author: MONTEMURO, Judge:

text:
    480 A.2d 1096
    Frederick REED and Roxanne M. Reed, Appellants v. Ruth Ann HUTCHINSON.
    Superior Court of Pennsylvania.
    Argued Feb. 21, 1984.
    Filed July 6, 1984.
    Reargument Denied Sept. 11, 1984.

      Edward Blumstein, Philadelphia, for appellants.
    C. Richard Morton, West Chester, for appellee.
    Before WICKERSHAM, MONTGOMERY and MONTEMURO.
   MONTEMURO, Judge:

Appellants, Frederick Reed and his wife, Roxanne Reed, commenced this action in trespass to recover for injuries sustained in an accident which occurred on September 16, 1976, when a pick-up truck driven by appellee Hutchinson left the road and hit a guardrail. Appellant, Roxanne Reed, was a passenger in the truck at the time of the accident. At the completion of trial on November 17, 1980. The jury-rendered its verdict in favor of defendant-appellee Hutchinson. Appellants’ motions for a new trial and for judgment n.o.v. were denied by the court below. Judgment was entered on July 23, 1982 and this appeal followed.

At approximately 2:20 PM, on the afternoon of September 16, 1976, appellee was driving down Paoli Pike toward West Chester, when, near the Pike’s intersection with Route 352, her pick-up truck veered off the road and hit a guardrail. After the accident, the right front wheel of appellee’s vehicle was discovered on the right side of the road some twenty-five feet to the rear of the vehicle. At trial, plaintiff-appellants attempted to prove that appellee driver lost control of her vehicle due to inattentiveness and drove off the road into a guardrail, which thus caused the vehicle to lose its right front wheel. Appellee’s position was that the vehicle lost its right front wheel for unexplained reasons, which loss then caused the vehicle to leave the road and hit the guardrail.

On appeal, appellants raise four issues, three of which relate to the testimony of the investigating officer, Trooper Williams, and can essentially be stated as one question — did the trial court err in permitting opinion testimony by Trooper Williams?

Trooper Williams was not an eyewitness to the accident, but instead arrived on the scene two to three minutes later. At trial, Trooper Williams was called as a witness on behalf of appellants. It was established, inter alia, on direct examination that the officer had observed cut marks on the road at the scene of the accident. The following exchange then occurred on cross-examination:

Q. Let me ask you this, sir. Did the cut marks that you saw appear to have been made by what was left after the wheel came off?
MR. BLUMSTEIN: Objection, Your Honor.
THE COURT: State your grounds.
MR. BLUMSTEIN: If the Officer doesn’t know how the wheel came off, and if the Officer didn’t see the cut marks made, I don’t know how he can state what made the cut marks.
THE COURT: What is the basis of your objection, the precise basis of your objection?
MR. BLUMSTEIN: The basis of my objection is there’s been no foundation laid for the officer to make this statement. He’s calling for an opinion of the officer for facts not observed.
THE COURT: Is the basis that there’s been no foundation laid?
MR. BLUMSTEIN: That’s number 1. Number 2, he’s calling for the opinion of the officer.
THE COURT: And, sir, as to the foundation which you deem deficient, do you deem it factually deficient or deficient as to this gentleman’s experience in expertise?
MR. BLUMSTEIN: Both, Your Honor.
THE COURT: And with respect to the opinion, the alleged impropriety to his testifying to an opinion, do you have any particular basis of that, sir, that you object to? Do you object to the police officers giving opinions as to the cause of an accident in general, or what exactly? What is the precise basis of your objection, sir?
MR. BLUMSTEIN: May we have a sidebar, Your Hon- or? I would be glad to discuss it in some detail.
(Argument reported but not requested to be transcribed.)
THE COURT: Do you wish to cross examine him on his own expertise, sir?
MR. BLUMSTEIN: If Your Honor would permit me?
THE COURT: Very well. I will allow you to do that before giving an ultimate ruling as to the question.
VOIR DIRE EXAMINATION
BY MR. BLUMSTEIN:
Q. Officer, prior to this particular incident, you had been a state police officer for how long?
A. Approximately a year and a half then.
Q. About a year and a half?
A. Yes, sir.
Q. And what training have you had in accident investigation?
A. The basic training that they give at the State Police Academy, sir. Immediately following that—
Q. What was that basic training?
A. Approximately a twenty-two, twenty-four hour course of accident investigation and accident analysis.
Q. Twenty-four hour course?
A. Approximately, yes, sir.
Q. Officer, did you study in that course anything that related to the consistency of highways or the materials of highways?
A. We’re given a working knowledge of the type of roadways that are laid; we’re taught about driver reaction to accidents or to, you know circumstances. That’s basically about it.
Q. Were you taught anything about the mechanics of the operation of an automobile?
A. No, sir. I’ve no expertise in that field.
MR. BLUMSTEIN: I have no other question your honor.
(N.T. November 13, 1980, pp. 87-90).

Cross-examination was then permitted to continue, and eventually appellee’s attorney posited the following:

Q. All right. Did you arrive at a conclusion sir, based upon what you saw there at the scene and talking to the people involved, and based on your background and training and experience, as to whether that wheel came off before or after the vehicle came into contact with the guardrail?
MR. BLUMSTEIN: Objection, Your Honor.
THE COURT: Overruled. Did you arrive at a conclusion, sir? Yes or no.
A. Yes, sir; I did.
Q. What was your conclusion?
MR. BLUMSTEIN: Objection. Your Honor.
THE COURT: State Your grounds.
MR. BLUMSTEIN: Your Honor, I think that the officer is being asked to testify to facts that are not within his province. He’s being asked to give an opinion that he cannot give. He did not witness the accident; he made certain observations. It has been testified that he had certain training for twenty-four hours, Your Honor, and he had been on the force for a year and a half. I think that the issue of whether or not that wheel left the vehicle before or after the vehicle left the road is not within his province. He’s not qualified to give the answer. Further, Your Honor, I cite the cases that I cited previously, including the Rosato vs. Nationwide.
THE COURT: Objection overruled.
BY MR. MORTON:
Q. Would you state your opinion, sir.
A. Yes, sir. It was my opinion, after observing the scene and observing the vehicles, that the accident was a result of the front wheel, the front right wheel, of the vehicle becoming dislodged or dislocated for some unknown reason from the vehicle itself causing the operator to loose control and veer to the right and striking the guardrail, and coming to rest at the same.
(N.T. November 13, 1980, at 97-98).

We begin our analysis by stating the general rule that in this Commonwealth an investigating police officer who did not actually witness a motor vehicle accident is not competent to render an opinion at trial as to its cause. Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720 (1956); Lesher v. Henning, 302 Pa. Super. 508, 449 A.2d 32 (1982); Kelly v. Buckley, 280 Pa. Super. 353, 421 A.2d 759 (1980); Andrews v. Jackson, 211 Pa. Super. 166, 235 A.2d 452 (1967). The rationale advanced for the rule is that since the officer has no first hand knowledge of the accident, his conclusion as to its cause is speculative at best, and thus constitutes an unwarranted and prejudicial usurpation of the fact finding prerogative of the jury. Brodie v. Philadelphia Transportation Co., supra; Smith v. Clark, supra, Lesher v. Henning, supra.

However, there is a caveat to this general rule. When a police officer is properly qualified as an expert witness, and a proper foundation for his testimony is established, an officer may, like any other witness, render an opinion on the question of causation. Lesher v. Henning, supra 302 Pa. Super. at 512-513 n. 2, 449 A.2d at 43 n. 2.

“If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert.” Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979). Additionally, we acknowledge that the question of qualifications of an expert witness is one for the discretion of the trial court. Commonwealth v. Williams, 270 Pa. Super. 27, 410 A.2d 880 (1979).

Looking once again at the voir dire examination of the trooper, what we have is an individual who had been a state police officer for IV2 years at the time of the accident, who had undergone the basic training in accident investigation which is given at the State Police Academy. When questioned as to what was covered in the course, the trooper replied:

A. We’re given a working knowledge of the type of roadways that are laid; we’re taught about driver reaction to accidents or to, you know, circumstances. That’s basically about it.
Q. Were you taught anything about the consistency of highways or what kind of objects would be required to make any kinds of marks on highways?
A. Not that I can recall, sir.
Q. Were you taught anything about the mechanics of the operation of an automobile?
A. No, sir. I’ve no expertise in that field.
(N.T. November 13, 1980 at 90) (Emphasis added).

