text:
    530 A.2d 430
    In re A.M. and P.M. Minors. Appeal of DOROTHY M. and James M.
    Superior Court of Pennsylvania.
    Argued June 23, 1987.
    Filed Aug. 20, 1987.

      Anne Vaughan, Media, for appellants.
    Joyce A. Monaco, Media, for appellees.
    Before MCEWEN, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellants appeal from an Order entered by the court below on December 11,1986, which approved and adopted a master’s determination that appellants’ two children, A.M. and P.M., were dependent and which placed legal and physical custody of the children with Children and Youth Services of Delaware County (CYS) retroactive to August 14, 1986. Appellants filed an appeal with this Court on December 26, 1986, but also filed exceptions with the court below. At a hearing on the exceptions on January 28, 1987, Judge Robert A. Wright advised appellants’ counsel that she could not have her exceptions heard while her appeal was pending. Counsel chose to withdraw her exceptions and await the outcome from this Court. We affirm the lower court’s Order.

In his Opinion, the trial judge takes the position that there should be no appeal unless the party who is dissatisfied with the decision of a master has requested a rehearing (Slip Op., Wright, R., 2/4/87, pp. 2, 4, 5). This is not contemplated by the statutory scheme. The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., provides for a hearing to be held before a master, instead of a judge, if there is no objection made by any party (42 Pa.C.S.A. 6305(b)). “A rehearing before the judge may be ordered by the judge at any time upon cause shown. Unless a rehearing is ordered, the findings and recommendations become the findings and order of the court when confirmed in writing by the judge.” (42 Pa.C.S.A. § 6305(d).) The section clearly does not require that exceptions be filed (as in the divorce and support rules) nor that a rehearing must be requested before an appeal can be taken from a court-approved master’s determination.

The use of masters in family related cases has become quite extensive — in divorce proceedings, Pa.R.C.P. 1920.51, Hearing by the Court. Appointment of Master. Notice of Hearing and Pa.R.C.P. 1920.53, Hearing by Master. Report, and in support proceedings, Pa.R.C.P. 1910.10, Alternative Hearing Procedures, Pa.R.C.P. 1910.11, Office Conference. Subsequent Proceedings. Order and Pa.R.C.P. 1910.12, Office Conference. Hearing. Record. Exceptions. Order. In each of the above, there is a provision for written exceptions to be filed within a ten-day period which, for support cases, will result in either a hearing de novo by the court, Pa.R.C.P. 1910.11 (f), (g) and (i), or arguments on the exceptions, Pa.R.C.P. 1910.12(e) and (g), followed by a final appealable Order. In divorce cases, it is provided by Pa.R.C.P. 1920.55, Master’s Report. Notice. Exceptions. Final Decree, that (a) exceptions must be filed within ten days of notice of filing of the master’s report, (b) if no exceptions are filed, the court shall review the report and if approved, shall enter a final decree and (c) if exceptions are filed, the court shall hear argument and enter an appropriate final decree. In each of the procedures, it is clear there is no alternative to proceeding except as detailed by the rules; failure to do so results in a waiver of any alleged error for appeal purposes. No similar provisions are contained in the Juvenile Act, § 6305(b). The failure of the act to specifically require exceptions or to mandate a review by the court, instead leaving this within the trial court’s discretion, would appear to obviate review as a mandatory part of the post-adjudication procedure, such as required in support and divorce actions. We also point out that the rules explicitly exempt custody and paternity proceedings from hearings by masters. Pennsylvania Rules of Civil Procedure 1920.51(a)(2)(iii) states: “No master may be appointed in a claim for custody or paternity.”

It has been the time-honored and universal rule that where custody of children is in issue, the decision may only be made by a judge. {See 48 P.S. § 92 Judges to decide disputes as to children’s custody.) The departure in juvenile cases appears to be in response to the heavily burdened juvenile courts of the state and the provision for rehearing on cause shown is to permit the ultimate determination on the facts to be made by a judge. However, since he must exercise discretion as to whether or not such rehearing must be granted, it cannot be maintained that a respondent has a right to review. Obviously, the legislature intended to grant the juvenile judge authority to rehear a case heard by a master if he deemed it necessary. We can only take this to mean that a final Order by a trial judge, whether or not petition for rehearing was filed, is appealable and there is no requirement to file exceptions to the master’s report to preserve issues on appeal. We would be loathe to find otherwise, absent explicitly clear legislative intent, as no cause presented to the court carries greater implications for society than the intrusion of the state into the relationship between a child and his parent. We could not conceive of a more deleterious provision in the law than to foreclose a parent from appealing the decision of a master or court for failure to file exceptions when no requirement to do so is evident, no time for doing so is set and no notice provision is established. We can only perceive that 42 Pa.C.S.A. 6305(b) was not meant as a post-trial review process but rather was meant to provide an additional safeguard to the use of masters, when such a proceeding is not used in ascertaining custody elsewhere in the law.

The Juvenile Act, at 42 Pa.C.S.A. § 6341, sets forth a two-step process to be applied in child dependency cases. That section provides in pertinent part:

§ 6341. Adjudication
(a) General Rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child ...
(c) Finding of dependency. — If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.

In In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979), we held that an appeal cannot be taken from the determination of dependency, as that is interlocutory in nature, but appeal will lie after final disposition has been made. “After a final disposition has been made, the entire proceedings will be subject to review, including the sufficiency of the evidence to support the court’s finding of dependency.” Id., 264 Pa.Superior Ct. at 302, 399 A.2d at 787. See In re Sharpe, 248 Pa.Super. 74, 374 A.2d 1323 (1977); In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976); In the Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976).

As both of the steps had been taken in the instant case, appellants properly brought their timely appeal before this Court. Thus we may proceed to examine the merits of their claims.

Appellants’ first issue on appeal is whether the court's adjudication of dependency and disposition was supported by clear and convincing competent evidence. We find there is ample evidence on the record to support the court’s finding of dependency.

A.M. is eight; P.M. is eleven (H.T. 8/26/86, p. 3). A CYS worker began an investigation on July 31, 1986, into allegations of abuse of the children (H.T. 8/26/87, pp. 15-16). Appellee/CYS’s basis for action was a referral from Connecticut.

The Connecticut CYS informed the Delaware County CYS that the family had been brought to its attention on March 26, 1986, when an emergency shelter staff there reported that both children were subject to a serious lack of proper parental care and control (Request for Protective Custody Order, 8/13/86, p. 1). The Request for Protective Custody Order stated that the Connecticut referral said:

Both children displayed frightened withdrawn behavior, alternating at times with overly aggressive behavior toward peers. [A.M.] made statements to a counselor that her father hits her ‘all the time’ and that she was afraid someone v/ould tell her father she told. On two occasions, [A.M.] was observed to have evidence of injury, one a ‘large injury on the right side of her cheek’ and the other ‘a large red mark with scratches on the inside of the arm.’ It was reported that ‘[A.M.] is often tearful and distressed, unable to participate in the program’s activities.’
[P.M.] was described as having (prepsyehotic) behavior, e.g. ‘stalking in the halls animal-like, making grunting sounds.’ On a day when [P.M.] and [A.M.] were left unsupervised overnight at the shelter and missed their school bus, [P.M.] would not speak and ‘tried, to crawl in a narrow spot between a bookcase and the wall, attempting to curl up in a ball.’ Another child in the shelter program reported to a counselor that [P.M.] had told her that his father punished him for his encopresis (i.e. inability to control his bowel functions) by making him eat his feces. Mr. [M.] was reported to engage in a regular pattern of belittling both children verbally (e.g. calling them ‘dumb’, ‘stupid’ and ‘useless’) and in physical intimidation under the guise of ‘playfullness’ (e.g. punching at [P.M.] with his knuckles and then laughing and acting like they were sparring together).
Subsequent to the acceptance of this case in Connecticut as an ‘at risk’ situation, the family moved to another community in that state and then left that locale with status of whereabouts unknown____

Request for Protective Custody Order, pp. 1-2.

The Request Order also said:

On August 7, 1986, an Intake Worker at the Department of Public Assistance reported that while in that office, [A.M.] and [P.M.] were observed to be ‘dirty and out of control’ and that the parents ‘hit them’ and exercised other inappropriate means of control.
On August 8, 1986, the staff person at the Emergency Shelter reported that she recalled, also, observing ‘red marks’ on [A.M.’s] neck while the family was at the shelter. She reported that she had information that the family planned to move to New Jersey.

Request for Protective Custody Order, p. 2.

The New Jersey state agency was involved with the family from 1982 to 1985 (H.T. 8/26/86, pp. 19-20). Investí-gation into records of New Jersey state showed that A.M. and P.M. were picked up by police at a casino there; P.M. had been hit by a car and A.M. was found to have head lice (H.T. 8/26/86, p. 54). On the basis of the serious allegations of the Department of CYS in Connecticut, the pattern of behavior reported from local sources and the fact that there was an established pattern of flight, together, with a tip that the family planned another move, CYS requested that protective custody of P.M. and A.M. be taken and that they be placed in a CYS foster home until a right to detain hearing could be held.

An Order was entered on August 14, 1986, granting CYS protective custody of the children, effective August 13, 1986, with placement in an agency-approved foster home until the right to detain hearing; the hearing was held on August 15, 1986, at which time appellants stipulated to detention of their children pending adjudication. Hearings were held before a master on August 26, 1986, September 11, 1986, and December 5, 1986. As a result of these hearings, the master adopted the recommendation of CYS that the children be placed in its care. The master’s findings were adopted by the court on December 11, 1985.

