author: PRATT, J.,

text:
    Gwinn v. Empire State Chair Co.

      C.P. of Lawrence County,
    no. 11082 of 1997, C.A.

      Phillip L. Clark Jr., for plaintiff.

      Robert L. Monks, for defendants.
    June 27, 2000
   PRATT, J.,

The plaintiff, Barry E. Gwinn, has filed this motion for judgment on the pleadings, pursuant to Pa.R.C.P. 1034, in regard to his breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose action against defendant, Budget Bar and Restaurant Equipment Company. The court has thoroughly reviewed the pleadings, including the original complaint and Budget Bar’s answer and new matter, together with plaintiff’s brief, and the instant motion, as well as all exhibits attached to the pleadings.

The plaintiff initiated this action by filing a complaint on November 26, 1997. Count II of the complaint alleges Budget Bar breached an implied warranty of merchantability when it sold to plaintiff dining chairs and bar stools for use in his restaurant and tavern trade which, subsequently, were not fit for such commercial use. Count IV of the complaint alleges Budget Bar breached an implied warranty of fitness for a particular purpose when Budget Bar, on whose skill and knowledge plaintiff relied to furnish such suitable goods, sold to plaintiff the subject chairs and stools which, subsequently, were not fit for use in plaintiff’s commercial restaurant and tavern establishment. The plaintiff further avers that, as a result of the breach, plaintiff has suffered damages in the amount of $6,162.84.

On July 21, 1999, Budget Bar filed an “answer and new matter pursuant to Pa.R.C.P. 2252(d),” in which Budget Bar failed to specifically respond to the allegations in plaintiff’s complaint and, instead, made the following four general allegations:

“(1) the plaintiff has been using the equipment in his place of business since 1996;

“(2) the plaintiff bought this equipment because of style;

“(3) the defendant does not manufacture restaurant equipment or furniture; and

“(4) the defendant Empire State Chair Company made an offer to the plaintiff for an exchange, which the plaintiff unreasonably and unrealistically refused.” (See Budget Bar’s answer and new matter, pp. 1-2.)

After filing a reply to Budget Bar’s answer and new matter, plaintiff filed his instant motion for judgment on the pleadings contending that Budget Bar’s answer and new matter did not deny any of the allegations raised in plaintiff’s complaint pertaining to the averments that Budget Bar breached an implied warranty of merchantability and an implied warranty of fitness for a particular purpose. The court agrees.

In order to establish a breach of an implied warranty of merchantability, the plaintiff must show that the goods sold are not merchantable inasmuch as they are not fit for the ordinary purpose for which such goods are used. 13 Pa.C.S. §2314(a)(3).

In Gall v. Allegheny County Health Department, 521 Pa. 68, 555 A.2d 786 (1989), the Pennsylvania Supreme Court recognized “[t]he concept of ‘merchantability’ does not require that the goods be the best quality ... or the best obtainable,... but it does require that they have an inherent soundness which makes them suitable for the purpose for which they are designed,... that they be free from significant defects, that they perform in the way that goods of that kind should perform ... and that they be of reasonable quality within expected variations and for the ordinary purpose for which they are used.” Id. at 75, 555 A.2d at 789-90. (citations omitted)

An implied warranty of fitness for a particular purpose is breached when a seller, on whose skill and judgment a buyer relies and who has reason to know, at the time of contracting, the particular purpose for which the goods are required, fails to provide goods that perform to the specific use contemplated by the buyer. Id. at 76, 555 A.2d at 790; Hoak v. Wertz, 1 D.&C.3d 196 (1974).

A motion for judgment on the pleadings is a pretrial mechanism utilized to save the parties the expense of going to trial by allowing the court to. examine the legal sufficiency of the case. DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 543, 456 A.2d 1066, 1069 (1983). The motion should be granted only when no issues of material fact exist in the case, and the law is so clear that a trial would be fruitless. Commonwealth by Preate v. Rainbow Associates Inc., 138 Pa. Commw. 56, 59, 587 A.2d 357, 359 (1991); Commonwealth v. Seymour, 120 Pa. Commw. 423, 549 A.2d 246 (1988). When determining whether a motion for judgment on the pleadings should be granted, the court’s inquiry is limited to the pleadings and relevant documents, such as exhibits attached to the pleadings. See Del Quadro v. City of Philadelphia, 293 Pa. Super. 173, 176-77, 437 A.2d 1262, 1263 (1981); Patton v. Mack Trucks Inc., 360 Pa. Super. 1, 519 A.2d 959 (1986), appeal denied, 515 Pa. 623, 531, A.2d 431 (1987).

The issue this court must address in considering plaintiff’s motion for judgment on the pleadings is whether the responses made by Budget Bar in its answer and new matter conform to the mandates of Pa.R.C.P. 1029(b), which provides: “[ajverments in a pleading in which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or demand for proof, except as provided by subdivision (c) and (e) of this rule, shall have the effect of an admission.”

A denial is specific, if it denies the fact averred and affirmatively avers that which did or did not occur instead of the fact averred. Sincavage v. Howells, 8 D.&C.2d 515, 517 (1957). “To determine if an answer is a general denial under [Pa.R.C.P.j 1029(b), the court must examine the pleadings as a whole.” Preate at 61, 587 A.2d at 360.

Responses which are merely general denials of allegations are not sufficient and, in such a case, the allegations will be deemed admitted. See Swift v. Milner, 371 Pa. Super. 302, 308-309, 538 A.2d 28, 31 (1988); Acme Cotton Products Co. Inc. v. Michael McDonough Inc., 61 D.&C.2d 608, 610 (1972).

In applying Pa.R.C.P. 1029(b) to this case, the court observes that Budget Bar in its answer and new matter did not affirmatively aver what occurred in place of the facts alleged by plaintiff in the complaint. Budget Bar’s responses fail to make clear which facts are being denied, such that, it is unclear from Budget Bar’s responses whether it is denying all or part of each paragraph in plaintiff’s complaint. The numbers of the paragraphs in the answer and new matter do not correspond to the numbers of the paragraphs in the complaint. Furthermore, Budget Bar, in its new matter, fails to allege any affirmative defenses pursuant to Pa.R.C.P. 1030 or Pa.R.C.P. 2252(d).

The court concludes Budget Bar failed to properly respond to the allegations of the complaint as prescribed by Pa.R.C.P. 1029(b) and, therefore, all allegations and averments in the complaint regarding Budget Bar’s breach of an implied warranty of merchantability and an implied warranty of fitness for a particular purpose are deemed admitted and, as a result, there are no genuine issues of material fact to be decided.

Accordingly, the court shall enter an order granting plaintiff’s motion for judgment on the pleadings against defendant Budget Bar Restaurant and Equipment Company, as to Counts II and IV of plaintiff’s complaint.

ORDER

In accordance with the accompanying opinion, the motion for judgment on the pleadings of the plaintiff, Barry E. Gwinn t/d/b/a B.G. Starwood Inc., is granted, and judgment is entered in favor of the plaintiff, Barry E. Gwinn t/d/b/a B.G. Starwood Inc., against the defendant, Budget Bar and Restaurant Equipment Company, as to Counts II and IV of plaintiff’s complaint.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    Prud’homme v. Prud’homme

      C.P. of Lehigh County,
    no. DR-99-00819.

      John R. Mondschein, for plaintiff.

      Nancy R Wallitsch, for defendant.

