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filed: April 23, 1982.


No. 1818 October Term, 1979, Appeal from the Orders dated August 21, 1979, of the Court of Common Pleas of Montgomery County, Civil Action, Law, No. 71-03592.


Fred Lowenschuss, Philadelphia, submitted a brief on behalf of appellants.

James M. Marsh, Philadelphia, for appellee.

Herbert Somerson, Philadelphia, for participating parties.

Price, Wickersham and Lipez, JJ.

Author: Lipez

[ 300 Pa. Super. Page 530]

After the second trial*fn1 of this negligence action, plaintiffs obtained a judgment for $150,000 against the defendant cab companies. Defendants appealed that judgment, and this court affirmed per curiam. Cohen v. Jenkintown Cab Company, 282 Pa. Super.Ct. 625, 425 A.2d 850 (1980). While that appeal was pending, the court below entered five orders, all dated August 21, 1979. From these five orders, plaintiffs took this appeal. Plaintiffs have abandoned any challenge to three of the orders by failing to raise any issue concerning them in their brief.*fn2 We shall dismiss the appeal as to those three orders.

The two remaining orders granted petitions by the defendants' insurer, appellee National Indemnity Company. One was a petition to intervene, which the court below granted solely to allow National Indemnity to pursue the other petition, which was captioned as a "Petition for Leave to Pay Funds into Court." Besides the questions of whether these two petitions were properly granted, we must also decide National Indemnity's motion to quash this appeal, which this court en banc has referred to this panel by per curiam order, stating, "AND NOW, December 11, 1979, decision on the within Motion to Quash is hereby deferred until oral argument and review of the briefs and record on the appeal dismissal issue, along with other issues on the merits." We shall deny the motion to quash, affirm the order granting National Indemnity leave to intervene, and

[ 300 Pa. Super. Page 531]

    reverse the order granting the petition captioned "Petition for Leave to Pay Funds into Court."

The issues in this appeal have been obscured by bitter procedural wrangling. The only thing on which the briefs for National Indemnity and the plaintiffs seem to agree (and in this they are correct) is that the lower court's order is inconsistent with the opinion in support of that order. To decide both the motion to quash and the appeal itself, we must first understand precisely what the so-called "Petition for Leave to Pay Funds into Court" requested and the order granted. This in turn can only be understood in light of what led National Indemnity to file its petition in the first place -- our Supreme Court's decision in Incollingo v. Ewing, 474 Pa. 527, 379 A.2d 79 (1977).

Like this case, Incollingo involved the issue of an insurance company's liability for interest on a judgment against its insured when the amount of the judgment exceeds the policy limit. Like National Indemnity in this case, the two insurer appellees in Incollingo had $10,000 policy limits, vastly exceeded by the amount of the judgment against their insureds. One of the insurers, Firemen's, had relevant policy provisions very similar to National Indemnity's. Firemen's provisions were quoted in Incollingo as follows:

"With respect to such insurance as is afforded by this policy, the company shall:

(a) defend any suit against the insured alleging . . . injury and seeking damages on account thereof . . .

(b)(2) pay all expenses incurred by the Company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in the Court such part of such judgment as does not exceed the limit of the Company's liability thereon . . . and the amounts so incurred, except settlement of claims and suits, are payable

[ 300 Pa. Super. Page 532]

    by the Company in addition to the applicable limit of liability on this policy.

Incollingo v. Ewing, supra, 474 Pa. at 531, 379 A.2d at 81.

The Court first rejected Firemen's contention that it owed no interest because it could not be liable for any amount in excess of its $10,000 policy limit, stating:

We adhere to the general rule stated in Hafer [v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968)] that absent an insurer's agreement to do so, an insurer is not liable for interest in excess of policy limits. We hold today, however, contrary to Hafer, that when an insurance company contracts with an insured to "pay . . . all interest accruing after entry of judgment," Pennsylvania law requires that the defendant pay interest computed from the date of verdict to the entry of judgment and interest on the amount of the judgment entered thereafter.