At the August 26 hearing, Jan Lizotte, the coordinator of Concern, Inc. (Concern), a foster care agency, testified, over objection, the foster mother had made to him certain statements which she said the children had made to her. He said the foster mother had reported that P.M. seemed quite obsessed with sexual material, he talked quite frequently about having had sex and he was preoccupied with discussions about sex (H.T. 8/26/86, p. 121).

He further testified the foster mother had reported that A.M. also talked quite a bit about sexual issues (H.T. 8/26/86, p. 122). A.M. discussed being made by her mother to watch pornographic movies (H.T. 8/26/86, p. 12). She also discussed with the foster mother having watched her parents have intercourse (H.T. 8/26/86, p. 123).

Psychologist Donald Pixler evaluated both children. He testified A.M. was preoccupied with sexualized themes and images (H.T. 8/26/86, p. 150). She exhibited defensiveness around males and was most receptive to female figures. Pixler testified P.M. had seen a form on Pixler’s desk which asked for name, age and sex. He described the boy’s reaction to that form as follows:

As he read those, when he got to the word sex, he immediately went off on a monologue about graphic sexual experiences that he had allegedly performed, engaged in, witnessed____ The acts included oral sex, genital sex, collusion with another individual, identified as an adult male to rape another individual____ They were very explicit, far beyond what you would call developmentally familiar or appropriate renditions of such experiences.

(H.T. 8/26/86, pp. 153-55.)

At a hearing held on September 11, 1986, the foster mother testified, over objections, as to statements the children had made to her. She testified:

And [P.M.] had said he had watched porno films, and [A.M.] had said that night, ‘Did I tell you that I also watched them?’ And I said, ‘No, you didn’t.’ And she said, ‘Well, yeah, I did.’
And she [sic] [foster mother] said, ‘Well, what did you think of it?’ And she said, T didn’t like it very much.’ And I said, “Why did you watch it?’ And she says, ‘Because Mommy says that I will have to do these things someday.’ And I said, ‘And what else made you nervous about watching the films?’ She said, ‘Well, I have to pull my pants down sometimes after.’ And I said, ‘Well, is there anything else?’ And she said, ‘Mommy and Daddy would have sex sometimes after the films in front of me.’ And I said, ‘Well, did they say anything to you?’ And she said, ‘Yes.’ She said that, ‘Mommy said that someday I will want to do these things.’

(H.T. 9/11/86, pp. 9-10.)

The foster mother also testified:

She has said that, ‘Daddy uses Vaseline, and Mommy doesn’t.’ Since she was 4 years old, she said that Daddy has touched her down below, and that Mommy also touched her, but didn’t use Vaseline____ She said that she doesn’t mind too much, because it doesn’t hurt very much and that they are her parents, so that makes it okay, doesn’t it, and that is what she has said to me.

(H.T. 9/11/86, pp. 10-11.)

The foster mother further said the children were infested with head lice, and she had just about cleared the problem up, when the children returned from a visit with the parents and had more mature head lice (H.T. 9/11/86, p. 11).

She testified that P.M. asked her husband, in her presence, about porno films for their video cassette recorder. She said the conversation went as follows:

‘Do you have any of the movies where the people are having sex?’ And my husband said, ‘No, we don’t have those kind of movies.’ And he said, ‘Well, how about the magazines where the people are, you know, doing things?’ He said, ‘Do you have any of them?’ And he said, ‘No.’ He asked us if we smoke pot.
Whenever someone on the TV comes on the TV [sic] and the boy sees a woman with legs, he gets all excited, and he starts, you know, with, ‘Well, you know what is above their legs.’

(H.T. 9/11/86, p. 12.)

The foster mother also testified as to the childrens’ hygiene. She said that P.M. had gnats and wet and messed his pants. When both children would eat at the dinner table, they would use their hands to eat mashed potatoes, vegetables or anything else (H.T. 9/11/86, p. 14).

The Pennsylvania Child Protective Services Law, 11 P.S. § 2208(a)(1), says a child may be taken into custody as provided by the Juvenile Act, 42 Pa.C.S. § 6324. That section, in turn, authorizes a law enforcement officer or duly authorized officer of the court to take a child into custody “if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from his surroundings, and that his removal is necessary.” (42 Pa.C.S.A. § 6324.) The child protection agency’s own investigation, along with the out-of-state reports, provided a more than sufficient basis for appellees to believe A.M. and P.M. were in need of protection and to indicate the need for their removal. This is especially true in light of the family’s pattern of flight and the indication that the family planned another move out of the area.

Likewise, evidence contained in the record is sufficient to support the lower court’s adjudication of dependency and subsequent disposition of the children. “A court may find a child dependent only on proof by clear and convincing evidence.” In Interest of Leslie H., 329 Pa.Super 453, 456, 478 A.2d 876, 878 (1984) (citing In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983)). In Leslie H., we vacated a court Order which had adjudicated the minor involved to be dependent. The only testimony offered by the Commonwealth at the hearing had been hearsay statements made by the minor’s best friend and an agency investigator. We said that with the hearsay discounted, little remained on record to support the lower court’s finding. In the instant appeal, appellants allege the only evidence of any sexual abuse of the children is hearsay testimony of the foster mother, the psychologist who examinied the children and the caseworkers involved in the matter and, therefore, Leslie H., supra, should control.

Our legislature has spoken on this issue, however, since the time of the Leslie H. decision. Effective April, 1986, hearsay statements are admissible in evidence in dependency proceedings under certain circumstances. Under 42 Pa.C.S.A. § 5986, it is provided:

§ 5986. Hearsay
A statement made by a child describing acts andi attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving the child or other members of that child’s family, if a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability.

The statements in question were, therefore, properly admitted.

In Frank W.D., supra, we set out the standard of review which we are to use in cases such as the one before us. We said:

The standard of review which this Court employs in cases of dependency is broad. In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 209, 368 A.2d 635 (1977). We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. In Re Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); In Re Kunkle, 265 Pa.Super. 605, 402 A.2d 1037 (1979). Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence. Commonwealth ex rel. Morales v. Morales, 222 Pa. Super. 373, 294 A.2d 782 (1972).

Id., 315 Pa.Superior Ct. at 517, 462 A.2d at 711.

We find here that the master had competent evidence to support his findings and, therefore, the lower court’s adjudication of dependency was proper. In In Interest of Y.P., 353 Pa.Super. 185, 509 A.2d 397 (1986), we said, “A child who has been adjudged dependent may not be removed from parental custody unless such separation is clearly necessary. Clear necessity is established when the court determines that alternatives to separation are unfeasible.” Id., 353 Pa.Superior Ct. at 189, 509 A.2d at 399. In that case, as here, sexual abuse of two children was the reason for the dependency finding. We determined that since sexual abuse was found, removal was necessary to protect the children from any repetition of the acts.

In the instant appeal, we conclude removal was necessary to prevent continuing opportunity for the parents to commit acts of abuse on A.M. and P.M. While a primary purpose of the Juvenile Act is to preserve the unity of the family whenever possible (42 Pa.C.S.A. § 6301(b)(1)), in view of the history of the parents avoiding supervision and/or rehabilitation by moving from one jurisdiction to another, resulting in failure to rectify serious parenting deficiencies and continuation of physical and moral debasement of the children, all of which has continued unabated since 1982, no other alternative than placement outside the home is available. This is one of the numerous cases which cries out for intensive effort to gain the parents’ attention and cooperation in altering their lifestyle and parenting techniques. This the trial judge has done in his carefully drafted and well considered Order. Failing this in a reasonable time, serious consideration should be given to termination of parental rights under the prevailing doctrine of Permanency Planning for children in foster care.

Order affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    530 A.2d 436
    John P. KAROLY, Jr. v. Joseph E. CAP, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1987.
    Filed Aug. 21, 1987.

      Joseph E. Cap, in propria persona.
    Norman E. Blatt, Jr., Allentown, for appellee.
    Before KELLY, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Lehigh County granting the plaintiff’s (John P. Karoly, Jr.’s) preliminary objections to the defendant’s (Joseph E. Cap’s) New Matter. We affirm in part, quash in part and modify.

The genesis of the present appeal is a Complaint in Assumpsit filed on June 29, 1983, by the plaintiff to recoup monies claimed due and owing for legal services rendered on behalf of the defendant.

Preliminary objections were filed by the defendant and were responded to in the form of an Answer by the plaintiff. In the ensuing three years preceding the defendant’s appeal to this Court, the record discloses a veritable onslaught of motions, petitions, orders and various other pleadings relating to the instant case (totalling some 29 in number) that appear to have done nothing more than protract this suit and accomplished little in the way of justice in the process.

The document which we need to concern ourselves with is the defendant’s Answer, filed at the direction of the court below once his preliminary objections to the plaintiff’s Complaint were dismissed by order and accompanying opinion dated September 5, 1984.

The Answer filed by the defendant admitted entering into an oral agreement with the plaintiff for legal services, but he asserted the amount agreed upon and already paid for the services performed came to $350.00 and not the $1,030.00 plus 1.5% monthly interest claimed due by the plaintiff.

In the New Matter portion of the defendant’s Answer, he claimed that the plaintiff’s negligent performance of his services constituted a breach of their agreement and foreclosed the defendant from supposedly recovering damages in excess of $10,000.00 from the individuals who instituted suit against him and against which the plaintiff was hired to defend.