      EN BANC, REffiMAN, BLACK AND STEINBERG, JJ

    September 28, 2000
   BLACK, J.,

At issue in this case is the request of plaintiff, Rosemarie Prud’homme (Wife), for alimony pendente lite from defendant, Laurence Prud’homme (Husband). Before the court is Husband’s motion that Wife be compelled to itemize the disposition of all funds received on account of support since July 15, 1999, and to produce copies of the following: (1) her retainer agreement with her attorney, (2) all bills and statements submitted by her attorney to her, and (3) all checks written by her and other documents relating to her expenses after the date of the parties’ separation. Wife objects to providing this information and producing these documents on the ground that the information and documents are not relevant to a determination of APL and are not reasonably calculated to lead to the discovery of admissible evidence. Husband contends that Wife must first establish financial need through an income and expense analysis before she qualifies for APL, and therefore that her post-separation expenses are relevant. We believe that Wife’s position is correct, and therefore Husband’s motion to compel is denied.

Husband’s request for a special listing of Wife’s APL claim, pursuant to Pa.R.C.P. 1910(j)(l), was granted on September 23, 1999. The specific issues to be resolved, as identified by the parties’ counsel in a telephone conference with the court, were: “(a) the monthly net income of defendant, (b) the earning capacity of plaintiff, (c) whether plaintiff is entitled to an award of alimony pendente lite in view of her assets, (d) whether defendant is entitled to receive credit for direct payments made by him for support of plaintiff, and (e) if it is determined that there are arrearages, whether they should be paid in one lump sum or in installments.”

On January 25, 2000, Husband’s motion to compel answers to interrogatories and the production of documents was denied on the ground that Wife’s post-separation expenses were not discoverable. The court held that under the 1993 amendments to the support rules, the amount of support, whether it be child support, spousal support, or APL, is to be determined in accordance with the Uniform Support Guidelines. Pa.R.C.P. 1910.16-1(b). Since Wife had stipulated that she had no unusual expenses and was seeking only a guideline amount of APL, her post-separation expenses were not relevant to a determination of her APL claim and were not reasonably calculated to lead to admissible evidence. See Prud’homme v. Prud’homme, 48 Lehigh L J. 797 (2000). Husband’s petition for reconsideration and argument en banc was granted in light of the prior unpublished decision of this court in Haas v. Haas, Lehigh County CCP no. 97-FC-1394 (June 19, 1998) (Steinberg, J.).

I. HISTORICAL PERSPECTIVE

Before adoption of the Uniform Support Guidelines, spousal support was determined by considering the reasonable financial needs of the dependent spouse and the reasonable ability of the payor spouse to pay. Relevant factors were the parties’ respective earning capacities and property as well as their standard of living during the marriage. Commonwealth ex rel. Bulson v. Bulson, 278 Pa. Super. 6, 419 A.2d 1327 (1980). The trial court had broad discretion to determine the amount of support, so long as it did not exceed one-third of the payor spouse’s net income. McGavic v. McGavic, 222 Pa. Super. 246, 294 A.2d 795 (1972). The court was to take into account the parties’ mode of living while they lived together, not the dependent spouse’s reduced lifestyle after separation. Id.

Similarly, before adoption of the Uniform Support Guidelines, APL was also determined on the basis of the reasonable financial needs of the dependent spouse and the reasonable ability of the payor spouse to pay. The same factors, i.e., the parties’ earning capacities and property along with their standard of living during the marriage were to be considered. DeMasi v. DeMasi, 366 Pa. Super. 19, 38, 530 A.2d 871, 880 (1987), appeal denied, 517 Pa. 631, 539 A.2d 811 (1988); see also, Orr v. Orr, 315 Pa. Super. 168, 172, 461 A.2d 850, 852 (1983) (“the husband’s ability to pay, the separate estate and income of the wife, and the character, situation, and surroundings of the parties”).

As in the case of spousal support, the trial court had broad discretion to determine the amount of APL, subject to the limitation that it not exceed one-third of the payor spouse’s net income. Wechsler v. Wechsler, 242 Pa. Super. 356, 363 A.2d 1307 (1976). As in the case of spousal support, the award was to allow the dependent spouse to maintain the same standard of living that she had enjoyed while the parties lived together. Orr v. Orr, supra.

With respect to child support, the relevant factors were exhaustively reviewed by the Pennsylvania Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). To arrive at an award of child support, a court first had to determine the needs of the child in view of the station of life of the child’s parents. Then the court would determine the respective abilities of the parents to support the child in view of their property, incomes and earning capacities. The formula set forth in Melzer v. Witsberger continues to be used to determine child support in those cases where the parties’ incomes exceed the levels set forth in the Uniform Support Guidelines.

Thus, prior to the enactment of the Uniform Support Guidelines, all forms of support, whether it be spousal support, APL or child support, required the court to determine the recipient’s needs based on the parties’ standard of living while they lived together or their station in life, and the payor’s ability to pay considering his/her income, property and earning capacity. In 1985 the Pennsylvania Superior Court in McNulty v. McNulty, 347 Pa. Super. 363, 500 A.2d 876 (1985) summarized the relationship between spousal support, APL and alimony as follows:

“[A] 11 three are species of support and as such, the relevant considerations in arriving at the amount[s] are those elemental to any support order: duty of the obligor, need of the obligee, and ability to pay on the part of the obligor. . . . The difference in case posture controls the procedure but does not alter the underlying considerations and assessment of the support amount, except for the duration.” 347 Pa. Super, at 371-72, 500 A.2d at 880.

In Remick v. Remick, 310 Pa. Super, 23, 456 A.2d 163 (1983) (en banc), the Superior Court addressed the duration of APL and spousal support. The court held that APL is to enable the dependent spouse to maintain or defend the principal action in divorce and is intended to cover only the period during which the proceeding may, with due diligence, be prosecuted to conclusion. On the other hand, the duty of spousal support arises out of the marital relationship itself and terminates when the marriage ends. In Remick, the wife was awarded concurrent spousal support, APL and counsel fees in order to meet her needs and to enable her to maintain and defend the divorce action. See also, Commonwealth ex rel. Homsher v. Homsher, 289 Pa. Super. 112, 432 A.2d 1076 (1981).

On February 12,1988, the Pennsylvania Divorce Code was amended to allow for the inclusion of a spousal support claim along with an APL claim in a divorce proceeding, and the courts hearing divorce cases were given authority to order interim awards of counsel fees and expenses. 23 Pa.C.S. §3702.

On September 6, 1989, the Pennsylvania Supreme Court promulgated new Rules of Civil Procedure 1910.16-1 to 1910.16-5 inclusive, establishing the Uniform Support Guidelines, effective September 30,1989. The new rules mandated that spousal support and child support be determined in accordance with these guidelines, unless one or more of the specified bases for deviation from the guidelines applied. APL was not mentioned in these new rules.

On January 27,1993, the Pennsylvania Supreme Court amended Rule 1910.16-1(a), effective immediately, to provide that support included “child support, spousal support or alimony pendente lite.” (emphasis added) The note following this amendment stated that “[o]rders for spousal support and alimony pendente lite shall not be in effect simultaneously.”

The purpose of establishing the Uniform Support Guidelines, as set forth in an explanatory comment, is to promote “(1) similar treatment of persons similarly situated, (2) a more equitable distribution of the financial responsibility for raising children, (3) settlement of support matters without court involvement, and (4) more efficient hearings where they are necessary.” Explanatory comment to Pa.R.C.P. 1910.16-1.

Significantly, the same explanatory comment states:

“In most cases, however, a party’s living expenses are not relevant in determining that party’s support obligation. Rather, as the statute requires, the obligation is based upon the reasonable needs of a dependent spouse or child and the reasonable ability of the obligor to pay.” Id.