We fail to see how this constitutes a pretension of specialized knowledge. To the contrary, the trooper highlighted his lack of expertise regarding the specific question at issue. If what we have here were sufficient to qualify an officer as an expert, as appellee asserts, one would expect to find numerous instances of opinion testimony by police officers in the case law. This is distinctly not so. While officers are permitted with some frequency to testify as to their opinion of the speed of a vehicle, based on their interpretation of skid marks found at the scene of an accident, e.g., Rutovitsky v. Magliocco, 394 Pa. 387, 147 A.2d 153 (1959); Morris v. Moss, 290 Pa. Super. 587, 435 A.2d 184 (1981); Rosato v. Nationwide Insurance Co., 263 Pa. Super. 340, 397 A.2d 1238 (1979), appellee cites us to no other circumstance in which opinion testimony of a police officer has been admitted into evidence. Our own research has confirmed that this is a representative picture of the case law as a whole on the subject of opinion testimony of non-eyewitness police officers.

Moreover, we note that appellants’ position is substantially bolstered, and appellee’s consequently undercut, by certain language in appellee’s brief. Therein, appellee states, “We would also suggest that the opinion asked of the officer in this case as to when the wheel left the vehicle, could have easily been arrived at by the average teenage.” (Brief of appellee, p. 12). If this is so, then the subject is not a proper one for expert testimony, and the issue is not one where opinion evidence, expert or otherwise, is admissible. 9 Standard Pa. Practice 2d §§ 55:1, 55:4. To admit the opinion of an expert in such circumstance is a patent usurpation of the jury’s function.

Having determined that admission of the trooper’s opinion testimony was error, we now must turn to the question of whether a new trial should be granted. While we recognize that every erroneous admission of evidence does not lead to a new trial, Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983), we feel that a new trial should be granted here. We base this conclusion on the factually similar case of Lesher v. Henning, supra. Therein it was determined that opinion testimony of the investigating officer had been improperly admitted. The court rejected the proposition that the officer’s opinion did not influence the jury’s determination of liability. It specifically noted that the officer was the first witness to testify on behalf of appellee and thus the first to contradict the plaintiffs’ story. Additionally, the court stated that:

Indeed, the fact that the opinion was expressed by a police officer might, in itself, have rendered its admission into evidence prejudicial. As Justice Musmanno held in a remarkably similar case: “It was ... highly prejudicial ... that this statement should be brought to the attention of the jury with all the prestige and authoritativeness which naturally attaches to an impartial police report. Johnson v. Peoples Cab Co., 386 Pa. 513, 516, 126 A.2d 720, 721 (1956).

Lesher v. Henning, supra 302 Pa.Super. at 514, 449 A.2d at 35.

Similar considerations apply in the case sub judice, where the trooper testified during plaintiff-appellants’ presentation of their case.

Appellants raise a fourth issue regarding an allegedly prejudicial statement by a juror. In view of our determination that a new trial is required, we need not address this issue.

Judgment is vacated, and the case remanded to the Court of Common Pleas for a new trial. We do not retain jurisdiction.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    480 A.2d 1101
    Roman LANIECKI v. POLISH ARMY VETERANS ASSOCIATION OF LUCYAN CHWALKOWSKI & Alexander Machowski. Appeal of Alexander MACHOWSKI. Roman LANIECKI v. POLISH ARMY VETERANS ASSOCIATION OF LUCYAN CHWALKOWSKI, Alexander Machowski, Theodore S. Przybyla, John Brycki, Ryszard Myszka. Appeal of POLISH ARMY VETERANS ASSOCIATION, Lucyan Chwalkowski. Roman LANIECKI, Appellant v. POLISH ARMY VETERANS ASSOCIATION OF LUCYAN CHWALKOWSKI, Alexander Machowski, Theodore S. Przybyla, John Brycki, Ryszard Myszka.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed July 6, 1984.

      Frank M. Jakobowski, Philadelphia, for Machowski, appellant (at No. 3309) and appellee (at Nos. 23 & 38).
    Joseph T. Murphy, Jr., Philadelphia for Polish Army, appellants (at No. 23) and appellees (at Nos. 3309 & 38).
    Milton S. Lazaroff, Philadelphia, for Laniecki, appellant (at No. 38) and appellee (at Nos. 3309 & 23).
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This case involves cross-appeals in a trespass action for libel brought by the plaintiff-Roman Laniecki against the Polish Army Veterans Association of Lucyan Chwalkowski, Post No. 12 (hereinafter the Association or Post) and Alexander Machowski.

A jury found that the plaintiff had been libelled by the Association and Machowski, but, while awarding $5,000 in punitive damages, the veniremen granted no compensatory damages. At the post-verdict stage, Laniecki’s motion for a new trial “as to damages only” was denied. Likewise, the Association’s and Machowski’s request for a new trial, or, in the alternative, for a judgment non obstante veredicto was refused. We affirm.

In deciding the propriety of the rulings that were made, we adhere to the following:

On appeal from the refusal of the trial court to enter judgment for the defendant-appellee non obstante veredicto, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, the appellant here, the benefit of every favorable inference reasonably to be drawn from the evidence. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). All unfavorable testimony and inferences must be rejected. Smith v. Kravitz, 173 Pa.Super. 11, 93 A.2d 889 (1953). As to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court’s action “ ‘absent an abuse of discretion or error of law which controlled the outcome of the case.’ ” Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 521, 229 A.2d 861, 862 (1967); Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957); Lambert v. Durallium Products Corp., 364 Pa. 284, 72 A.2d 66 (1950).

McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993-994 (1982), petition for allocatur denied October 29, 1982.

Keeping the preceding in mind, the following appears of record: At a special meeting of the Post, sometime in 1968, it was decided that a building would be erected to house various functions of the Post (e.g., banquets, weddings and meetings etc.). Mr. Laniecki was elected chairman of the building committee since he was in the construction business. In fact, when one of the subcontractors refused to complete the roof on the proposed structure, Mr. Laniecki did so at the request of the Post.

The procedure by which Laniecki received payment for the material and labor supplied consisted of his submission of bills to the building committee which authorized payment. However, the bills were presented to the board of directors of the Post, which met twice a month, and to the members at the monthly meeting for final approval. Up until the opening ceremonies on July 20, 1969, the procedure by which Laniecki received payment was adhered to and no one complained of the cost or the manner in which some of the bills were presented, e.g., on Laniecki’s business stationery. This practice was continued when Laniecki was asked to perform some of the construction on the inside of the structure.

All parties agreed that the amount paid by the Post to Laniecki for work done was approximately $7,000.

Shortly after the completion of the building, Laniecki asked the commander of the Post to select a committee to examine the bills he had submitted “because of the report of some people telling [him] that ... [he] must have made a bundle on that job.” (N.T. 43) Consequently, he wanted to have a committee appointed to absolve him of any wrong. This was done and, at a 1969 meeting of the Post, resulted in a clearing of Laniecki’s name of any impropriety.

This matter laid dormant until 1972 before it was resurrected by Alexander Machowski, the new Post commander, who also happened to chair the 1969 auditing committee that initially investigated Laniecki. Machowski informed the membership at a meeting that he had discovered “irregularities” in regard to the bills offered by Laniecki in support of the work done from 1968 to 1969.

Machowski selected a four-member committee, of which he was one, to go through the books a second time. Laniecki received notification from the recording adjutant of the Post as to what had transpired, and he asked that Laniecki be present at a membership meeting on July 7, 1972. Laniecki also was asked to produce for the meeting documentation relating to the “questioned receipts issued on [his] firm’s forms in the general amount of $7,099.12 ... for the ultimate resolution of this matter.” (N.T. 57) Laniecki responded that due to illness he would not be able to attend and asked that discussion on the matter be postponed. The Post, thereafter, notified Laniecki as to exactly what billing items were in dispute and that the subject would be taken up at a gathering of the membership on September 21, 1972.

Instead of appearing at the scheduled meeting, Laniecki had his wife type a 3-page reply that detailed the events encompassing the construction and the manner in which the Post authorized payment for his services. He made reference to his being cleared of similar charges by a 1969 committee. Lastly, he put the Post on notice that he considered the committee’s 1972 inquiry “to be vicious and a besmirching of [his] name,” for which he would seek legal redress unless the matter was cleared up at a monthly meeting of the Post. In actuality, Laniecki had been expelled from the Post for fighting with a member who had accused him of stealing money less than a month before he wrote the letter, and this was one of the reasons he did not attend the proceedings.

