. Id.

Thus, it is clear that if the claim underlying the defendant’s allegation of ineffective assistance is meritless, the court’s inquiry ceases. It is axiomatic that if the underlying claim is devoid of merit, counsel could not have been ineffective with respect to that issue. Assuming the merit of the underlying claim is established, “the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 604-05, 235 A.2d at 353. Finally, if the defendant were to surpass the initial hurdles by establishing the merit to the underlying claim and demonstrate that counsel’s conduct had no reasonable basis designed to effectuate the defendant’s interest, but fails to demonstrate how counsel’s conduct prejudiced his case, he would not be entitled to relief. Commonwealth v. Pierce, supra.

Each allegation of ineffective assistance is reviewed independently of any other allegations which may also be advanced by the defendant. Nowhere within our approach is a court permitted to conclude that the cumulative effect of all the allegations of ineffective assistance advanced by a defendant warrants relief where, at the same time, it finds that any one of several allegations was not sufficient to justify awarding relief to the defendant. If, as in this case, a specific allegation of ineffective assistance of counsel which is unrelated to any other allegation, fails to meet one of the three prongs of our analysis, not only has counsel been constitutionally effective, but that allegation of ineffective assistance has absolutely no bearing on the evaluation of any other claim which the defendant raises. In the instant case, once the trial court determined that each of the individual allegations were insufficient to establish the ineffectiveness of the appellee’s trial counsel, it was bound by the consequences of that determination. For these reasons, we conclude that the trial court erred as a matter of law when it concluded that the cumulative effect of the several allegations of ineffective assistance raised by the appellee herein established the ineffectiveness of his trial counsel.

The order of the trial court awarding the appellee a new trial is reversed. The case is remanded for sentencing. Jurisdiction is not retained.

      . We note that the appellee has not filed a brief in this matter.

      . The Commonwealth addresses each specific allegation of ineffectiveness, arguing that each allegation must fail. We cannot address the merits of each claim of ineffectiveness at this stage of the proceedings since our review is limited to the question of law which has been raised.


author: WIEAND, Judge: MONTEMURO, Judge,

text:
    537 A.2d 35
    Richard A. McWILLIAMS, Appellant, v. Sara A. McWILLIAMS, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed Feb. 11, 1988.

      Thomas E. Africa, Warren, for appellant.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a wife who is employed as an executive secretary should be required to contribute to the support of a husband whose job as a township police officer has been eliminated and who is unemployed. The trial court rejected the hearing officer’s recommendation for an order of forty ($40.00) dollars per week, found that the husband had failed to show a need for support, and dismissed the husband’s petition. Husband appealed. We reverse.

Richard A. McWilliams and Sara A. McWilliams were married on April 22, 1968. There were no children born to the marriage. Husband had been the chief of police in Mead Township for approximately fifteen years until the township supervisors, in 1986, abolished that position. Thereafter, McWilliams received unemployment compensation until it expired. At the time of the hearing before the trial court, he was unemployed, living with his mother and borrowing money from her to meet his expenses. He had taken a civil service exam but had been unable to find employment in Warren, where he resides.

Wife was employed as a secretary by Struthers-Wills Corp., which paid her a gross salary in 1986 of $20,996.18. The trial court found that her weekly take-home pay was $287.79. She lives in a home which she owns jointly with her brother.

Husband and wife own jointly a residence which has a value of Forty Thousand Dollars and a vacant lot having a value of Five Thousand Dollars. Neither the residence nor the lot is producing income. Wife has a pension plan and savings account. Husband owns approximately twelve automobiles, of which two are licensed and only five are operable. Most are inoperable; they are used for their parts, which McWilliams can occasionally sell to others.

When Husband’s father died in 1983, the parties moved into the home owned and occupied by his mother. On March 1, 1986, wife left voluntarily and without husband’s consent.

If the respective circumstances of the parties were reversed and the wife had asked for an order requiring the payment of support by her husband, the result would be clear. If a court refused to make an award, an appellate court would reverse. Why, then, shouldn’t a wife be required to contribute to the support of a husband according to her ability when the husband is in need and has not by his conduct forfeited the right to be supported by a spouse?

In Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974), the Supreme Court said:

The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman. Thus, as it is appropriate for the law where necessary to force the man to provide for the needs of a dependent wife, it must also provide a remedy for the man where circumstances justify an entry of support against the wife. In short, the right of support depends not upon the sex of the petitioner but rather upon need in view of the relative financial circumstances of the parties.

Id., 458 Pa. at 101, 327 A.2d at 62.

In the instant case, the evidence discloses unequivocally that husband-appellant has a need and that wife-appellee’s financial circumstances will permit her to contribute to that need without undue hardship. The evidence disclosed that employment was not immediately available to a forty-seven year old, unemployed policeman, with a high school education, in Warren, Pennsylvania. The same evidence showed that appellant had been seeking employment as a laborer without success. The trial court’s suggestion that he seemed satisfied to remain unemployed was simply not supported by the record evidence in this case. We also reject the trial court’s suggestion that in order to be entitled to support it was necessary for appellant to show that he was willing to leave the community in which he lived and seek employment elsewhere in Pennsylvania or beyond.

The trial court, having found the absence of need for financial assistance, did not consider whether appellant had forfeited by his conduct the right to be supported by his wife. We have concluded that the evidence does not support the trial court’s finding that there was no need. Therefore, we will remand so that the trial court can determine whether appellant, by his conduct, has forfeited the right to be supported by his wife.

Reversed and remanded for a determination of whether appellant forfeited his right to receive support contributions from the appellee. If the court determines that the right of support has been forfeited, it may reinstate the order denying spousal support. If the right of spousal support has not been forfeited, however, the trial court shall enter an order directing appellee to contribute to the support of appellant, her husband, in an amount to be determined by the court. Jurisdiction is not retained.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I respectfully dissent. Our standard of review in support cases is unambiguous: we may not reverse the decision of the trial court absent a manifest abuse of discretion.

“In order to determine whether an abuse of discretion has occurred, we consider whether the lower court has misapplied or overridden existing law, made a manifestly unreasonable judgement, or ruled with partiality, prejudice, bias or ill-will. Among the principles of existing law that the lower court must apply is the principle that in determining a spouse’s support obligation, the factors to be considered are income, potential earning capacity, and other property and financial resources.”

Machen v. Machen, 278 Pa.Super. 135, 137, 420 A.2d 466, 467 (1980).

Further, “if there is sufficient evidence to sustain the trial court’s decision, that decision will be affirmed.” Chase v. Chase, 331 Pa.Super. 445, 451-53, 480 A.2d 1117, 1121 (1984).

In view of this very clear mandate, I find several of the majority’s findings particularly troubling.

First, although our usual practice is to defer to the trial court’s assessments on evidentiary matters, id,., the majority disputes the trial court’s factual findings on all those elements intrinsic to a determination of support questions. Here the degree of appellant’s need, earning capacity, and diligence in seeking employment determined by the trial court have all been dismissed by the majority on the basis of the same record and less proximity than the trial court enjoyed. Specifically, the trial court found that appellant resided with his mother, and although he claimed indebtedness to her, failed to submit evidence of this fact. Further, it was determined that appellant had made no concrete efforts to obtain employment, since he deliberately and severely restricted both the type and location of any prospective work. Additionally, appellant, the co-owner with appellee of a house, had not consented to rent the house to defray its expense, and testified as to two sales inquiries that he had no intention of responding. Finally, the trial court found that appellant was the title owner of twelve vehicles, some operable and some not. At hearing appellant admitted that at least two of these vehicles were valuable. I believe that in contradicting the trial court’s assessment of these facts, the majority has erred.

The majority has also concluded that “If the respective circumstances of the parties were reversed and the wife had asked for an order requiring the payment of support by her husband, the result would be clear.” (Majority Op. at 598). I strongly disagree. Regardless of the sex of the petitioner, actions such as those of appellant are sufficient to deny support. Since citations to Henderson, supra, appear in the lower court opinion it is obvious that the trial judge was aware of the equal rights ramifications of his decision. One part of the Henderson holding deserves yet another repetition: “the right of support depends not upon the sex of the petitioner but rather upon need in view of the relative financial circumstances of the parties.” Id., 458 Pa. at 101, 327 A.2d at 62. The trial court stated unequivocally that appellant had failed to demonstrate good faith by his minimal efforts to support himself. Given the evidence of appellant’s testimony in the record, I would find no grounds on which to question that judgement. Nor do I believe a woman about whom the same could be said would be awarded support simply because of her gender. The concept of equal rights for men is crucial to the achievement of economic justice in spousal support cases. This case, however, does not present a fertile field for its application.