In 1994, the Pennsylvania Supreme Court stated in Ball v. Minnick, 538 Pa. 441, 448, 648 A.2d 1192, 1195-96 (1994):

“Rule 1910.16-1 explicitly states that the amount of support, whether it be child support, spousal support or alimony pendente lite, shall be determined in accordance with the support guidelines which consist of not only the grids set forth in Rule 1910.16-2 and the formula set forth in Rule 1910.16-3, but also Rule 1910.16-5 which discusses in detail the operation of the guidelines. The rules make clear that the amount of support as determined from the support guidelines is presumed to be the appropriate amount of support and that any deviation must be based on Rule 1910.16-4. (emphasis added)

The court noted that the legislation authorizing .the establishment of support guidelines specifically provides:

“In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline[s] shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.” Ball, 538 Pa. at 451, 648 A.2datll97.

The court emphasized, in language that is especially relevant here:

“The clear intent of the guidelines, therefore, was to do away with individual, case-by-case determinations of just what constitutes the reasonable needs and expenses of the particular parties involved and thus to limit the trial court’s discretion. In other words, the trier of fact need not, nor should he or she, consider in the first instance, the actual expenses of the parties in an effort to establish the reasonable needs of a particular child.” Ball, 538 Pa. at 452, 648 A.2d at 1197 (emphasis in original); see also, Terpak v. Terpak, 697 A.2d 1006 (Pa. Super. 1997) (following the same reasoning in a spousal support case).

After the Ball opinion the Pennsylvania Supreme Court promulgated two more amendments to the Rules of Civil Procedure relating to support actions in 1994. First, Rule 1910.11(c), was amended to eliminate the requirement that full income and expense statements be filed in every case. This requirement was now limited to those child support cases where the parties’ incomes exceed the levels of the Uniform Support Guidelines so that Melzer v. Witsberger, supra, applies. Where support is to be determined in accordance with the guideline grids or formula, the income and expense statements need only show income and extraordinary expenses. APL claims were not carved out by the Supreme Court as an exception to the general rule that only extraordinary expenses need be disclosed. SeePa.R.C.P. 1910.11(c), as amended December 2, 1994, effective March 1, 1995.

The second 1994 amendment was the promulgation of Rule 1920.31(d). This new rule provides that where economic claims remain pending following a divorce, any existing spousal support order shall be deemed an order for APL automatically upon the entry of the divorce decree. See Pa.R.C.P. 1920.31(d), promulgated December 2, 1994, effective March 1, 1995.

These two rule changes, coupled with the 1993 amendments to the support rules and the Ball v. Minnick mandate by the Pennsylvania Supreme Court, clearly reflect the Supreme Court’s intention to have the Uniform Support Guidelines apply to claims for APL in the same fashion as they apply to claims for spousal support and nonMelzer child support. The guidelines are to apply automatically, subject only to deviations for one or more of the reasons specified in Rule 1910.16-5.

Reflecting on these changes, the Pennsylvania Superior Court stated in 1995 that the difference between APL and spousal support is now “negligible.” Calibeo v. Calibeo, 443 Pa. Super. 694, 698, 663 A.2d 184, 185 (1995); accord, Leister v. Leister, 453 Pa. Super. 576, 684 A.2d 192 (1996). In Calibeo, after noting the virtual identity of spousal support and APL, the Superior Court affirmed the trial court’s application of the Uniform Support Guidelines to an APL claim. The wife in Calibeo was awarded 40 percent of the difference between the parties’ incomes, in accordance with the guidelines. The court did not require a threshold showing of financial need before applying the guidelines.

Furthermore, in 1997, the Pennsylvania Supreme Court in Musko v. Musko, 548 Pa. 378, 697 A.2d 255 (1997), reversed the Superior Court for making a distinction between spousal support and APL, holding that APL is merely a type of support awarded in divorce cases. The Supreme Court noted the definition of APL in the Pennsylvania Divorce Code as “[a]n order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding. 23 Pa.C.S. §3103.” See Musko, 548 Pa. at 380, 697 A.2d at 256.

Finally, the Pennsylvania Supreme Court again amended the Uniform Support Guidelines on December 8,1998, effective April 1,1999. As part of these amendments, the 1993 note to Rule 1910.16-l(a) providing that “[ojrders for spousal support and alimony pendente lite shall not be in effect simultaneously” was established as árale. SeePa.R.C.P. 1910.16-l(c).

To summarize, spousal support and APL were always based on similar financial criteria, though the procedures and duration differed. As a result of the promulgation of new support rules by the Pennsylvania Supreme Court and the interpretation of these rules by the Pennsylvania Supreme Court and the Pennsylvania Superior Court, many of the historical distinctions between spousal support and APL have been eliminated. APL like spousal support shall be determined in accordance with the Uniform Support Guidelines. APL and spousal support shall not be in effect simultaneously. APL claimants, like spousal support claimants, need not prepare and file detailed income and expense statements. Upon the entry of a decree in divorce, if economic claims are still pending, a spousal support order shall be deemed an order for APL.

II. HUSBAND’S CONTENTION

Husband acknowledges that the amount of APL is to be determined in accordance with the Uniform Support Guidelines. He contends, however, that before the court applies the guidelines, Wife must first prove financial need under a pre-guideline income/expense analysis. According to Husband, Wife must first establish financial need for at least some amount of support, even if only $1 per month. For example, if the guidelines indicate that based on the respective incomes of the parties the amount of support should be $3,000 per month, and Wife can show that she needs $1 per month, then the guidelines apply, and Husband must pay her $3,000 per month, unless he can establish a basis for deviating from the guidelines.

Husband’s argument is contrary to both the letter and spirit of the Uniform Support Guidelines. First, from a linguistic standpoint, Rule 1910.16-1 states very specifically that APL, like spousal support and child support, is to be determined in accordance with the guidelines. If the guidelines establish APL at $3,000 per month and there is no basis for a deviation, then APL is to be awarded in this amount, so long as there is a divorce action being pursued. There is no requirement under the support rules for a separate demonstration of financial need.

Moreover, the philosophy underlying the guidelines is that support is to be income-based, i.e., the reasonable needs of a dependent spouse and the reasonable ability of the obligor to pay are presumed to be the amount arrived at by application of the guidelines to their respective incomes. See Pa.R.C.P. 1910.16-l(d) and explanatory comment-1998, (A) income shares. The purpose of an income-based method applied on a uniform basis is to increase the fairness of support orders by providing “similar treatment of persons similarly situated.” The use of the guidelines also increases the predictability of support matters, thus encouraging settlement without court involvement and leading to more efficient hearings where they are necessary.

Husband’s contention, if adopted, would return us to the pre-guideline days when subjective judgments were made as to “need.” This would reintroduce uncertainty into a process that is intended to be uniform and predictable.

The fact that full expense statements are no longer required for APL as well as for spousal support is a clear indication that the Supreme Court does not desire a return to the pre-guideline expense reviews, except for those cases where unusual expenses are claimed as the basis for a deviation from the guidelines or in child support cases where Melzer v. Witsberger, supra, applies. If every APL case required a preliminary determination of financial need, full expense statements would be needed in every case. The Supreme Court’s elimination of this requirement for APL cases is clear evidence that a preguideline expense analysis is not required as a precondition for an award of APL.

Further, one of the purposes of the guidelines is to make support hearings more efficient since the hearing officer need only apply the guidelines to the parties’ net monthly incomes in order to determine the presumptive amount of support. Husband’s approach, if adopted, would increase the work of the hearing officers considerably in APL cases because it would require an initial determination of financial need, using the pre-guideline mode of expense analysis, before applying the guidelines to the parties’ net monthly incomes. Rule 1910.16-1 requires just the opposite: the guidelines are to be applied first to determine the presumptive amount of support; and then, if a deviation is sought from the guidelines, an expense analysis may be appropriate.

m. APL VERSUS SPOUSAL SUPPORT

It is clear from the case law and the procedural rules as they have evolved, that both APL and spousal support are species of support. As noted in Calibeo the differences between the two are now “negligible.” From a financial standpoint, these two species of support are identical. Those differences that remain pertain only to the duration of the obligation and the effect of marital misconduct.

