author: CAVANAUGH, Judge:

text:
    565 A.2d 1207
    In re ESTATE OF Dorothy M. DOERR, Deceased. Appeal of Frank E. DOERR.
    Superior Court of Pennsylvania.
    Argued Aug. 24, 1989.
    Filed Oct. 31, 1989.

      Robert W. Beilstein, Pittsburgh, for appellant.
    Richard W. Hosking, Pittsburgh, for Janet Kersting, participating party.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   CAVANAUGH, Judge:

This case involves an action brought by Mellon Bank, N.A., Executor of the Estate of Dorothy M. Doerr, Deceased, to adjudicate title to personal property pursuant to 20 Pa.C.S. 711(17). The personal property at issue is stock representing a 51% interest in Doerr Bros., Inc., which Dorothy M. Doerr, decedent, bequeathed to her daughter, Janet Doerr Kersting, appellee. Mellon Bank brought this action when appellant, Frank E. Doerr, son of decedent and brother of appellee, refused to transfer the stock so that the bank could distribute it to Mrs. Kersting according to the terms of decedent’s will. The trial court entered an order vesting fee simple title to the stock in appellee. The court en banc dismissed the exceptions of appellant and this appeal follows.

Appellant and appellee are the natural children of decedent and Frank A. Doerr, Jr., as is another daughter, Dorothy K. Rothert, who was a party below but has not joined her brother in this appeal. The present dispute arose after appellant discovered that his mother’s will left stock representing a 51% interest in the family company, which he presently runs, to his sister, instead of himself. Decedent had acquired essentially the same stock as a bequest from her husband, Frank A. Doerr, Jr., who died in 1971 owning more than 99% of Doerr Bros., Inc.

Decedent received the stock pursuant to an uncontested decree, dated May 2,1973, in the Estate of Frank Doerr, Jr., No. 798 of 1971, Allegheny County Orphan’s Court, which made no mention of, or provision for, a life estate. The 1973 decree also awarded to appellant stock representing a 49% interest in the company. Stock certificates evidencing ownership in each of the two legatees were issued to them. Soon thereafter, the Board of Directors of Doerr Bros., Inc, undertook a stock redemption scheme in which a similar ratio of ownership between appellant and decedent was maintained. Neither the original nor the reissued stock certificates bore any restrictive legends, nor was there any other indication that Dorothy M. Doerr’s shares were being held in trust for her during her lifetime.

We agree with the trial court that laches bars appellant’s present claim that his mother had only a life estate and that he possessed a remainder interest in the stock. The application of laches depends on whether the complaining party is guilty of a want of due diligence in failing to assert his rights, which works to another’s prejudice. In re Estate of Marushak, 488 Pa. 607, 413 A.2d 649 (1980); Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977). Laches requires not only a passage of time, but also a resultant prejudice to the party asserting the doctrine. Young v. Hall, 421 Pa. 214, 218 A.2d 781 (1966) citing Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964). Laches is based on “some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act.” Leedom, 473 Pa. at 201, 373 A.2d at 1333. Laches is a factual issue and depends upon the circumstances of the individual case. Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967).

As the trial court found, Frank E. Doerr had “ample time and opportunity” but nonetheless failed to question the interpretation and effect given to his father’s will following the entry of the 1973 decree. (Opinion of Zavarella, A.J., at 13.) Moreover, the trial court observed that the actions of appellant were wholly inconsistent with a belief that his mother possessed only a life estate. Id. Finally, appellee has been prejudiced by appellant’s conduct. Virtually all of the evidence in the record supports these conclusions.

The parties stipulated to the following facts. At the time of her death, decedent was in possession of Stock Certificate No. 18, representing 400 shares of common stock of Doerr Bros., Inc. and also of Stock Certificate No. 21, representing 315 shares of preferred stock of Doerr Bros., Inc. These certificates were issued to decedent in September, 1973 at a meeting of the Board of Directors of Doerr Bros., Inc., at which time decedent surrendered for cancellation Stock Certificate No. 15, representing 510 shares of the common stock of Doerr Bros., Inc. and Stock Certificate No. 18, representing 400 shares of the preferred stock of Doerr Bros., Inc. The latter two certificates were the ones which had been issued to decedent under the 1973 decree in her husband’s estate. All of the aforementioned certificates were signed by appellant as president of Doerr Bros., Inc. None of them bears any restrictive legend of any kind, nor are any restrictions noted in the stock register of Doerr Bros., Inc.

The purpose of the stock redemption scheme, which appellant helped to structure, was to maintain Mrs. Doerr’s 51% interest in the company while providing funds for the administration of her husband’s estate. Appellant likewise exchanged stock representing his 49% interest (most of which had come to him by virtue of his father’s will) at the same board meeting.

It is beyond dispute that, at the time of the 1971 probate of the elder Doerr’s will and administration of his estate, the possibility that decedent held only a life estate never came up. Every witness connected with the 1971 estate administration, except appellant and Mrs. Rothert, testified that it was taken for granted that decedent had absolute title to the stock. Appellant now claims that he never raised the issue because he believed the language of his father’s will so clearly bequeathed only a life estate as to make any mention of his belief unnecessary.

Yet none of the surrounding circumstances render that belief reasonable. In light of appellant’s conduct, his professed belief is not even plausible. Appellant admits that in the course of his extensive dealings with Doerr Bros., Inc.’s accountant Don Meredith during the administration of his father’s estate, he never once noted that his mother had only a life estate. During the issuance and redemption of decedent’s shares, he in no way indicated, on the stock certificates themselves or in Doerr Bros, corporate records, that his mother’s interest was any less than absolute. Ample testimony in the record would support a finding that appellant was concerned over his mother’s majority ownership and had discussed the possibility of buying her out. And the testimony is uncontroverted that appellant was shocked and disappointed to discover, not that decedent believed she owned the stock outright, but rather that she did not leave the stock to him.

Even if we accept appellant’s assertions that he always thought the stock would pass to him, due diligence is the standard by which appellant’s protection of his interests is to be judged and under which his claim fails. The 1973 decree, of which Mr. Doerr plainly had notice, was a final disposition of the property of the elder Doerr’s estate and as such prejudiced appellant’s interests. In re Mershon’s Estate, 364 Pa. 549, 73 A.2d 686 (1950) (the audit of a fiduciary’s account is a formal legal proceeding at which all interested parties, who are chargeable not only with what they knew but also with what they could have discovered through the exercise of due diligence, must voice or forego their objections to the management of the estate). In light of all the information available to him at the time, appellant’s silence subsequent to the filing of the account in his father’s estate was an unreasonable failure to protect his rights, such as they were.

Appellant relies heavily upon In re Western Pennsylvania National Bank (also known as Moltrup Estate), 424 Pa. 161, 225 A.2d 676 (1967), to argue that he was not required to assert his rights as a potential remainderman in response to the 1973 decree because a remainderman’s rights do not accrue until the death of the life tenant. What the Moltrup court actually decided was that remaindermen, whose only notice of the filing of the estate account was by newspaper advertisement, were not foreclosed by res judicata nor by estoppel from asserting their rights upon the death of the life tenant.

Moltrup is distinguishable from the instant appeal for two reasons. First, the court specifically stated:

We ... place our decision on the ground that no actual or appropriate notice of [the life tenant’s] present claim was ever given to the remaindermen until after [the life tenant’s] death.
... Certainly the record, the advertisement and the above-mentioned award to [the life tenant], with no actual notice to present and potential remaindermen — some of whom were unknown or unborn and all of whom were unrepresented — of the claim which [the life tenant’s] executors made after [the life tenant’s] death ... could not bar the interest of remaindermen who had no notice of [the life tenant’s] claim.

Moltrup, 424 Pa. at 173, 225 A.2d at 681-82. A motivating concern for the Moltrup court was that some of the Moltrup remaindermen were unborn or unknown at the time of the testator’s death and that none of them received actual or appropriate notice of the pro forma confirmation of the account. In the instant case, the trial court found it “extremely doubtful” that appellant did not receive actual notice of the account. (Opinion of Zavarella, A.J., at 11.) At the very least, he should have known of it.

Second, Moltrup has limited applicability to the present appeal because it did not even address the issue of laches. The court merely refused to find that a decree was res judicata against individuals who were not party to it and did not have actual or appropriate notice of it. It is indeed consistent with the reasoning employed by the Moltrup court for us to find that a would-be remainderman who has actual notice of a distribution antithetical to his own interests but who remains silent until the death of the supposed life tenant, may be equitably precluded from asserting that claim if his silence has incurably prejudiced legatees under the life tenant’s will. See also, Bailey v. Bailey, 338 Pa. 221, 12 A.2d 577 (1940) (where nothing new had transpired and no new facts had come to light, judgement debtors who had neglected to raise defenses in successive scira facias proceedings could not do so now that holder of note was dead); Estate of Thomas, 495 Pa. 93, 432 A.2d 968 (1981); Mershon, 364 Pa. at 549, 73 A.2d at 686.