Although Laniecki obtained reinstatement from the national organization (SWAP) in 1973, he thought it best to transfer his membership to Post 121 in Camden, New Jersey after he refused to apologize to Machowski and others at the Post. Thereafter, during the latter half of 1973, Laniecki was elected commander of the Camden Post for 1974.

The next time Laniecki became aware of Post 12’s accusations was prior to a meeting of the Camden Post in September of 1974. At that time, the vice commander advised him that Post 121 had received a letter from SWAP in New York informing it that Post 12 had objected to Laniecki receiving a gold medal of distinction for 50 years of service to the organization and having been elected commander of the Camden Post after less than 2 years as a member, which violated SWAP’s constitution and Post 121’s own rules. Attached to SWAP’s communique was a copy of a letter on Post 12’s stationery and bearing the signature of Alexander Machowski, its commander. It was typed in Polish, translated into English by the Berlitz Translation Service of Philadelphia at plaintiff’s request and read to the jury by counsel for Laniecki. The letter consists of the following:

POLISH ARMY VETERANS ASSOCIATION OF LUCYAN CHWALKOWSKI
Post No. 12
Philadelphia, May 6, 1974
Head Office SWAP
New York
Dear Comrade Commandant,
I would like to inform you that Post No. 12, on its monthly meeting, on Friday, May 3rd, carried out an unanimous decision against distinction by the Head Office, of Mr. Romana Laniecki, Commandant Post No. 121, in Camden, N.J., represented by a gold medal of 50 years SWAP, of which we learned through a Newspaper “Nowy Dziennik” dated May 1st.
We think that Mr. Laniecki, who was penally displaced from Post No. 12, because of his vulgar behavior, undignified for a Polish Veteran, for the beating of two members and hurting the national feelings of another member, is not worth a reward, but on the contrary, a most severe condamnation [sic] and punishment through the Head Office.
Worst of all, Mr. Laniecki embezzled Post No. 12, for over 7 thousand dollars, refusing to account for the money, which was used to build a construction at Polanka.
We think that the Head Office should refuse to confirm the “election” of Mr. Laniecki, as Commandant of Post 121, of which he has been a member for 4 months only. SWAP’s constitution, not just the rules of Post 121 or the rules of the Head Office, specifies that you have to be a member of the Post in question for at least two years. All these happenings have a very demoralizing influence on the members of Post 12 and have shaken the authority of the Head Office also, not just the authority of Post 12, but among Polish people in Philadelphia, and among those who have a very big interest in our organization.
We hope that the Head Office will change its line of conduct and will treat Mr. Laniecki according to our constitution, to stop a tide of discontent and criticism towards that Head Office.
With friendly regards,
Alexander Machowski
Commandant
(Emphasis added)

Both letters were read to the membership at the Camden Post 121 meeting by the vice commander at Laniecki’s request, for prior to that point he had not received a copy of either writing.

As Post 12’s letter was being read in Polish, which Laniecki understood to mean, especially the italicized portion supra, that he had been accused of “embezzl[ing] over seven thousand dollars,” (N.T. 79), he, along with others in ear-shot of the reading, were shocked and the members refused to accept the letters and had them returned to SWAP. Also, Laniecki was asked to remain as commander, but he refused to do so and resigned. Thereafter, on October 15, 1974, the instant libel suit was commenced by means of a complaint in trespass.

After a five day trial, the jury returned a verdict in favor of the plaintiff for punitive damages in the amount of $5,000.00, but it awarded no compensatory damages. In the course of doing so, the jury’s foreperson wrote at the bottom' of the “Interrogatories to the Jury” form sheet provided by the trial judge, in regard to its reasons for awarding punitive damages only, that:

He who steals my purse, steals trash; but, he who steals my reputation steals my life. Therefore, as ... jurors we feel that no amt. of gold or silver can compensate for a man’s reputation & if Mr. Laniecki is publically [sic] cleared and reinstated into (his) Post 12 or the Post of his choice this would be reward enough. We also wish to give nothing for libel, but grant $5,000 for punitive damages.

The verdict of the jury was reduced to a judgment and this appeal followed.

The first issue we will address concerns the post-verdict court’s denial of a new trial. The plaintiff asks us to grant him a new trial limited to damages on the ground that only a “misunderstanding of the law” could have caused the jury to award him no “substantial damages.” (Plaintiff’s Brief at 6) In responding to this claim, we will be addressing defendants’ complaints that because the law in Pennsylvania does not condone the awarding of punitive damages in the absence of a provision for compensatory damages, the trial court erred in affirming the award of the jury which “is clearly contra the law of damages in this Commonwealth.” (Defendants’ Brief at 3 & 11) We believe that the defendants are misinformed as to the law in this jurisdiction as to the interrelationship of punitive and compensatory damages.

To start with, we observe that Pennsylvania has embraced Section 908 of the Restatement (Second) of Torts and the Comments thereunder as to punitive damages. Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970). In particular, Comment c (Extent and nature of harm) informs us:

Compensatory damages in a trifling amount and substantial punitive damages in the same verdict are not necessarily inconsistent. It is essential, however, that facts be established that, apart from punitive damages, are sufficient to maintain a cause of action.

What the preceding means is that a suit for punitive damages cannot stand on its own, despite the rendition of such an award by a jury, “where actual damages have not been suffered” by the aggrieved party that would entitle him, if he so wished, to sue for compensatory damages as well. Hilbert v. Roth, 395 Pa. 270, 275, 149 A.2d 648, 652 (1959). The reason is that “[t]he right to punitive damages is a mere incident to a cause of action — an element which the jury may consider in making its determination — and not the subject of an action in itself.” (Citation omitted) Id.

In the context of “compensatory damages,” one has sustained a harm for which a cause of action for a tort may be instituted and recovery had “for that form of mental distress known as humiliation, that is, a feeling of degradation or inferiority or a feeling that other people will regard [you] with aversion or dislike. This state of mind may result from ... a defamatory statement ____” Restatement (Second) of Torts, § 905, Comment d. Such was the case here, where counsel for the plaintiff informed the trial court in chambers that his case was confined to a claim for damage to reputation, i.e., “humiliation and embarrassment.” (N.T. 151) There was no claim being asserted for “physical or emotional illness resulting from this incident ... complained of” and the jury was so informed. (N.T. 156)

Thus, if the plaintiff proved that he had been harmed by the writing attributed to the defendants (i.e., established liability so as to expose them to possible compensatory damages,) it was still within the jury’s discretion whether to make such an award. Rhoads v. Heberling, 306 Pa.Super. 35, 44, 451 A.2d 1378, 1383 (1982) (“... the jury ... could award punitive damages to the plaintiff[ ] ... even if no compensatory damages were awarded[.]”); Restatement (Second) of Torts, § 905, Comment d.

Instantly, the trial judge instructed the jury that it need not enter an award for damages, either compensatory or punitive, but if it did it had to find, initially, that the defendants libelled the plaintiff. To-wit:

THE COURT: Ladies of the jury [ — it was an all female jury], you are about to make your decision with reference to liability and if necessary damages in this case. The fact that I will charge you in a few moments about damages should not be interpreted by you as a suggestion that the planitiff [sic] is entitled to damages. I make no such suggestion one way or the other. You must first consider the issue of liability. Only if you find that the defendants are libel [sic] to the plantiff [sic] in damages should you consider the issue of damages.
(N.T. 2.149-2.150)

At trial, the plaintiff established that he had been cleared by a 1969 committee of any wrongdoing in regard to the method of his billing Post 12 for his services. Konsntany Netter, a member of that 1969 group, testified that the committee found “nothing wrong, everything in order. All bills were in order.” (N.T. 296) Likewise, the chairman of the 1972 investigating committee (Joseph Loza) and two members of the original building committee (Stanley Kreft and John Conrad) all reported that they found no impropriety with the manner in which the plaintiff submitted his bills to the Post. (N.T. 213, 273, 282 & 319)

Also, there was no real dispute over whether the May 6, 1974 letter by Machowski to SWAP was read at a Post 12 meeting. {See N.T. 206-207) In fact, the defendants admitted as much in their answer to plaintiffs complaint. {See Defendants’ “Answer to Complaint and Counterclaim,” Points 3 & 4)

