author:
POPOVICH, Judge: McEWEN, J.,
      JOHNSON, Judge, McEWEN, Judge,

text:
    616 A.2d 648
    Leslie Ann JOHNSON, Appellant, v. George L. BEANE v. STATE AUTO MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed Sept. 24, 1992.
    Reargument Denied Dec. 4, 1992.
    Johnson, J., filed concurring opinion.
    McEwen, J., dissented and filed opinion.

      Richard C. Angino, Harrisburg, for appellant.
    F. Lee Shipman, Harrisburg, for appellees.
    Before McEWEN, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

In this appeal from a judgment entered by the Court of Common Pleas of Cumberland County on April 24, 1991, following dismissal of appellant’s garnishment proceeding, the issue presented is one of first impression. For the reasons that follow, we affirm.

On August 25, 1985, appellant was involved in an automobile accident and incurred injuries some of which are of a permanent nature. Appellee Beane, the other motorist involved in the accident, admitted liability. However, his insurance company, appellee State Auto Mutual Insurance Company, (State Auto), was unable to reach agreement with the appellant and declined to settle for the policy limit of $25,000. The case went to trial on the issue of damages, and, on May 12, 1987, the jury returned a verdict for appellant in the amount of $200,000. Appellant requested $175,000 from Erie Insurance Group, (Erie), her underinsured motorist carrier. Appellant later offered to accept $100,000, but no agreement was reached. She then filed a Petition to Compel Underinsured Motorist Arbitration.

In the interim, on July 13, 1987, the trial court ruled on appellee Beane’s post-trial motions and ordered a remittitur reducing the verdict to $75,000 or, alternatively, if the remittitur was not accepted, granting appellee’s motion for a new trial. No appeal was taken and appellant filed a praecipe to enter judgment on July 30, 1987. State Auto paid the $25,000 policy limit leaving $50,000 remaining due on the judgment. Appellant and Erie agreed to settle for the remaining $50,000 of the judgment, and appellant executed a Release and Agreement which states in pertinent part:

... In consideration of such payment, I agree as follows: 1) to subrogate Erie Insurance Exchange/Erie Insurance Company to my right of recovery against any person or party legally liable to me for the amount of and for the purpose of the payment noted above; 2) that I have not and will not make any separate settlement with nor give any separate release to any person or parties who caused or alleged to have caused me the above mentioned loss or accident; 3) to authorize my attorneys, Angino & Rovner, P.C., to proceed with a bad faith/excess action against State Auto; and 4) to cooperate in prosecuting said action.
It is my understanding that Erie has agreed to advance any out-of-pocket expenses reasonably necessary to prosecute the bad faith/excess action against State Auto and if said action is successful Erie has agreed to pay its pro rata share of attorneys fees and expenses as per the contingent fee agreement entered into by Angino & Rovner, P.C. and myself a copy of which is attached____

Brief for Appellant, Exhibit D.

After making payment of the $50,000, Erie informed appellant that it did not intend “to pursue the matter any further” and closed the underinsured motorist portion of the file. Appellant acknowledged that Erie waived its subrogation rights. On June 8, 1988, appellant initiated a garnishment proceeding against State Auto claiming that the insurer had acted in bad faith in failing to settle the claim and filed a Writ of Execution for $50,000 plus interest based upon the existing judgment against Beane naming State Auto as garnishee. Appellee State Auto filed a motion for summary judgment which was denied by order of August 25, 1989. A jury trial was conducted and resulted in a hung jury and a mistrial. State Auto filed a second motion for summary judgment which was again denied.

On February 25, 1991, appellee State Auto filed a petition for a rule to show cause why: 1) the judgment entered against George L. Beane, should not be marked satisfied and 2) the garnishment proceeding should not be dismissed with prejudice. After a response was filed, the trial court issued an opinion and order dismissing the garnishment proceeding. The current appeal followed the entry of judgment.

The issue as presented by appellant is:

If an “insured” in a motor vehicle negligence accident under the Financial Responsibility Law 75 Pa.C.S.A. § 1701, et seq. obtains a verdict and judgment exceeding the tortfeasor’s liability coverage, settles with her own underinsured carrier and signs a subrogation agreement that only releases her own underinsured carrier, does the agreement constitute an assignment of all her rights to the underinsured carrier so as to preclude the injured party from executing on the judgment against the tortfeasor and/or obtaining interest and/or garnishing “bad faith” damages?

Appellant’s brief, p. 3 (emphasis provided).

Appellant first argues that the trial court erred in concluding that the subrogation agreement constituted an assignment of her rights to pursue a bad-faith garnishment action. Appellant asserts that the trial court’s error is in equating “subrogation” with “assignment”. We do not agree. It is our view that the trial court was correct in its analysis. The trial court stated:

... This is a garnishment action seeking to collect the amount of the verdict in the underlying cause of action. By the same token, it is an attempt by the plaintiff to garnish amounts from State Auto Mutual Insurance Company which have already been paid by her own underinsured motorist carrier, under circumstances where that carrier, subrogated to her right of recovery, objects....
We have no difficulty accepting the proposition that where a defendant, by virture [sic] of the bad faith dealing of his own insurance company, is exposed to an excess verdict, he may bring an action against his own insurance company for bad faith. Similarly, we understand the principle that, in such cases, in lieu of an assignment by the defendant to the plaintiff of the right to bring such a bad faith claim, the plaintiff may bring the action directly against the defendant’s insurer as a garnishee.... In this case, however, the plaintiffs right to bring an action for the difference between the defendant’s insurance coverage and the verdict was subrogated to her own underinsured motorist carrier. This subrogation occurred in the context of making her whole; i.e., she was paid the entire amount of the original judgment. Black’s Law Dictionary defines garnishment as a satisfaction “of an indebtedness out of property or credits of debtor in possession of, or owing by, a third person.” In this case, the plaintiff initially had judgment against the defendant for those amounts in excess of his insurance coverage. In the meantime, however, certain critical events transpired. Specifically, the amounts owed to the plaintiff from the defendant have been paid. In making the payment, the underinsured motorist carrier made settlement with the plaintiff in accordance with a release whereby the plaintiff subrogated her rights to the insurance carrier making the payment....
We are satisfied that the plaintiff has effectively assigned her right to recover in garnishment to Erie in exchange for payment of the entire sum due her. The plaintiff has not filed a separate bad faith action but rather has chosen to proceed to garnish the original amount of the excess verdict under circumstances in which those amounts have already been paid to her....

Trial court opinion, April 17, 1991, pp. 3^1.

We cannot agree with appellant that the trial court has confused subrogation with assignment. The trial court clearly stated that appellant subrogated her right to bring a garnishment action for the amount paid to her by Erie which satisfied the original judgment.

