Canada Dry Bottling Co. of Williamsport, Inc. v. Mertz , 264 Pa. Super. 480 ( 1979 )

SPAETH, Judge:

This is an appeal from a judgment in a trespass action in the amount of $10,108.60.

On May 3, (or 4) 1973 — the date is sometimes stated one way, sometimes the other — one John N. Jones was killed when the automobile he was driving collided with an automobile driven by appellant John L. Mertz. Jones was employed by appellee, and at the time of the accident was acting in the course of his employment. His widow presented a workmen’s compensation claim, on behalf of herself and her five minor children, which appellee referred to its compensation carrier, Pennsylvania Manufacturers’ Association Insurance Company. The compensation agreement is not of record; however, the testimony indicates that it was agreed that compensation should be paid as follows: up to August 11, 1989, at the rate of $100 a week; from August 12, 1989, through October 15,1991, $90 a week; and from October 17, 1991, until the widow remarried or died, $76.50 a week. (The amount of the weekly payments was to decrease as the children became 18 years old.) (Record at 124a-125a)

In the meantime, the widow on behalf of herself and her children brought a wrongful death and survival action against appellant Mertz and his employer, appellant International Artware Corp. Her counsel negotiated a settlement for $125,000-$120,000 being alloted to the wrongful death action, and $5,000 to the survival action — and on April 24, 1974, the Court of Common Pleas of Luzerne County, in which the action had been filed, approved the settlement. (Record at 64a-69a) The petition for approval of the settlement is not as clear as it might be, but when read in the light of the testimony, it discloses the following facts. Pennsylvania Manufacturers’ pro rata share of the counsel fee on the settlement was $37,500-$36,000 for the recovery in the wrongful death action, and $1,500 for the recovery in the survival action. This fee, however, was not to be paid to the widow’s attorney as a lump sum but instead at the rate of $30 a week from April 10, 1974, to March 24, 1998 (1,250 weeks at $30 = $37,500). (Record at 94a, 160a-162a)

On June 2, 1975, appellee brought the action that is now before us; the action is in trespass, and seeks two distinct recoveries, which will be discussed in a moment.

On April 14 and June 20, 1977, the action was tried by a judge sitting without a jury. On July 8, 1977, the judge found: that the accident in which Jones was killed and appellee’s automobile destroyed was the result of appellant Mertz’s negligence; that at the time of the accident Mertz was acting in the course of his employment with appellant International Artware; that the fair market value of appellee’s automobile was $2,200; and that in consequence of the accident, appellee’s workmen’s compensation insurance premiums were increased a total of $7,908.60. The judge concluded that Mertz’s negligence “was a substantial fact in causing” those damages (Record at 35a); he therefore entered an order in appellee’s favor in the amount of $10,-108.60. Appellants filed exceptions. On September 20, 1977, these were dismissed, and final judgment was entered. This appeal followed.

The appeal does not challenge the propriety of the award of $2,200 for the destruction of appellee’s automobile; the only issues argued concern the propriety of the award of $7,908.60 for the increase in appellee’s workmen’s compensation insurance premiums. In their brief appellants have defined these issues as follows: 1) that the lower court “erred in finding [that the payments of $30 a week] were not counsel fees,” Appellant’s Brief at 7; 2) that with respect to appellee, the settlement of the wrongful death and survival actions “amount[ed] to an accord and satisfaction”, Appellant’s Brief at 9; and 3) that the lower court erred in finding that appellee “had no reasonable means of avoiding or negotiating the increase of insurance premiums, and were the premiums properly calculated?” Appellant’s Brief at 12.

We shall not consider the second of these issues; it has been waived, for appellants did not raise it in their exceptions to the lower court’s findings and order. See Pa.R.Civ.P. 1038(d); cf. Leopold v. Davies, 246 Pa.Super. 176, 369 A.2d 868 (1977). We might also decline to consider the first and third issues. Appellants’ brief has no section entitled “Statement of Questions Involved.” Pa.R.App.P. 2115 states: “The statement of the questions involved must state the question or questions in the briefest and most general terms . . . . This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” Where defects in an appellant’s brief are “substantial”, we have quashed the appeal on that basis alone. Commonwealth v. Sue Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978); Commonwealth v. George Scott, 237 Pa.Super. 160, 346 A.2d 359 (1975). Nevertheless, since the first and third issues have been addressed in appellants’ brief, and in reply, in appellee’s, we shall consider them.