The defendant also alleged that the plaintiff’s commencement of suit at the district justice level to have his vehicles levied upon, the execution sale of which was prevented by the defendant’s appeal to Common Pleas Court and the subsequent invalidation of the levy issued, entitled him to reimbursement of costs ($44.00), payment for his services in defending the suit ($1,562.00) and exemplary damages (in excess of $10,000.00).

By way of further answer, the defendant counterclaimed that the notice of sale of his property (affixed to his residence and published in the local newspapers) was wrongful and malicious because: 1) fraudulent statements were purportedly made in the writ of execution secured by the plaintiff; 2) the notice of sale was without right or legal authority because a writ of certiorari issued by Common Pleas Court supposedly acted as a supersedeas; and 3) the publication of the sale caused the defendant “great mental pain and humiliation and ... tended to expose[ ] him to public contempt and ridicule and ... caused an unfavorable opinion of him to be formed in the minds of the public, all of which [was] the direct, proximate and natural result of the wrongful acts of the plaintiffs [sic]____”

For this asserted “reckless, wanton, irresponsible, wilful and malicious” conduct attributed to the plaintiff, the defendant asked for punitive damages in excess of $10,000.00.

Preliminary objections were filed by the plaintiff and sought, initially, a motion to strike for improper joinder of Peter Karoly, Karoly Law Offices and Karoly and Karoly, P.C. under the counterclaim portion of the defendant’s New Matter for the defendant's failure to first seek leave of court to do so, and, in any event, joinder was asserted to be untimely.

Secondly, a motion for a specific pleading was sought as to the defendant’s negligence contention. Thirdly, a demurrer to the allegation of abuse of process/malicious prosecution was made on the basis that, inasmuch as the defendant’s claim appeared to be premised upon the writ of certiorari staying all proceedings, the Lehigh Local Rule of Court No. 550(b)(3) requiring a bond to be posted was not complied with, and, thus, no supersedeas attached to preclude the case from progressing.

Lastly, a motion to strike the “fraudulent” claim of the defendant was asserted because he failed to allege with particularity the factual predicate for the claims as required by Pa.R.Civ.P. 1019(b).

In response to the plaintiffs preliminary objections, the defendant filed an Answer — this is not foreign to the Pennsylvania Rules of Civil Procedure (e.g., Rule 1017(a)). Thereafter, several documents were presented by the defendant, i.e., Application For Continuance, Petition For The Recusal Of A Judge [Hon. James N. Diefenderfer] and Reply To Petition Seeking Counsel Fees — the defendant’s litigious behavior caused the plaintiff to seek counsel fees in the amount of $410.00 for having to respond to and appear at the various arguments held on the motions, petitions and exceptions filed by the defendant. No disposition seems to have been made as to the request for counsel fees by the plaintiff.

By order dated May 29, 1986, the plaintiff’s preliminary objections (which included motions to strike and for improper joinder, motions for a more specific pleading and a demurrer) were granted and the defendant’s New Matter was dismissed. Nowhere in the order is there any mention that the defendant was granted leave to amend his New Matter. Defendant thereupon brought this appeal.

At the threshold of our consideration of this appeal we must determine whether and to what extent the order at issue is appealable. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970).

In assessing whether an order sustaining preliminary objections (be they lodged by a plaintiff, a defendant or an additional party) is final, the standard remains the same and, we believe, is governed by Hudock, supra. There the Court wrote:

As a general rule, an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or entering judgment or otherwise terminating the action between the parties is interlocutory and, therefore, lacks the requisite finality to be an appealable order. Where, however, the order does, in effect, terminate the action between the parties, or so restricts the pleader with respect to further amendment of his complaint as virtually to put him out of court on the cause of action he seeks to litigate, it is a definitive and final order and, thus, appealable.

438 Pa. at 276, 264 A.2d at 671 (Citations omitted). Accord Olivieri v. Olivieri, 242 Pa.Super. 457, 364 A.2d 361 (1976) (Appealability of order granting preliminary objections to the appellant’s answer, new matter and counterclaim governed by Hudock).

The order of the court below, while granting the plaintiff’s preliminary objections to the defendant’s New Matter, had the effect of sustaining various motions (i.e., to strike, to strike for improper joinder, for a more specific pleading and a demurrer) of the plaintiff. As such, of necessity, we will look to the substance of the preliminary objections and the content of the New Matter in tandem to determine the appealability of the order in question. See, e.g., Hudock, supra; Olivieri, supra.

Initially, we observe that the defendant’s Answer to the Complaint had altered the caption to add “Peter Karoly, Karoly Law Offices, Karoly & Karoly, P.C.” as party-plaintiffs.

In New Matter paragraphs 8-10, the defendant charged the plaintiffs with a breach of the agreement referred to in the Complaint and negligence in failing to recover $10,-000.00 (supposedly by counter-suing) from those litigants the plaintiffs had been hired by the defendant to defend him against. And, as a result of the plaintiffs’ alleged conduct, the defendant was seeking in excess of $10,000.00 for actual damages and an equal amount for punitive damages.

The plaintiff’s response came in the form of preliminary objections, which, substantively, were in the nature of a motion to strike for improper joinder of “Peter Karoly, Karoly Law Offices, and Karoly & Karoly, P.C.” as involuntary plaintiffs.

We have stated on this subject that the granting of a party’s preliminary objections in the “nature of a motion to strike” and dismissing an appellant’s praecipe for joinder is always final and appealable. Jonas v. Wiesmeth Construction Co., 360 Pa.Super. 173, 520 A.2d 40 (1987); McCelland v. Devine, 315 Pa.Super. 363, 461 A.2d 1322 (1983) (Order denying a defendants’ petition to join an involuntary plaintiff addressed); Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982) (semble).

In responding to the plaintiff’s argument that the defendant acted untimely and without leave of court, thus believing his motion was properly granted, we first need to examine the facts: The record discloses that from the moment the Complaint was filed on June 29, 1983, the defendant inundated the court below with no less than 16 documents ranging from preliminary objections, exceptions, replies and petitions seeking stays, the latter of which resulted in an order of court (dated October 2, 1984) denying the defendant’s petition to stay proceedings so he would have to file an Answer within 20 days thereof. His Answer was submitted on October 16, 1984.

The exact two claims raised by the plaintiff here were found wanting in Jonas, supra, wherein the appellant had not only filed his praecipe for joinder beyond the 60 days permitted for such an action by Pa.R.Civ.P. 2253, but it had not sought leave of court to enter it. In reversing the order of the court denying the appellant’s efforts to join a party to the suit, this Court wrote:

Our Supreme Court in Graham v. Greater Latrobe School District, 436 Pa. 440, 260 A.2d 731 (1970) carved out an exception to the time period in which an additional defendant may be joined as prescribed by Pa.R.C.P. 2253.
There the court propounded:
Rule 2253 does not explicitly cover the situation of the joinder of additional defendants when the original defendant has filed preliminary objections to the complaint. If the objections are sustained, no problem will arise, however, for either the action will be dismissed or an amended complaint will be filed after which a sixty-day period begins. When the objections are overruled, as here, reason and policy require that the defendant be given sixty days to join additional defendants. Preliminary objections attack the validity of the pleading, and until those objections are overruled, a court has not determined that the plaintiff has filed a valid complaint. Applying that reasoning to time periods (1) and (2), the most reasonable construction of Rule 2253 would be that the defendant has sixty days from the time it is determined that plaintiff has filed a valid complaint. If no preliminary objections are filed, that will be the date of the filing of the complaint. If they are filed, that will be the date they are overruled. Also, it makes no sense to require the defendant to proceed as if the action will continue when he has before the court objections which, if successful, will terminate the litigation. No reasons of policy require that he follow these inconsistent paths at the same time.

Id., 436 Pa. at 443-44, 260 A.2d at 733.

The court’s holding in Graham has been followed in other cases where a complaint was filed, and the original defendant filed preliminary objections which would terminate the litigation if granted. See, Commercial Banking Corporation [v. Culp, 297 Pa.Super. 344, 443 A.2d 1154 (1982)].

The instant appeal is exactly on point with the cases we cite as precedent. Appellant was served with a complaint by Delaware Township to which it responded by filing preliminary objections in the nature of a demurrer. The sixty day period for joining an additional party was tolled and did not start to run until December 27,1984 when the lower court issued its order denying the objections. Appellants filed a praecipe to join Pocono on January 25, 1985 well within the sixty day period. We see no reason to deviate from the holdings of Graham and Commercial Banking Corporation, supra.

360 Pa.Super. at 178-179, 520 A.2d at 42-43 (Footnote omitted).

Instantly, as in Jonas, Rule 2253’s 60-day time period was stayed pending the determination of the defendant’s numerous pre-trial petitions and exceptions. The defendant filed his Answer, with additional plaintiffs listed thereon and which we find to have been a proper joinder even though no praecipe seeking joinder was filed, within 14 days after his petition (seeking to stay his having to file an Answer) was denied.

Furthermore, we would observe that the plaintiff’s contention, in subparagraph b of point 4 of his motion to strike for improper joinder, that the defendant should have joined the other named plaintiffs as “additional defendants” is not persuasive under the facts at bar.