APL is available only while a divorce action is pending; whereas spousal support is available only to a spouse. Thus, if two parties are married but no divorce action is pending, the dependent spouse may seek only spousal support. If the parties are divorced, but the divorce action is still pending for disposition of economic claims, the dependent spouse is no longer entitled to spousal support, but is entitled to APL. Indeed, under the most recent amendment to Rule 1920.31(d), any existing spousal support order automatically converts to an order for APL upon the entry of a divorce decree, where economic claims are still pending.

The second difference between spousal support and APL is the effect of marital misconduct by the dependent spouse. A spouse who is guilty of marital misconduct forfeits his/her claim to spousal support. However, such a spouse is still eligible for APL. See Hanson v. Hanson, 177 Pa. Super. 384, 110 A.2d 750 (1955).

These differences between APL and spousal support are the reason for the 1994 explanatory comment to Rule 1910.1, which states:

“Nothing in this rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.”

These distinctions, as we have seen, relate to the duration of the obligation and the effect of marital misconduct. From an economic standpoint, the guidelines and the case law do not distinguish between the two.

Moore v. Moore, 56 Som. L.J. 110 (1999), on which Flusband relies, is based upon pre-guideline appellate cases holding that the financial need of the dependent spouse must be considered in awarding APL. The Somerset County Court concludes from this that there must be a preliminary determination of financial need before the guidelines are applied. However, this conclusion overlooks the fact that the very same appellate courts in pre-guideline spousal support cases also required proof of financial need by the dependent spouse. It is not plausible that adoption of the guidelines changed the financial rules for spousal support, but not for APL with respect to proof of financial need. We find more persuasive the statement in Calibeo, supra, that the differences between spousal support and APL are now “negligible.”

To summarize, the differences between spousal support and APL relate to non-financial issues such as the duration of payments and the effect of marital misconduct. With respect to the issue of financial need, this is presumed to be the guideline amount for APL as well as spousal support.

The validity of our conclusion is evident from the rule that upon the entry of a divorce decree, spousal support (which ends with the divorce decree) is automatically converted to APL if economic claims remain pending. An automatic conversion would be inappropriate if a spouse’s entitlement to APL had additional financial conditions over and above the financial conditions for an award of spousal support. Significantly, the rules do not provide for the converse: upon termination of a divorce action without the entry of a decree, an APL order does not convert automatically into an order for spousal support. Such an automatic conversion would be improper since there is an entitlement issue, i.e., marital misconduct, that may preclude spousal support.

Because of the difference in the effect of marital misconduct in spousal support and APL cases, Husband argues that there will be an explosion in the number of APL cases if we do not require an expense analysis to show financial need in APL cases. Husband suggests that spouses who are not entitled to spousal support because of marital misconduct will file divorce actions, claim APL, and then delay the prosecution of these cases. We believe that Husband’s prophecy of a flood of litigation is far-fetched. There is a clear remedy for an obligor if the dependent spouse delays the prosecution of the action while benefiting from an award of APL. In such a situation, the obligor can move for the appointment of a master; or if the obligor cannot or does not wish to do so, the obligor can move to dismiss the divorce action or to terminate the APL order for lack of prosecution. There is no need to invoke an expense analysis to remedy the problem of the APL obligee who refuses to proceed in the litigation. Indeed, since most dependent spouses will have no difficulty in establishing $1 of financial need — in which case the guidelines would apply even under Husband’s analysis — Husband’s position, even if adopted by this court, would do little to affect potential APL abuse.

IV. THE OLD PROCEDURE VERSUS THE NEW PROCEDURE

Before adoption of the guidelines in 1993, all species of support — spousal support, APL and child support— were determined by an analysis of the incomes and expenses of both parties, their separate assets, and their standard of living during the marriage. McNulty v. McNulty, supra. This analysis left room for a great deal of discretion, resulting in uneven results from case to case and from court to court. The requirement of an expense analysis also involved a review of expense statements submitted by the parties, statements that sometimes were rather creative.

Under the Uniform Support Guidelines the same factors are still taken into account. What is different is the procedure to be followed by the hearing officer or the court in reaching a decision. First, the net monthly income of each party is computed, as before. Next, a calculation is made to determine the presumptive amount of support, based on the guidelines set forth in Rule 1910.16-4. Finally, the presumptive amount of support may be modified if any of the factors found in Rule 1910.16-5 justifying a deviation from the guidelines are established. These factors include, inter alia, any unusual expenses of the parties.

Thus, under the pre-1993 procedure, a number of factors were reviewed in no particular order and a discretionary decision handed down. Under the current rules the same factors are considered, but in a more structured way. This more structured approach makes it more likely that similar situations will yield similar results, that decisions will be more predictable, and that meaningful review is possible. Under the new procedure, instead of requiring a detailed expense analysis in each case, the parties’ reasonable needs are presumed from their respective incomes, with deviations permitted only for those special circumstances set forth in Rule 1910.16-5.

Husband’s effort to turn the clock back so that hearing officers and judges would at the outset have to undertake detailed expense analyses in APL cases is not supported by the language of the rules, would undermine the purpose of the rules, and from an administrative standpoint would be an unsound policy. The guideline procedure simplifies the determination of APL and spousal support claims; Husband’s proposal would complicate the procedure. The guidelines provide a method for achieving similar results in similar circumstances; Husband’s proposal would return us to the days of broad discretion in every case. The guidelines provide a measure of predictability leading to settlements and efficient hearings; Husband would interpose an expense statement procedure that would lead to more litigation and expense in APL cases.

This is not to say that the reasonable needs of the parties are ignored. Consideration of this factor is built into the guidelines, which are presumed to be accurate. There is no reason for a preliminary determination of financial need since the guidelines take this factor into account.

V. CONCLUSION

For the reasons stated, we hold that a dependent spouse seeking APL is not required to establish financial need through an expense analysis so long as he or she is seeking only a guideline amount of support. The dependent spouse’s post-separation living expenses are not relevant unless there is a claim for deviation from the guidelines because of unusual expenses. Since no such claim is made here, discovery of Wife’s post-separation living expenses is not permissible.

ORDER

Now, September 28, 2000, after re-argument before an en banc panel of this court on defendant’s motion to compel answers to interrogatories and request for production of documents, for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is denied.

      . There is no pending claim for counsel fees in this proceeding.

      . Special listing order 9/23/99.

      . Discovery in domestic relations matters is governed by the general discovery rules that limit discovery to information that is relevant to the claim or defense of a party or is reasonably calculated to lead to admissible evidence. See Pa.R.C.P. 1930.5(b) and Pa.R.C.P. 4003.1.

      . The changes made to the Pennsylvania Rules of Civil Procedure effective April 1,1999, changed some of the rule numbers referred to in the Ball opinion. However, Pa.R.C.P. 1910.16-l(b) still mandates that the amount of APL be determined in accordance with the Uniform Support Guidelines composed of grids and formulas.

      . 23 Pa.C.S §4322.

      . When asked at oral argument how this financial need was to be determined, Husband’s counsel referred to the same factors discussed above in the pre-guideline case law, i.e., the financial ability of the payor, the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties. See Orr v. Orr, 315 Pa. Super. 168, 461 A.2d 850 (1983).

      . Explanatory comment to Pa.R.C.P. 1910.16-1.


author: KUHN, J.,

text:
    Fravel v. Weary

      C.P. of Adams County,
    no. 99-S-618.

      Leah G. Graff, for plaintiffs.