Appellant states that the right which she subrogated to Erie was very limited and was not an assignment of all of her rights to pursue a bad faith claim against State Auto. We question, however, what it is that appellant is pursuing in this action. In her brief she states; “On June 10, 1988, Ms. Johnson filed a Writ of Execution for $50,000, plus interest, based upon the existing judgment against Mr. Beane naming State Auto as Garnishee and then served it with Interrogatories.” Brief of appellant, p. 8 (emphasis provided). Later in her brief she states, “Ms. Johnson originally had a verdict of $200,000 that was remitted to $75,000. Even with respect to the $75,000 remitted verdict, she had to pay attorney’s fees and expenses with respect to the original tort action. Her net from the $75,000 was $42,250. Since that time, more than $10,000 of expenses has been spent in pursuing the garnishment proceeding. On the other hand, there currently exists the original $50,000 judgment against Mr. Beane which, with interest, now exceeds $63,028.37. Even if Erie had decided not to waive its right of subrogation, that right would exist only as to the $50,000 that it paid, [sic] Ms. Johnson would have been entitled to the interest and both Ms. Johnson and Erie would have had to share attorney’s fees and expenses.” Appellant’s brief, p. 18. It appears that appellant is attempting to garnish the excess amount of the judgment paid to her by her underinsured carrier plus interest and attorney’s fees with respect to the original action as well as with respect to the garnishment action.

It is clear that there can be no cause of action for interest or fees with respect to the garnishment action. Such a recovery would be premature since there has been no disposition in that action, and her entitlement is therefore very much in question.

We must then consider whether appellant may maintain the current garnishment action in which the measure of damages is the difference between Beane’s policy limits and the judgment. Two questions are raised; first, whether appellant may pursue a garnishment action for damages which exceed the amount of the fully satisfied judgment, and, second, whether by subrogating her right to pursue a bad-faith claim to Erie, she is precluded from pursuing the same.

A writ of execution is used to attach a debt which is owed by the garnishee to the garnishor. See Pa.R.C.P. 3101(b)(1). It would follow that if there is no debt owing to the garnishor, which in this case is the appellant, then no action would exist. We must therefore consider whether there is a debt owing from Beane or his insurer,- State Auto, and to whom the debt is owed.

As stated in the appellant’s brief, the garnishment action was initiated by the filing of a writ of execution based upon the existing judgment against Beane which represents the difference between his policy limits and the remitted verdict. The appellant has been fully compensated for this amount albeit through her own underinsured motorist carrier. No interest can have accrued where she received the full amount of the verdict and no part of the judgment remains unsatisfied. Finally, it has long been the rule in Pennsylvania that each party to litigation is responsible for his or her own legal fees absent a statutory provision which states to the contrary. See Estate of Wanamaker, 314 Pa.Super. 177, 460 A.2d 824 (1983); Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975).

Garnishment is defined in part as: “... an incident to or an auxiliary of judgment rendered in principal action, and is resorted to as a means of obtaining satisfaction of judgment by reaching credits or property of judgment debtor.” Black’s Law Dictionary, 612 (5th ed. 1979). Unless there is a portion of the judgment which remains unsatisfied as to appellant, or there is some debt owed to her, it would be inequitable and illogical to permit her to pursue a garnishment action.

Appellant was paid the full amount of the remitted verdict in exchange for subrogating her right of recovery against Beane in a bad faith excess action. Therefore, the debt of Beane was satisfied as to appellant and Erie then acquired the right to pursue the excess action which appellant would have been entitled to bring before the debt to her was satisfied. See Demmery v. National Union Fire Insurance Company, 210 Pa.Super. 193, 197, 232 A.2d 21, 24 (1967) citing 6 C.J.S. Assignment § 2b (12) (explaining difference between subrogation and assignment). The principal is:

when an individual who has been indemnified for a loss subsequently recovers for the same loss from a third party, equity compels that the indemnifying party be restored that which he paid the injured party; thereby placing the cost of the injury upon the party causing the harm while preventing the injured party from profiting a “double recovery” at the indemnifying party’s expense.

Allstate Ins. Co. v. Clarke, 364 Pa.Super. 196, 201, 527 A.2d 1021, 1024 (1987). Erie is the indemnifying party to which the debt is owed and the very purpose of subrogation of the claim is to permit Erie to recoup that which it has lost. We find that it is impermissible for appellant to subrogate her right to bring a bad faith excess action to her underinsured motorist carrier and at the same time attempt to garnish the debt for which she has been fully compensated. Appellant accepted the remitted verdict without appeal and settled with her underinsurer. She has received the entire value of her judgment, and we find no error with the trial court’s decision to dismiss appellant’s garnishment proceeding.

Affirmed.

JOHNSON, J., files a concurring opinion.

McEWEN, J.,

files a dissenting opinion.

JOHNSON, Judge,

concurring:

I concur with my learned colleague’s Opinion which affirms the Judgment entered April 24, 1991. I agree that the right to pursue State Auto Mutual Insurance Company (“State Auto”) has been subrogated to Erie Insurance Group (“Erie”). I also agree that it is impermissible for Johnson to attempt to garnish the debt for which she has been fully compensated. I ■write separately to express my opinion that, regardless of whether the “agreement” would have effectively subrogated any rights, Erie acquired the exclusive right to pursue State Auto by virtue of having paid the entire remainder of the $75,000.00 judgment.

The Majority Opinion considers the import of the “agreement” between Erie and Johnson, and appears to conclude that subrogation resulted therefrom. Majority Opinion, at 195-196 n. 1. Having carefully considered that document, I cannot ascertain whether Johnson agreed to authorize Erie to proceed with a bad faith claim against State Auto on behalf of herself, on Erie’s own behalf, or on behalf of both Johnson and Erie. I am reluctant to hold, as a matter of law, that this document demonstrates the parties’ intention to deprive Johnson of a right to proceed with this action.

I would rely on that portion of the trial court’s Opinion, quoted approvingly in the Majority Opinion, that finds subrogation of the claim on the basis that Erie paid the entire remainder of the judgment:

[Plaintiffs right to bring an action for the difference between the defendant’s insurance coverage and the verdict was subrogated to her own underinsured motorist carrier. This subrogation occurred in the context of making her whole; i.e., she was paid the entire amount of the judgment.

Trial Court Opinion, April 17,1991, pp. 3; Majority Opinion at 197 (emphasis added).

I agree with the trial court that Johnson’s bad faith claim was subrogated to Erie because Erie paid the remainder of the judgment, regardless of whether the agreement between the parties would also have conferred the right. I -write separately because it is unclear to me whether the Majority finds that the right was subrogated by the “agreement” or by the payment of the claim.

I would also go beyond the majority’s conclusion that it is impermissible that Johnson proceed on this claim. I would hold that whenever an insured has been fully compensated by his or her insurer for a particular loss, the insurer alone possesses the right to proceed on that claim, and the insured no longer has any right of action against such a wrongdoer.

Accordingly, I Concur in the Result.

McEWEN, Judge,

dissenting:

The author of the lead opinion has, in his usual manner, provided an insightful analysis of the arguments presented in this appeal, and has, as well, expressed his view in a most persuasive fashion. Thus it is that I am most reluctant to differ. Nonetheless, I am compelled to this dissent because I find myself in disagreement with both the result achieved by the lead opinion and with its characterization of the issues raised as

“first, whether appellant may pursue a garnishment action for damages which exceed the amount of the fully satisfied judgment and second, whether by subrogating her right to pursue a bad-faith claim to Erie, she is precluded from pursuing the same.”