Finally, the majority also “reject[s] the trial court’s suggestion that in order to be entitled to support it was necessary for appellant to show that he was willing to leave the community in which he lived and seek employment elsewhere in Pennsylvania or beyond.” (Majority Op. at 599). The willingness to exert a reasonable effort to find employment includes at least a modicum of flexibility as to location. However, had appellant’s job search demonstrated more determination in other respects, his resolve not to travel would have been less critical. Herein, appellant’s less than impressive efforts, combined with his resolve in restricting the scope of those efforts, conveyed to the trial court a clear impression of less than enthusiastic intent. I believe this perception to have been an accurate one.

I would affirm.

      . Her gross earnings in 1985 were $20,298.00.


author: WIEAND, Judge:

text:
    537 A.2d 330
    John L. HAYES, III, Nancy L. Hayes and John L. Hayes, IV, Individually and on behalf of all others similarly situated, Appellants, v. MOTORISTS MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 12, 1987.
    Filed Dec. 28, 1987.
    Reargument Denied Feb. 11, 1988.

      Michael P. Malakoff, Pittsburgh, for appellants.
    David R. Johnson, Pittsburgh, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal from an order denying class certification and directing that plaintiffs’ action proceed as an individual action via compulsory arbitration. The trial court held that plaintiffs had failed to satisfy the adequacy of representation requirement and that their action had failed to satisfy the commonality, typicality, and predominance requisites for class certification. Plaintiffs appealed. We conclude that the trial court did not err or abuse its discretion by determining that the action failed to meet the commonality, typicality, and predominance requirements for class certification. Therefore, we affirm.

John Hayes, IV, (John) was injured in an automobile accident on June 16, 1984. He was insured under a policy of automobile insurance which had been purchased by John Hayes, III (Jack) and Nancy L. Hayes from Motorists Mutual Insurance Co. (Motorists). Because the policy contained a coordination of benefits clause, Motorists paid only that portion of John’s medical bills which was not paid by the Hayes’s major medical insurance carrier. This was approximately twenty (20%) percent of John’s total medical bills.

The Hayeses filed a class action suit against Motorists to recover the balance of John’s medical bills. By the averments of the complaint, the Hayeses purported also to represent:

All of Defendant Motorists’ insureds who sustained personal injuries which would have been covered by Defendant’s no-fault policies but for the designation on the declarations page under the Personal Injury Protection section which stated ‘Medical Expenses’ which Defendant interpreted to provide that Coordination of Benefits was applicable. The class encompasses all such insured claimants whose allowable expenses arose, whose benefits were denied, or whose last basic loss benefits were paid on or after July 30, 1983.

A motion for summary judgment by Motorists, based on the language of the policy, was denied by the trial court. A hearing on the Hayes’s request for class certification was thereafter held on May 29, 1986. This request was denied on July 11, 1986.

The decision of a trial court “concerning class certification is a mixed finding of law and fact entitled to ‘appropriate deference’ upon appeal.” Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982) (quoting with approval from Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235, 348 A.2d 734, 739 (1975), on remand, 241 Pa.Super. 192, 360 A.2d 681 (1976)). “ ‘Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class.’ ” Janicik v. Prudential Insurance Co. of America, supra, quoting Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Therefore, we may not disturb the trial court’s order denying class certification “unless the court neglected to consider the requirements of the rules [of civil procedure] or abused its discretion in applying them.” D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 448, 500 A.2d 1137, 1141 (1985).

Pa.R.C.P. 1702 sets forth the prerequisites which must be met in order to maintain a class action as follows:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

To further determine whether the representative parties will adequately represent the class under Pa.R.C.P. 1702(4), we must look to the criteria set forth in Pa.R.C.P. 1709, which provides:

In determining whether the representative parties will fairly and adequately assert and protect the interests of the class, the court shall consider among other matters
(1) whether the attorney for the representative parties will adequately represent the interests of the class,
(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
(3) whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.