      Paul W. Grego, for defendant.
    August 24, 2000
   KUHN, J.,

The underlying action arises from an automobile accident involving two vehicles and a pedestrian. The parties have raised the issue of whether plaintiff, Amy E. Fravel, is covered by full or limited tort insurance coverage. The parties submitted memorandums of law and argument was heard on the matter on June 26,2000. The court ruled that the burden of proof is on defendant to refute plaintiffs’ assertion that Ms. Fravel is covered under the full tort option.

STATEMENT OF FACTS

On September 28, 1998, defendant, Marilyn Forney Weary, was traveling northbound on Carlisle Road. (Compl. ¶5.) Upon reaching the intersection of Carlisle Road and the Peach Glen-Idaville Road, defendant attempted to make a left hand turn onto the Peach GlenIdaville Road. (Compl. ¶5.) In doing so, she turned directly into the path of a vehicle travelling southbound on Carlisle Road and the two vehicles collided. (Compl. ¶5.) The southbound vehicle was forced off the road and onto the sidewalk where it struck plaintiff, Amy E. Fravel, who was travelling on foot at the time. (Compl. ¶6.) Plaintiff, Ms. Fravel, received injuries as a result of being struck by the vehicle. (Compl. ¶¶6, 11.)

Plaintiff, Ms. Fravel, resides with her husband, co-plaintiff, Jerry Fravel, and her parents, Richard and Nancy Crouse. (Jerry Fravel depo. at 6.) Mr. Fravel is the named insured on an automobile insurance policy with Progressive. (Br. of def. in resp. to pis.’ mem. of law, ex. C.) Ms. Fravel is a named driver on the Progressive policy. (Br. of def. in resp. to pis.’ mem. of law, ex. C.) The Progressive policy lists a 1991 Saturn, owned by Mr. Fravel, as the covered vehicle. (Br. of def. in resp. to pis.’ mem. of law, ex. C.) Mr. Fravel chose the limited tort option. (Br. of def. in resp. to pis.’ mem. of law, ex. C.)

Mr. Crouse is the named insured on an automobile insurance policy with Allstate. (Br. of def. in resp. to pis.’ mem. of law, ex. D.) The Allstate policy lists a 1993 Pontiac Grand Prix as the covered vehicle. (Br. of def. in resp. to pis.’ mem. of law, ex. D.) Mr. Crouse chose full tort coverage on his policy. (Br. of def. in resp. to pis.’ mem. of law, ex. D.)

Ms. Fravel is an achondroplastic dwarf, thus adaptive pedals must be installed in a vehicle in order for her to be able to drive. (Amy Fravel depo. at 6; Jerry Fravel depo. at 6-7.) The 1991 Saturn has been fitted with these adaptive pedals and Ms. Fravel has driven that car once or twice. (Jerry Fravel depo. at 6-7.) The 1993 Pontiac Grand Prix has not been fitted with these pedals, thus Ms. Fravel is unable to drive that car. (Jerry Fravel depo. at 6-7.)

LEGAL DISCUSSION

The parties seek determination of whether Ms. Fravel may recover under the full tort option of her father’s automobile insurance policy or whether she is bound by the limited tort option under her husband’s automobile insurance policy. The Motor Vehicle Financial Responsibility Law provides:

“The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle. In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.” 75 Pa.C.S. § 1705(b)(2).

A “named insured” is “[a]ny individual identified by name as an insured in a policy of private passenger motor vehicle insurance.” 75 Pa.C.S. § 1705(f). An “insured” includes “any individual residing in the household of the named insured who is ... a spouse or other relative of the named insured ....” 75 Pa.C.S. § 1705(f). The word “household” is not defined in the statute so it shall be interpreted as having its common and approved usage. 1 Pa.C.S. §1903. That word is commonly used as referring to “belonging to the house and family,” Black’s Law Dictionary, seventh edition, or “those who dwell under the same roof and compose a family.” Webster’s New Collegiate Dictionary (1979).

Ms. Fravel is not a named insured under either policy. She is, however, an insured under both policies. She resides in the household of Mr. Fravel and Mr. Crouse, the named insureds, and is the spouse of the former and a relative of the latter. Thus, the first sentence of section 1705(b)(2) does not apply to this situation.

Elements of the second sentence of section 1705(b)(2) are present in this case. First, more than one policy is applicable to Ms. Fravel, the insured. Second, the policies have conflicting tort options. Third, Ms. Fravel was not an occupant of either vehicle covered by the two policies with the conflicting tort options. Thus, interpreting the intent of the last phrase of section 1705(b)(2) has become the focus of each party’s argument.

Plaintiff contends that the phrase “land bound by the full tort option otherwise” was intended to mean that in all situations where the insured is an insured under policies with conflicting tort options and is not an occupant of a vehicle associated with one of those policies she is then to be covered under the policy with the full tort option. Defendant argues that this phrase was not intended to apply to pedestrians. Instead, she suggests that “the legislature sought to answer the question concerning which tort option applied to an occupant of a motor vehicle who was an insured on the policy covering that vehicle and which tort option applied to an occupant of a vehicle who was not an insured on the policy covering the motor vehicle.” (Br. of def. ¶8.) Although the phrase being examined may well address the conflict, defendant suggests we find no basis to limit it solely to that situation. Defendant points to no other provision of the MVFRL which addresses coverage for pedestrians in the situation in which Ms. Fravel finds herself. We believe section 1705(b)(2) was intended to address all conflicts. In fact, as noted in Berger v. Rinaldi, 438 Pa. Super. 78, 651 A.2d 553 (1994),

“With respect to which tort option shall apply in any given case, Representative Hayden, who supported enactment of the 1990 amendments to the MVFRL, stated that ‘in virtually every circumstance where there is a question about [which] coverage will apply, there is a conscious attempt to rule in favor of the full tort alternative.’ House Legislative Journal page 214, February 7, 1990.” 438 Pa. Super, at 88, 651 A.2d at 557.

Our holding would lend support to that legislative intent.

Defendant also contends that because Ms. Fravel was physically unable to drive her father’s car, because her husband’s car was specifically adapted for her particular limitations, and because she had no property interest in her father’s car, that she should be subject to that limited tort option in the Progressive policy. We find no basis under the MVFRL to so limit Ms. Fravel’s coverage. She is an insured under her father’s policy and entitled to the full tort option unless otherwise limited pursuant to section 1705(b)(2). Those limitations do not apply unless she was an occupant in her husband’s car.

Accordingly, the attached order is issued.

ORDER

And now, August 24, 2000, pursuant to the reasoning set forth in the attached memorandum opinion, this court rules that plaintiff, Amy E. Fravel, is entitled to the benefits of the full tort option available under policy no. 0-98-790897-11/09 issued by Allstate.


author: BARATIA, J.,

text:
    Barter v. Southmoore Golf Course Associates L.P.

      C.P. of Northampton County,
    no. 1998-C-294.

      Donald LaBarre Jr. and Malcolm Gross, for plaintiff.

      Charles Bruno, for defendant.
    December 30, 1999—
   BARATIA, J.,

STATEMENT OF REASONS

This case involves a golf course owned by Southmoore Limited Partnership, whose general partner is a corporation known as Southmoore Golf Associates Inc. SGAI owns 98.25 percent of Southmoore’s limited partnership interest. Plaintiff, Peter Barter, owns 55 percent of the stock in SGAI; however, because of its structure, Barter has never been permitted to vote his shares. Arcangelo Diodoardo and his wife control SGAI in that they own all voting shares of that corporation.