The reflection I here relate commences with the fact that nowhere in the record of this case was I able to discern a “fully satisfied judgment”. Rather, the $75,000 judgment entered on the docket on July 13,1987, was reduced to $50,000 on the docket on April 26, 1988, as a result of the payment of $25,000 to appellant by State Auto. While appellant has received $50,000 in underinsured benefits from her insurer, Erie, a collateral source, the judgment debtor, State Auto’s insured, cannot claim the benefit of the payment made to appellant by Erie as Erie is not a party to this action and is not a tortfeasor. Simply put, neither Beane nor his insurer, State Auto, can claim to be third party beneficiaries of the policy appellant purchased from Erie. To otherwise conclude would be to afford an arsonist, in an action against him by the victim homeowner, the defense of a fully satisfied judgment in a prior action between the homeowner and his or her insurer. Neither Beane, nor his insurer, nor the hypothetical arsonist can plausibly claim to be third party beneficiaries. See: Shockley v. Harleysville Mutual Ins., 381 Pa.Super. 287, 293, 553 A.2d 973, 976 (1988), allo. denied, 526 Pa. 638, 584 A.2d 320 (1990).

In such a situation, as here, the underinsurer who has paid the damages occasioned by the tortfeasor has a claim in subrogation against any monies subsequently recovered by its insured from the tortfeasor. If State Auto were to tender $50,000 plus interest and costs to appellant, appellant would be required to mark the judgment against Beane satisfied and Erie, pursuant to the contractual provisions of both the policy of insurance and the release and agreement, would be subrogated up to the full amount of the payments it had made, minus “its pro rata share of attorney’s fees and expenses.... ”

Nor can I agree with the suggestion of the lead opinion that appellant has “subrogated her right to pursue a bad faith claim to Erie”. The terms “subrogation” and “assignment” are not, in my view,' interchangeable. Rather the two terms refer to separate and distinct legal transactions. One “subrogates” a claim and “assigns” a right.

Appellant agreed, in the release and agreement executed by Erie and appellant in connection with the settlement of her underinsured claim, to protect the subrogation rights of Erie, and Erie agreed to advance the necessary costs. Nowhere in the agreement is there language to suggest that appellant has assigned her cause of action to Erie. The agreement contains a simple promise to repay, in recognition of Erie’s contractual and equitable subrogation rights, up to $50,000 in underinsured benefits paid to appellant by Erie, less Erie’s pro rata share of attorney’s fees and expenses, if appellant should obtain a verdict.

Erie, by virtue of the release and agreement as well as considerations of equity, was “entitled to receive under the equitable doctrine of subrogation only what is actually paid on appellant’s behalf, less a reasonable attorney’s fee and a proportionate share of costs.” Allstate Insurance Company v. Clarke, 364 Pa.Super. 196, 205, 527 A.2d 1021, 1026 (1987) quoting Associated Hospital Service v. Pustilnik, 497 Pa. 221, 227, 439 A.2d 1149, 1151-52 (1981) (emphasis in original). The release and agreement executed by appellant and Erie, in recognition of these well-settled principles, provided inter alia:

“that Erie has agreed to advance any out-of-pocket expenses reasonably necessary to prosecute the bad faith excess action against State Auto and if said action is successful Erie has agreed to pay its pro rata share of attorneys fees and expenses as per the contingent fee agreement entered into by Angina and Rovner P.C. and [appellant], a copy of which is attached.”

Thus, by virtue of execution of the agreement, Erie bound itself to advance the costs and to pay a pro rata share of the attorney’s fees and expenses incurred by appellant in the bad faith action. See: Furia v. Philadelphia, 180 Pa.Super. 50, 56, 118 A.2d 236, 239 (1955). Cf. Allstate Insurance Co. v. Clarke, supra 364 Pa.Super. at 206, 527 A.2d at 1026. See also: Assoc. Hospital Service v. Pustilnik, supra 497 Pa. at 229, 439 A.2d at 1153.

While not dispositive of the issue on appeal, it is clear that appellant, who was injured on August 25, 1985, and received a total of $42,250 from the $25,000 paid by State Auto on April 26, 1988, and the $50,000 paid by Erie in February of 1988, has not been “made whole” — she has not received the full amount of the remitted verdict because she has not received the interest required by law to be paid on the outstanding judgment. However, regardless of the amount received by appellant from her underinsurer, I am compelled by my interpretation of decades of Pennsylvania jurisprudence on the collateral source doctrine to reject the notion that appellant, simply because she had the foresight to purchase $100,000 in underinsured motorist protection, is somehow barred from proceeding with this bad faith action.

The record reveals that the trial court repeatedly denied the motions filed by appellee wherein appellee alleged that it was entitled to judgment in its favor since “even if it was guilty of bad faith in failing to tender its policy limit, [appellant] is still not entitled to recover any judgment against it under a theory of unjust enrichment. [Appellee] cites Rossi v. State Farm Auto Insurance Company, 318 Pa.Super. 386, 465 A.2d 8 (1983), for the proposition that an injured party cannot recover twice for the same injury.”

The trial court properly rejected this argument as meritless (1) when it denied appellee’s first motion for summary judgment, (2) again, when it denied appellee’s motion for a compulsory non-suit, and (3) again when it denied appellee’s second motion for summary judgment. The court ultimately reversed its position on February 25,1991, in response to a motion for a rule to show cause why the judgment should not be marked satisfied based solely upon the following reasoning:

State Auto has repeatedly objected to this proceeding; thus far to no avail. A trial was held on the garnishment cause of action which resulted in a hung jury. During the course of that trial, we took in camera testimony from representatives of Erie Insurance Exchange in which they stated their objection to this garnishment proceeding and expressed the legal view that, because the plaintiff has been paid the amount of the underlying verdict and has subrogated her rights to her own underinsured motorist carrier, which carrier has indicated that it does not intend to proceed with the collection of the debt owed it, the within garnishment action should be dismissed. We now agree.
This is a garnishment action seeking to collect the amount of the verdict in the underlying cause of action. By the same token, it is an attempt by the plaintiff to garnish amounts from State Auto Mutual Insurance Company which have already been paid by her own underinsured motorist carrier, under circumstances where that carrier, subrogated to her right of recovery, objects.

It must be emphasized that Erie did not intervene in this action and is without standing to “object”. If Erie had “objected” to this bad faith action at the time it tendered the $50,000 in underinsured benefits to appellant, it could have required appellant to assign all of her rights against Beane and State Auto to it. Erie did not do so. Rather, it bound itself by the terms of the agreement to “advance any out-of-pocket expenses necessary to prosecute the bad faith excess action against State Auto.” Erie may not now seek to preclude appellant from bringing this action to recover those sums which Erie itself had agreed were rightfully due her. Erie can, of course, assert its subrogation rights if appellant is successful in the bad faith excess action.

Appellee’s unjust enrichment argument was, in my view, properly rejected by the trial court in its order of August 25, 1989, when the eminent Judge Edgar B. Bayley denied appellee’s first motion for summary judgment, and opined:

We agree with plaintiff that her recovery of $50,000 from her underinsurance carrier was from a collateral source and is not relevant in these proceedings. See, Boudwin v. Yellow Cab Co., 410 Pa. 31 [188 A.2d 259] (1963). Furthermore, plaintiff in this case is not seeking to recover damages against the garnishee for her personal injuries. She is seeking to recover damages for the alleged wrong that she was subjected to as a result of the garnishee’s bad faith. The measure of those damages is the difference between State Auto’s policy limit and the judgment against Beane. The affect that any verdict plaintiff may recover has on the $50,000 paid to her by Erie, is between plaintiff and Erie, not plaintiff and State Auto. State Auto is not insulated from a bad faith claim based upon plaintiffs insuring herself for the risk of being injured by an underinsured motorist.