The instant case graphically illustrates the kind of prejudice inherent in permitting a purported remainderman to keep silent under the circumstances of this case. Hypothetically, if we were to reinterpret the elder Doerr’s will at this juncture and find that Mrs. Doerr did not possess an absolute interest in the stock, we would never know if the now-deceased Mrs. Doerr would have bequeathed her other property differently had she been aware of an adverse claim to the stock. Thus, it would be impossible to ascertain what those taking under Mrs. Doerr’s will should now receive. In other words, the death of Mrs. Doerr was the pivotal “change in condition” occurring during the period of appellant's unreasonable silence which permits, and indeed compels, us to apply the doctrine of laches. See, Leedom, 473 Pa. at 201, 373 A.2d at 1333.

Alternatively, we hold that 20 Pa.C.S.A. section 3521 may, under certain circumstances, bar review of a longstanding decree of distribution in the context of a petition to adjudicate title to personalty under 20 Pa.C.S.A. section 711(17). Section 3521 bars applications for review of a distribution decree which is more than five years old, absent proof that fraud induced the decree or prevented an interested party from seeking review within the five year period. Thomas, 495 Pa. at 93, 432 A.2d at 968; In re Estate of Burger, 425 Pa. 395, 229 A.2d 463 (1967). Appellant contends that Section 3521 does not operate to preclude reexamination of a distribution decree which is more than five years old except where a party has actually filed a petition for review. Common sense dictates that the legislative purpose to ensure finality and certainty of property distributions is best served by application of the statute to any actual review of a prior decree regardless of the procedural posture in which the effective request for review arises.

A long-standing decree may nonetheless be reviewed if fraud is alleged and proven. “The essence of fraud is deceit intentionally and successfully practiced to induce another to part with property or with some legal rights.” In re Thorne’s Estate, 344 Pa. 503, 511, 25 A.2d 811, 816 (1942). Fraud comprises “anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture....” Id., quoting Wiley v. Wirbelauer, 116 N.J.Eq. 391, 174 A. 20, 23 (1934). Yet if a complaining party, not acting under duress or reasonable misapprehension, has acquiesced in a proposal which he believes to be wrongfully disadvantageous to himself, he deprives himself of the plea of fraud if he later finds he has been injured. 344 Pa. at 503, 25 A.2d at 811.

To warrant review of a distribution decree, the fraud alleged or proven must withal appear to have induced the distribution decree itself or, in the alternative, to have deterred an interested party from seeking review of the decree within the five-year period permitted by the statute. “[A] cause of action arising from fraud is complete when the transaction has ended[;] ... the statute of limitations begins to run at once, unless discovery is prevented by active concealment.” Thorne, 344 Pa. at 510, 25 A.2d at 815, citing Dalzell v. Lewis, 252 Pa. 283, 97 A. 407 (1916). The party claiming fraud and seeking review is charged not only with what he actually knew at the time, but also with with what he should have known through the exercise of reasonable diligence. Thomas, 495 Pa. at 93, 432 A.2d at 968; Thorne, 344 Pa. at 503, 25 A.2d at 811; Kinter v. Commonwealth Tr. Co., 274 Pa. 436, 118 A. 392 (1922). Thus, in order to justify reconsideration of a distribution decree after the statute has run, a party must prove an intrinsic fraud which has prevented precisely one’s exercise of the limited right of review which the statute grants.

Instantly, section 3521 precludes us from inquiring into the propriety of the 1973 decree distributing assets of the estate of Frank A. Doerr, Jr., since evidence of the kind of fraud which would justify reopening the decree is lacking. Not even the testimony of appellant himself lends credence to the notion that decedent possessed any intent to defraud her son. (E.g., R. 184.) Nor can constructive fraud be inferred from decedent’s failure to give appellant formal notice of the estate audit. The trial court found it “extremely doubtful that Frank E. Doerr lacked actual knowledge of the audit.” (Opinion of Zavarella, A.J., at 11.) Appellant had attested to the signature on his father’s will, was an active participant in the administration of his father’s estate, and received statutory notice of the filing of the account. Id., at 11-12. As president of Doerr Bros., Inc., he signed the stock certificates which were distributed to decedent pursuant to the decree of distribution. He himself received and signed for Doerr Bros., Inc. stock as part of the distribution of assets in his father’s estate. The party claiming fraud and seeking review is charged with what he should have known through the exercise of reasonable diligence. Thomas, 495 Pa. at 93, 432 A.2d at 968; Thorne, 344 Pa. at 503, 25 A.2d at 811. To maintain that appellant could not easily have discovered any alleged “fraud” strains credulity.

The order is affirmed.

      . The Probate, Estates and Fiduciary Code, 20 Pa.C.S. § 711(17) provides in pertinent part:
      ... [t]he jurisdiction of the court of common pleas over the following shall be exercised through its orphans' court division:
      (17) Title to personal property. The adjudication of the title to personal property in the possession of the personal representative, or registered in the name of the decedent or his nominee, or alleged by the personal representative to have been in the possession of the decedent at the time of his death.

      . Frank A. Doerr, Jr.’s holographic will contained the following bequests, which have precipitated the present dispute over the validity of decedent’s disposition of the stock in favor of Mrs. Kersting:
      ... she [Dorothy M. Bischof Doerr, mother of appellant and appellee] is also to have 51% of my holding in Doerr Bros. Inc. stock making her the majority stockholder as long as she lives. To my son Frank E. Doerr I leave the balance of my stock common and preferred in Doerr Bros., Inc....
      Appellant argues that the phrase “making her the majority shareholder as long as she lives” acts as words of limitation. Thus, appellant claims that Mrs. Doerr took only a life estate and that the gift over, as well as a bequest of the remaining shares, is contained in the phrase, "I leave the balance....” We do not reach the interpretation issue in this appeal.

      . The trial court found that laches and the statute of limitations prevented appellant from bringing this action. En banc, the court reached the merits but still found for appellee on the basis of the language in Frank A. Doerr, Jr.’s will.

      . Title 20, section 3521 reads in pertinent part:
      If any party in interest shall, within five years after the final confirmation of any account of a personal representative, file a petition to review any part of the account or of an auditor’s report, or of the adjudication; or of any decree of distribution, setting forth specifically alleged errors therein, the court shall give such relief as equity and justice shall require....

      . In view of our determination that appellant is barred from challenging the award of 51% of the stock in Doerr Bros., Inc., we need not reach the question of interpretation of the Will of Frank A. Doerr, Jr.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    565 A.2d 1212
    COMMONWEALTH of Pennsylvania v. Andre HART, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1989.
    Filed Nov. 8, 1989.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before DEL SOLE, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This appeal involves the question of the validity of a progression charge in a homicide case; i.e., whether the trial court may instruct the jury not to consider whether the defendant is guilty of voluntary manslaughter until after it has considered whether the defendant is not guilty of murder. Appellant contends that his counsel was ineffective for failing to object to the progression charge. We find that the the court’s instruction was proper and that counsel provided effective representation.

I.

On August 11, 1975, Albert Dixon, an Exxon employee, was fatally wounded during an attempted robbery of an Exxon service station. The crime remained unsolved until 1984 when the police received information implicating Andre Hart and Barry Patterson. Hart was charged with murder, robbery, and criminal conspiracy and tried before a jury in the Philadelphia Court of Common Pleas. At trial, Patterson testified for the Commonwealth that he and Hart had conspired to rob Dixon. Patterson further testified that Hart had approached Dixon while armed with a gun, and that Hart had panicked and fired his weapon at Dixon. Defense counsel presented no evidence, but instead focused on impeaching Patterson’s testimony.

At the close of the trial, the court instructed the jury on the law of homicide. The court directed the jury to consider the various forms of homicide in what the Commonwealth describes as a “logical progression sequence”. This progression charge was as follows:

You also will take with you a verdict sheet. Now the verdict sheet is self-explanatory. It has “Verdict Sheet” up here. It has my name, the names of the attorneys and the Commonwealth versus Andre Hart. But you will notice here it’s listed murder and besides [sic] murder is first degree, second degree and third degree. And below that is voluntary manslaughter and the charges of robbery and criminal conspiracy.
Now it’s up to you to decide what order you want to proceed on. When you’re in that jury room you decide things for yourself. However, if you find the Defendant guilty of murder of the first degree, it will not then be necessary to consider second degree, third degree or voluntary manslaughter.
If you find the Defendant guilty ... of first degree murder, the chairperson will then write under verdict guilty or not guilty. If you find him not guilty of all, either murder or manslaughter, you will then write not guilty under ... all of the homicide charges. If you find him guilty of first degree murder, it will not be necessary to consider any of the other charges.
If you find him not guilty of first degree but find him guilty of second degree, then the chairperson should write beside that charge guilty. It will not be necessary to consider third degree and manslaughter.
If you find him not guilty of first, second, and third degree, then you will consider voluntary manslaughter and put beside the verdict whatever the verdict is.
You will only consider voluntary manslaughter if you are satisfied the Commonwealth has not proven the Defendant guilty of any degrees of murder.