Barter filed a mortgage foreclosure action against Southmoore Golf Course Associates L.P. on January 14, 1998. Barter had provided financing to Southmoore in the form of four separate loans. These loans were evidenced by four separate notes which, as of January 14, 1998, carried abalance of $4,428,612.72. The loans were secured by four mortgages from Southmoore. Barter contended that Southmoore had failed to make timely installment payments on the notes including the May, June, July, August and the October 1997 payments. Southmoore answered and filed new matter denying that the balance claimed was due on those dates. It asserted that the balance was instead due June 1, 1999 (Southmoore answer 18(a)), and that it was not required to make the October 1997 payment and other earlier payments because Barter had waived those payments. (Southmoore answer 18(b).)

Southmoore also filed an 11-count counterclaim against Barter. Barter filed preliminary objections to all of the counterclaims.

On December 9, 1998, this court sustained Barter’s preliminary objections and struck all of Southmoore’s counterclaims. The court’s statement of reasons accompanying its order indicated that because Southmoore’s claims were not part of the creation of Barter’s security interest in the property, they were barred under Pa.R.C.P. 1148. Rule 1148 limits counterclaims in a mortgage foreclosure to matters which arise in the same transaction as the foreclosure instrument itself.

Southmoore then repleaded its initial answer and new matter, asserting that “the entire remaining balance due under the loan agreements is not due and payable until June 1, 1999.” (Southmoore’s new matter 50.)

On February 2, 1999, Barter filed his first amended complaint in the foreclosure action. In his first amended action, Barter additionally contended that Southmoore had failed to pay real estate taxes on the mortgaged property before interest or penalties become due. (Count II.) Barter’s first amended complaint also contended that Southmoore had breached its mortgage terms by failing to comply with an order of the zoning hearing board of Moore Township. As a result, Barter contended that Moore Township had filed an equity action against the property on September 28, 1998, seeking an injunction and other relief. (Count III.) Finally, Barter contended that on October 28,1998, in violation of the mortgages, Southmoore granted an additional mortgage on the secured property to a corporation known as Lehigh Valley PIC, thereby creating additional liens on the property. (Count IV.)

On March 4, 1999, Southmoore filed its answer with new matter to the first amended complaint. Once again, Southmoore’s answer with new matter contained no allegations that Barter’s earlier complaint had interfered with its refinancing. Southmoore again confirmed, for the third time in its pleadings, that the mortgages were due June 1, 1999. (Answer and new matter 19(a).)

On June 4,1999, Barter filed his second amended complaint reasserting his previous claims and adding a Count V. Count V asserted that the entire mortgage balance, then $4,637,866, was due on June 1, 1999. Barter also pleaded that the balance had not been repaid on that date. On June 28,1999, Southmoore filed its answer with new matter to the second amended complaint. In its answer and new matter, Southmoore raised a new defense contending that the filing of the first mortgage foreclosure action by Barter had rendered Southmoore unable to obtain financing. Southmoore also raised the defense of waiver and reiterated several equitable defenses that had been stricken in our order of December 9,1998. Finally, Southmoore contested the total monies due, alleging that Barter’s calculation, which included attorney’s fees, was incorrect.

I. Legal Standard

Summary judgment is granted properly where no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2; O’Brien Energy Systems Inc. v. American Employers’ Insurance Co., 427 Pa. Super. 456, 629 A.2d 957 (1993). Summary judgment is appropriate only in those cases which are clear and free from doubt. Lyman v. Boonin, 535 Pa. 397, 635 A.2d 1029 (1993); Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996). In an action for mortgage foreclosure, the entry of summary judgment is proper if the mortgage is in default and that the recorded mortgage is in the specified amount. This is so, even if the mortgagor does not admit the total amount of the indebtedness. See Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971). See also, 22 Standard Pennsylvania Practice 2d 121:69. With this legal standard in mind, we will now address Barter’s motion.

II. Discussion

In Southmoore’s previous answers, Southmoore asserted as a defense that the indebtedness was not due until the date of the balloon payment, June 1, 1999. In its most recent answer, Southmoore now denies that the balloon payment was due on June 1, 1999.

In support of this reversal of position, the defendant raises the defense of waiver alleging that, at various times, Barter waived monthly payments due under the loans during the calendar years of 1996 and 1997. Those monthly payment waivers were acknowledged by Barter in written letters. Clearly, those waivers were not a waiver of the principal sum due and owing on June 1, 1999. As a matter of fact, the written correspondence at issue was attached to defendant’s answer. In those letters, Barter waived certain monthly principal payments but asserted his desire to enforce the June 1, 1999 balloon payment and reserved his right to exercise his legal remedies under the terms of the loan documents. Therefore, the written documentation offered by defendant in support of its waiver defense contradicts its argument that the June 1, 1999 balloon payment was waived.

Additionally, each mortgage contains the following paragraph:

“Any failure by mortgagee to insist upon strict performance by mortgagor of any of the terms and provisions of this mortgage or of the note shall not be deemed to be a waiver of any of the terms or provisions of the mortgage and note, and mortgagee shall have the right thereafter to insist upon strict performance by mortgagor of any and all of them.”

Thus, the very terms of the written mortgages prevent the defendant from attempting to use the good graces of the plaintiff in waiving monthly principal payments as construing a waiver of the balloon payment due June 1, 1999.

The remaining waiver evidence offered by the defendant is the deposition testimony of Arcangelo Diodoardo, who is the controlling shareholder of Southmoore Golf Associates Inc., and as a result, Southmoore.

In his deposition, Diodoardo asserts the self-serving statement that Barter verbally assured him at various times that he would not pursue foreclosure. Apparently, Diodoardo’s position is that Barter’s alleged verbal statements serve as a waiver of his right to enforce his mortgages and collect the $4,428,612.72 owed to him by the defendant.

The defendant’s claims of oral waiver contradict the following paragraph contained in each mortgage:

“Amendment. This mortgage cannot be changed or amended except by agreement in writing signed by the party against whom enforcement of the change is sought.”

Clearly, the mortgages do not permit parol evidence to modify the terms of the mortgages. Such evidence would be inadmissible at trial.

As a matter of law, we find that Barter has not waived his right to enforce the payment terms of the mortgages.

The remaining defenses are in the nature of equitable defenses such as laches, bad faith, breach of a fiduciary duty, unclean hands, etc. The factual support of these equitable defenses is Southmoore’s claim that Barter, by prematurely filing the foreclosure action in January of 1998, created a perception in the lending community that the defendant was not creditworthy, thereby sabotaging any attempts by Southmoore to obtain refinancing. Additionally, the defendant claims that Barter was in a “unique position” and owed a fiduciary duty to Southmoore. The defendant alleges that Barter breached his fiduciary duty.

Southmoore refers to Barter as being the majority shareholder because he owned a 55 percent equity interest in SGAI and holds mortgages encumbering the golf course. As a result, Southmoore claims that Barter owes a fiduciary duty. However, we dismiss these assertions as ridiculous because Diodoardo solely controls the corporation due to the fact that he and his wife own all of the voting shares in SGAI. By contrast, Barter owns only nonvoting shares in SGAI and has no ability to exert any control over its corporate affairs. Consequently, we find that, as a result of Diodoardo’s sole control over the corporation, it is he who owes a fiduciary duty to Southmoore, Barter and the other non-voting shareholders.

Thus, we reject the claim that Barter owed a fiduciary duty to Southmoore.

Further, we find that the other defenses raised in new matter reiterate the counterclaim defenses that were stricken in our previous order. These defenses do not arise from the same transaction or occurrence from which Barter’s cause of action arose. The claims contained in the new matter are not part of or incident to the mortgages because they do not deal with the creation of the security interest in the property. All of the allegations and defenses in the new matter arose or occurred a significant period after the creation of the mortgages and are unrelated to the actual creation of the security interest. Therefore, under Pennsylvania Rule of Civil Procedure 1148, they are barred and cannot be asserted in the foreclosure action. See Cunningham v. McWilliams, 714 A.2d 1054 (Pa. Super. 1998), appeal denied, 557 Pa. 653, 734 A.2d 861 (1999); Chrysler First Business Credit Corp. v. Gourniak, 411 Pa. Super. 259, 601 A.2d 338 (1992).