The trial court changed it position and granted the motion filed by appellee after the first trial resulted in a hung jury presumably by reason of the testimony, taken in camera and not admitted into evidence, regarding Erie’s decision not to pursue the bad faith action and, hence, its subrogation interest. Whether appellant will obtain a windfall as a result of subsequent conduct by her insurer is not relevant to resolution of the issue of standing to pursue this bad faith action.

It is for these reasons that I differ with such jurisprudential scholars as my colleagues who have otherwise written, and proceed to these certain conclusions of dissent. The payment to appellant by Erie of $50,000 in underinsured motorist benefits has not resulted in the judgment against Beane being fully satisfied. Nor can George Beane or State Auto demand that the judgment against Beane be marked satisfied, as they have not tendered the $50,000 plus interest outstanding on the judgment. Payment of $50,000 by Erie, a collateral source, would be irrelevant to an action to execute on the judgment, just as it is irrelevant in the instant case. Erie is the only entity which can raise the issue of a windfall to appellant, via an assertion of its subrogation rights, if they have not been waived by Erie.

[W]hen an individual who has been indemnified for a loss subsequently recovers for the same loss from a third party, equity compels that the indemnifying party be restored that which he paid the injured party; thereby placing the cost of the injury upon the party causing the harm while preventing the injured party from profiting a “double recovery” at the indemnifying party’s expense. However, as the subrogee stands in the precise position of the subrogor the subrogee should be limited to recovering in subrogation the amount received by the subrogor relative to the claim paid by the subrogee, for equity will not allow the subrogee’s claim to be placed ahead of the subrogor’s.

Allstate Ins. Co. v. Clarke, supra 364 Pa.Super. at 201-02, 527 A.2d at 1024 (emphasis supplied).

Thus it is that I dissent.

      1. It is not clear on whose behalf a bad faith/excess action is authorized. Taken in context with the fourth clause, it appears that Erie is the intended party. This would be the most logical reading of the document. It does not, however, alter the clear intention of the first clause which subrogates appellant's right to recover for the amount paid to her by Erie.

      . We do not read the trial court’s statement that appellant "effectively assigned her right to recover in garnishment to Erie in exchange for payment of the entire sum due her” to mean that she has assigned all of her rights to pursue an action. The trial court dismissed this action based on appellant’s subrogation of her right to garnish the amount of the excess verdict for which she had been paid. We make our decision on the same basis.

      . In a third party garnishment action, the injured plaintiff is not suing in her own right but is an assignee of the insured and as such stands in the shoes of the insured. "It is the insured who has allegedly suffered the wrong at the hands of the insurer.” Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8, 13 (1966).

      . Appellant also argues that it was improper for the trial judge to consider the payment which she received from her underinsured motorist carrier because it was a collateral source. We disagree. A judgment in appellant’s favor had already been rendered and her receipt of payment from her underinsurer in no way diminished the amount to which she was entitled. It must be considered that she has received the full value of her judgment in determining the appropriateness of a garnishment action.

      . Appellant raised the argument that the “law of the case” doctrine should have prevented the trial court from granting appellee’s motion to dismiss alter previously denying several motions for summary judgment. We find this argument to be without merit. The “law of the case” doctrine provides:
      where an appellate court has considered and decided a question on appeal, that court will not, in a subsequent appeal of another phase of the same case, reverse its previous ruling, even though convinced it was erroneous.... The doctrine is inapplicable here because the rule applies only to appellate courts....

        Farber v. Engle, 106 Pa.Cmwlth. 173, 177, n. 5, 525 A.2d 864, n. 5, 866 (1987). This doctrine cannot be used as appellant would have us apply it.

      . The applicable rule is that “the satisfaction of a judgment recovered against the tortfeasor bars a later suit against a second tortfeasor for the same injury. See: Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959).” Brandt v. Eagle, 412 Pa.Super. 171, 183, 602 A.2d 1364, 1370 (1992) (Concurring Opinion by Wieand, J.) (emphasis supplied). In the instant case, of course, the judgment against Beane has not been marked satisfied and Erie is not a tortfeasor.

      To our knowledge, this case is one of first impression.

      . Erie may have waived its subrogation rights — both contractual and equitable — thus entitling appellant to retain the entire amount of the verdict eventually recovered in this action for State Auto.


source: Caselaw Access Project

author: TAMILIA, Judge.

license: Public Domain

text:
    616 A.2d 657
    Dianne L. BURMAN, David Burman, Her Husband, Appellants v. GOLAY AND COMPANY, INC., Thomas Lopatofsky and Carol Lopatofsky, Individually and d/b/a Lopatofsky Bros., LP Gas Co. v. AMCA INTERNATIONAL CORP., Lee Cylinders Division, Golay and Co., Inc., Trinity Industries, Inc., LP Cylinder Service Company, Walter Stegman, Individually and/or d/b/a LP Cylinder Service Company, Sherwood Gas Control Products, RegO Company, Fisher Controls, William L. O’Brien, Robert Dolph and Pennsylvania Electric Company (PENELEC), Additional Defendants.
    Superior Court of Pennsylvania.
    Argued July 15, 1992.
    Filed Sept. 24, 1992.
    Reargument Denied Nov. 30, 1992.

      Laurence M. Kelly, Montrose, for appellants.
    Norman D. Namey, Wilkes-Barre, for Sherwood Gas Control Products, appellee.
    Francis J. Grey, Philadelphia, for Rego Co., appellee.
    Before CIRILLO, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge.

Plaintiffs Dianne L. Burman and David Burman, her husband, appeal from the December 5, 1991 Order granting summary judgment to Pennsylvania Electric Company (PENELEC), RegO Company and Sherwood Gas Control Products.

Mrs. Burman, who was a spectator at a house fire, was injured when she was struck by a portion of a propane gas cylinder which exploded as a consequence of the extreme heat generated by the fire. The gas cylinders had been installed at the home owned by William O’Brien and leased to Samantha and Robert Dolph by defendant Lopatofsky Brothers LP Gas Company. Appellant brought suit against the propane gas company and its owners, Thomas and Carol Lopatofsky, on theories of strict liability, negligence and breach of warranty. These original defendants then joined the Dolphs, O’Brien, appellees Sherwood and RegO, manufacturers of multivalves used on propane tanks, and PENELEC, who provided electrical service to the dwelling which had burned. In granting summary judgment the court reasoned PENELEC owed no duty to appellants and neither Sherwood or RegO could be found liable on theories of alternative liability or enterprise liability. This appeal followed.

Appellants maintain summary judgment was inappropriate because there exist controverted facts relevant and necessary to the resolution of the matter, including outstanding discovery requests. The appellants argue PENELEC owed a duty of care to Mrs. Burman “as if [she] had been a member of the news media, the fire department or one invited on the premises for the purpose of observing said fire.” (Appellants’ brief at p. 6.) Appellants also contend the doctrine of enterprise liability demands Sherwood and RegO, the manufacturers of like, allegedly defective products, herein multivalves, be held accountable despite lack of specific identification as the tortfeasor.