As for the effects of the letter, the plaintiff and his witnesses consistently painted a picture of a man who “became very emotional and very different” after its contents became known throughout the Polish community. As stated by plaintiff’s wife, before the letter “both were very active in the Polish community,” but thereafter they “had to sort of withdraw from social life.” (N.T. 173 & 174) Nonetheless, although the plaintiff no longer belonged to the Polish Congress, he did remain associated with the Polish Heritage Society and the Polish National Alliance. (N.T. 195, 196-197)

From the tenor of the testimony elicited, this Court detects a note of discontent, albeit subtle, between the plaintiff and Machowski, who seems to have been the driving force behind the reinstitution of the 1972 investigation and the formulation of the May 6, 1974 letter. A document which the plaintiff, the expert who translated the letter (Polish to English) and all of the witnesses who testified in his case-in-chief uniformly interpreted, i.e., the italicized portion reproduced supra, to mean that the plaintiff was accused of “embezzling” money from the Post and he was refusing to account for it. (N.T. 160-161, 179-180, 182, 209, 275, 297, 307 & 351)

Although the defendants’ expert interpreted the phrase in question to connote more of an “abuse,” “misuse” or “malversion” of Post 12’s $7,000, we find, as the trial court did, that the issue was not whether the term used meant “embezzlement,” but whether or not it was libelous. This matter, in the first instance, was decided to be so by the court before being submitted to the jury. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962).

Thus, from the aforesaid, we have no difficulty in concluding that the plaintiff made out a “cause of action” for compensatory damages. See Restatement (Second) of Torts, § 908, Comment c. This, however, does not guarantee a claimant the recoupment of damages. From our perusal of the applicable law on the subject, there appears to be no discernible yardstick by which to measure the judiciousness of an award for damages (be they punitive or compensatory) by a jury. See Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); International Electronics Co. v. N.S.T. Metal Products Co., 370 Pa. 213, 88 A.2d 40 (1952). Nonetheless, there is precedent for sustaining an award for punitive damages, which we will do here, in the absence of an award by a jury for compensatory remuneration. See Rhoads v. Heberling, supra; Restatement (Second) of Torts, § 908, Comment c.

We see no reason to alter the jury’s Solomon-like decision that on the one hand vindicates the plaintiff’s right to be free from unwarranted assaults upon his good name, while at the same time punishing the defendants for their outrageous conduct that may deter others from similar conduct in the future. Restatement (Second) of Torts, § 908. Our conclusion dispenses with the need to remand for a new trial, as requested by both sides, for we find the award to be warranted under the circumstances and not the product of “some misapprehension of the law or the evidence” by the jurors. Compare Gudat v. Heuberger, 275 Pa.Super. 535, 419 A.2d 30 (1980).

The remaining claims raised by the defendants concern the charge to the jury and a purportedly prejudicial remark made by the court during the course of the trial.

As for the court’s instructions, defendants argue that the trial court erred in not properly charging the jury on libel, qualified privilege and publication, as well as allegedly incorrectly telling the jury that any verdict in favor of the plaintiff must be against both defendants where, according to the defendants, the evidence at trial raised a presumption that the defendant Post did not authorize Machowski to write the letter to SWAP in New York as it was published. We disagree.

Addressing the last contention first, we note that in the joint answer filed by the “Attorney for the Defendants,” it was admitted that:

3. ... the membership of the defendant Post authorized and directed the defendant Alexander Machowski as commander to write said letter [to the head office of SWAP in New York]. This direction followed a regular monthly meeting at which time the subject matter was discussed and a resolution passed by the majority of the quorum present. The letter followed the instruction of the body and was sent on the advise of the defendant Post’s legal counsel.
4. ... the membership at its regular meeting heard evidence of plaintiff’s eractic [sic] behavior, of his violent physical attack on two fellow members and of the refusal to account for some $7,000 of the defendant Post funds which were entrusted to the plaintiff. Following the presentation of such evidence at the meeting the members voted to have plaintiff stricken from its roles [sic] as a member.

Accordingly, the defendants’ admission in their responsive pleading that the letter of May 6, 1974 was “discussed” with and approved by the membership at a monthly meeting, see Pa.R.Civ.P. 1029(a) & (b), forecloses either from arguing to the contrary on appeal. See Pa.R.Civ.P. 1032 (“A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply ____”). The fact that the letter was read to some of the members of Post 12 was corroborated by Joseph Loza, who was present at the meeting in question and testified that Machowski “read that letter loud, about Mr. Laniecki embezzling seven thousand dollars.” (N.T. 207) Although the minutes of the meeting in question did not reflect the reading, it was conceded by even the defendant-Machowski that the recording secretary for the Post neglected to put everything in the minutes as to what was discussed in regard to the content of the letter to be sent to SWAP in New York, i.e., the subject of the plaintiff refusing to account for seven thousand dollars. (N.T. 428-429; see also N.T. 229, wherein Joseph Loza, who was at the meeting, testified that the recording secretary did not take down everything at the monthly meetings)

Defendant-Machowski next avers that the court “d[id] not even mention publication” to the jury. (Defendant’s Brief at 20) This averment is contravened by the record, which reveals that the trial court informed the jury: Evidence was presented at trial that Joseph Loza heard the May 6th letter read by Machowski at a Post 12 meeting. Also, there was evidence introduced that this same document was read at a Camden Post 121 meeting, the effect of which was “understood as being defamatory of the plaintiff.” Gaetano v. Sharon Herald Co., 426 Pa. 179, 181, 231 A.2d 753, 755 (1967). Therefore, we have no difficulty in sustaining the propriety of the instruction given on “publication.” Restatement (Second) of Torts, § 577.

No cause of action for libel arises until there has been a publication of the defamatory matter, publication being defined as the communication of a defamatory matter either intentionally or by a negligent act to one other than the person defamed. (N.T. 2.157)

Machowski also attacks the instructions on the ground that the trial court “fail[ed] to charge the jury that the Plaintiff had the burden of proving that the [qualified/conditional] privilege was abused and did not give them any examples on what would constitute abuse of publication.” (Defendant’s Brief at 19)

Again, as before, the record belies Machowski’s position. For example, the jury was informed that: “The plaintiff in this case has the burden of proof, that means that the plaintiff must prove his case by a preponderance of the evidence.” (N.T. 2.151) Later on in the charge the trial judge stated: “The defendants in this case have no burden of proof.... As I have just said the plaintiff has the burden of proving that the material in question was not true.” Id. Accordingly, reading the charge in toto, see Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981), we perceive no error being committed by the trial court in dealing with the subject of “conditional privilege.” (See N.T. 2.158) Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). Also, we have discovered no requirement in the law, nor has counsel for Machowski pointed out any to us, which mandates that the jury be given an “example” for what constitutes an “abuse of publication.” Furthermore, counsel having failed to take a specific exception to the charge on such a ground renders it waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 225, 322 A.2d 114 (1974).

The final assault on the instructions concerns the allegation that the court should not have informed the jury to be preoccupied solely with the effect the May 6, 1974 letter “would naturally produce in the minds of other persons who read the letter and heard that letter.” Rather, defendantMachowski seems to be arguing that if the jury had been instructed that a word in the letter (“Naduzycia”) could also be interpreted to mean that the plaintiff “was either wasting money or using it foolishly and that he failed to account for it[,]” the jury would not have found him guilty of defaming Laniecki. (Defendant’s Brief at 15)

We disagree.

It was not encumbent upon the jury to determine whether the word at issue, as so captioned by Machowski, meant “embezzlement.” On the contrary, the law merely requires that the communication be one that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement (Second) of Torts, § 599. And, “[t]he meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” Restatement (Second) of Torts, § 563. The trial court charged the jury in accordance with the aforesaid. (N.T. 2.151) Such was correct inasmuch as the plaintiff and all of his witnesses, who were asked to interpret the phrase reproduced supra in the letter, consistently testified that it meant that the plaintiff had been accused of “embezzling” money from Post 12 and refused to account for it.

Even the defendant’s expert witness coúld not deny that the letter accused the plaintiff of “misuse” of Post 12’s monies.

Thus, Machowski’s “libel” protestation is found wanting and is denied.