N.T. at 3.44-3.46 (emphasis added).

Trial counsel did not object to this instruction. After deliberating, the jury found Hart guilty of murder in the third degree. The jury also found Hart guilty of robbery and criminal conspiracy. Counsel successfully argued in post-trial motions that the robbery and criminal conspiracy charges were barred by the statute of limitations. On March 25, 1985, the court arrested judgment on the robbery and criminal conspiracy charges, and sentenced Hart for the murder charge to a term of ten to twenty years imprisonment.

Hart obtained new counsel and filed a timely notice of appeal from his judgment of sentence for murder. On appeal, counsel did not address the trial court’s progression charge. Appellate counsel instead argued that trial counsel was ineffective for failing to request a point for charge on the distinction between accomplice liability for murder and liability as an accessory after the fact. A panel of this court affirmed Hart’s judgment of sentence in an unpublished decision.

On May 29, 1987, Hart filed a pro se petition under the Post Conviction Hearing Act (PCHA). A third counsel was appointed to handle the PCHA action, and this counsel filed an amended petition on September 28, 1987. The amended petition specifically alleged that both trial counsel and counsel on direct appeal were ineffective for failing to argue that the trial court’s progression charge was erroneous. On September 26, 1988, the PCHA court entered an order denying the amended petition without a hearing. Hart filed a timely appeal to this court of the order denying PCHA relief. After careful consideration, we affirm.

II.

Initially, we must consider whether the specific claim of ineffective assistance of counsel that appellant now advances was properly before the PCHA court. In order to be eligible for PCHA relief, a defendant must prove that the error which resulted in his conviction and sentence has not been either finally litigated or waived. 42 Pa.Cons.Stat. Ann. § 9543(4). A claim has been finally litigated when, inter alia, the Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understanding failed to avail himself of further appeals. 42 Pa.Cons.Stat. Ann. § 9544(a)(2). The PCHA court found that appellant’s claim had been finally litigated on direct appeal from his judgment of sentence. We do not agree.

On direct appeal, Hart argued that counsel was ineffective for not requesting a charge clarifying the concept of accomplice liability. A Superior Court panel rejected this argument but without undertaking a general review of either counsel’s representation or the trial court’s instructions to the jury. Hart now challenges a different aspect of counsel’s performance, i.e., counsel’s failure to object to the trial court’s progression charge. This allegation was never considered on direct appeal and thus cannot be deemed to be “finally litigated” so as to preclude PCHA review.

In dismissing appellant’s PCHA petition, the PCHA court relied on the principle that a petitioner may not relitigate under a new legal theory an issue that was decided against her in a prior proceeding. See Commonwealth v. Curtin, 365 Pa.Super. 424, 529 A.2d 1130 (1987) (collecting cases). Under the PCHA court’s analysis, whether counsel was in all respects an effective advocate is a single issue, and each challenge to an aspect of counsel’s performance is a variation in theory. This approach treats the concept of “issue” too narrowly, and the concept of “theory” too broadly. As we noted in Commonwealth v. Sawyer, 355 Pa.Super. 115, 512 A.2d 1238 (1986), “A petitioner alleging ineffectiveness of counsel is not barred from seeking relief under the [Post Conviction Hearing] Act merely because he has previously unsuccessfully asserted an ineffectiveness claim, so long as the specific allegation of ineffectiveness has not previously been litigated.” Id., 355 Pa.Superior Ct. at 121, 512 A.2d at 1241. See also Commonwealth v. Ramsey, 300 Pa.Super. 515, 517 n. 2, 446 A.2d 974, 975 n. 2 (1982). A claim that counsel was ineffective for failing to object to one portion of a jury charge is clearly distinct from a claim that counsel was ineffective for failing to a request a point for charge on a different subject matter, and we find that each claim constitutes a separate issue. Accordingly, the matter before the PCHA court was not finally litigated.

We further find that appellant did not waive his present ineffectiveness claim. Appellant specifically argued with the assistance of his PCHA counsel that counsel on direct appeal was ineffective for not asserting that trial counsel was ineffective for not objecting to the progression charge. For many years, courts have declined to apply the waiver doctrine where a defendant has alleged the serial ineffectiveness of all prior counsel. See, e.g., Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985). We acknowledge that in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), the Pennsylvania Supreme Court departed from this practice in order to discourage the filing of repetitive PCHA petitions. Under Lawson, “a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate a miscarriage of justice may have occurred.” Id., 519 Pa. at 513, 549 A.2d at 112. Lawson, however, did not alter the law of waiver as applied to a defendant’s initial PCHA petition. Since appellant has never filed a previous petition, he need not establish a “miscarriage of justice” in order to press his ineffectiveness claim.

We conclude that appellant’s issue was neither finally litigated nor waived. We must therefore proceed to determine whether prior counsel were in fact ineffective for not challenging the progression charge.

III.

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is whether the disputed action or omission of counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s imnroper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Bearing this standard in mind, we find that appellant has failed to establish that counsel provided ineffective representation. A close review of appellant’s brief reveals three arguments in support of the view that counsel should have challenged the progression charge. We find each of these arguments unpersuasive.

A.

Appellant broadly asserts that by delivering the progression charge, the trial court invaded the province of the jury. He contends that a trial judge exceeds his proper function if he directs the jury to consider the offenses of which the defendant stands accused in any particular order. “To permit the trial jurist to order the deliberations of a jury in such a fashion makes the judge a 13th juror. Such structuring of jury deliberations is just not permissible.” Appellant’s Brief at 13. For the reasons that follow, we cannot agree.

While the jury must serve as the sole finder of fact, the trial court has a duty to frame legal issues for the jury and instruct the jury on the applicable law. See Commonwealth v. Leonhard, 336 Pa.Super. 90, 95, 485 A.2d 444 (1984). One method by which the court may choose to clarify issues for the jury is to direct the jury to consider at the outset the most serious form of the offense with which the defendant has been charged. If the jury were first to consider a less serious form of the offense, it might return a verdict of guilty of the lesser charge without determining whether the Commonwealth also proved the additional facts necessary to establish the more serious crime. By directing the jury to begin its deliberations with the greater offense, the judge can help to ensure that the jury will bring its independent judgment to bear on all important aspects of the Commonwealth’s case. Thus, as a general rule, a progression charge is proper where the defendant is charged with different forms or degrees of the same crime. Cf. Pharr v. Israel, 629 F.2d 1278 (7th Cir.1980), cert. denied, 449 U.S. 1088, 101 S.Ct. 880, 66 L.Ed.2d 815 (1981) (charge that jury should consider lesser degrees of homicide only if defendant acquitted of first degree murder did not violate right to jury trial); Commonwealth v. Sanders, 380 Pa.Super. 78, 95-97, 551 A.2d 239, 248 (1988) (charge that jury should consider second degree robbery charge only if defendant was acquitted of first degree robbery did not invade province of jury).

We note, however, that, under some special circumstances, a progression charge may create a risk of an unjust conviction. Consider the following hypothetical. A defendant is charged with a first degree offense that consists of elements a, b, c and a second degree offense that consists of a, b, c plus an additional factor “d”. This “d” is a mitigating factor that reduces the offense from a crime of the first degree to a crime of the second degree. If the jury is told to consider the second degree offense only if they acquit of the first degree offense, the jury may fail to consider whether mitigating factor “d” is present. Thus, the jury might simply find that elements a, b, c are present and convict of the first degree offense, although only a conviction for the second degree offense would be appropriate.

With this in mind, we consider progression charges as applied to the crimes of murder and voluntary manslaughter. First, second, and third degree murder, as well as voluntary manslaughter, are all forms of homicide. 18 Pa.Cons.Stat.Ann. §§ 2501-2503; see n. 1, supra. A homicide may be regarded as voluntary manslaughter rather than murder if: 1) the defendant acted under a sudden and intense passion resulting from serious provocation; or 2) the defendant believed that the circumstances were such as would justify the killing but this belief was unreasonable. 18 Pa.Cons.Stat.Ann. § 2503. In a sense, then, “heat of passion” and “unreasonable belief” are mitigating factors that reduce murder to voluntary manslaughter. One might therefore reason that a progression charge improperly prevents the jury from considering either “heat of passion” or “unreasonable belief”, and creates a risk of an unjust conviction for murder.

Upon closer analysis, however, we find that a progression charge in a homicide case is not improper. The true distinguishing feature between murder and manslaughter is the absence of malice. Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981). Malice is a necessary element of every degree of murder. Malice refers to various culpable mental states; it encompasses the intent to kill or inflict great bodily harm, as well as wickedness of disposition, hardness of heart, and reckless disregard for social duty. See 17 Pennsylvania Law Encyclopedia Homicide § 13 (1986). The significance of “heat of passion” and “unreasonable belief” are that as a matter of law they are deemed to rebut the malice element of murder. “Heat of passion” and “unreasonable belief” are not additional elements of the crime of voluntary manslaughter. Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985). Rather, the question of whether the defendant acted under “heat of passion” or “unreasonable belief” is implicit in the question of whether the malice element necessary for a murder conviction has been established. Accordingly, the jury is not precluded from considering these mitigating factors by an instruction that the defendant should not be convicted of voluntary manslaughter unless he is first acquitted of murder.