For example, the court below at footnote 3 of its order wrote that the defendant’s averments in New Matter were mere “subterfuge”, and, this, of necessity, discounted the remedial effects an amendment (be it in the context of a pleading or joinder of parties by a different procedural method — i.e., Pa.R.Civ.P. 2252) could have had in potentially reversing the court’s position regarding its dismissal of defendant’s joinder efforts. See Unger v. Township of Hampton, 437 Pa. 399, 263 A.2d 385 (1970). This is reinforced by the fact that the court below could have added the additional plaintiffs on its own motion under Pa.R.Civ.P. 2232(c), if it had believed that they were “necessary” parties to the lawsuit, but it chose not to do so. See 7 Goodrich-Amram 2d, § 2232(c):1, 1.1 (1977).

Although we conclude that the portion of the order dismissing the defendant’s New Matter on a misjoinder ground is final (see Jonas, supra; McCelland, supra; Kelly, supra), we, nonetheless, find that the joinder of the additional plaintiffs as involuntary plaintiffs was improper.

Pa.R.Civ.P. 2227 controls those instances in which a party may be joined as an involuntary plaintiff:

(a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.
(b) If a person who must be joined as a plaintiff refuses to join, he shall, in a proper case, be made a defendant or an involuntary plaintiff when the substantive law permits such involuntary joinder.

Rule 2227 condones compulsory joinder “only where the substantive law provides that an interest is joint and the holder of such interest refuses to join. Involuntary joinder is necessary because without such joinder an indispensable party is missing and the action cannot proceed.” Kelly, supra, 307 Pa.Super. at 369, 453 A.2d at 628.

As has been the law in Pennsylvania for some time now, “the requirement of joinder of all having a joint interest” is required. Onorato, supra, 430 Pa. at 421, 244 A.2d at 24-25. Thus, the joinder issue reduces itself to whether, in the language of Rule 2227(b), the “substantive law permits such involuntary joinder” in the case before us.

What this Court has stated in the context of an employer-employee relationship is applicable here; to-wit:

An employer is not an indispensable party to his employee’s action in trespass against a third party tort-feasor. The interests of the employee and employer are not joint. The employee’s cause of action is independent of the employer and can be pursued without the latter’s joinder.

Kelly, supra, 307 Pa.Super. at 369, 453 A.2d at 628.

Sub judice, the plaintiffs cause of action is premised upon an alleged breach of contract by the defendant for legal services rendered on his behalf by the plaintiff. See Complaint at Record A-l and Exhibit “A” attached thereto. Ergo, the plaintiff’s cause of action is independent of the additional plaintiffs and can be pursued without the latter’s joinder. Id.

Involuntary joinder of the additional plaintiffs is not necessary to a determination of the plaintiff’s cause of action against the defendant; and the action of the plaintiff can proceed forward. Also, joinder of the additional plaintiffs for the purpose of determining fault, if any, is also improper substantively since it is a matter which can more properly be dealt with under the heading of “counterclaim” by the defendant in seeking to redress his complaints. See Pa.R.Civ.P. 2252; United National Insurance Co. v. M. London, Inc., 337 Pa.Super. 526, 487 A.2d 385 (1985); Olivieri, supra; see also Duquesne Light Co. v. U.S. Industrial Fabricators, 334 Pa.Super. 444, 483 A.2d 534 (1984).

Rule 2227, interpreted in light of the law, does not appear to have been intended as a spearhead for a defendant’s recovery of damages against those joined as involuntary plaintiffs. For example, in Kelly, supra, a defendant’s attempted joinder of an employer as an involuntary plaintiff in a suit instituted by the employee was done so to insulate the defendant from liability or apportion responsibility between the employer and the defendant for the resultant injury to the employee because of a defective product. Neither was successful because of the barring effect of the Workmen’s Compensation Act.

Likewise, in McCelland, supra, the defendant sought to join the plaintiff’s employer as an involuntary plaintiff for the purpose of holding the employer, vis-a-vis the defendant, accountable for the plaintiff’s injuries on negligence grounds.

Therefore, we read Rule 2227 to apply only when the right or liability of the parties is solely joint. This has been stated to mean that “[i]f the right of the claimants is solely joint they must all join as plaintiffs. If the liability of the defending parties is solely joint they must all be joined as defendants.” 7 Goodrich-Amram 2d, § 2227(a):l at 382 (1977). And, the nature of the claim will determine whether the liability is joint or several. Id. at § 2227(a):2 at 388.

Instantly, the nature of the defendant’s claim (“negligence”/malpractice) does not relate to a “right” of the claimant/plaintiff. Rather, it is directed at the alleged “liability” of the involuntary plaintiffs to the defendant. This joinder for “liability” purposes would seem to be proper if it were for the reduction or elimination of accountability of the defendant to the complainant/plaintiff. See Kelly, supra; McCelland, supra; cf. 7 Goodrich-Amram 2d, § 2227(a):2 at 388 n. 46, citing Snider v. McKean, 36 Pa.D. & . C.2d 203 (1964). Thus, the defendant’s use of Rule 2227 as an instrument by which to recoup damages is inconsistent with our reading of the law on the matter. See 7 Goodrich-Amram 2d, § 2227(a):l et seq. (1977).

As stated previously, the defendant’s objective can be achieved by utilization of Rule 2252 to hold the additional plaintiffs responsible to the defendant, and we see no reason to distort the intended purpose of Rule 2227 to achieve an end not contemplated by the law, i.e., as a means to recover damages. The defendant’s claim under the guise of involuntary joinder of the plaintiffs is, therefore, not cognizable through the use of Rule 2227(b).

To the extent that the court’s order of May 29, 1986, granted the plaintiff’s motion for a more specific pleading of the defendant’s New Matter at paragraphs 8-10, we find it to be interlocutory. See generally Local No. 163, International Union of United Brewery, etc. v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965).

At first blush, this would appear to be inconsistent with the indicators which, at least superficially, point to the order being labelled final. For instance, the most salient fact is the court below “dismissing” the defendant’s New Matter and, in effect, precluding the defendant from having the opportunity to amend that portion of his New Matter to plead an “affirmative” defense to the allegations proffered in the plaintiff’s Complaint. See Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968); Adcox v. Pennsylvania Manufacturers’ Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965); Sullivan v. City and County of Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954) and compare with Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965); Pellegrine v. The Home Insurance Co., 200 Pa.Super. 48, 186 A.2d 662 (1962); Higgs v. New York Fire Insurance Co., 176 Pa.Super. 310, 106 A.2d 860 (1954).

However, the twist in the case comes in the content of the defendant’s New Matter, i.e., he makes allegations of negligence/malpractice directed at the plaintiffs. This is totally at odds with the plaintiff’s breach of contract claim and is foreign to the pleading permitted under Pa.R.Civ.P. 1030.

Rule 1030 requires the filing of “affirmative” defenses by the defendant under New Matter to the plaintiff’s statement of claim in his Complaint. This means that the defendant “seeks no relief from the plaintiff except the denial of the plaintiff’s claim. No judgment in favor of the defendant is sought.” 2 Goodrich-Amram 2d, § 1030:3 at 300 (1976). In other words, New Matter is to consist of allegations of fact extrinsic of those averred in the statement of claim (see Kine v. Forman, 404 Pa. 301, 172 A.2d 164 (1961)) and is “in the nature of the common-law plea of confession and avoidance.” 2 Goodrich-Amram 2d, § 1030:1 at 283 (1976). Anything else pleaded in New Matter would be considered a traverse, set-off or counterclaim, and not a true “affirmative” defense as that phrase has come to mean in the realm of pleading in Pennsylvania. Kine, supra.

The procedure by which errors of form or substance in the defendant’s New Matter can be raised by the plaintiff has been held to be “in the same manner as in the case of the simple answer without new matter.” 2 Goodrich-Am-ram 2d, §§ 1030:3, 1037(c):2 (1976). This permits the plaintiff, at his option, to file preliminary objections in the nature of a motion for a more specific pleading, which he did here. See id. at § 1025:3; Pa.R.Civ.P. 1017(b)(3).

Thus, the court below properly ruled on the plaintiffs motion for a more specific pleading as to paragraphs 8-10 of the defendant’s New Matter by dismissing it. Although not articulated by the court below as to the reason therefore, we deem the order supportable for the defendant’s failure to comply with the dictates of Rule 1030, which requires the assertion of “affirmative” defenses only in New Matter. This the defendant did not do and renders the order interlocutory and not final because the defendant is not “out of court”. As stated by our Supreme Court in Ventura, supra, 431 Pa. at 463, 246 A.2d at 355:

An order does not put “a party out of court” unless it precludes proof of facts at trial, which is determined in favor of the pleader would provide him with a complete defense to the action. Adcox v. Pa. Mfgrs’ Assn. Cas. Ins. Co., supra.

Such is not the case here. The facts pleaded in the defendant’s New Matter at paragraphs 8-10 are not “affirmative” defenses so as to provide the defendant with a complete defense if presented at trial on the breach of contract claim of the plaintiff. On the contrary, the facts averred therein portray an independent cause of action against the plaintiffs for negligence/malpractice for which the defendant seeks damages.

Accordingly, we rule that segment of the lower court’s order granting the plaintiff’s motion for a more specific pleading and the dismissing of the defendant’s New Matter at paragraphs 8-10 to be interlocutory.