The last issue preserved for our review relates to the trial court’s remark, made in response to Machowski’s unsolicited statement that the plaintiff’s lawsuit was “taking the taxpayer’s money,” that:

... It is a good thing about this country, and that is you don’t have to be a Carol Burnett to have access to the Court. The Plaintiff has just as much right as anyone else to have his issues decided. So, therefore, it is not up to you to characterize this [proceeding] as taking of taxpayer’s money.
(N.T. 388)

When counsel for the defendants heard this, he moved for a mistrial at sidebar. The trial judge denied the motion and granted counsel’s request for a cautionary instruction, which counsel stated he was “entitled to.” Namely:

THE COURT: Ladies and Gentlemen of the Jury, I wish to caution you to a remark I just made. It was not intended in any way to suggest that this case has any relationship to any other particular cases. This case had to be judged on the evidence as it is presented to you. And on the law, as the Court gives it to you. The statement that I made a few minutes ago, was merely intended to suggest that the Court does not believe that these proceedings are a waste of the taxpayer’s money. And that the Court believes that is desirable and the law treat [sic] everyone equally, in terms of their excess [sic] to the Court. So, you can or I would suggest that you just put it out of mind, what I said a few minutes ago. And listen to the evidence and apply the law as will be given to you. (N.T. 389-390)

Further, in its charge, the trial court told the jury:

I would emphasize to you that in a Court of law every case stands on its own feet and you should not be influenced by anything which you have read in the newspapers or heard on the television about other cases. When you took an oath as jurors you swore to the fact that you would decide this case based on the evidence presented in court and the law as given to you by this Court. The parties in this case have reason to expect that you will perform your sworn duties conscientiously. I mentioned a recent libel case involving Carol Burnett. I direct that you disregard that remark. It has no relevance of [sic] connection or similarity to this case. That remark was unfortunate so completely disregard it and dismiss it from your minds.
(N.T. 2.166-2.167)

Even if we were to admit, for the sake of argument, that the reference by the trial court to Carol Burnett was improper, we find that the instructions were more than adequate to eradicate any prejudice the defendants may have suffered. As a result, Machowski’s counsel’s characterization of the trial court’s efforts in this regard as “feeble” is not warranted, for there is no indication that the defendants’ right to a fair and impartial trial was impaired by the jury’s exposure to the complained-of statement. Compare Duffy v. Griffith, 134 Pa.Super. 447, 4 A.2d 170 (1939).

Affirmed.

      . Theodore S. Przybyla, John Brycki and Ryszard Myszka were named in the complaint, but Laniecki discontinued the suit against them prior to trial. (N.T. 95-96 & 447)

      . Although inartfully done, we wish to point out that the foreperson was paraphrasing a section from Shakespeare’s Othello, Act III, Scene 3, which reads:
      Good name in man and woman, dear my lord,
      Is the immediate jewel of their souls:
      Who steals my purse steals trash; ‘tis something, nothing;
      ‘Twas mine, ‘tis his, and has been slave to thousands;
      But he that filches from me my good name
      Robs me of that which not enriches him,
      And makes me poor indeed.

      . In particular, we wish to point out defendant-Machowski’s counsel’s erroneous statement that ”[t]here are no reported cases in the state of Pennsylvania where the jury has not awarded compensatory damages and allowed punitive damages.” (Defendant-Machowski’s Brief at 11) See Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982); see also Fisher v. Volz, 496 F.2d 333, 347-348 (3rd Cir.1974) (holding that in federal civil rights cases punitive damages may be awarded even without an award of compensatory damages).

      . At the appellate level, unlike at trial, each defendant is represented by separate counsel unassociated with the other. This is the reason for the averment that Machowski was not acting with the consent of Post 12 when the letter of May 6, 1974 was sent to SWAP in New York.


text:
    480 A.2d 1111
    Raymond MAZZEI v. Flora (Mascaro) MAZZEI, Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1984.
    Filed July 6, 1984.

      Mark J. Homyak, Pittsburgh, for appellant.
    Ronald L. Chicka, Greensburg, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Westmoreland County denying appellant’s, Flora Mazzei’s, request for alimony. We reverse.

The Mazzeis were married in 1945. Prior thereto, Flora worked in sales at a retail store, which occupation she discontinued upon marriage to become “a homemaker” and raise a son born in 1947. Thereafter, because Flora “was going to the doctor for three years,” the couple moved in with her parents in Wilkinsburg, Allegheny County, Pennsylvania. Also, Flora remained at home to rear her son until he went off to college in 1967.

In November of 1970, the two separated and the wife stayed with mother, but sometime in 1970 or 1972 she secured an order from the Court of Common Pleas of Allegheny County directing the husband to pay $53.53 every two weeks for support. In 1981, the husband was found to be $400 in arrears and had his payments increased to $60.08 to offset the amount owed. The support received, which terminated with the grant of divorce, was the only source of income for the wife-appellant. In fact, she had to “borrow” $1,400 from her mother to pay a portion of her attorney’s fees. Further, the medical benefits available to Flora, as appellee’s spouse under Union Switch and Signal’s contract with Westinghouse Corp., also terminated with the divorce. Equivalent coverage would cost $50 a month.

From the 1940s to the present, Flora has worked intermittently for various department stores. The jobs have been sporadic, “maybe two, three weeks at a time, and then [she would] g[e]t laid off. [She] never had a full time job.” The most recent employment was in 1975 and encompassed two-three weeks during the holidays and one or two days a week thereafter. However, when Flora’s 83-year-old father became ill, she “wasn’t available to go in” and had to leave to care for him, which she did until his death.

Additionally, in regard to work experience, Flora attended a three-year-old child for three days a week prior to the family moving. Thus, aside from the jobs just mentioned, Flora has not worked since her husband left in 1970. Nonetheless, “[i]f [she] could find one, [she] probably would [work.]” However, as she recounted, given her age (57) and educational background (high school), despite her “good health,” “with [her] training where would [she] go?” Add to this the fact that Flora does not drive, resides with and cares (cooks and cleans) for her 83-year-old mother who receives medication for high blood pressure, and the prospects for (full-time or part-time) employment in southwestern Pennsylvania are bleak.

Since the couple separated, Mr. Mazzei has been cohabitating in Westmoreland County with another woman and her two children, one of whom goes to school in Virginia. The two share the expenses for an apartment, food, utilities and a new car payment purchased for the group. Mr. Mazzei has not been in the best of health, yet he continues to retain his position as a union official (grossing $21,900 in 1980) at Westinghouse Corp., which affords him the opportunity to work in the plant rather than “on the road”.

Procedurally, the instant case was initiated by the appellee’s filing of a complaint in divorce on December 12, 1980. In response, the appellant filed a counterclaim seeking, inter alia, alimony. A preliminary conference before the Domestic Relations Office in accordance with the Westmoreland County Rules of Procedure proved fruitless on the issue of alimony. Accordingly, a Master was appointed and a hearing was held on August 25, 1981. As a result thereof, the Master prepared a nine-page report finding that, at the time of the hearing, appellee was 56 years old and “in seemingly good health except for some concern over a potential heart condition.” He earned $19,000 per year and was paying the appellant “support in the amount of $53.53 every two weeks.”

The appellant, on the other hand, was characterized as living with her mother for the past 10 years, receiving support from the appellee for the same period “and ... working] little if at all over the last several years[, although] ... apparently [ ] in good health____” Also, the Master documented the appellant’s work experience, age, educational background and the fact that no jointly owed marital liabilities existed.

In conclusion, the Master examined the evidence against the backdrop of the 1980 Divorce Code, specifically Section 501 and subsection (c) thereunder, before recommending that the appellant be denied alimony. In doing so, he wrote in relevant part:

... Certainly the Defendantfappellant] would be better. able to live with a stipend paid by the Plaintiff however, it appears by considering all of the relevant factors that alimony in this case would not be appropriate. The Defendant has done little to obtain appropriate employment over the last several years. She is certainly able to work and she testified to that effect. She is not quite as helpless as she attempted to show through her testimony. She voluntarily quit driving several years ago and for no substantial reason gave up this quick and relatively inexpensive mode of transportation. There is little merit in her contention that she had to take care of her aged mother who from the testimony appears to be in better condition to take care of herself than the Defendant is. The Master finds no merit whatever in the notion that the Defendant should receive alimony even for a short period of time so that the Defendant may seek appropriate employment. If the Defendant had shown any inclination since July of 1980 to find gainful employment, the Master might well have granted alimony for a short period of time so as to allow Defendant additional time to seek employment. However, there is no testimony whatsoever that the Defendant took any action since the passage of the new Divorce to improve her financial condition. She certainly was on notice from July 1980, that her husband, Plaintiff, would be entitled to a divorce under the new Code and that that divorce would terminate her support. She further must be charged with the knowledge that alimony would be given only in certain cases to those truly qualifying for alimony.
The Master is not unmindful of the Defendant’s present financial outlook, but the Master finds that the Defendant is employable and unqualified for alimony under the Divorce Code of 1980. Therefore, the Master recommends no alimony be paid to the Defendant.
(Emphasis added)

Exceptions to the Master’s recommendations, along with briefs in support thereof, were filed by both sides. Thereafter, by Opinion and Order dated March 18, 1982, the court adopted, with modifications, the Master’s findings and conclusions. This appeal followed and questions the denial of the request for alimony.