With respect to the first issue raised by appellants: As we understand appellants’ argument, it is as follows: When a carrier, such as Pennsylvania Manufacturers’, recognizes an obligation to pay a workmen’s compensation claim in installments — such as the widow’s claim here — it must set up a reserve to cover the claim. In computing the amount of the reserve, the carrier may not take into account the counsel fee due the attorney who represented the claimant in the claimant’s action against a third party. Here, however, Pennsylvania Manufacturers’ did take into account the counsel fee. Accordingly, it set up too large a reserve, and that resulted in its increasing appellee’s workmen’s compensation insurance premiums more than they should have been increased.

Before this argument is considered from a legal point of view it may be useful to consider whether it is factually accurate.

It is possible to read the opinion of the lower court as saying that the argument is not factually accurate. In particular, Finding of Fact No. 4 says that workmen’s compensation insurance premiums

are controlled by the Pennsylvania Experience Rating Plan Manual issued by the Pennsylvania Compensation Rating Bureau. As a consequence of [the widow’s] workmen’s compensation claim . . . [appellee] was required to pay [a total of $7,908.60] increased workmen’s compensation insurance premiums .

Record at 33a-34a.

This at least implies that the court believed the increased premiums had been properly computed and charged.

It is difficult, however, to determine from the record whether this belief, if it was the court’s belief, was warranted. As already mentioned, the compensation agreement was not made part of the record. The record is unclear regarding just what was the amount of the reserve set up to provide for the payments required by the agreement. (See, e. g., Record at 125a, 126a, 153a.) Appellants’ expert witness seems to have based his opinion that the reserve was improperly large, and included provision for counsel fee, on the belief that Pennsylvania Manufacturers’ had recovered all of its loss by virtue of its subrogation claim against the fund created by the third party settlement. See Record at 154a, 156a. However, on rebuttal appellee called a representative of Pennsylvania Manufacturers’ who testified that it had not recovered all of its loss. Record at 174a. In addition, appellants’ expert on cross-examination seems to have said that if Pennsylvania Manufacturers' had not agreed to pay the widow’s counsel $30 a week, it would have had to pay the widow, Record at 162a-163a, which suggests that the amount of reserve to cover the $30 a week payments was in reality to cover an obligation to the widow. This may have been the view of the lower court, for in its Finding of Fact No. 7 the court rejected “[appellants’ contention] that the $30.00 per week obligation of the workmen’s compensation carrier is really a payment of counsel fees,” going on to indicate that the obligation reflected a private arrangement between the widow and her attorney that the entire fund created by the third party settlement would go to the widow, with the attorney to receive his fee in installments instead of as a lump sum. Record at 34a-35a.

The questions raised by these several incomplete or ambiguous aspects of the record need not be answered; for when appellants’ argument is considered from a legal point of view, it becomes apparent that whether the reserve was properly or improperly computed is of no importance to the disposition of this appeal.

Appellants have argued that the reserve was improperly computed. Let us suppose it was. That would mean that appellee would have a claim against Pennsylvania Manufacturers’; the claim would be that because the reserve was too large, the premiums charged appellee by Pennsylvania Manufacturers’ were too high. However, how could that conclusion in any way help appellants?

The fatal defect in appellants’ argument is that no where in their brief do they suggest any answer to this question. Thus we are left in a state of suspension: appellants have made an argument that appears to have no relevance, for even if it is accepted, it cannot afford appellants any basis for relief.

As one reflects upon this curious situation, the reason for it becomes clear. The lower court found that the increase in appellee’s workmen’s compensation insurance premiums was attributable to appellants’ negligence. Specifically:

. The negligence of [appellants] was a substantial factor in causing the loss [both the $2,200 in property damage to appellee’s automobile and the increase in premiums]. The loss would not have been incurred but for said negligence.

Lower Court Finding of Fact No. 5, Record at 34a. In their brief to us, appellants have in no way challenged this finding; they have not even alluded to it.

Judge LIPEZ, in his concurring and dissenting opinion, has expressed the view that the finding reflects a misapprehension of the concept of legal causation. We have been unwilling to join the judge in this expression, because it is offered on his initiative; it does not derive from any argument made by appellants’ brief. As the record stands, the finding — or conclusion; the characterization is immaterial— is unchallenged by appellants in their brief. Accordingly, we have no power to challenge it on our own. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975); cf. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

With respect to the third issue raised by appellants; appellants have suggested in their brief several actions that might have resulted in appellee’s workmen’s compensation insurance premium being lower (“a request for a rebate”; “some type of modification”; a different “premium discount”). Appellants’ Brief at 12. These suggestions, however, do not show how appellee could have mitigated its damages for they all pertain to actions that might have been taken by Pennsylvania Manufacturers’ — not by appellee. Appellants assert that appellee “might very well have been able to purchase the same coverage at a lesser figure.” Appellants’ Brief at 13. The record does not support this assertion.

Affirmed.

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