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DONEGAL MUTUAL INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (08/24/88)

filed: August 24, 1988.

DONEGAL MUTUAL INSURANCE COMPANY, APPELLEE,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT. DONEGAL MUTUAL INSURANCE COMPANY, APPELLANT, V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE



Appeal from Order and Judgment of the Court of Common Pleas, Civil Division, of Lancaster County, No. 245 May Term, 1982. Appeal from Order of the Court of Common Pleas, Civil Division, of Lancaster County, No. 245 May Term, 1982.

COUNSEL

Joel D. Smith, Lancaster, for appellant (at 3084) and appellee (at 3235).

Michael J. Hohenadel, Lancaster, for appellant (at 3235) and appellee (at 3084).

Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Beck, Kelly, Popovich and Melinson, JJ.

Author: Wieand

[ 377 Pa. Super. Page 173]

The issue in this appeal is whether an uninsured pedestrian, who has been struck by an insured vehicle, is a member of the household of a cousin from whom the pedestrian rented a room in order to have a place to stay when he was in Harrisburg. This issue must be determined in order to decide whether it is the insurer of the offending motor vehicle or the insurer of the cousin's non-involved vehicle which is liable for basic loss benefits under the now repealed No-fault Motor Vehicle Insurance Act.*fn1 Before reaching this issue, however, we must first determine whether the trial court abused its discretion by allowing appellant to file a motion for post-trial relief nunc pro tunc after a panel of this Court had quashed an earlier appeal for failure to file exceptions to the trial court's decision.

On January 1, 1981, Frederick Goldsborough, an uninsured pedestrian, was struck and injured in Harrisburg, Pennsylvania, by a vehicle insured by Donegal Mutual Insurance Company (Donegal). Basic loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act were paid by Donegal. On May 25, 1982, however, Donegal filed an action against State Farm Mutual Automobile Insurance

[ 377 Pa. Super. Page 174]

Company (State Farm) seeking a declaratory judgment that State Farm was primarily liable for Goldsborough's basic loss benefits. Goldsborough, it was alleged, had resided with and had been a member of the household of his cousin, Kathryn E. Chivis, who had lived in Harrisburg and whose vehicle had been insured by State Farm. State Farm denied such liability, contending that Goldsborough's principal residence had been in Wyoming, Delaware and that he had merely rented a room from his cousin so that he would have a place to stay while he was temporarily in Harrisburg. By agreement of the parties, the dispute was submitted to the trial court for decision on the basis of pre-trial depositions. The trial court determined that Goldsborough had been a member of the Chivis household and held that State Farm was liable for the payment of basic loss benefits. The court's order, dated August 1, 1984, appeared to be a final order; it contained no reference to the filing of exceptions and found in favor of Donegal and against State Farm. Judgment was entered, upon praecipe, in accordance with the trial court's decision.

An appeal was filed by State Farm on August 29, 1984. This appeal, however, was quashed by a panel of the Superior Court, whose memorandum recited that in the absence of exceptions the appeal was premature. Thereafter, on October 3, 1986, the trial court, on motion, allowed State Farm to file exceptions nunc pro tunc. Pursuant thereto, State Farm filed a motion for post-trial relief. This motion was denied on the merits on October 31, 1986, by an order which entered judgment in favor of Donegal and against State Farm. State Farm filed a timely appeal from this judgment.*fn2

[ 377 Pa. Super. Page 175]

Whether to permit the nunc pro tunc filing of a motion for post-trial relief in the nature of exceptions is clearly within the discretion of the trial court, and its decision will not be reversed in the absence of a manifest abuse thereof. Pokrzywnicki v. Kozak, 353 Pa. 5, 7, 44 A.2d 247, 248 (1945). See also: Haefele v. Davis, 373 Pa. 34, 40, 95 A.2d 195, 198 (1953); Hinnershitz v. United Traction Co., 206 Pa. 91, 97, 55 A. 841, 843 (1903); Brodsky v. Philadelphia Athletic Club, 277 Pa. Super. 549, 553, 419 A.2d 1285, 1287 (1980). An abuse of discretion in allowing the nunc pro tunc filing of a motion for post-trial relief is not merely an error of judgment. Only if "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will" can it be said that the trial court abused its discretion. See: Garrett's Estate, 335 Pa. 287, 292-293, 6 A.2d 858, 860 (1939). Indeed, the discretion which the trial court exercises in allowing a post-trial motion to be filed nunc pro tunc is such that it will seldom, if ever, be reversed on appeal. Even where a reviewing court would have decided differently, it will not interfere with the trial court's exercise of discretion. In the instant case, there is no basis whatsoever for finding that the trial court abused its discretion. There is not the slightest suggestion of "partiality, prejudice, bias, or ill-will"; and, as we shall demonstrate, the trial court's exercise of judgment was not only reasonable but eminently correct.

In cases where trial courts, sitting without a jury, have entered orders which appear to be final, both the Supreme Court and this Court have excused failures to file exceptions and have entertained the merits of appeals from such orders. See, e.g.: Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976) (where nothing on face of order would indicate that it is anything but a final order, failure to file exceptions will be excused); Altomare v. Altomare, 355 Pa. Super. 391, 393 n. ...


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