A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989) (entire record before lower court must be examined and all doubts as to the existence of an issue of material fact are to be resolved against a grant of summary judgment). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Ins., 380 Pa.Super. 167, 551 A.2d 283 (1988). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Appellants aver the trial court’s entry of summary judgment was premature in light of the fact they had not yet received answers to the interrogatories they had submitted to the appellees and rely on Baesel v. New Boulevard Baking Co., Inc., 410 Pa.Super. 591, 600 A.2d 610 (1991), in support thereof. However, from our reading of Baesel, we conclude summary judgment may be properly granted despite outstanding discovery requests where the information sought by the non-moving party would not have been germane to the issues presented by the movant. The motions for summary judgment by defendants RagO and Sherwood averred they were entitled to summary judgment because the plaintiffs were unable to identify either of them as the manufacturer of the multivalve used on the offending propane tanks. Because this legal concept remains the law in Pennsylvania, Cummins v. Firestone, 344 Pa.Super. 9, 495 A.2d 963 (1985) (see also discussion on enterprise liability, infra), and the outstanding discovery sought by plaintiffs would have added nothing to the record to establish the multivalve manufacturer’s identity, Thomas v. Duquense Light Co., 347 Pa.Super. 492, 500 A.2d 1163 (1985); see also Baesel, supra, we find the court did not abuse its discretion or commit an error of law by granting summary judgment despite an outstanding discovery request. As to appellee PENELEC, summary judgment was also appropriate despite outstanding interrogatories as no information sought by appellants would have been germane to PENELE C’s summary judgment averments it owed no duty to appellants or, in the alternative, Mrs. Burman’s injuries were not a foreseeable consequence of any alleged negligence.

Next, appellants argue PENELEC, as the alleged negligent provider of electricity to the home which burned, owed a duty of care to a curious onlooker of the housefire. Appellants contend it was reasonably foreseeable to PENELEC that a voluntary spectator could be struck by flying debris projected into the air as a result of the housefire which, appellants contend, was caused by PENELEC’s negligent electrical maintenance. (Appellants’ brief at pp. 13-14.)

The basic elements of a cause of action founded on negligence are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury and an actual loss. Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606 (1985). Duty, in any given situation, is predicated upon the relationship existing between the parties at a particular time; if the parties are strangers, the scope of the duty not to place others at risk is limited to those risks which are reasonably foreseeable. Alumni Assoc., Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987). In a tort case, the focus for determining whether a person owes a duty is an examination of the conduct of a reasonable person under the circumstances. City of Philadelphia v. Chicken’s Place, Inc., 388 Pa.Super. 198, 565 A.2d 182 (1989), appeal denied, 526 Pa. 627, 584 A.2d 310 (1990). Our analysis of the facts and law peculiar to this issue convinces us PENELEC owed no duty to appellants and therefore cannot be found negligent as it relates to voluntary spectators at an obviously dangerous scene. See Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951) (negligent motorist owed no duty of care to an involuntary spectator injured by his tortious acts).

Lastly, appellants contend the manufacturers of the multivalves, appellees Sherwood and RagO, can be held liable under the doctrine of enterprise liability. However, in order for liability to attach in a products liability suit a plaintiff must establish his injuries were caused by the product of a particular manufacturer or supplier. Bushless v. GAF Corp., et al., 401 Pa.Super. 351, 585 A.2d 496 (1990).

Enterprise liability exists where (1) the injury-causing product was manufactured by one of a small number of defendants in an industry; (2) the defendants had joint knowledge of the risks inherent in the product and possessed a joint capacity to reduce those risks; and (3) each of them failed to take steps to reduce the risk but, rather, delegated this responsibility to a trade association.

Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985).

Despite appellants’ contention to the contrary, no Pennsylvania appellate court has endorsed the theory of enterprise liability. This finding, coupled with the absence of a nexus between either appellee and the multivalves used on the exploding propane tanks, precludes appellants’ suit for damages.

For the reasons of law and fact stated herein, we find there was no issue of material fact before the trial court and affirm the December 5, 1991 Order granting summary judgment in favor of Sherwood, RegO and PENELEC.

Order affirmed.

      . This appeal is limited to additional defendants PENELEC, RagO and Sherwood.


author: POPOVICH, Judge:

text:
    616 A.2d 660
    Buffie Marie CARROLL, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 14, 1992.
    Filed Sept. 30, 1992.
    Reargument Denied Dec. 4, 1992.
    Petition for Allowance of Appeal Denied Feb. 12, 1993.

      Mark C. Labrum, Philadelphia, for appellant.
    Bradley H. Kane, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

We are asked to review the order of the Court of Common Pleas of Philadelphia County granting the Petition to Vacate the Award of Arbitrators by the plaintiff/appellee, Buffie Marie Carroll. We reverse.

Our examination of the record produces the following account: On August 15, 1988, the plaintiff was involved in an accident with an uninsured vehicle while operating an automobile owned by her mother, Sharon Carroll. The mother’s automobile was covered by State Farm Mutual Automobile Insurance Company, which disputed the plaintiffs claim under the uninsured motorist clause on the ground that the plaintiff did not reside with the named insured/mother at the time of the accident. This prompted the claimant to pursue recovery under the arbitration provision of the policy.

Prior to the arbitration hearing, counsel stipulated that three policies were issued to Sharon Carroll by State Farm, each having a minimum of $25,000 of uninsured motorist coverage. All were less than the $100,000 of liability coverage available to Sharon Carroll on the vehicle the plaintiff was operating at the time of the accident. 5See Plaintiffs Petition to Vacate Award of Arbitrators at Paragraph 11.

Following a hearing, an award was entered limited in amount to $25,000. Next, a Petition to Vacate Award of Arbitrators was submitted by the plaintiff in which she alleged, in relevant part, that:

12. On October 27, 1990, an arbitration hearing was held.
13. Subsequent thereto, the award of the arbitrators entered a finding holding that they were limited in awarding damages in the amount of $25,000.00, due to the fact that [the plaintiff] was not entitled to stack the other two (2) policies of insurance. Attached hereto and marked Exhibit “E” is a true and correct copy of the Arbitrators’ holding.
14. ... counsel for plaintiff ... (the minor daughter of Sharon Carroll, the owner of the vehicle [the plaintiff] was operating who had joint custody of [the plaintiff] pursuant to a divorce decree) submits that the arbitrators erred as a matter of law, in holding that [the plaintiff] was not entitled to stack uninsured motorist benefits.

In a Memorandum of Law attached to the Petition to Vacate, the plaintiff asserted that the arbitration panel (in a two to one) decision) “held that [she] was not entitled to stack uninsured motorist coverage since a child of divorced parents could not be considered a class one insured.” 7Further, in the argument section of the Memorandum of Law, the plaintiff averred:

At the [arbitration] hearing of October 27, 1990, the uncontrovered [sic ] testimony submitted to the panel of arbitrators was that plaintiff ... was 17 years old on the date of the accident and born on August 20, 1971. Furthermore, plaintiff ... stated at the arbitration that her parents were divorced on the date of the accident and that she lived with her father, Monday through Friday during the school year but during the summer months, when the accident occurred, she lived primarily at her mother’s house. Furthermore, plaintiff ... testified that on the date of the accident, she had a Pennsylvania driver’s license which indicated her residence at her mother’s house. In addition, [the plaintiffs] mother testified at the arbitration hearing, that on the date of the accident, as a result of divorce proceedings, the Court ordered that Sharon Carroll and her former husband, be awarded joint custody of their minor child plaintiff____

The Petition to Vacate also had attached to it a claim form (Exhibit “B”) which indicated the plaintiffs address as 2001 Society Place, Newtown, Pennsylvania, the same address as her mother’s. Accord Exhibit “D”. Lastly, in Exhibit “G” of the Petition to Vacate, the plaintiff set forth what had transpired, allegedly, before the panel of arbitrators; to-wit:

In the case before the panel, plaintiff lived with her mother at the time of the said accident. Plaintiff stated in her deposition, that she lived with her father Monday through Friday during the school year, but that she lived with her mother during the summer. (See Plaintiffs Deposition at page 11). Furthermore, plaintiff has a Pennsylvania Driver’s license.
The fact that plaintiff resided with her mother for a substantial period of time, establishes her status as a “resident”.