Id., 474 Pa. at 537, 379 A.2d at 84. The Court also rejected an alternative argument by Firemen's as follows:

Firemen's argues that its interest liability should be calculated on the basis of the ratio of its policy limit to the judgment. We find Firemen's argument without merit. Here again the contract between insured and insurer is controlling. Firemen's easily could have limited its interest liability on a large judgment against its insured to that portion of the judgment covered by its policy. No such provision appears in the contract between Fireman's [sic] and its insured. We read Firemen's policy as saying, in effect, it will pay all interest on the judgment until it tenders its part of such judgment, not as saying it will pay interest on its part of the judgment until it tenders its part of the judgment.

Id., 474 Pa. at 538, 379 A.2d at 85 (emphasis in original).

Because of Incollingo, even though National Indemnity had a policy limit of $10,000, its liability for interest on the full $150,000 judgment was continuing to accrue while the appeal from the judgment was pending. In an effort to stop the running of interest, National Indemnity filed the document

[ 300 Pa. Super. Page 533]

    captioned "Petition for Leave to Pay Funds into Court," which stated in pertinent part:

4. The said Insuring Agreement II(b)(2) provides, inter alia, that the insurer will "pay . . . all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the Company's liability thereon", in this case $10,000.

5. In order to limit its liability for interest under this paragraph, your Petitioner desires to pay into this Court, to hold pending the outcome of the appeal which it is prosecuting on behalf of its insured, a sum equal to the limits of the policy plus interest on the verdicts up to the date of the payment into Court, a total of $23,875.00.

6. Under the terms of the policy, specifically "Exhibit A" hereto, your Petitioner's ultimate liability to its insured cannot exceed the said sum of $23,875.00, even if the verdicts totaling $150,000 should be sustained on appeal.

7. If this motion is not granted, your Petitioner would be seriously and irreparably prejudiced because its only alternatives would be to (a) pay the said $23,875.00 to plaintiff with the knowledge that the money can never be recovered if the verdicts are overturned on appeal, or (b) do nothing and have to defend a claim that it is obligated to pay not only its limits but interest on the verdicts until the date of payment, after appeal (if the appeal is unsuccessful) which interest would accrue at the rate of $750.00 per month for as long as the appeal is pending in the Superior and Supreme Courts.

WHEREFORE, your Petitioner prays this Honorable Court permit your Petitioner to pay the said sum of $23,875.00 into this Court, to be held pending the final appellate decision as to whether or not your Petitioner's insured is liable to plaintiffs above named.

The court below granted this petition in the following order:

And now, this 21st day of August, 1979, after oral argument on August 10, 1979, the petitioner's, National

[ 300 Pa. Super. Page 534]

Indemnity Company, Petition of National Indemnity for Leave to Pay Funds into Court of August 15, 1978, is granted.

The petitioner, National Indemnity Company, is granted leave to pay into court as of August 15, 1979, the sum of $23,875.00 to be held pending determination of this matter presently pending upon appeal in the Superior Court of Pennsylvania.

This order explicitly gave National Indemnity exactly what it had asked for in its petition -- a judicial determination that National Indemnity could stop the running of interest on its liability by handing over to the court an amount sufficient to cover its liability up to the date the money was handed over. Under the terms of the order, as National Indemnity had requested, the money would be returned to National Indemnity if its insureds were ultimately successful on appeal; if they were unsuccessful, the money would satisfy National Indemnity's obligations in full with no additional interest liability from the time the money was placed with the court to the final adjudication of the matter.

Given these facts, we can easily dispose of National Indemnity's motion to quash. National Indemnity's brief contends that plaintiffs lack standing to challenge the lower court's orders granting National Indemnity's petitions.

Our cases dealing with standing have been summarized in Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975):

"The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not 'aggrieved' thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law."