Lastly, in our assessment of the defendant’s New Matter (under the heading of “counterclaim”) at paragraphs 12-32 alleging a cause of malicious use of process or malicious prosecution, we find that aspect of the lower court’s order granting the plaintiff’s preliminary objections in the nature of a demurrer and dismissing the defendant’s counterclaim to be final and properly before us. See Broido v. Kinneman, 375 Pa. 568, 101 A.2d 647 (1954); United National Insurance Co., supra; 2 Goodrich-Amram 2d, § 1031(a):4 at 321 (1976).

In making our determination as to the propriety of the lower court’s order, we begin by examining Pa.R.Civ.P. 1031. It reads:

Rule 1032. Counterclaim
(a) The defendant may set forth in the answer under the heading “Counterclaim” any cause of action or setoff which he has against the plaintiff at the time of filing the answer (1) which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff’s cause of action arose, or (2) which arises from contract or is quasi-contractual.
(b) A counterclaim need not diminish or defeat the relief demanded by the plaintiff. It may demand relief exceeding in amount or different in kind from that demanded by the plaintiff.

Under Rule 1031 a defendant may set forth any number of counterclaims which he has against a plaintiff, provided, of course, that “the matter arise[s] from the same transaction or occurrence, or series of transactions or occurrences from which the plaintiff’s cause of action arose.” United National Insurance Co., supra, 337 Pa.Super. at 542, 487 A.2d at 393.

With the preceding in mind, the record indicates that the plaintiffs Complaint asserted, in relevant part, that the defendant breached an oral agreement for payment of legal services performed (both civil and criminal) on behalf of the defendant “stemming from the Defendant’s dealings with Valley Stamp and Coin, Inc., and/or Bruce Mayer.” (Paragraph 4)

The defendant counterclaimed with averments of malicious use of process or malicious prosecution concerning the plaintiff’s institution of a suit before a district justice in an attempt to recoup monies allegedly due him.

Further, the mariner and method by which the suit was commenced and the attempted execution of the order entered by the district justice were assailed as being done in bad faith, maliciously and without probable cause.

It is beyond cavil that the abuse of process counterclaim might not have surfaced had there been no contractual relations between the defendant and the plaintiff. However, the contentions of the defendant go “only to the circumstances surrounding the manner in which [the plaintiff’s] claim[ ] in assumpsit w[as] asserted, and the motives of [the plaintiff] in bringing suit.” Zivitz v. Centennial Road Properties, Inc., 328 Pa.Super. 79, 81, 476 A.2d 462, 464 (1984).

Thus, the counterclaim neither arises out of the tortious acts of the plaintiff in the very transaction upon which he is suing, nor is it directly connected with the performance of the contract. Id. Stated differently, the defendant’s cause of action for malicious use of process or malicious prosecution is separate and distinct from the plaintiffs cause of action alleging breach of contract. Any relationship between the separate causes of action is too remote and tenuous to allow the defendant’s cause of action against the plaintiff to be litigated in the plaintiff’s assumpsit action against the defendant. See Township of Upper Makefield v. Benjamin Franklin Federal Savings & Loan Association, 271 Pa.Super. 399, 413 A.2d 726 (1979).

Therefore, the court below properly dismissed the defendant’s counterclaim under New Matter.

When it dismissed the counterclaim, however, the court implied a final determination of the defendant’s cause of action against the plaintiff. This was not warranted by the pleadings. Id.; United National Insurance Co., supra. Final adjudication of the cause of action asserted by the defendant against the plaintiff must await separate proceedings in which the plaintiff’s liability to the defendant, if any, can be fully litigated. This portion of the order, therefore, will be stricken. See Township of Upper Makefield, supra; United National Insurance Co., supra.

Order affirmed in part, quashed in part and case remanded for proceedings not inconsistent with this opinion. Jurisdiction is not retained.

KELLY, J., concurs in the result.

      . We in no way wish to point the accusatory finger of delay at the court below or the plaintiff, both of whom appear to have made every effort to accommodate the seeming endless cascade of petitions, motions and exceptions submitted by the defendant pro se (some of them unheard of in the law) in his efforts to forestall completion of this lawsuit.

      . “[A]lthough cases on this subject are few and hoary, it appears that nothing need be done save include the involuntary plaintiffs on the caption of the complaint.” Onorato v. Wissahickon Park, Inc., 430 Pa. 416, 420, 244 A.2d 22, 24 (1968); 7 Goodrich-Amram 2d, § 2226(b):6 at 400 (1977). Defendant did so here with his inclusion of the added plaintiffs in the caption of his Answer.

      . In Unger’s footnote 1, discussion was had as to the trial court’s comments in its opinion to the appellate court that "no amendment would cure the defect of the complaint” rendering the granting of appellee’s preliminary objections to the appellant's complaint appeal-able even though leave to amend was also granted to the appellant. The point to be made is that an order is made appealable despite the fact that an opportunity to amend is afforded to the appealing party where it is too restrictive as, virtually, to put him out of court on the cause of action which he seeks to litigate. Sullivan v. City and County of Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954).

      . As an aside, we would note that the defendant’s bald allegation of "fraud” on the part of the plaintiffs in paragraph 11 of New Matter is lacking in specificity under Pa.R.Civ.P. 1019(b). In addition, it is not an "affirmative” defense, given the factual allegations made in the Complaint of breach of an agreement, so as to place the defendant “out of court” with the affirmance of the lower court’s order granting the plaintiffs motion to strike on this aspect of the defendant’s New Matter. Compare Higgs v. New York Fire Insurance Co., 176 Pa.Super. 310, 106 A.2d 860 (1954).

      . Rule 1031 was amended to afford a defendant the opportunity to include in his Answer under the heading of "counterclaim” any cause of action asserted in assumpsit or trespass which he has against the plaintiff at the time of filing the Answer. The amendment became effective July 1, 1984. However, “procedural rule amendments do not apply to actions at law instituted prior to the effective date of the amendment; procedural rights are determined by the law in force when the action is initiated.” Trinity Area School District v. Dickson, 223 Pa.Super. 546, 551, 302 A.2d 481, 484 (1973).
      Since the action at bar was commenced on June 29, 1983 by the filing of the Complaint by the plaintiff, the defendant’s Answer, albeit filed (October 16, 1984) after the effective date of the 1984 amendments to Rule 1031, the assessment of the defendant’s counterclaim comes within the ambit of the pre-1984 amendment to Rule 1031. See Duquesne Light Co. v. U.S. Industrial Fabricators, Inc., 334 Pa.Super. 444, 483 A.2d 534 (1984).


author: HESTER, Judge:

text:
    530 A.2d 445
    Ronald P. ZEIGLER v. Sallie C. ZEIGLER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1987.
    Filed Aug. 17, 1987.

      John C. Howett, Jr., Harrisburg, for appellant.
    Samuel Andes, Lemoyne, for appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

This is an appeal from a final decree of divorce which disposed of ancillary claims of equitable distribution, alimony, and counsel fees. The wife, appellant, challenges the economic aspects of the trial court’s disposition. We hold that there was no reversible error, and affirm the orders in question.

The parties were married in 1962, had one child, now an adult, and separated in October, 1982, when appellee left the marital residence to live with his paramour. Following the institution of divorce proceedings, a hearing was held before a master who filed a report and recommendation. Both parties filed exceptions to the report. The court held an additional hearing on the valuation of the two major marital assets: husband’s pension and the marital residence.

Before disposition of the exceptions to the master’s report, appellant petitioned for an injunction to prevent her husband from using marital funds to purchase a house with his paramour. Without ruling on the petition, the court entered a divorce decree and equitable distribution order on August 29, 1986. In response to appellant’s motion for post-trial relief, the trial court rescinded the August 29 order on September 15, 1986. Thereafter, on December 9, 1986, the court entered an order making a slight modification in the August 29 order, but otherwise reinstating it. On the same date, the court entered orders denying appellant’s petition for injunctive relief and appellee’s motion for post-trial relief. This timely appeal is from the orders of December 9, 1986.

Appellant raises five issues. She argues that the trial court erred in: 1) establishing a value for the marital residence higher than the evidence justified, 2) refusing to impose a constructive trust pursuant to her application for special relief, 3) allowing additional testimony following the master’s hearing concerning the value of husband’s pension, 4) denying appellant’s motion to strike appellee’s late-filed motion for post-trial relief, and 5) denying her claim for alimony.

The first issue is whether the court erred in its valuation of the marital residence. Expert testimony at the master’s hearing on October 11, 1984, established a value of $75,000 at the time of separation and $80,000 at the time of the hearing. The trial court, relying on Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986), ordered a hearing to update the valuation testimony which had been presented to the master in 1984, in order to value the property as near to the time of distribution as possible. Based on the expert testimony presented on January 15, 1986, the court used a value of $84,000 in making equitable distribution of the marital property.

Appellant objects to this value for two reasons. First she claims that the entire post-separation increase in value resulted from her efforts through physical maintenance and payment of mortgage, taxes, insurance and other expenses. She thus regards the court’s use of the later value of $84,000 to be an abuse of discretion, for it gives appellee the benefit of an increase in value to which he did not contribute.

We do not agree with appellant’s argument. Sergi v. Sergi, id., 351 Pa.Superior Ct. at 593-94, 506 A.2d at 931, suggests that a later valuation date will ordinarily be most equitable in order to prevent a distribution based on stale financial data. We regard the trial court’s approach to be a proper exercise of its discretion. Although appellant made the mortgage payments during the period of separation, the court’s equitable distribution order requires appellee to reimburse her in the amount of $8,000 for those mortgage payments. Moreover, appellant had the benefit of exclusive occupancy of the premises during the separation.