In response, State Farm filed an Answer in which it denied, with explanation, the allegations of the plaintiff in Paragraphs 13 and 14, supra, of her Petition to Vacate. Attached to State Farm’s Answer was a Memorandum of Law, wherein it was averred:

The issue in the case, among other issues, was whether [the plaintiff] was a resident of the household of her mother. If she [wa]s ... considered a resident of the household of her mother at the time of the accident, she would be entitled under Pennsylvania law to stack the coverages under all three policies. If she was not a resident of the household of her mother, then she would not be permitted to stack the coverages and would be limited to the $25,000 of uninsured motorist benefits covering the vehicle which she was operating.
At the Arbitration Hearing, it was established that the motor vehicle accident occurred in Delanco[,] New Jersey. At that time, [the plaintiff] was living with her father in New Jersey. All of the medical records submitted to State Farm list the address of the claimant, [the plaintiff] as that of her father Michael Carroll in Delran[,] New Jersey. All of her medical treatment was performed by physicians and hospitals in New Jersey near the home of her father in Delran. In fact, at the time of the accident, [the plaintiff] testified that she was working at a pizza parlor in Delranf] New Jersey five or six days a week while living with her father. Based on these facts, the majority of the arbitration panel determined that [the plaintiff] resided with her father and was not a resident in the household of her mother at the time of the accident. Therefore, the panel found that she was not entitled to stack the coverages on the other vehicles in the household of her mother.

Moreover, State Farm argued that the arbitrators found, as a question of fact, that the plaintiff “did not live with her mother at the time of the accident. Therefore, the panel found ... that she was not entitled to stack the coverages----”

Upon a review of the parties’ pleadings, the court vacated the arbitrators’ award and remanded to “permit [the plaintiff] to stack uninsured motorist coverages____” The arbitrators complied with the March 8th order and awarded the plaintiff $45,000 on July 9, 1991. The July 9th order was reduced to judgment on July 18, 1991, upon praecipe by counsel for the plaintiff. See note 12, infra. Thereafter, State Farm filed a Petition to Vacate the Award of Arbitrators Dated July 9, 1991 and Reinstate the Award of Arbitrators Dated October 27,1990. The petition was denied by order of court dated October 18, 1991, which decreed that the July 9th award was “confirmed and [the] same shall be entered on the [judgment] docket th[e same] date[.]” State Farm filed a timely appeal from the final judgment entered with respect to the order of October 18th confirming the arbitration award. See Seay v. Prudential Property and Casualty Ins. Co., 375 Pa.Super. 37, 543 A.2d 1166, 1168 (1988), appeal dismissed, 523 Pa. 105, 565 A.2d 159 (1989).

At first, we will address State Farm’s complaint that the court below erred in reversing the arbitration panel’s initial award by order dated March 8, 1991, and remanding to allow the plaintiff to stack her mother’s policies covering three separate vehicles on grounds that the court exceeded its authority in doing so and proceeded in the absence of any evidence to substantiate its actions.

It is undisputed that the policy issued provided for arbitration pursuant to the Uniform Arbitration Act of 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S.A. § 7301 et seq., which covers matters concerning the uninsured motorist provisions of the contract. Such being the case, the standard of review in statutory arbitration cases can be found in Section 7302 of the Act:

§ 7302. Scope of subchapter

(a) General rule. — An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.

(d) Special application.—
(1) Paragraph (2) shall be applicable where:
(iii) Any person has been required by law to submit to or to agree to submit a controversy to arbitration pursuant to this subchapter.
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

Accordingly, contrary to the position taken by State Farm, the court below was utilizing the proper standard of review to assess a challenge to the arbitration award, i.e., the “contrary to law” criterion detailed in. Section 7302(a) & (d). See generally Geisler v. Motorists Mut. Ins. Co., 382 Pa.Super. 622, 556 A.2d 391, 392 (1989).

Unlike State Farm, we find that a determination of the plaintiffs “residence”, so as to trigger the stacking provisions once a claimant is found to be a “class one” insured, was not a question of fact precluding the court below from making inquiry of the award. See State Farm’s Brief at 9. Rather, the definition of “resident” and the scope of coverage under multiple vehicle policies were questions of law. Cf. Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005, 1007-1008 (1984) (“... definition of ‘occupying’ and the extent of coverage under multiple vehicle policies [a]re questions of law * * * [W]here a contract exists without a history of bargaining over the terms, the construction of individual terms of that contract [of insurance] is a question of law.” (citations omitted)); State Farm Mut. Auto. Ins. Co. v. Williams, 481 Pa. 130, 139, 392 A.2d 281 (1978) (Question of stacking coverages is clearly one of law). Therefore, it was proper for the court of common pleas to review the conclusions of the arbitrators. Utica, supra.

However, the court below erred in issuing its March 8, 1991, order vacating the arbitrators’ award of $25,000 to the plaintiff in the face of no evidence to conclude that she, under the terms of the policy of insurance although a “relative” of the named insured/mother, was a “resident” of the named insured’s household. The law is quite clear on this point.

Under Utica, supra, the Court allowed the decedent’s estate to assail an arbitration award on the ground that the denial of stacking was in error inasmuch as the decedent came within the ambit of “class one” coverage of the policy embracing multiple vehicles, i.e., he was a “relative’Vson of the named insured and resided in the same household. As a result, the decedent’s estate was permitted to stack coverages and collect the full amount under the father’s single policy insuring three vehicles, even though he was designated as a driver on only one of the three vehicles.

The Supreme Court had facts before it, which included an Answer to the decedent’s petition to vacate by Utica “admitting” to the decedent’s “insured” status that facilitated and substantiated the ultimate ruling. Such was not the case at bar.

For example, unlike in Utica, supra, we have no transcript of the arbitration hearing even though either side had the option to have one made. See 42 Pa.C.S.A. § 7307(b); Pa. R.Civ.P. 1304(c). Nor do we have pleadings in which State Farm admits the “residence” of the plaintiff with her mother/named insured. On the contrary, as recounted supra, the record is replete with instances in which the plaintiff and State Farm dispute the others allegations of fact as to both the issue posed to the arbitrators for resolution and the substance of the arbitration hearing. Most glaring of these irreconcilable pleadings is the plaintiffs denial that the arbitrators “ruled” that she was not a resident of her mother’s home. See Plaintiffs Reply to State Farm’s Petition to Vacate at Paragraphs 4 and 5. “To the contrary, the arbitrators expressly ruled that Buffie Marie Carroll was not entitled to stack as she could not be classified as a class one insured implying that an unemancipated minor whose parents were given joint custody, could only have one (1) residence and because a majority of the year was spent at her father’s house (weekdays during the school years and weekends during the summer months), she was not entitled to stack.” Plaintiffs Brief at 10 (Emphasis added).