At the outset, we observe that a trial court’s order concerning alimony is to be evaluated against an abuse of discretion standard. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Under such a standard, albeit we are not to usurp the trial court’s duty as the finder of fact, our obligation to review the proceedings thoroughly under the 1980 Divorce Code is no less extant. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

The guideposts through which one must make his way in reaching a conclusion of whether an award of alimony is or is not warranted are enumerated in Section 501(a), (b) & (c) of the 1980 Divorce Code; to-wit:

§ 501. Alimony
(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony,
(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.

The Act of April 2, 1980, P.L. 63, No. 26, § 501, eff. July 1, 1980; 23 P.S. § 503(a), (b) & (c). Further, the Legislature intended that the preceding factors were to be viewed in conjunction with the policy of the Commonwealth in enacting the 1980 Divorce Code, i.e., to:

Effectuate economic justice between parties who are divorced ... and grant or withhold alimony according to the actual need and ability to pay of the parties ____

The Act of April 2, 1980, P.L. 63, No. 26, § 102, eff. July 1, 1980; 23 P.S. § 102(a)(6); see also Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982).

The lower court commences its discourse by distinguishing a case in which it granted permanent alimony (see unpublished opinion in Smith v. Smith, No. 1722 of 1978 (1981) of the Court of Common Pleas of Westmoreland County, per Judge Marker,) from appellant’s situation. Although it is unassailable that the facts in both cases are different, it becomes evident upon close scrutiny that the differences are without distinction and certainly of no real substance so as to justify the disparity in the result reached here.

For example, the lower court took note that “Mrs. Smith possessed a tenth grade education, and was never licensed to drive. In the within case, the defendant is a high school graduate, and ... voluntarily ceased to drive ... [in 1951, following an accident,] for no substantial reason.” We point these two items out because they are emblematic of the type of differences looked to by the lower court in denying alimony to the wife-appellant.

Another factor deemed of significance was appellant’s “expected inheritance” from her mother. 23 P.S. § 501(b)(4). The lower court felt it was “logical ... [to] consider the extreme liklihood [sic] that the defendant shall inherit from the mother’s estate.” We find this element to be of dubious value for three reasons. First, there is absolutely no evidence of record to establish the nature and extent of appellant’s supposed inheritance from the mother, save for the reference at the Master’s hearing to appellant living in her mother’s home. Even then, we have no insight into the valuation of the residence/estate. Second, and most importantly, the appellant testified to having two sisters (Dorothy Hoch and Betty Dunbar), “so it is unclear what will happen to this house upon her mother’s death.” Kertis v. Kertis, 132 Pitts.L.J. 199, 201 n. * (1984). The third, and final, point to be made is that no matter how much one may “expect” to be the recipient of one’s bounty, all too often the fickleness of the decedent in regard to his/her estate may leave one gravely disappointed. See In re Estate of Agostini, 311 Pa.Super. 233, 457 A.2d 861 (1983), petition for allocatur denied June 24, 1983 (Decedent/mother changed Will eight times, the result of which diminished her adopted children’s inheritance).

Further, the lower court emphasizes the appellant’s failure to act in two specific areas, i.e., the securement of employment and the seeking of an increase in support during the life of the order requiring such payments. The weight attached to both subjects is evident from the fact that the former point is mentioned four times, while the latter is discussed six times, during the course of the lower court’s opinion denying alimony.

We find neither point to be persuasive.

On the question of work, because the appellant was found to be employable, the lower court viewed with disfavor her reluctance “to seek at least part time employment at any time after 1953, the year in which the parties’ minor child would have commenced school[; similarly,] ... the Court s[aw] no reason why the defendant could not have been able to find employment sometime between the years of 1967 and the time of the Master’s hearing [in 1981].”

We interpret the lower court’s treatment of appellant’s (in)action in the employment field to be tantamount to imposing sanctions in the form of a denial of alimony. This, we believe, is a misapplication of the law under the instant facts. We do so in light of this Court’s recent pronouncement in Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825 (1984).

In Eck, a 55-year-old wife was denied alimony from her 57-year-old employed husband (with a net income of $349.22 per week) following the grant of a divorce, which order also terminated support payments of $45.50 per week. We reversed in the belief that the lower court abused its discretion by “penalizing]” the wife for caring for her aged, invalid mother. However, our determination to reverse did not rest solely upon this point. The Eck Court explained it thusly:

We note that secion 501(c) of the Divorce Code states:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.
We believe that appellant’s caring for her mother was just such a compelling impediment to gainful employment, as was her lack of employment skills, lack of education, lack of work experience and her age.
The trial court viewed any award of alimony as an unfair imposition of the “burden of parental support” upon the appellee. The facts developed by the master do not support such a characterization. Where, as here, the party seeking alimony had received the sum of $45.50 as support over a period of ten years, had returned to her native Northwest to care for her blind, aged mother (89 years old), had not worked other than as an occasional babysitter since entering marriage thirty-five years ago, and had no retained employable skills, we have no difficulty in concluding, as did the master, that appellant’s ability to provide for her own reasonable needs through employment had been substantially diminished by reason of age (55 years), lack of completed high school education, lack of work experience, and other compelling impediments to gainful employment.
The master, based upon the facts then before him, wisely recommended that appellant be required to report, one year from the date the proposed alimony order would be entered, all steps taken to secure employment, with a list of all income from any sources. Had this recommendation been adopted by the trial court, appellant would have received what was her present right to alimony under the [1980] Divorce Code, while having to respond to the overall objectives and purposes of the Code. (Emphasis added in part) (Footnote omitted)

Id., 327 Pa.Superior Ct. at 341, 475 A.2d at 828. Accord Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983); Kertis v. Kertis, supra.

Instantly, as in Eck, the wife-appellant had a minimal education, had not openly sought (full) employment either during the marriage or after separation, was over 50 years of age, possessed no skills as such and preoccupied her time with caring for an aged mother, in the parent’s home. Also, there was little or no property possessed by either spouse as evidenced in their respective “Inventory and Appraisement” statement of record.

On the strength of Eck, plus what we perceive to be imbued in the Legislature’s concept of “economic justice,” we find the lower court to have abused its discretion in finding that appellant’s “employability,” in essence, was detrimental to her attaining alimony. The favored approach, as espoused in Eck, would be to monitor the appellant’s efforts in securing employment over a period of, let’s say, a year while still allowing her the right to receive alimony. At the end of the time specified, one would be in a much better position to judge the ex-spouse’s accessibility into the job market, given the individual’s talents and efforts, and assess whether alimony should be terminated or continued. Stated otherwise, “if a party receiving alimony is able to provide for his[/her] reasonable needs through employment, the court is to fashion an alimony order to be in effect only until such employment has been obtained or the party has developed an appropriate employable skill.” Geyer v. Geyer, supra, 310 Pa.Super. at 464, 456 A.2d at 1029. However, it goes without saying that the eclectic approach just discussed is not a panacea for any and all cases, but is merely an alternative method by which to deal with an area of the law which is still in its nascent stage in this jurisdiction. There may be instances in which permanent alimony may be warranted, as evidenced by the lower court’s own ruling in Smith v. Smith, supra. Given the unsettled nature of the facts instantly, we need not delve into that question at the moment.