464 Pa. at 192, 346 A.2d at 280-81 (plurality opinion). Accord, e.g., Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 432 A.2d 1375

[ 300 Pa. Super. Page 535]

(1981). Moreover, "the relationship between the challenged action and the asserted injury must be direct and immediate, not a remote consequence." Independent State Store Union, supra, 495 Pa. at 154, 432 A.2d at 1380.

Application of El Rancho Grande, Inc., 496 Pa. 496, 503, 437 A.2d 1150, 1153 (1981).

The effect of the orders appealed in this case was to reduce the amount of interest plaintiffs would be able to collect from National Indemnity on the judgment they had against its insureds, the defendant cab companies. It could hardly be clearer that plaintiffs have a direct, immediate and substantial interest, which is particular to them, in the amount of interest they will be able to collect from the defendant's insurer.*fn3 The motion to quash must therefore be denied.

We can also easily dispose of plaintiffs' first contention -- that under Rule of Appellate Procedure 1701(a),*fn4 the lower court had no jurisdiction to enter the orders granting National Indemnity's petitions after the appeal had been taken from the judgment against National Indemnity's insureds, the defendant cab companies. Rule of Appellate Procedure 1701(c),*fn5 however, provides that the lower court's

[ 300 Pa. Super. Page 536]

    deprivation of jurisdiction after an appeal is taken is limited to matters in dispute in the appeal. The question of National Indemnity's liability for interest on the judgment is not, and could not be, involved in the defendant cab companies' appeal from the underlying judgment. The court below thus correctly held that National Indemnity's petitions dealt with collateral matters on which it could properly act while the defendant cab companies' appeal was pending. Cf. Commonwealth ex rel. Brown v. Brown, 254 Pa. Super.Ct. 410, 414, 386 A.2d 15, 17 (1978); see also Wilson v. Wilson, 297 Pa. Super.Ct. 14, 21-22, 442 A.2d 1189, 1192-93 (1981). Since this is plaintiff's only ground of attack on the order granting leave to intervene,*fn6 that order will be affirmed.

However, we agree with plaintiffs' one remaining contention, that the court below erred in granting the petition captioned as a "Petition for Leave to Pay Funds into Court." Despite its caption, the petition did not request leave to pay funds into court. As the court below correctly stated in its opinion:

Money paid into court becomes the absolute property of the other party, Baldwin Township School District v. Pittsburgh Terminal Coal Corporation, 328 Pa. 17, 18-19 [194 A. 900] (1937), and the tenderer cannot ordinarily withdraw it or recover any part of it, even if he eventually prevails in the action. 15 Standard Pennsylvania Practice, Ch. 74, § 24. Berkheimer v. Geise, 82 Pa. 64, 67 (1876); Haug et ux. v. Old Guard Mutual Insurance, 4 D. & C.2d 436, 441-2 (1955); see also ; 35 A.L.R. 1252; 74 Am.Jur.2d Tender, § 31; 86 C.J.S. Tender, § 65.

What National Indemnity's petition requested, and the lower court's order explicitly granted, was the right to get the money returned if the pending appeal were successful, while at the same time stopping the further accrual of National

[ 300 Pa. Super. Page 537]

Indemnity's interest liability if the appeal were not successful.

Plaintiffs contend, and we agree, that funds are not "deposited in court" as required by the policy to stop further accrual of the insurer's interest liability, unless the insurer relinquishes any claim to the money, making it the absolute property of the judgment holder even if the judgment is later reversed on appeal.*fn7 National Indemnity's petition did

[ 300 Pa. Super. Page 538]

    not request this, and the order of the court below accordingly did not grant it.*fn8 Because the order allows National Indemnity to stop the accrual of its interest liability without

[ 300 Pa. Super. Page 539]

    relinquishing its claim to the money if the judgment is overturned on appeal, the order is not in accordance with the requirements of the policy and must be reversed.*fn9

Motion to quash denied; order granting the "Petition of National Indemnity Company for Leave to Intervene" affirmed; order granting the "Petition of National Indemnity Company for Leave to Pay Funds into Court" reversed; appeal dismissed as to remaining three orders dated August 21, 1979.

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