We caution that a trial judge should carefully instruct the jury regarding factors that may be capable of rebutting an inference of malice. Whenever the trial judge gives a progression charge in a homicide case, he should accompany the charge with an instruction that makes clear to the jurors that they must take any evidence of “heat of passion” or “unreasonable belief” into account when initially determining whether the Commonwealth has established the malice element of murder beyond a reasonable doubt. Without proper instructions regarding malice, the jury-might misinterpret the progression charge as mandating a conviction for murder despite the presence of mitigating evidence establishing “heat of passion” or “unreasonable belief”.

In the case sub judice, however, appellant has never challenged either the court’s charge insofar as it relates to malice or his counsel’s performance in failing to request clarifying instructions on malice. Moreover, appellant has failed to identify any testimony or other evidence of record in this case that would have reasonably supported a finding of “heat of passion” or “unreasonable belief”. Accordingly, we cannot say that the judge’s progression charge interfered with the jury’s ability to determine whether mitigating factors were present that would have rebutted an inference of malice and reduced appellant’s crime from murder to voluntary manslaughter. Under these circumstances, we conclude that the judge’s progression charge in no way invaded the province of the jury. Therefore, appellant’s claim is without arguable merit.

B.

Appellant also asserts that within the context of a murder trial, a progression charge impermissibly interferes with the trial jury’s mercy dispensing powers. In this regard, appellant relies on a series of Pennsylvania Supreme Court decisions including Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974), Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977), and Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978). Jones and its progeny stand for the proposition that every defendant who stands accused of murder has a right to a voluntary manslaughter instruction upon request. The rationale behind these decisions is that a jury must be permitted to exercise clemency by convicting a defendant of voluntary manslaughter instead of murder, even where there is no evidence to support the conclusion that the defendant acted under “heat of passion” or an “unreasonable belief”. Appellant complains that a progression charge works at cross-purposes with Jones by “locking] the jury into a verdict based on the evidence before it.” Appellant’s Brief at 3. This is not a basis for affording relief.

In Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) and Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984), the Supreme Court repudiated the earlier view that a defendant has an automatic right to a voluntary manslaughter instruction. Under current Pennsylvania law, a defendant is not entitled to a voluntary manslaughter charge unless the evidence introduced at trial would logically support a voluntary manslaughter verdict. Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1987). “In no case will a defendant be entitled to a charge which invites the jury to return its verdict based upon mercy rather than fact.” Commonwealth v. Grove, 363 Pa.Super. 328, 345, 526 A.2d 369, 378 (1987). Similarly, counsel may not successfully object to a charge on the sole ground that it encourages the jury to return a verdict of guilty or not guilty that is based upon fact rather than mercy. Accordingly, counsel may not be found ineffective for not objecting to the progression charge under this theory.

C.

Finally, appellant contends that even if progression charges in homicide cases are not per se improper, trial counsel should have requested a modification of the charge that the trial court actually delivered. Under the trial court’s charge, the jurors could not consider voluntary manslaughter unless they unanimously agreed that the defendant was not guilty of murder. Appellant alleges that counsel should have at least suggested that the judge permit the jurors to consider voluntary manslaughter if they were unable to agree on a verdict as to murder. In support of this argument, he cites United States v. Tsanas, 572 F.2d 340 (CA 2nd Cir.1978). His reliance on Tsanas is misplaced.

In Tsanas, the federal district court instructed the jury that they must unanimously find the defendant not guilty of tax evasion before proceeding to determining if he were guilty of a less serious tax-related crime. The defendant was then convicted of tax evasion. On appeal, Judge Friendly perceptively analyzed the advantages and disadvantages for both the prosecution and the defense of requiring jury unanimity on the greater offense.

The instruction given here has the merit, from the Government’s standpoint, of tending to avoid the danger that the jury will not adequately discharge its duties with respect to the greater offense, and instead will move too quickly to the lesser one. From the defendant’s standpoint, it may prevent any conviction at all; a jury unable either to convict or acquit on the greater charge will not be able to reach a lesser charge on which it might have been able to agree. But it entails disadvantages to both sides as well: By insisting on unanimity with respect to acquittal on the greater charge before the jury can move to the lesser, it may prevent the Government from obtaining a conviction on the lesser charge that would otherwise have been forthcoming and thus require the expense of a retrial. It also presents dangers to the defendant. If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might well have reached sincere and unanimous agreement with respect to the lesser charge.
An instruction permitting the jury to move on to the lesser offense if after all reasonable efforts it is unable to reach a verdict on the greater likewise has advantages and disadvantages to both sides — the mirror image of those associated with the charge actually given here. It facilitates the Government’s chances of getting a conviction for something, although at the risk of not getting the one that it prefers. And it relieves the defendant of being convicted on the greater charge just because the jury wishes to avoid a mistrial, but at the risk of a conviction on the lesser charge which might not have occurred if the jury, by being unable to agree to acquit on the greater, had never been able to reach the lesser.

Tsanas, 572 F.2d at 346 (footnote omitted).

In light of this analysis, Judge Friendly reached the following conclusions:

With the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as a matter of law. The court may give the one that it prefers if the defendant expresses no choice. If he does, the court should give the form of the instruction which the defendant seasonably elects. It is his liberty that is at stake, and the worst that can happen to the Government under the less rigorous instruction is his readier conviction for a lesser rather than a greater crime.

Id. at 346.

Although we are not bound by Tsanas, we shall assume for present purposes that upon request a trial court must instruct the jurors to consider a lesser offense if they cannot reach a verdict on the greater offense. It does not follow that counsel is ineffective for failing to request this instruction. As Judge Friendly’s commentary makes clear, defense counsel would have valid reasons for preferring the standard version of the progression charge to a modified version that encourages convictions on lesser offenses. In the instant case, the charge delivered by the court would have worked to the defendant’s advantage if the jury had deadlocked on the murder verdict and thereby forced a mistrial. The decision not to elect an alternative jury charge was a reasonable trial strategy.

“[Cjounsel cannot be determined to be ineffective unless a court concludes that viable alternatives existing but not chosen offered a potential for success substantially greater than the tactics counsel actually utilized.” Commonwealth v. Gabrielson, 370 Pa.Super. 271, 280, 536 A.2d 401, 405 (1988). Since we cannot say that a modified jury charge would have been more likely to result in a finding of not guilty of murder, appellant was not denied the effective assistance of counsel.

In conclusion, we find that all of appellant’s claims of ineffective assistance of counsel are clearly without merit. Appellant has failed to allege facts that if proven would entitle him to relief under the Post Conviction Hearing Act. Accordingly, we shall not reverse the order of the trial court denying appellant’s petition for collateral relief without a hearing. See 42 Pa.Cons.Stat.Ann. § 9549.

Order affirmed.

      . "A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.” 18 Pa.Cons.Stat.Ann. § 2501 (Purdon 1983). Homicide includes the crimes of murder in the first, second, and third degree, voluntary manslaughter, and involuntary manslaughter. 18 Pa.Cons.Stat.Ann. §§ 2502, 2503, 2504. The trial court instructed the jury on murder and voluntary manslaughter. The court, however, denied a defense request for a charge on involuntary manslaughter.

      . 42 Pa.Cons.Stat.Ann. §§ 9541-9551 (Purdon 1982). The Post Conviction Hearing Act was modified in part, repealed in part and renamed the Post Conviction Relief Act by Act of April 13, 1988, No. 47, §§ 3-4, 1988 Pa.Legis.Srv. 227, 229-232. See 42 Pa.Cons.Stat.Ann. §§ 9541-9546 (Purdon Supp.1989). Appellant’s petition for relief was filed before the effective date of the new act and is controlled by the prior law.

      . For a concrete example, consider the offense of simple assault. Section 2701 of the Crimes Code provides:
      (a) Offense defined — A person is guilty of assault if he:
      (1) attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another;
      (b) Grading — Simple assault is a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree
      The existence of a fight entered into by mutual consent is a mitigating factor that the jury may find reduces simple assault from a more serious second degree misdemeanor offense to a less serious third degree misdemeanor offense. See generally Commonwealth v. Fleck, 372 Pa.Super. 546, 539 A.2d 1331 (1988).

      . Murder is the unlawful killing of a human being with malice aforethought, express or implied. 17 Pennsylvania Law Encyclopedia Homicide § 11 (1986). Murder of the first degree is murder committed by an intentional killing. Murder of the second degree is murder committed while the defendant was engaged as a principal or accomplice in the perpetration of a felony. Murder of the third degree encompasses all other kinds of murder. 18 Pa.Cons.Stat.Ann. § 2502.