Accordingly, we find that there are no material issues of fact. The record establishes that the mortgages at issue became due and owing on June 1,1999. There is no dispute that the defendant has failed to satisfy those mortgages and is in default. Further, we find that as a matter of law, there are no defenses available to Southmoore.

Therefore, plaintiff is entitled to summary judgment.

ORDER

And now, December 30, 1999, the amended motion for summary judgment filed on behalf of the plaintiff, Peter Barter, is granted.

      . This paragraph is numbered 20(b) in the mortgages dated June 1, 1995 and September 26, 1995. It is numbered 23(b) in the mortgages dated February 18,1994 and February 1, 1996.

      . This paragraph is numbered 25 in the mortgages dated June 1, 1995 and September 26, 1995. It is numbered 28 in the mortgages dated February 18, 1994 and February 1, 1996.


author: BURR II, J.,

text:
    Peterson v. Ratasiewicz

      C.P. of Delaware County,
    no. 97-16440.

      Michael J. Flanagan, for plaintiffs.

      A. Richard Patete Jr., for defendants.

      Thomas P. Halfpenny, for additional defendant Campana.

      Jeffrey P. Lewis, for additional defendant Schrom.
    August 7, 2000
   BURR II, J.,

Defendants Joseph A. Ratasiewicz, Esquire, and the law firm of Ratasiewicz & Associates appeal from the order granting the additional defendant Gerald K. Schrom, Esquire’s petition to enforce settlement and awarding attorneys’ fees and costs.

Plaintiffs instituted this action upon a theory of legal malpractice founded upon defendants’ representation in a motor vehicle negligence lawsuit. The underlying negligence action by plaintiffs was settled without obtaining the prior consent of Allstate Insurance Co., which had issued uninsured motorist’s insurance for the vehicle in which plaintiff was injured. The defendant Schrom was joined as an additional defendant because he had been a partner in the Ratasiewicz firm. The additional defendant, Lois M. Campana, was joined because she was an “independent contractor” for the Ratasiewicz firm. A panel of arbitrators concluded that plaintiffs were ineligible to the awarded uninsured motorist’s benefits because the defendants had violated a “consent to settle” provision in the insurance policy. A petition to vacate that decision was denied in the Court of Common Pleas of Chester County, Pennsylvania and that decision was affirmed by the Pennsylvania Superior Court. Peterson v. Northbrook Property & Casualty Insurance Company, 455 Pa. Super. 664, 686 A.2d 1371 (1996).

The subsequent legal malpractice action was scheduled for trial June 14, 1999, but on June 4, 1999, defendants offered to settle the matter by paying $ 10,000. (Exhibit S-17.) A settlement agreement was entered into, following some negotiations, requiring the defendants to pay plaintiffs the sum of $15,000 in installments; the execution of mutual releases by all parties; and the payment of $500 by Ms. Campana. Mr. Schrom was to pay $2,000 to plaintiffs. There was to be provision for confidentiality, and the malpractice action was to be discontinued when all sums had been paid. A letter from plaintiffs’ counsel memorializing the settlement terms as they applied to defendants Ratasiewicz was written June 9, 1999, the concluding paragraph of which reads: “[I]f you disagree with any of the contents of this letter, please contact me immediately. Otherwise, I will be in touch as the afternoon progresses.” (Exhibit S-3.)

The trial court was telephonically advised June 11, 1999, at 9:45 a.m. (three days before trial), that a settlement agreement had been entered. Plaintiffs’ counsel followed up with a letter advising the court of that settlement. (Exhibit S-5.) That letter indicated that courtesy copies had been sent to all parties. The malpractice action was therefore removed from this court’s trial list without objection from any party. A release and settlement agreement was sent to counsel for defendants. (Exhibits S-7 and S-8.) Defendants Ratasiewicz refused to sign the aforesaid agreement for seven weeks thereafter, despite repeated requests. No objection to language or content was made. Then, by letter dated August 20,1999, counsel for defendants Ratasiewicz advised plaintiffs’ counsel:

“I have been advised that Mr. Peterson was working at the time of his disability, made representations to the court and SWIF that he was not working, and was working while using his son’s social security number. Based on this newly discovered evidence and other information, my client is not willing to settle the personal injury matter .. ..” (Exhibit S-13.)

There is, in that letter, neither comment nor objection to any term or provision of the written release and settlement agreement. Additional defendant Schrom filed a petition to enforce settlement and the remaining parties joined in that petition.

This court, following a hearing which defendant Ratasiewicz did not attend, entered an order finding in favor of plaintiffs and additional defendants and against defendants Ratasiewicz, awarding interest from August 1999, together with attorneys’ fees and costs. Defendants Ratasiewicz appealed, filing a “stream of consciousness” statement instead of that mandated by Pa.R.A.P. 1925(b). Defendants Ratasiewicz seem to raise on appeal issues contending that: fraudulent conduct by plaintiffs and their attorney vitiated any settlement agreement; no valid settlement agreement was reached; and there was a unilateral mistake by defendants Ratasiewicz as to a material term of the agreement. It may be noted, at this point, that counsel for defendants Ratasiewicz at the hearing before this court also claimed that the settlement was a nullity because it did not resolve cross-claims. Since this allegation appears nowhere in defendants’ argument in opposition to the petition, nor in defendants’ closing arguments submitted to this court, nor in the “concise statement,” the issue must therefore be deemed waived. Pa.R.C.P. 227.1; Frank v. Peckich, 257 Pa. Super. 561, 391 A.2d 624 (1978); Pa.R.A.P 302. It is also noted that defendants’ “concise statement” raised no issue concerning the award of attorneys’ fees and costs. This issue must also be deemed waived for the same reasons.

VALIDITY OF THE SETTLEMENT AGREEMENT

Ratasiewicz argues that since the release was never executed, and since Ratasiewicz was mistaken about the terms of the agreement, there was therefore no settlement. There is no dispute that the release was not executed by Ratasiewicz. Ratasiewicz contends that he was unaware of the confidentiality provision, also inserted in the written agreement and referred to in the correspondence. Ratasiewicz also contends that there was no discussion concerning settlement of cross-claims. This latter contention, however, does not appear in appellants’ “concise statement” and therefore is not an appellate issue. It would be most surprising if the additional defendants’ contribution to the settlement had not been discussed and resolved prior to the parties’ request that the trial be discontinued. Ratasiewicz did not repudiate the confidentiality clause nor the provisions for contribution by the additional defendants in the August 20,1999 letter (exhibit S-13) to plaintiffs’ counsel. Indeed, in that letter, Ratasiewicz assumes the existence of a valid contract and suggests that it be voided because of the alleged fraud by plaintiffs.

It is also surprising to see defendants’ contention that the malpractice action was “never intended to be removed from the trial list.” (Concise statement paragraph 6.) This court received no word of concern when the trial was removed from its list. This court received no indication of concern from defendants Ratasiewicz about the settlement or its terms, or its state of completeness. The first indication of dissatisfaction was received in response to the petition to enforce settlement. Regretfully, Ratasiewicz’s silence undermines his appellate contentions, as it did his position as to the settlement that was articulated by his attorney at the hearing on the petition.