Nonetheless, we do wish to remark that our decision entitling the wife-appellant to alimony is not diminished one iota by the fact that she never once sought an increase in support during the time that she was receiving support. If anything, this fact reflects on the husband-appellee’s continuing ability to pay. For over ten (10) years he has made payments without complaint. In fact, in 1981, the Court of Common Pleas of Allegheny County adjudicated the husband-appellee to be in arrears and caused his support payments to be increased to offset the delinquency. Interestingly enough, at no time during the pendency of the ruling did the husband-appellee voice his objection to a perpetuation of the order, despite the fact that this occurred subsequent to the institution of the instant divorce in which he contested his ability to “meet [his] monthly expenses[]” (N.T. 8/25/81 at 101) We believe that the complacency of the husband-appellee to protest payment is attributed to the fact, as acknowledged by even the lower court in its Opinion to us, that “said support order ... [was] less than substantial,” and not his failure to secure legal representation. (N.T. 8/25/81 at 84)

To reiterate, we note that throughout the 25 years of marriage (i.e., 1945 until the date of separation in 1970, which for all intents and purposes was the de facto dissolution of the union), the wife-appellant worked only in the home raising the parties’ son; no marital property was accumulated, at least none was listed in either party’s “Inventory and Appraisement” statement, so none of the wife-appellant’s needs could be met through the equitable distribution of marital property; because of wife-appellant’s lack of job experience, age and limited education, we have seen (from the part-time work in 1975 in a department store) that her employment possibilities will be restricted to jobs paying little more than the minimum wage, see Kertis v. Kertis, supra; and the husband-appellee has employment (allowing him to gross, at least in 1980, up to $21,900 per year) which will afford him the right to a pension paying $12.75 per month at age 58 for each year with Westinghouse — as of 1981, he had 21 years of service.

Also, we in no way wish to minimize the right of the wife-appellant to continue to be the recipient of alimony upon her securement of possible employment, for, of necessity, the income earned from the job is crucial in evaluating whether she will be able “to provide for ... her reasonable needs[.]” See 23 P.S. § 501(a)(2) & (c).

Accordingly, the Order of the court below is reversed and the case is remanded for the entry of an appropriate award of alimony. Jurisdiction is relinquished.

      . As for that portion of the Westmoreland County court’s Order granting the divorce, or requiring the husband to pay: 1) one-half ($1,500) of the wife’s attorney’s fees; 2) $242.50 for the cost of the court reporter’s services; and 3) $520 for the Master’s services, neither party has filed an appeal therefrom. Thus, instantly, the sole issue concerns the denial of alimony.

      . Similarly, no agreement was reached as to alimony pendente lite, life insurance policy, counsel fees and expenses. The parties did agree that, as to equitable distribution of property, “[e]ach party [was] to maintain present items in their possession.” However, neither party listed any "Marital Assets” in their “Inventory and Appraisement” sheet filed with the court.

      . Our reading of the hearing transcript discloses that the appellee, according to his 1980 Income Tax Return, earned $20,900 and received a refund of $851.12 by filing a joint return on which he signed the appellant’s name, purportedly with her consent, but he did not share it with his then-spouse. This same practice occurred in 1979, wherein appellee received a refund of $1,720.88, and, again, appellant received none of the proceeds generated by the joint filing. In both instances the appellant supposedly refused appellee’s offer to split the refunds.

      . It seems that the lower court dismissed wife-appellant’s employment on a part-time basis for a department store in 1975 as not impacting upon her supposed "obligation,” a characterization deduced from our reading of the lower court’s opinion, to find work.

      . It is to be recalled that the husband-appellee’s income can be joined with that of his female companion’s, which is approximately $14,000, in evaluating his ability to pay alimony and the amount. See Commonwealth ex rel. Traeger v. Ritting, 206 Pa.Super. 446, 213 A.2d 681 (1965).

      . It must be remembered that the husband-appellee has the right to seek review of the alimony ultimately awarded by establishing to the court below that “changed circumstances” justify a modification, suspension or termination of the order entered. See 23 P.S. § 501(e).


text:
    480 A.2d 1117
    Diane CHASE, Appellant v. Michael CHASE.
    Superior Court of Pennsylvania.
    Argued January 24, 1984.
    Filed July 6, 1984.

      James McConomy, Pittsburgh, for appellant.
    Rosemary Markham, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the trial court’s order of equitable distribution, alimony, child support, and counsel fees in an action filed by appellant, Diane Chase, against her former husband, Michael Chase. This appeal followed. We affirm.

Appellant contends that the trial court abused its discretion when it set aside sub silentio a support order of the court which awarded to the wife one-half of the husband’s 1982 bonus, net after taxes, which was paid by the husband’s employer to him in January, 1983.

The procedural history surrounding this case reveals a court docket consisting of over one hundred and fifty-three (153) entries.

The basic facts are undisputed. On July 29, 1980, appellant, Diane Chase, filed a support complaint for herself and two children, Kevin, age fourteen, and Michael, age eleven. On November 14, 1980, the trial court entered a support order following a hearing requiring the appellee (1) to pay $1,500.00 per month; (2) to pay the mortgage, taxes, and insurance on the parties marital home; (3) to provide medical and dental coverage; (4) to make a one-time payment of $1,500.00; (5) to maintain payments on joint debts listed and to provide club memberships and pay dues and assessments for appellant and the children; and (6) “to pay V2 of the bonus to [appellant] upon receipt in 1981 and each year thereafter net after taxes.” Record at No. 8. The order also provided that appellee could elect to file a joint return with appellant.

A hearing was held on February 27, 1981, before a hearing officer because appellant sought a contempt order for failure to pay the bonus. The parties disagreed on whether the order provided for the payment of the 1981 bonus, which consisted of $72,500.00, after taxes were withheld by the employer or after taxes were paid by parties to the federal government for the calendar year. The officer denied the contempt petition and concluded that a deduction would be allowed only for the amounts withheld by the employer. The trial court affirmed this recommendation. The appellee appealed the construction of the order to this Court on April 16, 1981.

In the interim, appellant filed a divorce complaint and petition for equitable distribution, child custody, support, and counsel fees. The trial court granted a bifurcated divorce on April 23, 1982, a divorce whereby the court retained jurisdiction over the outstanding economic issues in the case notwithstanding the granting of the divorce.

Hearings were held on the unresolved economic issues on August 19th and November 15th of 1982. The reasons for the trial court’s award in favor of the appellant-wife were adequately set forth by the trial court in a ten page opinion.

The relevant portions of the trial court’s opinion discloses the parties’ circumstances in the following manner:

Pursuant to her divorce action, Diane L. Chase (wife), is seeking property distribution, alimony, support, and counsel fees from her former husband, Michael R. Chase (husband). The parties were married in June of 1965, following husband’s graduation from the University of Colorado, where wife was also a student. Wife was unable to complete her undergraduate studies and accompanied husband with his new-found business degree so that he could complete graduate studies at the American Institute of Foreign Trade in Phoenix, Arizona. He held a part-time job, while she worked, and, following graduation, husband went into the military service, while she returned to live with her family in California. After a year, husband was placed on reserve status and began his employment with a New York bank in 1967. The wife worked in New York City while he was assigned there and went with him when he was transferred to Argentina and, eventually, Puerto Rico. While in Puerto Rico, their first child, Kevin, was born. In 1971, husband left the employ of the bank and began his employment with a mortgage company located in Atlanta, Georgia. In 1973, their son, Michael, was born. In 1974, husband assumed his present position with a prominent private company and was transferred to Allegheny County where, after several months, the parties obtained the present marital residence in Fox Chapel.

Husband’s talents were obviously recognized by his employer and his gross compensation went from $74,000.00 in 1976 to $92,000.00 in 1977, $98,000.00 in 1978 and almost $114,000.00 in 1979. His gross compensation in 1980 was approximately $131,000.00. During these years of growing affluence, the parties continued to enjoy their Fox Chapel home, together with vehicles and club memberships provided by husband’s employer. The children attended private schools and enjoyed an appropriate, albeit not extravagant, life style. In fact, husband indicated that the families’ approximate living costs during 1979 were $2,000.00 per month, exclusive of debt repayment, tuition costs, and mortgage payments.