      . It is unclear, however, whether "heat of passion” or “unreasonable belief’ could ever reduce second degree murder, i.e. felony murder, to voluntary manslaughter since the malice element of second degree murder is presumed from the fact that the defendant participated in an underlying felony. See Commonwealth v. Davis, 449 Pa. 468, 475, 297 A.2d 817, 821-22 (1972), cert. denied, 414 U.S. 836, 94 S.Ct. 183, 38 L.Ed.2d 72 (1973) (Opinion in Support of Affirmance). We need not decide this issue.

      . In this regard, we note that the Pennsylvania Supreme Court Committee For Proposed Standard Jury Instructions has recommended that the following charge be given in cases in which both murder and voluntary manslaughter are at issue:
      (1) As my earlier definition of malice indicates, there can be no malice when certain reducing circumstances are present. When those circumstances are present a killing may be voluntary manslaughter but never murder. This is true when a defendant kills in heat of passion following a serious provocation or kills under an unreasonable mistaken belief in justifying circumstances.

        (2) Accordingly, you can find malice only if you are satisfied beyond a reasonable doubt that the defendant was not acting [under a sudden and intense passion resulting from a serious provocation by (the victim) (another person whom the defendant was trying to kill when he negligently or accidently killed the victim) [or] [under an unreasonable belief that the circumstances were such that, if they existed, would have justified the killing].

        Pennsylvania Standard Suggested Jury Instructions (Criminal) § 15.2503A (1979).


author: JOHNSON, Judge:

text:
    565 A.2d 1220
    James Richard McGINLEY, Jr., v. Mary Lou McGINLEY,
    Appellant at No. 826PHL89,
    Appellant at No. 686PHL89.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1989.
    Filed Nov. 8, 1989.

      Jerome B. Nulty, Souderton, for appellant (at 686) and appellee (at 826).

      Sandor Engel, Allentown, for appellant (at 826) and appellee (at 686).
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Mary Lou McGinley (Wife) and James Richard McGinley (Husband) appeal from the order entered February 6, 1989, decreeing the parties to be divorced from the bonds of matrimony and establishing the terms of an equitable distribution. We affirm.

Husband and Wife were both born in 1951. They were married on September 23, 1972 and subsequently separated on April 24, 1982. Husband then filed a complaint in divorce in August, 1982. Hearings were held in this matter in November of 1986. On May 12, 1988 the Special Master filed his report and recommended the following: a) a plan of equitable distribution providing that Wife receive 60% and Husband 40% of the marital estate; b) an award of alimony to Wife of $400 per week for four years; c) an award of counsel fees and costs to Wife of $7,500; and d) an assessment against Husband of fees and costs related to the work of the Master. Exceptions to the Master’s Report were filed by both parties and were argued before the lower court.

On February 6, 1989 the lower court entered an order which, inter alia, modified the Master’s recommended equitable distribution plan by correcting a mathematical error, affirmed the Master’s award of alimony, master’s fees and costs, and overruled the Master’s award of counsel fees and costs. Hence, the instant appeal and cross-appeal.

On appeal, Wife asserts the following issues.

I. DID THE MASTER ERR IN DETERMINING THE TRUE EXTENT OF HUSBAND’S PREMARITAL STOCK HOLDINGS AND FAILING TO AWARD WIFE A PORTION OF THE POST-MARRIAGE ACQUISITIONS?
II. SHOULD THE INCREASE IN VALUE OF A CERTAIN FUND, HELD IN TRUST FOR HUSBAND, BE INCLUDED AS MARITAL PROPERTY?
III. SHOULD A SINGLE ASSET, THE MARITAL HOME, BE SINGLED OUT FOR AN INCREASED APPRAISAL TWO YEARS AFTER THE MASTER’S HEARING HAS BEEN CLOSED AND THE INCREASE BE TAKEN FROM WIFE, DOLLAR FOR DOLLAR?
IV. MAY WIFE’S REQUEST FOR OVER $40,000.00 IN COUNSEL FEES AND COSTS BE TOTALLY DISMISSED BECAUSE THE HEARINGS ARE NOW OVER AND SO WIFE SHOULD PAY THIS OUT OF HER CASH DISTRIBUTION?
V. WAS AN ALIMONY AWARD OF ONLY $400 A MONTH, FOR FOUR YEARS, SUFFICIENT IN VIEW OF WIFE’S ROUTINE EXPENSES, EXPECTED TUITION AND MORTGAGE COSTS, AND HUSBAND’S EXTREME EARNING CAPACITY?
VI. IS THE AWARD OF ONLY 60% IN EQUITABLE DISTRIBUTION SUFFICIENT CONSIDERING WIFE’S POOR EARNING CAPACITY AND HUSBAND’S DEMONSTRATED POTENTIAL FOR THE ACCUMULATION OF WEALTH?
VII. DID HUSBAND REALLY USE THE $18,000 FROM THE JOINT CAPITAL PRESERVATION FUND TO PAY A JOINT BILL AND SO EXCLUDE THE SUM FROM EQUITABLE DISTRIBUTION?
VIII. DID THE MASTER MAKE AN ARITHMETICAL ERROR OF $8,437 IN OVER-VALUING THE ASSOCIATED SUPPLIERS LIMITED ASSET IN HUSBAND’S POSSESSION?

On cross-appeal, Husband raises the following contentions.

I. WHETHER IT IS AN ABUSE OF DISCRETION TO MAKE AN EQUITABLE DISTRIBUTION AWARD REQUIRING THE PAYMENT OF CASH WHEN THE PAYING SPOUSE HAS NO SOURCE OUT OF WHICH TO PAY OR FROM WHICH TO BORROW?
II. WHETHER IT IS AN ABUSE OF DISCRETION NOT TO CONSIDER THE TAX CONSEQUENCES OF LIQUIDATING AN ASSET IN AN EQUITABLE DISTRIBUTION PROCEEDING?
III. WHETHER IT IS AN ABUSE OF DISCRETION TO AWARD A 60/40 DIVISION OF THE NEW WORTH OF A MARITAL ESTATE WHEN THE ESTATE IS ILLIQUID?
IV. WHETHER A LIFE INSURANCE POLICY PURCHASED PRIOR TO MARRIAGE IS NON-MARITAL PROPERTY, BUT IF MARITAL PROPERTY, SHOULD IT BE VALUED BY ITS CASH SURRENDER VALUE RATHER THAN THE AMOUNT OF PAID UP INSURANCE?
V. WHETHER AN AWARD OF REHABILITATIVE ALIMONY IS APPROPRIATE TO FINANCE A DEPENDENT SPOUSE'S COLLEGE EDUCATION WHEN THE SPOUSE HAS BEEN COLLECTING SPOUSAL SUPPORT FOR MORE THAN SIX YEARS, HAS NEVER ENROLLED IN ANY COLLEGE COURSES, AND IS NOT ELIGIBLE TO ENROLL IN ANY OF THE INSTITUTIONS UPON WHICH THE AWARD OF ALIMONY IS PREDICATED?
VI. WHETHER BIFURCATION SHOULD BE GRANTED WHEN THE PARTIES HAVE BEEN SEPARATED MORE THAN SIX YEARS, THE MARRIAGE IS IRRETRIEVABLY BROKEN AND THERE ARE NO DISADVANTAGES TO THE DEPENDENT SPOUSE?

First, we recognize that when reviewing an award of alimony, counsel fees, and property distribution under the new Divorce Code, we must utilize the abuse of discretion standard. 23 P.S. § 101; Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). Therefore we will not usurp the trial court’s duty as finder of fact by reversing its determination unless an abuse of discretion has been shown. Id.

We have independently reviewed both the record and the trial court opinion, and we find no abuse of discretion in the trial court’s determination of Wife’s challenges to Husband’s ownership of stock, the value of the marital home, the denial of an award of counsel fees and costs to Wife, the award to Husband of the entire joint Capital Preservation Fund and the correction of an arithmetical error in the valuation of the marital asset Associated Supplier’s Limited. Neither do we find that the trial court abused its discretion in its resolution of Husband’s challenge to the award of alimony to Wife. Both parties have challenged the equitable distribution division fashioned by the court. We find that the trial court considered the proper factors in reaching its conclusion that Wife receive 60% and Husband receive 40% of the marital estate.

A thorough review of the record reveals that the Honorable William F. Moran in his Opinion filed February 6, 1989 has competently and completely addressed Wife’s contentions I, III, IV, and VI-VIII. In addition, Judge Moran had adequately addressed Husband’s Issues I — III, and V. We approve the analysis of the lower court with respect to those issues and conclude that they are without merit. The following analysis addresses Wife’s Issues II and V and Husband’s Issues IV and VI.

At Issue II Wife argues that the trial court erred in ruling that the increase in the value of Husband’s trust fund was not marital property. Wife asserts that Husband had a vested interest and not an expectancy in the stocks that comprised the trust corpus of the testamentary trust created by Husband’s grandfather. She reasons that therefore the increase in the value of the stocks is marital property under the Divorce Code, which includes the following provision:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage, including the increase in value prior to the date of final separation of any nonmarital property acquired pursuant to paragraphs (1) and (3), except:
(3) Property acquired by gift, except between spouses; bequest; devise; or descent.