Appellant’s second objection to the value of $84,000 for the marital residence is that she intends to sell the house immediately and move to more modest quarters. She argues that the value of the residence should be reduced by expenses of sale to reflect its true value to her, for purposes of equitable distribution. Moreover, she asks this court to establish a rule that, in all cases where the recipient of a marital residence intends to sell it immediately, its value for equitable distribution should be reduced by a seven percent realtor’s commission and a one percent realty transfer tax.

The rationale for such a rule has been explained by the Honorable Clarence C. Morrison.

[E]ven if neither party contemplated selling the home, the costs of sale must still be deducted. Valuation is nothing more than a function of what the home is worth if it were to be presently sold; therefore, the costs of achieving that value should be considered. Moreover, any number of events could occur that would require the home to be sold at virtually any time. Thus, the Master did not err by including costs of sale in the net equity of the marital home.

Thrush v. Thrush, No. 1314 S. 1981, slip opinion at 3 (Dauphin County, September 21, 1984), aff'd per curiam 341 Pa.Super. 628, 491 A.2d 927 (1985), petition for allowance of appeal denied (Pa. July 25, 1985).

We decline to adopt such a rule for all cases, or even for all cases in which an immediate sale is intended. First, such an intention is not easily susceptible of proof. More importantly, the proper amount to deduct for costs of sale would be a matter of speculation. Although it is common practice to employ the services of a realtor in selling a home, it is not uncommon for an owner to undertake a sale without the assistance of a realtor. In the latter instances, no commission is involved. Moreover, although a commission of seven percent is common, it is by no means universal. Similarly, although realty transfer taxes are routinely split equally between buyer and seller, the practice is not universal.

Adjustment in the value of a residence for expenses associated with a contemplated sale may be an appropriate consideration in some equitable distribution cases. We neither forbid nor require the practice. In this case, however, we hold that the trial court’s refusal to deduct the costs of sale was a proper exercise of its discretion. The record does not establish the expenses incident to the contemplated sale with sufficient specificity to require that such expenses be deducted.

The second issue is whether the court should have imposed a constructive trust pursuant to appellant’s application for special relief. This claim arose when appellant learned during the separation that appellee intended to use marital funds to purchase a residence jointly with Sherry Small. Appellant’s attorney promptly applied for equitable relief on October 9, 1985, attempting to forestall the purchase. Hearing was set for November 6, 1985. Prior to the hearing, however, the purchase was made on October 28, 1985, and the residence was titled in Sherry Small’s name alone, though appellee had contributed marital funds toward the downpayment. The trial court held that appellee had acted deceptively and improperly, falsifying documents to use marital funds to purchase the house, yet the court declined to impose a constructive trust on the new residence. Instead, the court ordered appellee to make cash payments to appellant in the amount of the funds improperly diverted towards the purchase, as well as appellant’s counsel fees incurred in seeking equitable relief.

Appellant argues that this disposition was an abuse of discretion by the trial court, for it permitted appellee to remove liquid assets from the distributable estate which was already overburdened with non-liquid assets, notably the marital residence and appellee’s pension. Appellant believes the court was obligated to exercise its equitable power by declaring a constructive trust on the real estate so as to provide security for the repayment of the cash appel-lee had removed from the funds available for equitable distribution.

We hold that the trial court’s refusal to provide equitable relief was a proper exercise of its discretion. Equitable relief, of course, is not appropriate if there is an adequate remedy at law. We agree with the trial court that the statutory remedy, reimbursement through distribution of marital property, was adequate in this case.

Significantly, the adequacy of the legal remedy is not measured by the success or failure of a legal claim. Rather, in deciding whether a remedy is adequate, it is the remedy itself, and not its possible lack of success, that is the determining factor. The fact that the statutory remedy may not be successful in realizing the fruits of a recovery at law, on account of the defendants’ insolvency, is not, of itself, a basis for equitable intervention.

Chartiers Valley School District v. Virginia Mansions Apartments, Inc., 340 Pa.Super. 285, 294-95, 489 A.2d 1381, 1386-87 (1985). We therefore reject appellant’s second argument.

The next issue is whether the court erred in permitting additional testimony as to the value of appellee’s pension rather than accepting the master’s valuation which had been based on uncontradicted competent evidence offered through the report of appellant’s expert at the master’s hearing. The trial court deemed additional testimony to be necessary due to the master’s uncertainty as to whether the expert’s valuation had been reduced to present value. Master’s report, 5/14/85, at 9. Appellant argues that the expert’s report clearly indicated that the value was given as of October, 1982, the date of separation, that the court’s scheduling of another hearing was unnecessary and erroneous, that the second hearing put the parties to needless expense and delay, and that the second hearing culminated in an undervaluation of the pension with a concomitant reduction in appellant’s share in distribution of the marital estate.

We disagree. Prior to the master’s hearing, appellee stipulated to the admissibility of the report. It was therefore admitted into evidence without authentication by the expert, with the result that the expert was not present to clarify or explain the report. Though careful study of the report indicates that the valuation date used by the expert was October 16, 1982, the report itself does not state that date, and never uses the term “present value.” It is understandable that the master was uncertain whether or not the value stated in the report, $91,040, was the present value of the pension. The uncertainty thus created led the trial court to hear additional testimony on this point. We believe the court was well within the bounds of its discretion to seek verification of the value of the single largest marital asset.

At the hearing before the court on February 6, 1986, appellant’s expert testified that alternative, acceptable actuarial calculations produce values of $86,257.91 and $91,040, the figure he used in the report admitted in evidence at the master’s hearing. Appellant argues that either figure is acceptable, but that the value of $91,040 introduced at the master’s hearing should have been used and should have been increased by adding interest thereto until the date of the second hearing. Her position is that, inasmuch as the trial court erred by holding the hearing of February 6,1986, unnecessarily, we should accept the value of $91,040 from the master’s hearing of October 1, 1984, add interest of 8.5% per annum, and assign a value of $126,168 for purposes of equitable distribution.

Due to our conclusion that the trial court did not abuse its discretion in scheduling a hearing to supplement the inconclusive evidence presented to the master, we reject appellant’s argument that the “error” requires us to recompute the value of appellee’s pension. The value assigned by the trial court, $86,258, is supported by the testimony presented to the court, N.T., 2/6/86, at 35, 43, and will not be disturbed on appeal.

Appellant also claims that the trial court erred in denying her motion to strike appellee’s untimely motion for post-trial relief. We note that the order of August 29, 1986, was a final decree which would not have required the filing of exceptions. In response to appellant’s exceptions, however, the trial court vacated the order within thirty days so that consideration of the exceptions was proper. In any event, the court denied the exceptions filed by appellee. We therefore find no ground for relief.

The major thrust of this appeal is appellant’s attack on the trial court’s denial of her claim for alimony. She asks us to “reinstate” the master’s “award” of alimony in the amount of $100 per week for five years. Appellant alleges two reasons why the denial of alimony was an abuse of discretion. First, the trial court heard no testimony relevant to alimony beyond the evidence submitted to the master which he relied upon in making his recommendation that alimony was appropriate. Appellant therefore believes the court erred in denying alimony on the basis of the same evidence used by the master. Appellant’s second argument is that alimony is necessary to provide security in the event that appellee files a bankruptcy claim to discharge his obligation to make substantial cash payments to appellant pursuant to the equitable distribution order.

As to appellant’s first argument, it must be noted again that the trial court, in considering alimony, is required to assess the evidence independently of the master, and is perfectly free to reach a conclusion contrary to the master’s recommendation, whether or not additional evidence has been introduced. In this case, moreover, the trial court increased appellant’s award of marital property in equitable distribution over the award recommended by the master before denying the award of alimony he had recommended. The court awarded a cash payment of $9,637 in addition to the property the master recommended be distributed to appellant. Thus, her share of the property distribution was substantially larger than her share under the master’s recommendation. The court, of course, took into consideration appellant’s property distribution in weighing her need for alimony. 23 P.S. § 501(a)(1).

Although appellant argues that the trial court violated Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984), by utilizing the criteria in 23 P.S. § 501(a) as a threshold for entitlement to alimony, it is clear that the court weighed the factors set forth in § 501(b), as required by Hess, supra. The court considered, inter alia, relative earnings and earning capacities, sources of income, the time necessary to find appropriate employment, and, by reference to the equitable distribution award, the factors set forth in § 401(d) which duplicate many of the factors in § 501(b). We do not regard the court’s conclusion that alimony was unwarranted under the criteria of 23 P.S. § 501 to be an abuse of its discretion. Hess, supra, 327 Pa.Superior Ct. at 286, 475 A.2d at 800.

Appellant’s second claim regarding her entitlement to alimony is novel. She asks that alimony be awarded as security to prevent appellee from using bankruptcy proceedings to avoid his obligation to pay appellant a substantial amount of cash under the award of equitable distribution, counsel fees and costs. Under federal bankruptcy law, obligations related to distribution of marital property are dischargeable, whereas alimony obligations are not. 11 U.S.C. §§ 523(a)(5) and 727. Appellant argues that, if ap-pellee avoids his obligation to pay his cash obligation by initiating bankruptcy proceedings, an alimony award could be modified by the divorce court pursuant to 23 P.S. § 501(e) to protect appellant’s right to receive the cash.