Finally, we must look to the criteria set forth in Pa.R.C.P. 1708 in order to determine whether a class action will, as required by Pa.R.C.P. 1702(5), provide a fair and efficient method to adjudicate the controversy. The relevant portion of Rule 1708, for purposes of this appeal, provides as follows:.

In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth in subdivisions (a), (b) and (c).
(a) Where monetary recovery alone is sought, the court shall consider
(1) whether common questions of law or fact predominate over any question affecting only individual members;

This Court has described the proof needed to satisfy the commonality requirement for class certification as follows:

To satisfy the commonality requirement, plaintiffs must establish that their claim presents “questions of law or fact common to the class.” Pa.R.C.P. 1702. While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding. Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Super. 219, 438 A.2d 616 (1981).

D'Amelio v. Blue Cross of Lehigh County, supra, 347 Pa.Superior Ct. at 452, 500 A.2d at 1142-1143. The commonality requirement was further described by this Court in Allegheny County Housing Authority v. Berry, 338 Pa.Super. 338, 487 A.2d 995 (1985), where we said:

The common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all. This is what gives the class action its legal viability.
If ... each question of disputed fact has a different origin, a different manner of proof and to which there are different defenses, we cannot consider them to be common questions of fact within the meaning of Pa.R.C.P. 1702. Ross v. Shawmut Development Corporation, 460 Pa. 328, 333 A.2d 751, 73 A.L.R.3d 847 (1975).

Id., 338 Pa.Superior Ct. at 342, 487 A.2d at 997.

The dispute between plaintiffs and defendant in the instant case concerns the coordination of benefits clause in the policy. Specifically, the policy provides as follows:

COORDINATION OF BENEFITS
When indicated as applicable in the declarations, Coordination of Benefits applies to the. named insured and any relative.
Medical Expenses is excess to a qualified primary source, excluding Medicare Benefits, designated by the named insured. If the primary source is not available, a $250 deductible applies to the named insured.

Generally, clauses of this type have been upheld by the courts. See: Hess v. Allstate Insurance Co., 614 F.Supp. 481 (W.D.Pa.1985), aff'd, 804 F.2d 1248 (3d Cir.1986); Banker v. Valley Forge Insurance Co., 363 Pa.Super. 456, 526 A.2d 434 (1987). See also: Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, § 1009.203(b) and (c), repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a) effective October 1, 1984. They permit the insured to pay a reduced premium for automobile insurance coverage by coordinating medical benefits payable under the policy with primary medical coverage provided by a medical insurance carrier. Although there is then full coverage for medical expenses incurred in a motor vehicle accident, the vehicle insurance carrier is required to pay only those costs not reimbursed by the medical insurance carrier. See: Steppling v. Pennsylvania Manufacturers’ Ass’n. Insurance Co., 328 Pa.Super. 419, 427, 477 A.2d 515, 519 (1984).

If the Hayes’s action involved nothing more than an interpretation of the “coordination of benefits” clause of their insurance policy, the presence of a common issue would be relatively clear. “Claims arising from interpretations of a form contract generally give rise to common questions.” Janicik v. Prudential Insurance Co. of America, supra 305 Pa.Super. at 133, 451 A.2d at 457. The Hayes’s claim, however, does not involve solely an interpretation of the “coordination of benefits” clause of the policy. Indeed, the language thereof is unambiguous and relatively straightforward. Instead, the Hayeses seek to avoid the limiting effect of this clause on grounds that, in the sale of the policy, the “coordination of benefits” clause was not explained to them and because the declarations page of their policy made no reference to the “coordination of benefits.” According to appellants, they did not want a “coordination of benefits” clause in their policy and did not know it had been included. This caused the trial court to conclude as follows:

In light of the evidence adduced at the certification hearing, it is clear that plaintiffs would be unable to testify on behalf of all insureds of defendant. Although the insurance policies in question are similar and standing alone would provide a basis for certification if there was no other evidence, the introduction of the pertinent portions of the application, as well as the testimony of Nancy L. Hayes quoted above, raise individual factual questions. That evidence establishes that the policy issued to plaintiffs together with the application was intended to provide excess coverage, yet Nancy L. Hayes wanted full coverage and never heard of either primary or excess coverage. In order to prove liability on behalf of defendant to all its insureds to pay primary benefits, it would be necessary to present evidence regarding each policy issued; such as, what was in the application, if there was one, what coverage the insureds sought to obtain, and what was said by the defendant’s agent to each insured and what was said by each insured to the defendant’s agents relating to coverage.
In this action, there is not a common or similar “practice or course of conduct” which can be inferred from either the testimony of the class representative Nancy L. Hayes or from the information on the application which was signed by her. Although her testimony shows that she did not know that she had a choice to coordinate benefits, there is no testimony that agent Stephen Mamula engaged in conduct common to all agents employed by defendant. There is no indication that of the 1823 claims paid out by defendant in 1983 and 1984 on policies which designated that medical benefits were excess,, the insureds thereunder did not choose to coordinate benefits in order to obtain a lower premium. In order to determine what the class members knew when they applied for their insurance it would be necessary to take individual testimony as to the circumstances surrounding the application for and issuance of each contract of insurance. Under such circumstances it is impossible to find that there are questions of fact which are common to all class members.

We have painstakingly reviewed the record and observe that the trial court carefully considered all the evidence presented at the class certification hearing and properly concluded that the Hayeses had failed to demonstrate the existence of a common question of law or fact which predominated over the individual circumstances surrounding the purchase of the Hayes’s policy of automobile insurance.

It necessarily follows that the Hayeses also failed to satisfy the typicality requirement of Pa.R.C.P. 1702(3). With respect thereto, the trial court said:

Failure to find commonality in these circumstances necessitates a conclusion that the typicality requirement of rule 1702(3) has likewise not been met.
The typicality requirement of Pa.R.C.P. 1702(3) is closely akin to both the commonality requirement of subsection (2) and the adequacy of representation requirement of subsection (4). The requirement was designed to ensure that the representative is squarely aligned in interests with the proposed class, on the theory that pursuit by the representative of its own interests will advance the interests of the proposed class members which are aligned with those of the representative.
Albin v. Bell Telephone Co. of Pennsylvania, 291 Pa.Super. 40, 48, 435 A.2d 208, 212 (1981); see also Janicik, supra, 305 Pa.Superior Ct. 134, 451 A.2d at 457. The evidence adduced at the class certification hearing does not demonstrate typicality of claims; rather it demonstrates only that representative plaintiff allegedly was not told of certain options under the No-fault Act by one of defendant’s agents when she applied for insurance. As with the issue of commonality, use of a common form application and issuance of similarly worded polciies [sic] of insurance does not establish typicality if the circumstances surrounding the issuance of each contract of insurance must be considered in order to discern the intent of the parties when each of the policies was entered into. Plaintiffs have failed to show that their claim is typical of all other persons who have insurance policies.

For these reasons, we affirm the trial court’s order denying appellants’ request for class certification. Appellants failed to meet the commonality and typicality requirements for class certification.

Because of this decision, we find it unnecessary to decide whether the trial court erred in concluding that appellants failed to show an ability to represent the class adequately. We observe, however, that while the Hayeses did not appear in person at the certification hearing, the deposition testimony of Nancy Hayes was offered to the court and other evidence was presented to show that the Hayeses would be able to represent the class. This is in sharp contrast to the facts of Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986), upon which the trial court relied. There, the plaintiff had relied solely upon the conclusory allegations of the complaint. On the other hand, we recognize that the specific circumstances relied upon by appellants to avoid the coordination of benefits clause in their policy would make it more difficult to represent the interests of other assureds whose policies were purchased under different circumstances.

Order affirmed.

      . See: Pa.R.C.P. 1702(4) and 1709(2) and (3).

      . See: Pa.R.C.P. 1702(2), 1702(3) and 1708(a)(1).

      . Section 203 of the former Pennsylvania No-Fault Motor Vehicle Insurance Act, entitled “collateral benefits” provided as follows:
      (b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.
      (c) An insurer providing basic loss benefits and tort liability in accordance with the provisions of subsection (b) above shall reduce the cost of such contract of insurance to reflect the anticipated reduction in basic loss benefits payable by the insurer by reason of the election of the owner or operator to provide substitute security.