23 P.S. § 401(e)(3). In other words, while the corpus of property listed in 401(e)(3) is not marital property, the increase in value during the marriage is. Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986).

Husband argues that Wife is not entitled to her proportionate share of the increase in the value of the trust property because his own interest in the trust did not vest until after he and Wife separated. He avers that the reason his interest in the trust did not vest was because his father, the preceding life tenant of the trust, was still alive at the time that Husband and Wife separated. The trial court found that Husband’s interest did not vest but wrote that if it had vested the trust’s increase in value would have been marital property.

It is undisputed that, under 23 P.S. § 401(e)(3), the corpus of the trust is excluded from marital property. The question is whether the legislature intended the trust’s increase in value to be included as marital property, as the legislature expressly included the increase in value of property acquired by gift, bequest, devise or descent § 401(e)(3), supra. This point has not yet been considered in Pennsylvania. It is also undisputed that, if an interest is so contingent that it is a mere expectancy, then no aspect of it can be included as marital property. For instance, in Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987), we held that a former husband’s expectancy in receiving money held jointly with his mother in certificates of deposit could not be considered marital property. Therefore, in order to decide whether or not the legislature intended to include Husband’s interest in 401(e)(3), we must first ascertain the nature of his interest or, more precisely, determine whether or not his interest is vested.

John R. McGinley, Sr., Husband’s grandfather, died in 1958. Our review of John R. McGinley’s testamentary trust reveals that Husband had a vested interest in the trust on April 24, 1984, the date of the parties’ separation. The language that established the testamentary trust is as follows:

EIGHTH: I give, devise and bequeath unto my wife, CATHERINE E. McGINLEY [Husband’s grandmother], and my son JAMES R. McGINLEY [Husband’s father], and my son, THOMAS F. McGINLEY, the following: 500 shares of Sacony-Vacuum Oil Company, 600 shares of General Motors Corporation and 2,000 shares of United States Steel Corporation, IN TRUST NEVERTHELESS, upon the following conditions that my said Trustees, survivor or survivors of them, or their successors in office, pay all the income from said Stocks quarterly to my wife during her lifetime and at the time of my wife’s death, all the income from said stocks as mentioned in this Paragraph Eighth shall be paid quarterly to my sons, JAMES R. McGINLEY [Husband’s father] and THOMAS F. McGINLEY, share and share alike, and upon the death of my son, JAMES R. McGINLEY [Husband’s father], his share of said Stocks, I give, devise and bequeath in Trust to his children [which include Husband], until each child shall arrive at the age of thirty (30) years, then each child’s share shall go to said child absolutely. And upon the death of my son, THOMAS F. McGINLEY, his share of said Stocks, I give, devise and bequeath In Trust to his children, until each child shall arrive at the age of thirty (30) years, then each child’s share shall go to said child absolutely.

The Last Will and Testament of John R. McGinley, May 25, 1956, Paragraph Eight, Wife’s Exhibit.

It has been the common law for centuries, and it has always been the law of this Commonwealth, that a future interest may be vested, even if a condition precedent must occur before the actual passing of the property:

It is a well-settled rule, repeated in numerous cases, that the tests in determining if an interest is vested or contingent, is (sic) not the certainty or uncertainty of obtaining actual possession, nor the defeasibility or indefeasibility of the right of possession, inasmuch as estates may be vested in interest though without present right of possession. So long as a present right exists to a future possession the estate is vested, even though actual possession may be defeated by a future event.

Overbrook Heights Building & Loan Association v. Wilson, 333 Pa. 449, 458, 5 A.2d 529, 532 (1939). This is true even if the future event is the remainderman’s own death. McCauley’s Estate, 257 Pa. 377, 101 A. 827 (1917).

The plan of disposition used in the present case is a standard way in which a testator may dispose of his property. The law, which favors vesting, Patterson’s Estate, 247 Pa. 529, 93 A. 608 (1915), has created special labels for the interest held by Husband. First, because Husband’s father must die before Husband comes into possession, and because Husband could predecease his father, Husband’s interest is said to be vested subject to divestment. See In re Taylor’s Estate, 384 Pa. 550, 121 A.2d 119 (1956). Second, the will makes a class gift to the children of James R. McGinley, Husband’s father. As long as James R. McGinley is alive, he can theoretically have more children; therefore, Husband’s proportional share of the property is not certain. Because the class is not closed until his father dies, Husband’s interest is said to be vested subject to open. See In re Newlin’s Estate, 367 Pa. 527, 80 A.2d 819 (1951). Thus, by using these labels the law makes clear that Husband’s interest is vested even though the time he will receive actual possession is uncertain, and the size of the share he will receive is uncertain.

These two classifications of interest occur together naturally. Our supreme court was presented with the precise question of whether the future interest of a child whose parent is still alive and in possession of the property has a vested interest in In re Newlin’s Estate, supra. The court set forth the following rules:

Where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children * * * without regard to the question of whether or not a child survives the life tenant. In re Edwards’ Estate, 255 Pa. 358, 361, 99 A. 1010, 1011 (citations omitted) (emphasis supplied).
The interest of the defendant, the issue in being of the class of which he is a member, may be decreased or enlarged by future issue or by the death of some of the living issue in the same class, but this does not make his estate a contingent one. (citations omitted).
Where a bequest is to a class, the vesting is not postponed because of uncertainty as to who, if any, may be the constituents of the class at the time fixed for the enjoyment of it. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate, (citations omitted) (emphasis in original).

Newlin’s Estate, 367 Pa. at 532-533, 80 A.2d at 823. The will in Newlin’s Estate provided for the grandchildren to receive the principal of the trust “if and when” each arrived at age 30. After construing the will to determine the testator’s plan of disposition the court held that, under the scheme of the will, the grandchildren’s interests vested. An earlier court, considering whether a gift to “children” was vested or contingent, wrote:

While there were no children and it could not be known that there would ever be any the existing condition was contingent, and it would require the positive fact of children born to remove the contingency. But the moment that children are born there is no longer any contingency, the condition of the devise is met and the estate in remainder becomes necessarily vested. It certainly cannot become again contingent while there are children living, simply because there is a possibility that more children may be born in the future.

Keller v. Lees, 176 Pa. 402, 407, 35 A. 197, 198 (1896).

In discussing whether a will created a vested or contingent interest, the supreme court in In re Houston’s Estate, 414 Pa. 579, 201 A.2d 592 (1964), relied upon Newlin’s Estate, and further emphasized that:

The intention of a testator to create a contingent interest must appear clearly and plainly, otherwise the interest will be construed to be vested, or vested subject to be divested.

Houston’s Estate, 414 Pa. at 594-595, 201 A.2d at 599. See also In Re Estate of Benson, 447 Pa. 62, 285 A.2d 101 (1971). Construing a well-drafted and exhaustive will that provided for almost every conceivable situation, the court in Houston’s Estate concluded that, because of the care taken, the testator intended for the gifts to his heirs to be vested rather than contingent.

The testamentary trust in the present case is much simpler and more straightforward than those in the cases discussed above. For instance, it contains no language that could be remotely construed as a contingency, let alone a clearly and plainly stated one. Husband presents no authority for his position that his interest in the trust did not vest prior to the parties’ separation, and we find none. Husband's reliance on Hutnik, supra, discussed above, is misplaced. Based upon the above discussion, we conclude that Husband’s future interest in the testamentary trust created by his grandfather vested immediately upon Husband’s birth. Keller v. Lees, supra; Newlin’s Estate, supra; Edward’s Estate, 255 Pa. 358, 99 A. 1010 (1917). Accordingly, his interest in this property vested before Husband’s separation from Wife.

Our inquiry does not end here, however. We must proceed to the question of whether the legislature intended to include in its definition of marital property the increase in the value of a vested future interest such as Husband’s. Although this question has not been addressed by the courts of the Commonwealth, we appreciate that this is primarily an issue of statutory interpretation. Against a background of the mandate to “[e]ffectuate economic justice between parties,” 23 P.S. § 102(a)(6), the legislature enumerated types of property that could fairly be construed as having been accumulated during the marriage in 23 P.S. 401(e)(3), quoted above.

When interpreting a statute “[wjords must be given their plain meaning, unless doing so would create an ambiguity, and we must interpret statutes in accordance with the legislative intent.” Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985); 1 Pa.C.S. § 1921. The plain meaning of the phrase “property acquired” is property that has actually come into possession. One could argue that a vested future interest is an interest that has come into possession. However, with no Pennsylvania precedent to guide us at this point, we decline to impose this possibly strained interpretation upon the statute; we decline to enlarge its purview to include present “possession” of future interests. Hence, we conclude that the increase in value of Husband’s vested future interest in the trust does not come under the legislative definition of marital property.