In evaluating this argument, we note that 23 P.S. § 501(a) and (b) do not suggest that alimony may be awarded in order to secure debts created pursuant to distribution of marital property. On the other hand, the broad purposes of the Divorce Code, 23 P.S. § 102(a)(4) and (a)(6) — to mitigate the harm caused by the divorce and to effectuate economic justice — suggest that a proposed bankruptcy by an obligor in a property distribution might be a relevant factor in determining whether an award of alimony is appropriate. Section 501(b) of the Divorce Code states that “[i]n determining whether alimony is necessary, ... the court shall consider all relevant factors, including ...” fourteen enumerated but non-exclusive ones. In an appropriate case, if the record established the likelihood that a property distribution order might be circumvented through bankruptcy proceedings, such a fact might be relevant in determining whether alimony is appropriate.

This is not such a case, however. There is nothing in the record which supports the supposition that appellee intends to avoid his obligations under the equitable distribution order by seeking the protection of the federal bankruptcy laws. The statement of appellant’s counsel, “It is the opinion of the undersigned counsel for Appellant that Husband will almost certainly file bankruptcy as his [prior] counsel has threatened,” brief for appellant at 41, is an unsupported allegation we may not consider in reviewing the trial court’s discretion in denying alimony. In Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985), the supreme court stated: “Alleging facts in a brief which a trial court has not passed on has been specifically condemned, and we continue to view such practice as improper.” Id., 507 Pa. at 215, 489 A.2d at 1296 (citations omitted).

While we are sympathetic to the possibility that the efficacy of an equitable distribution order might be frustrated under the federal Bankruptcy Code, the record in this case discloses no abuse of discretion by the trial court in failing to award alimony as a hedge against the mere possibility.

For the foregoing reasons, we affirm the orders appealed from in their entirety.

      . Appellant misapprehends the role of a master in divorce proceedings. The master had no authority to award alimony and he did not purport to do só. He recommended that alimony be awarded by the court. The trial court, following its thorough and independent review of the record and the taking of additional testimony, declined to adopt the recommendation of the master in regard to alimony.


text:
    530 A.2d 450
    COMMONWEALTH of Pennsylvania v. Colleen Rose McMULLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1987.
    Filed Aug. 17, 1987.

      Patricia A. Wenger, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Appellant was convicted in a nonjury trial of violating 35 Pa.S. § 780-113(a)(30), possession with intent to deliver a controlled substance. We agree with her contention that trial counsel was ineffective for failing to object to the trial court’s erroneous computation of her prior record score under the sentencing guidelines prior to imposing sentence. Accordingly, we vacate the judgment of sentence and remand for resentencing.

Appellant claims that the guideline sentence form prepared by the Commonwealth prior to the sentencing hearing was incorrect in its calculation of prior record score under 204 Pa.Code § 303.7(f). That section provides:

(f) Past convictions. When the maximum sentence applicable to the current offense is dependent upon past convictions, those convictions shall not be used in computing the prior record score. For example: retail theft, some violations of The Controlled Substance, Drug, Device, and Cosmetic Act (35 Pa.C.S. §§ 780-101 — 780-144), and some motor vehicle offenses are subject to a longer period of confinement when the defendant has been previously convicted of the same offense.

The provision is applicable to appellant by virtue of 35 Pa.S. § 780-115(a), which states:

§ 780-115. Second or subsequent offense
(a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

Appellant’s prior conviction under 35 Pa.S. § 780-113(a)(30) for possession with intent to deliver was, but should not have been, used to calculate her prior record score. The error resulted in a prior record score of two. As that was appellant’s only prior conviction, her prior record score should have been zero.

The prior conviction was correctly considered pursuant to 204 Pa.Code § 303.8(d) in determining the offense gravity score. That section establishes an offense gravity score of seven for a first conviction of this crime, and a gravity score of eight for a second or subsequent offense. The trial court used the offense gravity score of eight, but this had the effect of including the prior conviction twice, for it had improperly been used in calculating appellant’s prior record score, as discussed above.

Under 204 Pa.Code § 303.9(b), the sentencing guidelines establish a standard range of thirty-six to sixty months, utilizing, a prior record score of two and an offense gravity score of eight. This range was the one considered by the sentencing judge, and he imposed a minimum sentence of thirty-six months, the lowest possible sentence within this range. N.T., 11/21/86, at 4-5.

The correct range under § 303.9(b) of the guidelines, utilizing a prior record score of zero and an offense gravity score of eight, is twenty-four to forty-eight months. Appellant, represented by new counsel on appeal, argues that trial counsel was ineffective for failing to challenge the erroneous computations under the sentencing guidelines. This issue is properly raised on appeal, as this is appellant’s first opportunity to do so. Commonwealth v. Johnson, 347 Pa.Super. 93, 96, 500 A.2d 173, 174 (1985); Commonwealth v. Taggart, 258 Pa.Super. 210, 213, 392 A.2d 758, 760 (1978).

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant. Commonwealth v. Pierce, 515 Pa. -, 527 A.2d 973 (1987).

We have already determined that the underlying claim has merit, and we can perceive no reasonable basis for failing to contest the erroneous computations under the sentencing guidelines.

The Commonwealth argues that the sentence, even if miscalculated, is still within the range of the guidelines and that appellant has not suffered any prejudice. We do not agree. The court imposed a minimum sentence of thirty-six months, believing the standard range was thirty-six to sixty months. If the court had known that the standard range was actually twenty-four to forty-eight months, a shorter sentence might well have been imposed. See N.T., 11/21/86, at 4-5. We have held that when a sentencing court was not cognizant of the correct guideline sentence ranges before imposing sentence, the sentence must be vacated and the appellant resentenced. Commonwealth v. Taylor, 362 Pa.Super. 408, 425, 524 A.2d 942, 950 (1987); Commonwealth v. Johnakin, 348 Pa.Super. 432, 438, 502 A.2d 620, 623 (1985); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474-75, 491 A.2d 1352, 1355 (1985).

Accordingly, the judgment of sentence is vacated and the case is remanded for resentencing in accordance, with this opinion. Jurisdiction is relinquished.

      . Application of the sentencing guidelines might appear to relate to discretionary aspects of sentencing, and thus to involve the mandate of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that an appellant comply with the requirement in Pa.R.A.P. 2119(f) that he set forth a "concise statement of the reasons relied upon for allowance of appeal.” Appellant, however, has couched the issue in terms of an ineffectiveness claim, thus raising a nondiscretionary issue under the sixth amendment of the federal Constitution. Although the first component of an ineffectiveness analysis, whether the underlying claim is of arguable merit, Commonwealth v. Pierce, 515 Pa.-, -, 527 A.2d 973, 974 (1987), requires us to review the application of the sentencing guidelines in this case, the sixth amendment issue raised by appellant does not require a Rule 2119(f) statement as in appeals from discretionary aspects of sentencing. See Commonwealth v. Jones, 365 Pa.Super. 57, 65 n. 2, 528 A.2d 1360, 1364 n. 2 (1987).


author: TAMILIA, Judge:

text:
    530 A.2d 453
    COMMONWEALTH of Pennsylvania, Appellant, v. William COLES.
    Superior Court of Pennsylvania.
    Argued June 25, 1987.
    Filed Aug. 24, 1987.

      Ann Aschauer Osborne, Assistant District Attorney, Rad-nor, for Com., appellant.
    Lisa M. Dinicola, Assistant Public Defender, Springfield, for appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

The Commonwealth appeals from the denial of its motion to vacate appellee’s sentence as-modified following a hearing on appellee’s motion to reconsider.

Appellee was charged with several theft offenses under three separate criminal informations; each was accompanied by a charge of conspiracy. On July 8,1986, he entered voluntary guilty pleas to the crimes of criminal attempt-burglary, two charges of retail theft and two charges of criminal conspiracy. As part of the plea negotiations, the Commonwealth recommended a sentence of incarceration of not less than two and one-half years, less one day, to not more than five years, less one day, for each of the offenses with sentences to run concurrently. The trial judge imposed this recommended sentence on July 8, 1986.

On July 15, 1986, the appellee filed a motion to reconsider the sentence stating that he was sole support of his wife and daughter, had a job at Quality Market, was assisting the prison chaplain and was working in prison toward a G.E.D. Although appellee argued that his sentence was too harsh, the Commonwealth opposed any reduction of the sentence. Following a hearing on the matter on July 18, 1986, the court entered an Order on July 21, 1986 reducing appellee’s sentence to a term of not less than two years nor more than five years, less one day. Subsequently, the Commonwealth filed a motion to vacate the Order and to reinstate the sentence pursuant to the negotiated plea. The trial court denied that motion on August 1, 1986, after hearing argument, and the appellee’s sentence remained as modified. The Commonwealth filed this timely appeal.

The sole issue before us is whether the lower court was prevented from modifying the appellee’s sentence since that sentence was a recommendation which was given the court by the district attorney and had resulted from plea bargaining negotiations.

As the trial judge correctly notes in his Opinion, “Pennsylvania has long recognized plea discussions or plea bargaining or plea negotiations as a just method of disposition in criminal cases.” (Slip Op., McGovern, J., 2/12/87, p. 5.) See also Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth ex rel. Kerekes v. Maro-ney, 423 Pa. 337, 223 A.2d 699 (1966). The Rules of Criminal Procedure, moreover, provide for plea agreements to be handled as follows:

Rule 319. Pleas and Plea Agreements
(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

Pa.R.Crim.P. 319(b).

In Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975), we acknowledged, “a sentence recommendation is among the 'terms’ of a plea bargain[] and the Rule provides that if the judge cannot concur in the bargain, he must afford the defendant an opportunity to withdraw.” Id., 234 Pa.Superior Ct. at 525, 340 A.2d at 584-85.

While we have consistently held that “[sentencing is within the sound discretion of the court and absent an abuse of discretion will not be disturbed”, Commonwealth v. Simpson, 353 Pa.Super. 474, 477, 510 A.2d 760, 761 (1986) (citing Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986); Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978)), under the circumstances of this case, we find the action of the trial judge was an abuse of discretion.

In the case at hand the trial judge accepted the plea, including the recommended sentence, on July 8, 1986. Only ten days later he altered the sentence, in effect, unilaterally countermanding the agreement. For the following reasons this should not have been done without the consent of the Commonwealth. We have stated:

It is well settled that the terms of a plea bargain, which serves as an inducement to a defendant to plead guilty, must be binding on the prosecution. Therefore, the prosecutor has an affirmative duty to honor any and all such promises. If the Commonwealth violates a plea bargain, the defendant is entitled to the benefit of the bargain. (Citations omitted.)

Commonwealth v. Potosnak, 289 Pa.Super. 115, 121, 432 A.2d 1078, 1081 (1981).

The Commonwealth Court, in Commonwealth v. Williams, 333 Pa.Super. 77, 481 A.2d 1230 (1984), said “[t]he benefit of the bargain principle is ... easily — and fairly — applied in those situations where the Commonwealth promises to ask for a specific sentence and then in violation of that promise asks for a more severe sentence which is in fact given.” Id., 333 Pa.Superior Ct. at 84, 481 A.2d at 1234.

In the matter at hand, the reverse situation occurred; the Commonwealth and the defendant bargained for a specified sentence and the defendant, at the plea hearing, after a full colloquy, knowingly and intelligently accepted the sentence. That colloquy is as follows:

THE COURT:
Is it so that you have chosen to enter those pleas of guilty?
THE DEFENDANT:
Yes.
THE COURT:
Has anybody promised you anything to get you to enter those pleas of guilty beyond what the District Attorney said? And let me, and before you answer that question, tell you what I understood the District Attorney to have said, and that is that he promises that he will recommend as a sentence in your case, that he will recommend a sentence of not less than two and a half years, less one day; nor more than five years, less one day; he will recommend that that time run concurrently on each of those offenses, and that it be spent in the Delaware County Prison. And he also indicated that he will be claiming restitution for the victim. Has anybody promised you anything beyond that to get you to plead guilty?
THE DEFENDANT:
No, nothing beyond that.
THE COURT:
And is that your understanding of what your discussions have been between your lawyer and the District Attorney?
THE DEFENDANT:
Yes, sir.
THE COURT: .
Has anybody threatened you in anyway to get you to plead guilty?
THE DEFENDANT:
I wouldn’t say threatened, just told me I’d be going to trial and my record, you know.
THE COURT:
Well, insofar as you record is concerned, whether or not that record would be put before a jury, that’s a question that has to be decided by the Trial Court. Do you understand that?
THE DEFENDANT:
Yes, sir. I understand that I’d be facin’ a whole lot more time.
THE COURT:
The things you’ve just raised, did you go over that with your lawyer?
THE DEFENDANT:
Yes, sir.

N.T. 7/8/86, pp. 6-7.

One week after the guilty pleas, appellee attempted to strip the Commonwealth of the “benefit of the bargain” when he petitioned the judge to unilaterally set aside the bargain. This was an inappropriate proceeding as by negotiating the sentence accepted by the court, the sentence could not be altered in the absence of mistake, misrepresentation or illegality. To hold otherwise would make a sham of the negotiated plea process and would give the defendant a second bite at his sentence, which we have frequently deplored in the context of withdrawal of a guilty plea. If the defendant in this case was dissatisfied with the sentencing recommendation, Pa.R.Crim.P. 319, supra, afforded him ample opportunity to reject the bargain prior to sentencing. The rule provides for the judge to conduct an inquiry of the defendant as to his understanding of the agreement and his willingness to accept its terms. If the judge is not satisfied that the defendant understands or accepts the terms, he may refuse to accept the plea and must afford defendant the opportunity to withdraw the plea.

Prior to acceptance by the court, a defendant is at liberty to withdraw his plea. After acceptance of the plea, courts have discretion to permit or direct a plea of guilty to be withdrawn at any time prior to sentencing (Pa.R.Crim.P. 320). “Requests to withdraw guilty pleas prior to sentencing are to be liberally allowed for any ‘fair and just’ reason unless the Commonwealth will suffer ‘substantial prejudice’ thereby.” Commonwealth v. Kioske, 337 Pa.Super. 593, 597, 487 A.2d 420, 422 (1985) (citing Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Dorian, 314 Pa.Super. 244, 460 A.2d 1121, aff'd, 503 Pa. 116, 468 A.2d 1091 (1983)). “Only upon a defendant’s presentation of a ‘fair and just’ reason for withdrawal will a court then consider the prejudice to the Commonwealth resulting from the withdrawal.” Kioske, supra 337 Pa.Super. at 598, 487 A.2d at 422.

Where withdrawal of a guilty plea is sought after a sentence has been imposed, however, “a showing of prejudice amounting to manifest injustice is required before withdrawal is properly justified.” Williams, supra 333 Pa.Super. at 83, 481 A.2d at 1233. See also Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). Further, “[a] plea of guilty usually constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea.” Johnson, supra, 319 Pa.Superior Ct. at 474, 466 A.2d at 642 (citing Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982)). See also Commonwealth v. Casner, 315 Pa.Super. 12, 461 A.2d 324 (1983).

The trial judge, in his Opinion, states there exists a “clear right of a criminal defendant to file a motion to modify sentence following a negotiated plea of guilty.” (Slip Op. at 7.) For this proposition, he cites Commonwealth v. Horst, 332 Pa.Super. 401, 481 A.2d 677 (1984). Horst involved an appeal by a defendant who had filed a written motion to modify sentence under Pa.R.Crim.P. 1410 on the last day permitted. The appellant failed to set forth in the motion reasons warranting reconsideration. This Court remanded the case to allow the appellant the opportunity to supplement his timely filed motion. Although, in effect, we permitted the appellant to file a motion to modify sentence even though his sentencing had resulted from a negotiated plea, the Horst case can be reconciled with the case at hand. Horst merely preserves the defendant’s right to file a motion for modification of sentence, as long as it has been filed on a timely basis. The Comment to Pa.R. Crim.P. 1410, Motion to Modify Sentence, leaves the door open for a defendant to file for modification of sentence, despite his plea of guilty. That Comment provides:

A defendant who, following a plea of guilty, seeks to file a motion for modification of sentence under Rule 1410, and a motion challenging the validity of the guilty plea or the denial of a motion to withdraw the plea under Rule 321, should combine the motions, and the court should dispose of them together.

The Commonwealth, in its brief, correctly points out that a motion to modify sentence might present issues other than excessiveness of sentence; for example, the motion may seek correction of omissions or defects in the record, errors of the clerk or court officer or the correction of a fraudulently procured sentence. See appellant’s brief at 11, citing Commonwealth v. Fiore, 341 Pa.Super. 305, 491 A.2d 276 (1985). Also, where a plea agreement is an open one as opposed to one for a negotiated sentence, unquestionably, after sentencing the defendant can properly request reconsideration as the court alone decided the sentence and no bargain for a stated term, agreed upon by the parties, is involved.

With the above considerations to guide it, the court then should, review the motion for reconsideration for allegations of defects going to the jurisdiction of the court, the legality of the sentence and the validity of the plea, see Johnson, supra, or for errors in the record, errors of the clerk or the correction of a fraudulently procured sentence.

Under circumstances such as presented in this case, a defendant, who is dissatisfied with his sentence resulting from a negotiated guilty plea, is free to move to withdraw his guilty plea. He must, however, show a prejudice amounting to manifest injustice before withdrawal is properly justified. See Williams, supra. These standards of review have been established in an effort to encourage the parties to a criminal case to enter a plea bargain arrangement. “Plea bargaining is a vital aide [sic] to the effectuation of criminal justice.” Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973). If the trial judge was convinced that the sentence was inappropriate under those standards, vacating the sentence and setting aside the guilty plea would return the Commonwealth and defendant to parity, from which a new plea could be entered or the case presented for trial. In effect, if the judge had no basis for permitting withdrawal of the guilty plea, none existed for modification of sentence. If either party to a negotiated plea agreement believed the other side could, at any time following entry of sentence, approach the judge and have the sentence unilaterally altered, neither the Commonwealth nor any defendant would be willing to enter into such an agreement. As we stated earlier, the Commonwealth cannot violate the conditions of its bargain, Potos-nak, supra, Williams, supra, nor should the court permit the defendant to do so. Thus we find the trial court judge overstepped his bounds and committed an abuse of discretion when he granted appellee’s motion to modify sentence.

As there are no allegations here that the court lacked jurisdiction or which go to the legality of the sentence or the validity of the plea, we see no need to remand the matter for the lower court’s reconsideration. We find the Order modifying the sentence to have been in error.

Order modifying sentence vacated; original judgment of sentence reinstated.

Jurisdiction relinquished.

      . See Comment to Rule 319. See also Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986).

      . “At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” Pa.R.Crim.P. 320.

      . "A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.” Pa.R.Crim.P. 321.

      . “A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.” Pa.R.Crim.P. 1410.