As is evident from the preceding, the account of the plaintiff is presented in her brief, a factor which undermines our ability to place any credence in that which is asserted therein. See McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987). Even if such were not the case, the plaintiff fails in her effort to inform the Court of the basis for the arbitrators’ award. In fact, she recommends that we “imply” from the award issued the underlying rationale for the arbitrators’ actions. This is not consistent with either law or logic. Cf. Starr v. Zdrok, 419 Pa.Super. 60, 614 A.2d 1209, 1212 (1992) (An appellate court must evaluate the actions of the court below from the facts in the record certified to it for review; matters de hors the record have no efficacy on the appellate court’s ruling).

Therefore, because there were no uncontradicted pleadings of either the issue ruled upon by the arbitration panel and/or an account of what took place before the panel, the court below was without any record evidence and/or admission which would have permitted it to reverse the arbitrators’ initial award. Thus, the court’s reference in its opinion that: “The Arbitrators found that [the plaintiff] was not a resident of her mother’s household ... because, at the time of the accident, [the plaintiff] was living in the household of her father” is unsubstantiated by record evidence. Ergo, it may not stand. Cf. Starr, supra; Whitt v. Phila. Housing Auth., 325 Pa.Super. 135, 472 A.2d 684, 689 (1984).

And, the plaintiff’s discussion in the pleadings to a custody order resulting in her spending part of her time "with each parent, see Plaintiffs Reply to State Farm’s Petition to Vacate at Paragraph 6, was disputed by State Farm. See Memorandum of Law attached to State Farm’s Answer to Plaintiff’s Petition to Vacate at 2. Moreover, the court below would have been precluded from taking judicial notice of the custody order in the absence of a request to do so or either party admitting without objection to any such order in their pleadings. Cf. Woolward v. Burton, 345 Pa.Super. 366, 498 A.2d 445, 448 (1985) (“a court is admonished not to take judicial notice of the record of another case, if not pleaded.” (Citations omitted)). Neither scenario occurred before the court below. As such, the court acted ultra vires, id., which necessitates a reversal of the order reaffirming the July 9, 1991, award of the arbitrators in the amount of $45,000 in favor of the plaintiff. See Reproduced Record at 208a. The plaintiff will not be heard to complain since she had the opportunity to create a stenographic record of the arbitration hearing to permit a proper inquiry into her allegations of error. See City of Scranton v. Shoemaker, 59 Pa.Cmwlth. 141, 428 A.2d 1048 (1981). Her failure to do so is fatal.

Given the state of the record, we hold that the court below acted without foundation in law and fact to reverse the arbitrators’ award and remand to stack plaintiffs coverages under her mother’s policy. The award in favor of the plaintiff for $25,000 should have remained as entered initially by the arbitrators.

Order reversed; case remanded for entry of judgment as herein directed; jurisdiction is not retained.

      . This order was dated March 8, 1991, and also directed a remand to the arbitrators to permit the plaintiff to stack the limits of recovery under her mother's three policies with State Farm.
      The initial award granted the plaintiff $25,000 under the limits of just one of the three policies. However, the final award of the arbitrators issued on July 9, 1991, was for $45,000 and was a direct result of the court’s March 8, 1991, remand order, which was reduced to judgment by the prothonotary on praecipe by the plaintiff on July 18, 1991. See note 12, Infra.

      . The applicable clause, located in the Uninsured Motorist Vehicle— Section III — portion of the policy, reads in relevant part:
      We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle....
      Who Is an Insured
      Insured — means the person or persons covered by uninsured motor vehicle and underinsured motor vehicle coverage.
      This is:
      1. the first person named in the declarations;
      2. ...;
      3. their relatives; and
      4. ...[.]
      The term “relative” appears in the "defined words” section of the policy and reads:
      Relative — as used in sections I, III, IV and V means a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school.

      . The provision reads:

        If there is no agreement [with regard to whom is considered an insured], th[is] question[] shall be decided by arbitration at the request of the insured or us. The Pennsylvania Uniform Arbitration Act, as amended from time to time, shall apply.

      . State Farm stipulated that it possessed written waivers from Sharon Carroll in which she elected to take uninsured motorist coverage in the amount of $25,000 as opposed to $100,000 of coverage afforded in the liability portion of the policy covering the vehicle driven by the plaintiff. See Plaintiff's Petition to Vacate Award of Arbitrators at Paragraph 11; Plaintiff’s Memorandum of Law at page 2.

      5. The face-sheet of the arbitrators’ award makes no mention of the rationale for limiting the plaintiff’s recovery to $25,000.

      . This is at odds with established case law. For instance, a "class one” insured has been defined as a named insured and, while residents of the same household, the spouse and relatives of the named insured. See Utica v. Contrisciane, 504 Pa. 328, 473 A.2d 1005, 1010 (1984).

      7. No such deposition was made a part of the record transmitted to this Court.

      8. There was no “affidavit” executed by the plaintiff or her counsel at the end of this document to create the solemnity necessary to treat such matter as given under oath.

      . This March 8, 1991, order was appealed to Superior Court, but, thereafter, it was "discontinued” by State Farm.

      . The initial award of the arbitration panel was dated November 9, 1990.
      The plaintiff filed a Reply to Defendant’s Petition to Vacate in which she disputed State Farm’s assertions that the arbitrators ruled she "did not qualify as a resident relative” of the named insured. In particular, the plaintiff wrote:
      4. ... It is denied specifically ... that at the arbitration hearing, the panel of arbitrators was asked to determine whether Plaintiff ... qualified as a resident relative of her mother ... thereby allowing her to stack on the insured motorist coverages available in three (3) policies of insurance issued by ... State Farm....
      5. ... It is specifically denied that following a full and fair hearing, the uninsured motorist arbitration panel ruled that Plaintiff ... did not qualify as a resident relative of her mother ... and therefore was not entitled to stack motorist coverages.... By way of further denial, the award implied from the evidence submitted to the arbitration panel[ ] that the [seventeen-year-old] minor daughter of Sharon Carroll, the owner of the vehicle [the plaintiff] was operating who had joint legal custody of [the plaintiff] pursuant to a Court Ordered divorce decree was not permitted to stack her mother's uninsured motorist coverage.

      . In point of fact, the July 9, 1991, award of the arbitrators was not entered on the judgment docket until October 24, 1991. Nevertheless, State Farm’s appeal was still timely.

      . The October 18, 1991, order is “[a] court order confirming ... an award” issued by the arbitrators on July 9, 1991. See 42 Pa.C.S.A. § 7320(a)(3). As such, the Section 7320(a)(3) status of the order of October 18th required that it be reduced to judgment first before it could be appealed. This is mandated by 42 Pa.C.S.A. § 7316, i.e., final judgment is to be entered with respect to an order “confirming” an arbitration award, and that is what occurred instantly to render the appeal timely. See Seay v. Prudential Property and Casualty Ins. Co., 375 Pa.Super. 37, 543 A.2d 1166, 1168 (1988), appealed dismissed, 523 Pa. 105, 565 A.2d 159 (1989).
      For clarification purposes, we note that plaintiff’s counsel’s Praecipe to Entry Judgment of the Award of Arbitrators issued July 9, 1991, with the prothonotary was an incorrect procedure by which to cause the arbitration award to be considered enforceable and final for appeal purposes.
      Counsel for the plaintiff should have complied with the dictates of 42 Pa.C.S.A. §§ 7313 and 7314(d) to cause a confirmation of the arbitrators' award. See Dunlap by Hoffman v. State Farm Ins., 377 Pa.Super. 165, 546 A.21d 1209, 1211 (1988). In the absence of such action by the plaintiff’s counsel, State Farm's appeal following the confirmation of the arbitrators’ award of July 9, 1991, by order of court dated October 18, 1991, and reduced to judgment thereafter, was a proper course to pursue in perfecting a timely appeal. See Seay, supra.