We hold this with full awareness that we have also held, where the legislature has not expressly included pensions, that they are, nevertheless, whether vested or non-vested, marital property. Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988). With regard to pensions, we wrote that, because pension benefits are economic resources acquired with funds that would otherwise have been used to purchase other marital assets, they are thus marital property. Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986). We are also aware that this Court has held that a vested future interest created by a testamentary trust may be attached by a creditor. In Everson v. Everson, 264 Pa.Super. 563, 400 A.2d 887 (1979), a Husband’s vested future interest in a trust was attached when he refused to comply with a court order directing him to transfer to his wife a one-half share of the property owned by the parties. However, we decline to analogize these sufficiently distinguishable situations to the present case.

We recognize also that, with regard to vested future interest in general, courts in other jurisdictions have come to conflicting conclusions pursuant to their divorce codes. For instance, in Buxbaum v. Buxbaum, 214 Mont. 1, 692 P.2d 411 (1984), the court held that a husband’s remainder interest in a testamentary trust was included in the marital estate; See also In Re Marriage of Bentson, 61 Or.App. 282, 656 P.2d 395, petition denied 294 Or. 613, 661 P.2d 549 (1983), where the court held that a husband’s interest in a testamentary trust was a marital asset. On the other hand, in Loeb v. Loeb, 72 N.C.App. 205, 324 S.E.2d 33 (1985), a wife’s vested future interest in a family trust fund was considered separate property.

In addition, conflicts on this issue exist within a single jurisdiction. In Frank G.W. v. Carol M.W. (1983 Del. Supr.), 457 A.2d 715 (1983), the Delaware supreme court determined that a future interest could not be acquired within the meaning of the Delaware Divorce Code, 13 Del.C. § 1513, since a future interest has no possessory value, even though it may have present monetary worth. However, in Gregg v. Gregg, Del.Supr. 510 A.2d 474 (1986), the same court interpreted the Frank decision and reasoned that Frank did not stand for the proposition that a future interest could never have value as a marital asset. The court then determined that property interests not yet reduced to possession can be acquired during marriage within the meaning of § 1513 of the Delaware Divorce Code and if such an interest is in existence at the time of the divorce the interest is marital property. Gregg, supra; see also other cases in Annotation, Future Interest—Divorce, 62 A.L.R.4th 107 (1988).

We reiterate that, given the plain language of our Divorce Code, we decline to speculate upon legislative intent and so we hold that the increase in value of Husband’s vested future interest is not marital property. We do this recognizing that the legislature may at any time clarify or modify the statute.

We recognize further that the lower court properly considered the existence of the trust when awarding Wife alimony and a greater share of the marital assets. See 23 P.S. § 401(d)(5). By doing so, the court was able to effectuate economic justice between parties who are divorced, pursuant to the directive of the Divorce Code. Hutnik v. Hutnik, supra; Anthony v. Anthony, supra; Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985). Hence, we hold that the trial court properly labeled and distributed the economic assets in this case and committed no abuse of discretion.

We supplement the trial court’s analysis of Wife’s Issue V by noting that Wife incorrectly states that she was awarded alimony in the amount of $400.00 per month. To the contrary, Wife was awarded $400.00 per week, an amount that the trial court determined was adequate. We agree.

At Issue IV, Husband argues that his life insurance policy, valued at $7,254.00 which was included in the equitable distribution by the trial court, is not marital property. However, he has not preserved this issue for our review since he has failed to include it in his Exceptions to the Master’s Report. Hence, this issue has been waived pursuant to Pa.R.Civ.P. 1920.55(a).

Last, Husband’s Issue VI challenges the court’s denial of his Petition for Bifurcation. Husband agrees that bifurcation is an issue only if we remand this case. However, we are not remanding this case. Instead, we affirm the lower court order decreeing that the parties be divorced from the bonds of matrimony. Thus, we need not consider Husband’s last issue.

The order of the trial court is affirmed.


author: KELLY, Judge:

text:
    565 A.2d 1227
    Samuel J. PILOTTI, Appellee, v. MOBIL OIL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1989.
    Filed Nov. 8, 1989.

      Richard C. Biedrzycki, Philadelphia, for appellant.
    Anthony T. Vetrano, Paoli, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether a trial court abused its discretion in denying a motion to amend pursuant to Pa.R.C.P. 1033 in order to cure answers deemed to have the effect of admissions due to their inadequacy under Pa.R.C.P. 1029(b), and in granting judgment on the pleadings where the request to amend was promptly made and the amendment would have presented a viable defense sufficient to withstand judgment on the pleadings.

The relevant facts and procedural history are as follows. Appellee, Samuel J. Pilotti, discovered that appellant, Mobil Oil Corporation, had decided to sell the real estate upon which Charles D. Fretz was operating a gasoline station under a franchise-lease agreement that was about to expire.

Mobil Oil and Pilotti entered into a brokerage agreement whereby Pilotti was to receive a six percent commission if he could find a buyer for the premises. The agreement was specifically conditioned upon Pilotti closing the sale. The agreement also specifically acknowledged Mobil Oil’s rights were subject to lessee Fretz’ right of first refusal under the Petroleum Marketing Practices Act, 15 U.S.C.A. §§ 2801 et seq., and that if Fretz chose to exercise this right, Pilotti would not receive a commission.

Pilotti found that Henry Katra and Mark Szilagyi, the owners of the property adjacent to the gasoline station, were interested in purchasing the station when Fretz’s lease expired, and Pilotti pursued that interest in hopes of a commission. On December 24, 1985, an agreement of sale was drawn up between Mobil Oil .and Katra and Szilagyi. The price for the property was to be two hundred thousand dollars, and :the agreement was to become effective when Fretz’s lease expired.

However, in accordance with the Petroleum Marketing Act, the agreement was subject to Fretz’s right of first refusal. On April 3, 1986, Mobil Oil informed Fretz of the offer by Katra and Szilagyi to purchase the property for two hundred thousand dollars. On July 21, 1986, Mobil Oil notified Pilotti by letter that Fretz had chosen to exercise his option to purchase the property, and the names of Katra and Szilagyi would not appear as grantees on the deed. In this letter, Mobil Oil also informed Pilotti that it was going to reduce the price of the property to Fretz by twelve thousand dollars in order not to receive any extra profit from the savings on what would have been Pilotti’s commission. On August 5, 1986, Mobil Oil and Fretz made settlement on the property with Fretz’s name appearing as grantee on the deed. Fretz then conveyed the property to Katra and Szilagyi for two hundred and fifteen thousand dollars. Pilotti did not receive a commission from either Mobil Oil or Fretz, and points to the July 21, 1986 letter as evidence of Mobil Oil’s intent to deceive him and cheat him out of the commission he believes he earned by securing Katra and Szilagyi as the ultimate purchasers of the property-

On February 17, 1988, Pilotti served Mobil Oil with a lengthy complaint seeking a twelve thousand dollar commission. In his complaint, he alleged breach of contract, fraud, unjust enrichment, and civil conspiracy. He also sought punitive damages. On May 9, 1988, Mobil Oil filed its answer in which it admitted some allegations and denied others. Many of the denials were phrased either “Denied” or “Denied, Legal conclusion.” On December 9, 1988, Pilot-ti motioned for a judgment on the pleadings, contending that such answers were inadequate under Pa.R.C.P. 1029(b). Pilotti argued that these inadequate answers coupled with other admissions contained in the pleadings entitled him to judgment on the pleadings. Mobil Oil responded that the motion for judgment on the pleading should be denied, and sought leave from the trial court to amend its answer. The trial court granted Pilotti’s motion for judgment on the pleadings. This timely appeal followed.

On appeal, Mobil Oil presents the following four issues for our review:

(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof ... shall have the effect of an admission.
1. Did the Court below abuse its discretion in refusing to allow Mobil to amend its answer to the complaint?
2. Was plaintiff entitled to judgment on the pleadings on his claims for breach of contract, misrepresentation and unjust enrichment?
3. Was plaintiff entitled to judgment on the pleadings on his claim that Mobil unlawfully conspired with its vendee/lessee to deprive plaintiff of a real estate brokerage commission?
4. Did Mobil admit by improper denials certain averments of plaintiffs complaint such that Mobil effectively admitted liability to Pilotti?

(Appellant’s Brief at 4). After a thorough review of the record, the applicable authority, the briefs, and the trial court opinion, we conclude the trial court abused its discretion in denying Mobil Oil’s request to amend, and erred in granting judgment on the pleadings in favor of Pilotti.