Plaintiffs presented unrebutted testimony at the hearing for this matter clearly indicating the occurrence of settlement negotiations and verbal agreement concerning the final settlement of $15,000 as to Ratasiewicz. The timing for payments of this sum was likewise verbally agreed to by plaintiffs’ counsel and defendants Ratasiewicz. (Exhibit S-3.) Plaintiffs’ counsel at the hearing testified that the June 9 letter did not refer to confidentiality because the plaintiffs had no concern as to that. Rather, counsel for additional defendants raised that issue while discussing the monetary concerns. Plaintiffs’ counsel also indicated that he had advised Ratasiewicz’s counsel of the settlement figures and the confidentiality provision. Plaintiffs’ counsel testified that Ratasiewicz’s counsel indicated there was no problem with either the monetary settlement or the confidentiality provision. Plaintiffs’ counsel’s letter of June 11, 1999, (exhibit S-3) makes clear reference to confidentiality. There was neither repudiation nor objection to that latter letter. Nor did Ratasiewicz object to any of the terms contained within the written release sent to him on June 28, 1999. The confidentiality provision was set forth in great detail on page 2 of the release which formalized the parties’ oral settlement agreement. Ratasiewicz simply raised, on August 20, 1999, the allegation of plaintiffs’ fraud. (Exhibits S-7, S-8, S-13.)

Neither the defendants Ratasiewicz nor their attorney have ever denied receiving a copy of the release and settlement agreement. They claim only that it was not executed. They acknowledge its receipt. (Letter June 11, 1999; exhibit S-5.) Indeed, Ratasiewicz’s letter of August 20, 1999, (exhibit S-13) simply expressed a desire to withdraw from the settlement agreement.

The settlement of lawsuits is favored, and in the absence of fraud or mistake, courts will enforce an oral or a written agreement to settle a legal dispute. Greentree Cinemas Inc. v. Hakim, 289 Pa. Super. 39, 432 A.2d 1039 (1981). Also see Manzitti v. Amsler, 379 Pa. Super. 454, 550 A.2d 537 (1988) and School District of Philadelphia v. Framlau Corp., 15 Pa. Commw. 621, 328 A.2d 866 (1974). Principles of contract law govern the enforceability of settlement agreements. Century Inn Inc. v. Century Inn Realty Inc., 358 Pa. Super. 53, 516 A.2d 765 (1986). The agreement of settlement will be enforced so long as the material terms of the bargain are agreed upon. Century Inn Inc. v. Century Inn Realty Inc., supra. Where parties intend to make a contract and there is a reasonably certain basis upon which the court can grant a remedy, then an agreement will be considered sufficiently definite and enforceable. Greene v. Oliver Realty Inc., 363 Pa. Super. 534, 526 A.2d 1192 (1987), appeal denied, 517 Pa. 607,536 A.2d 1331 (1987). If a material term of the settlement is not agreed upon then, of course, there is no enforceable agreement of settlement. Miller v. Clay Township, 124 Pa. Commw. 252, 256, 555 A.2d 972, 974 (1989). A confidentiality clause has been held to be a material term in such agreements. Denooyer v. Lehman Pike Development Corp., 32 D.&C.4th 351 (1996). The affirmance of an unauthorized transaction may be inferred from a failure to repudiate it. Denooyer v. Lehman Pike Development Corp., supra; Restatement (Second) of Agency, section 94 (1958). A unilateral mistake which is not caused by the party not mistaken, but rather due to the negligence of one now claiming the mistake, affords no basis for relief from an agreement. Kramer v. Schaeffer, 751 A.2d 241 (Pa. Super. 2000).

This record is clear that Ratasiewicz not only had knowledge of the oral settlement agreement, including the terms of confidentiality and the amount of settlement, but Ratasiewicz also had ample opportunity to repudiate, deny or amend it. He did nothing. Objection only came from that defendant at the time of the instant petition. Ratasiewicz has therefore failed to carry the burden of demonstrating lack of knowledge concerning the provisions in question, since Ratasiewicz did not refute any term of the oral settlement agreement or of the memorialization thereof set forth in the written release. Ratasiewicz simply wished to avoid the agreement and thereby admits the existence of an agreement which must exist before it can be avoided! There is ample support within this record for the trial court’s conclusion that there was an enforceable oral settlement agreement.

It was for all of the foregoing reasons that this court determined that Ratasiewicz failed to provide sufficient proof to support the contention that the settlement agreement was unenforceable, or that there was any unilateral mistake sufficient to set aside the agreement.

FRAUD

Ratasiewicz argues that plaintiff, Robert Peterson, committed fraud by collecting workers’ compensation benefits while still working and by using the social security number of his son. Defendants offer nothing but bald assertions to support this contention. Defendant Ratasiewicz seeks an inference of that fraud by the withdrawal of Mr. Peterson’s workers’ compensation attorney from representation. (Exhibits R-l to R-3.) Defendants complain that they were not able to depose Mr. Peterson but neither did defendants seek to obtain other discovery such as Mr. Peterson’s work status from other sources. Indeed, Ratasiewicz admitted to having been informed a year prior to his deposition that Robert Peterson had been working, and “that he had a job” during the time he was collecting workers’ compensation benefits. (Exhibit S-15, p. 185.) Mr. Ratasiewicz was specifically asked, “Is there anything that you were privy to that you have knowledge of that in any way indicates that Robert Peterson’s claims have not been legitimate and that he has not been honest?” (Exhibit S-15, p. 184.) How can defendants now claim newly discovered evidence of fraud?

The court found, and continues to believe, that Ratasiewicz’s continued argument concerning “unclean hands” on the part of plaintiffs and their lawyer is founded upon allegation only, and that the record does not support a fair conclusion that plaintiffs’ conduct is sufficient to bar any settlement agreement, especially in light of Mr. Ratasiewicz’s sworn deposition testimony indicating that he had known for at least a year that Mr. Peterson was collecting workers’ compensation benefits while working. Defendants Ratasiewicz have simply failed to meet their burden of establishing that plaintiffs and their attorney conducted themselves in such a manner as would shock the conscience of this court, or that they were under a unilateral mistaken belief concerning plaintiff’s conduct such as would necessitate an avoidance of the settlement agreement. Fumo v. Redevelop- merit Authority of Philadelphia, 115 Pa. Commw. 542, 541 A.2d 817 (1988); Kramer v. Schaeffer, supra.

A settlement agreement will not be set aside absent a clear showing of fraud, duress or mutual mistake. McDonnell v. Ford Motor Co., 434 Pa. Super. 439, 643 A.2d 1102 (1994); Rago v. Nace, 313 Pa. Super. 575, 460 A.2d 337 (1983). The court must be satisfied that its conclusions are founded upon competent evidence. Yaros v. Trustees of the University of Pennsylvania, 742 A.2d 1118 (Pa. Super. 1999). The successful party is entitled to have the evidence reviewed in a light most favorable to him, and all such evidence must be taken as true, and any unfavorable inferences to the successful party, rejected. Yaros v. Trustees of the University of Pennsylvania, supra. A trial court’s decision will not be overturned on appeal unless its factual findings were capricious or against the weight of the evidence. Yarns v. Trustees of the University of Pennsylvania, supra.

The trial court’s review of the record and the applicable law convinced it that there was an enforceable oral settlement agreement and that defendants Ratasiewicz have failed to produce any basis whereby they can avoid the provisions of that settlement agreement. This court concluded, following the evidentiary hearing, that the settlement agreement in question is valid, binding on all parties, and should not be set aside. McDonnell v. Ford Motor Co., supra.

It is for all of the foregoing reasons that this court decided in favor of the plaintiffs and the additional defendants and against defendants Ratasiewicz. It is respectfully suggested that this ruling was appropriate, supported by evidence, law, and justice, and should therefore not be set aside.

      . The Honorable Clement J. McGovern Jr. was formerly the judge to whom the above-captioned matter was assigned. Judge McGovern entered the order upon which this appeal is based and contributed to the drafting of this opinion. He has since retired and this opinion has been completed and filed by the undersigned judge.