      . Counsel for State Farm argues that, albeit the uninsured motorist arbitration hearing was held under the Uniform Arbitration Act of 1980, the standard of review when assessing an award rendered as a result thereof is that set forth in 42 Pa.C.S.A. § 7341. See Reproduced Record at 85a-86a, 97a and 202a; Appellant’s Brief at 21. We disagree.
      Section 7341 relates specifically to common law arbitration, where vacation of an award is permissible only where there was a "denial of a hearing on fraud, misconduct, corruption, or similar irregularity leading to an unjust, inequitable, or unconscionable award.” Runewicz v. Keystone Ins. Co., 476 Pa. 456, 461, 383 A.2d 189, 192 (1978); Harwitz v. Adams, 406 Pa. 539, 178 A.2d 617 (1962); Bowdren v. Aetna Life & Cas., 404 Pa.Super. 595, 591 A.2d 751, 753 (1991). Thus, we need not look to Section 7341 as proposed by State Farm. See Bowdren, supra.

      . The policy issued by State Farm conditioned uninsured motor vehicle coverage upon the claimant being, inter alia, a “relative" of the named insured. See Reproduced Record at 57a. In turn, "relative” was defined in the policy as “a person related to you or your spouse by blood, marriage or adoption who lives with you.” Id. at 46a. Qualification under such a dual test — relative and resident with named insured — label a claimant a “class one” insured entitling him/her to stack. See Utica, supra; Bowdren, supra.

      . See 42 Pa.C.S.A. § 706, which authorizes this Court to direct that on remand judgment in the amount of $25,000 be entered in favor of the plaintiff.


author: TAMILIA, Judge: POPOVICH, Judge,

text:
    616 A.2d 667
    ESTATE OF Edward L. PHILLIPS, Deceased. Appeal of Francis E. GLEESON, Jr., Esquire.
    Superior Court of Pennsylvania.
    Argued July 15, 1992.
    Filed Sept. 30, 1992.
    Reargument Denied Dec. 4, 1992.

      Francis E. Gleeson, Jr., Philadelphia, in pro. per.
    Richard W. McConaghy, Philadelphia, for Kaminski, participating party.
    Before CIRILLO, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Francis E. Gleeson appeals from the November 8, 1991 Order sustaining, in part, the exceptions he filed to the Philadelphia Orphans Court Order of May 2, 1991.

In 1985 appellant was retained by the decedent, Edward L. Phillips, to draft his last will and testament. Upon Phillips’ demise on February 8, 1990, because his wife pre-deceased him, his estate was distributed as follows: one-half to his daughter, Eileen Kaminski, one-sixth to Our Lady of Ransom Catholic Church and one-sixth to each of his granddaughters. Appellant, who is an attorney and a real estate broker, served as executor and counsel for the estate and, upon the request of Kaminski, sold the family home for $99,900. The remainder of the estate totaled $35,404.15. In his account of the administration, appellant took credit for the following payments to himself: $6,531.11 (5%) for his services as executor, $6,531.11 (5%) for his services as counsel to the estate and $5,994.00 (6%) as a brokerage fee. Objections to these credits were filed by Kaminski and the church and, after a hearing, the court disallowed all but the brokerage fee. Appellant filed exceptions and the Court en banc found the auditing court committed an abuse of discretion by denying counsel fees and an executor’s commission and awarded appellant six per cent of $35,404.15 or $2,122.25, this amount being in addition to the $5,994 brokerage fee. This appeal followed.

Because appellant has failed to include in his brief a Statement of Questions Involved, in accord with Pa.R.A.P. 2116, this Court is forced to surmise the issues from his brief. The sole issue before us is whether the court erred by disallowing individual compensation for services appellant rendered in his capacities as executor, counsel and realtor for the estate. Appellant maintains because he did a “good job” and reconstructed time sheets reflecting the hours he allegedly spent working on the estate, he was entitled to the individual compensations claimed.

In Pennsylvania, the test for determining the appropriateness of the fees charged for services rendered in the administration of an estate has always been “reasonableness.” In re Estate of Burch, 402 Pa.Super. 314, 586 A.2d 986 (1991). Our Supreme Court has stated:

What is a fair and reasonable fee is sometimes a delicate, and at times a difficult question. The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was “created” by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question.

In re trust estate of LaRocca, 431 Pa. 542, 546, 246 A.2d 337, 339 (1968).

We do not deny the appellant did a “good job” administering the decedent’s estate, but as the court reasoned when it granted, in part, Kaminski’s exceptions to the payments appellant made to himself:

This Court cannot fix compensation as a percentage of the assets of an estate without some knowledge of the work actually done. The fiduciary and his attorney have the burden of proving facts which will enable the Court to make an informed judgment as to the work actually done by each and the reasonableness of the requested commissions and fees. See Preston Estate, 385 Pa.Super.Ct. 48 [560 A.2d 160] (1989), Sonovick Estate, 373 Pa.Super.Ct. 396 [541 A.2d 374] (1988) and Reed Estate, 462 Pa. 336 [341 A.2d 108] (1975). Where one person serves as both executor and counsel, he may be entitled to compensation for services rendered in each capacity which do not duplicate each other. He cannot be paid twice for the same work. The accountant has the burden of showing what work he did in each capacity so that this Court may avoid awarding double compensation for duplicated services. See Shillito Estate, 8 Fid.Rep.2d 365 (O.Ct., Allegh., 1988).

(Slip Op., Gutowicz, J., 5/2/91, pp. 4-5.) Appellant represented himself at the hearing and averred it was his understanding it was common practice to be paid a flat five per cent commission fee if you acted in a dual capacity with regard to the administration of an estate. However, appellant failed to provide this Court with the specifics of the work performed and relied, instead, on the reconstructed time sheets he assembled without benefit of time records. The appellant failed to present any specific testimony describing the services he performed nor did he differentiate between tasks performed in his capacity as executor versus his capacity as counsel for the estate. Accordingly, we find the court did not abuse its discretion by awarding appellant six per cent on the estate less the value of the home and affirm the Order awarding appellant $2,122.25 (6%) as compensation for services rendered as executor and counsel for the executor.

Order affirmed.

POPOVICH, J., concurring statement.

POPOVICH, Judge,

concurring:

The principal asset of this estate was the family home which sold for $99,000. For his services, appellant charged a total of 16% as executor, broker and counsel. This is, in my view, an outrageous abuse exceeded only by appellant’s daring in taking this appeal.

      . Our Lady of Ransom Roman Catholic Church joins the brief filed by appellee Kaminski, as does the Attorney General of Pennsylvania as parens patriae for charities.

      . We note with disfavor this is riot the first time appellant has been before this Court arguing this exact issue. See Smullen Estate, 1 Fid.Rep.2d 80 (1980), affirmed on basis of the trial court Opinion, 297 Pa.Super. 590, 441 A.2d 789 (1982). The Smuilen Court repeated the law of Pennsylvania which states a fiduciary is entitled to "fair and just” compensation, the determination of which depends upon the extent and character of the labor and responsibilities involved.