Our Supreme Court has held that the policy in this Commonwealth is to allow amendment where there is a reasonable possibility that an amendment can be accomplished successfully. Otto v. American Mutual Insurance, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978); see Pa.R.C.P. 1033. Although the granting of leave to amend the pleadings is committed to the sound discretion of the trial judge, that discretion is not unfettered. A court may disallow leave to amend the pleadings only where prejudice to the other party would result. Gallo v. Yamaha Motor Corp. U.S.A., 335 Pa.Super. 311, 314, 484 A.2d 148, 150 (1984). Prejudice must amount to something more than the removal of the procedural defect that the amendment is intended to cure. Cf. W.I. Snyder Corp. v. Caracciolo, 373 Pa.Super. 486, 492, 493, 541 A.2d 775, 778 (1988). Rather, a trial court may not deny a party leave to amend unless unfair surprise or some comparable prejudice will result from the amendment. Robinson Protective Alarm Co. v. Bolger and Picker, 512 Pa. 116, 516 A.2d 299 (1986). The timeliness of the request to amend is a factor to be considered, but it is to be considered only insofar as it presents a question of prejudice to the opposing party, as by loss of witnesses or eleventh hour surprise. See Brooks v. McMenamin, 349 Pa.Super. 436, 503 A.2d 446 (1986). No prejudice is even suggested in this case which would warrant denial of Mobil Oil’s prompt request to amend its answer to correct alleged inadequacies in its answer.

The policy of this Commonwealth is to grant judgment on the pleadings only in cases where the moving party’s right to relief is certain. See Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986). In light of this standard, a court should be cautious in granting judgment on the pleadings if an answer, though inartfully pled, is relevant and the court cannot assume from the pleadings that the defendant cannot plead a good defense to plaintiff’s claim. Mellon Bank N.A. v. Joseph, 267 Pa.Super. 307, 406 A.2d 1055 (1964); Medusa Portland Cement Company v. Marion Coal & Supply Co., 204 Pa.Super. 5, 201 A.2d 285 (1964). Moreover, this Court’s preference for allowance to amend the pleadings even after the opposing party has moved for judgment on the pleadings, has been stated as follows:

[wjhere there is any uncertainty or doubt, it should not be assumed that a party cannot plead with more specificity. The court should consider the advisability of directing a party to amend. Moreover, in close cases, it would seem that the preferable approach is to await the filing of affidavits and depositions and then to consider the issue on a motion for summary judgment.

Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 177, 437 A.2d 1262, 1263 (1981) (citations omitted) (emphasis added); see also Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11 (1988).

Instantly, the trial court’s entry of judgment on the pleadings was premature and contrary to the policy of the law of this Commonwealth. There is more than enough uncertainty and doubt contained in the pleadings to warrant giving Mobil Oil opportunity to amend its answer.

In its motion in opposition to judgment on the pleadings, Mobil Oil had alleged that its service of notice on Fretz of the offer by Katra and Szilagyi to purchase the property was mandated by the right of first refusal clause contained in the Petroleum Marketing Practices Act, and could in no way be construed as an attempt by Mobil Oil to conspire with Fretz to deprive Pilotti of a commission; Mobil Oil also asserted that it could not have breached its contract with Pilotti because Pilotti knew by the express and unequivocal terms of his broker’s contract that if Fretz exercised his right to purchase the property, Pilotti would not receive a commission.

Review of the record reveals that the factual averments necessary to the defenses, which Mobil Oil sought leave to amend in order to assert, were plainly known to Pilotti even before this litigation commenced. Thus, there would be no undue surprise or prejudice from allowance of the amendment. If averred, those simple facts would provide at least sufficient doubt to withstand a motion for judgment on the pleadings. Having been put on notice of the possibility of such an amendment, the trial court erred by proceeding to grant judgment on the pleadings instead of allowing the amendment.

We emphasize that our ruling in this appeal merely prevents a disposition at this time on purely procedural grounds. We neither express nor imply any opinion whatsoever upon the merits of either party’s substantive contentions further than to conclude judgment on the pleadings is not proper at this juncture. Cf. Del Quadro v. City of Philadelphia, supra.

Based upon the foregoing, the trial court’s order is vacated and the case is remanded for proceedings consistent with this OPINION.

Jurisdiction is relinquished.

      . Pilotti has also filed a separate suit against Charles D. Fretz for a commission and for punitive damages.

      . Pa.R.C.P. 1029, "Denials. Effect of Failure to Deny" provides in pertinent part:

      . In light of our disposition of the first issue raised by Mobil Oil, we need not reach the merits of three other issues asserted on appeal.


author: TAMILIA, Judge:

text:
    565 A.2d 1230
    COMMONWEALTH of Pennsylvania, Appellant, v. Lewis DEANS.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1989.
    Filed Nov. 16, 1989.
    Brian P. Gottlieb, Dist. Atty. Gen., Philadelphia, for Com., appellant.

      Helen A. Marinc, Asst. Public Defender, Philadelphia, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

The Commonwealth brings this appeal from the trial court’s January 13, 1989 Order granting appellee’s motion to suppress expert testimony that a lottery ticket was altered.

Police arrested and charged appellee with forgery for attempting four years earlier to collect a $75,000 prize on an allegedly altered Pennsylvania lottery ticket. On the scheduled day of trial, appellee filed a motion to dismiss and motion in limine alleging that because the Commonwealth had lost and could not produce the original lottery ticket for his examination, he was in effect precluded from properly defending the case against him. The trial court denied the motion to dismiss but granted in part the motion in limine, thereby suppressing expert testimony that a portion of the ticket was not an integral part of the original ticket. The trial court made its decision based on the Commonwealth’s failure, by losing the ticket, to provide appellee with adequate tools to defend himself (see Slip Op., Greenspan, J., 5/2/89).

This case comes to us on appeal after the Commonwealth made a good faith certification that the trial court’s suppression terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The sole issue on appeal is whether the trial court erred in suppressing expert testimony about the alleged alteration of a lottery ticket where the ticket was lost and therefore unavailable to the defense for independent examination.

Appellant contends introduction of the expert testimony would not deny appellee the right to confront the evidence against him or violate his due process rights. The case law supports this position. The United States Supreme Court recently considered a similar issue in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), when it stressed the importance of the prosecution’s good or bad faith in evaluating a loss of evidence claim.

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.

Id. at -, 109 S.Ct. at 337, 102 L.Ed.2d at 289. In this instance, as there has been no evidence of bad faith on the part of the Commonwealth, their unfortunate failure to preserve the lottery ticket does not constitute a denial of federal due process under the fourteenth amendment. Id. We do not believe the fact the unavailable evidence in Youngblood was “supplementary” evidence in contrast to the lottery ticket in this situation, which is primary evidence, is of any consequence to our decision. The reasoning and rationale of Youngblood are as applicable and reasonable here as they were in that case.

In Commonwealth v. Hrynkow, 457 Pa. 529, 330 A.2d 858 (1975), our Supreme Court held testimony regarding tests performed on defendant’s lost clothing admissible and not a denial of defendant’s right to confront the evidence, where he had a right to inspect lab reports offered in evidence and to cross-examine the testimony. Similarly in Commonwealth v. McGlory, 226 Pa.Super. 493, 313 A.2d 326 (1973), this Court allowed oral testimony to establish the physical evidence seized from defendant at the time of his arrest was narcotic drugs, even though the evidence itself was lost or destroyed, since the appellant in that case was given full latitude to cross-examine the prosecution witnesses and attack any portion of the laboratory report. Analagous to this case, where the lotto ticket is the basis of the forgery charge, the drugs in McGlory were the essence of the charges of sale and possession of narcotic drugs. In the instant case, photocopies of the allegedly altered lottery ticket are available to the defense and may be submitted to appellee’s own experts for independent evaluation, and the expert testimony itself is subject to possible impeachment.

Additionally, the trial court’s reliance on Commonwealth v. Arenella, 306 Pa.Super. 119, 452 A.2d 243 (1982), is misplaced. In Arenella, the trial court denied the defendants’ pre-trial motion for independent expert examination of the alleged controlled substance they were accused of possessing. This Court found the denial may have severely limited the presentation of their defense and reversed. Even so, this case is distinguishable because, unlike in Arenella, there is an available substitute for the defense to examine and submit to expert evaluation. Photocopies of the allegedly altered lottery ticket, verifiable as reproductions of the original lottery ticket, have been available to the defense in advance of trial and could be submitted to independent experts.

No case in this Commonwealth requires production of tangible physical evidence under the instant circumstances. See McGlory, supra, and Commonwealth v. Cromartie, 222 Pa.Super. 278, 294 A.2d 762 (1972)(narcotic drugs destroyed before trial for possession thereof). Therefore, we cannot agree with the trial court’s decision.

Order reversed and case remanded for proceedings consistent with this Memorandum.

Jurisdiction relinquished.

      . 18 Pa.C.S. § 4101.

      . Footnote 1 of the trial court’s Opinion notes:
      The defense first challenged the absence of the ticket at the preliminary hearing and thereafter repeatedly sought relief because the original ticket was missing. Indeed, although the preliminary hearing judge reluctantly accepted testimony concerning the ticket he warned the Commonwealth: "at the time of trial you may have difficulty.” N.T. 2/23/88: 14-15, 18.
      Slip Op., Greenspan, J., 5/2/89, p. 2.

      . We do not agree with appellee’s suggestion that the good or bad faith of the Commonwealth is irrelevant to this case or that in the alternative it is the Commonwealth’s obligation to prove their good faith. In this instance, we believe that absent a showing of bad faith in loss of the evidence, good faith is implied.