During the first week of April, 1980, husband left the marital domicile. Following the parties’ separation, husband continued to pay the home mortgage, the household expenses and, in addition, gave wife $1,000.00 per month. She brought a support action, and, in the litigation that followed, there emerged a consent order which required husband to pay wife for her and the children’s support the sum of $1,500.00, as well as the mortgage of approximately $900.00. In addition, he was to pay one-half of a bonus which he was to receive in January of 1981, said amount to be paid “after taxes”. The interpretation of “after taxes” was appealed to the Superior Court. See pages 451-453, infra. Also, incident to the consent order, husband was to pay and has paid certain joint debts totaling approximately $18,-000.00. On April 23, 1982, the parties were granted a bifurcated divorce. Prior to the divorce, husband was transferred by his employer to California, and thereafter he remarried and resides with his new wife together with her three children, the custody of whom was the subject of other litigation in this court. Trial Court Opinion at 1-3.

The trial court divided the marital property and awarded support in the following manner:

“DECREE NISI
AND NOW, this 15th day of March, 1983, it is ORDERED, ADJUDGED and DECREED that:
1. Plaintiff, Diane Chase, is hereby awarded: a. The family residence located at 104 Westchester Drive, Borough of Fox Chapel, Pennsylvania, together with the furniture and fixtures contained therein, free and clear of the mortgage encumbrance which shall be the sole liability of the defendant, Michael Chase.
In the event of the sale or transfer of said residence resulting in the satisfaction of said mortgage, the defendant shall be liable to the plaintiff for the unpaid balance under the same terms and conditions as the mortgage loan, which may be prepaid at any time.
b. State Street Money Market Fund ... $5,000.00
2. Defendant, Michael Chase, is awarded the following:
a. Balance of net proceeds of partnership ...........$35,000.00
b. His non-contributory savings plan ................$20,000.00
c. Balance, Big Rivers Fund ........................$10,000.00
d. Balance, State Street Money Market Fund ........$11,000.00
e. Balance, Dreyfus Tax Exempt Fund ...............$2,500.00
3. Until such time as their older child, Kevin, attains the age of 18, defendant shall pay plaintiff alimony and child support of $2,500.00 per month. Thereafter, said payment shall be $2,000 until the younger son, Michael, is 18, at which time all alimony and child support shall terminate. These payments shall be retroactive to January 1, 1983, creating an arrearage of $3,000 through March 31, 1983, which defendant shall pay forthwith.
4. Defendant shall pay the children’s:
(a) , private school and camp charges, including tuition, books, transportation and special fees, excluding food if not part of the tuition charges, retroactive to January 1, 1983;
(b) . transportation for partial custody; and,
(c) . unreimbursed dental and medical expenses to the extent of $50.00 per month each not covered by his employer’s insurance policies, as well as all orthodontia expense.
5. Defendant shall pay to plaintiff the sum of $5,000 on account of her counsel fees, from which shall be deducted $575.00 as reimbursement to defendant for counsel fees incurred by him, said payment being sanctions for vexatious and obdurate conduct, for a net obligation of $4,425.
6. Any other claims pending hereunder are hereby dismissed.
7. This Decree shall become final in accordance with Pa.R.C.P. Rules Nos. 1920.52(a) and 1038(d) and (e).
BY THE COURT:
Kaplan, J.

Approximately one month after the court entered its award, this Court agreed with the trial court’s interpretation that the husband was to pay one-half (V2) the bonus which was received in 1981 after taxes were withheld by the employer. Chase v. Chase, 312 Pa.Super. 595, 459 A.2d 21 (1983) (Chase I). The trial court dismissed appellant’s exceptions subsequent to the disposition of the first appeal, and this appeal, Chase II, followed.

The only aspect of the award which appellant challenges in this appeal is that portion of the order which provides that the effective date of the alimony and child support is January 1, 1983.

When reviewing determinations made by the trial court in support cases, our scope of review is narrowly defined. Commonwealth ex rel. Simpson v. Simpson, 287 Pa.Super. 356, 358, 430 A.2d 323, 325 (1981). We have said that “ ‘[o]rders of support from the court below will not be modified on appeal except for a manifest abuse of discretion.’ ” Id. (quoting Commonwealth ex rel. Raitt v. Raitt, 203 Pa.Super. 226, 199 A.2d 512 (1964)). Simply stated, if there is sufficient evidence to sustain the trial court’s decision, that decision will be affirmed. Commonwealth ex rel. Grallnick v. Grallnick, 279 Pa.Super. 347, 349, 421 A.2d 232, 234 (1980). This is because “[t]he trial judge who hears a support case can view the parties and hear their testimony which gives him an insite [sic] that the appellate court does not have.” Id.

We also have said that:

“ ‘the factors to be considered are the spouse’s income, potential earning power, and the extent of his property and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974). The amount of [the] award must be fair, nonconfiscatory, and attendant to the circumstances of the parties. Commonwealth ex rel. Malizia v. Malizia, 229 Pa.Super. 108, 324 A.2d 386 (1974); Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973).’ Straub [v. Tyahla, 274 Pa.Super. 411, 414, 418 A.2d 472, 474 (1980) ]. Boni v. Boni, 302 Pa.Super. 102, 110, 448 A.2d 547, 551 (1982).

In the instant case, we conclude that the trial court did not abuse its discretion.

In reviewing claims by a party regarding the effective date of a support order, we recognize generally that “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” Pa.R.C.P. 1910.17(a).

Applying this rule to the facts of the instant case, we note that the trial court entered an initial support order on November 14, 1980. This order formed the basis of the appeal in Chase I and “was an interim order.” N.T. at 30. The trial court was without jurisdiction to rule on the issue which was pending before the Superior Court (i.e., the bonus which was received in 1981) because after an appeal is taken, the trial court “may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). Thus, the trial court commenced proceedings in the meantime to formulate a final order. In fact, appellant’s counsel even conceded that the trial court had reserved the question of the effective date of any final support order. The following portions of the record reveal the procedural posture of the case:

“MS. MARKHAM [Appellee’s Attorney]: One final procedural matter here. Your Honor signed an Order in the first quarter of this year, response to request for increase in support. At that time you reserved the issue of child support and spousal support to this hearing subject to defenses thereto. It would be my position that the matter before the Superior Court has its own space and time as a support action, and whatever Order Superior Court hands down can be dealt with as matters preceding this Court’s authority for permanent support, alimony and for child support from this point forward. We believe there is a new child support case, if you will, or a new look by this Court at the issues. You are not forestalled by the Order entered by—
THE COURT: I don’t think Mr. Scott will argue with that.
MR. SCOTT [Appellant’s Attorney]: Not at all. If the Court please, on March 2, 1982, the Order Ms. Markham referred to, this Court reserved the question of increase in the support award without prejudice to be retroactive should this Court deem so.
THE COURT: I seem to have some recollection of that. We will settle all economic issues in the course of the hearing, except perhaps the one which is on appeal.
MR. SCOTT: One we agreed to defer concerning the taxes, related to A and C [a partnership fund]. And, Your Honor, also we can have the rate of attorney fees, actually until the hearing is concluded, any motions thereafter, my total attorney fees won’t be able to be presented to the Court.
THE COURT: I understand that. That is a problem in presenting claims for counsel fees that we never know what the total fees will be for the action currently being tried. I would like to be optimistic and think we will finish this [sic] this afternoon. I don’t know if that will be the case. The issues we will be getting into may very well permit that. Having laid out our blueprint of what the property is here, the time spent here is very productive. We can deal with the other issues, go into determination of the property distribution. We are talking about mainly standard of living, lifestyle and needs, and things of that nature that enter into the ten factors set forth in 401 of the Divorce Code[] and fourteen factors of Section 501 pertaining to alimony.[] So, those factors are the things that I would like to be able to get into and get a feeling for, so that I can issue an appropriate order in the areas we are talking about.
MS. MARKHAM: We would certainly want an order, if only an interim order, to relieve us from the order that is going on right now. We are facing yet a third year under Judge Strassburger’s interpretation of our consent order. I certainly hope Superior Court will come down quickly but—
THE COURT: Whatever that is, that is. That was interim order. What we are trying to do here is come up with a final, final as any of these matters can be in a Divorce Code, one certainly which will dispose of the property matters and based upon disposition of the property, then integrated therewith as required by the Divorce Code, order for alimony if appropriate and certainly support." (N.T. 8/19/82 at 27-30.) (Emphasis added)

The trial court conducted two days of hearings and on March 15, 1983 concluded that the order was effective January 1, 1983. Interestingly enough, appellant does not challenge the $1,000.00 increase in alimony and child support which she received in the final order, nor does she challenge any of the equitable distribution provisions of that order. Rather, her sole contention is framed in the following manner:

“By not awarding the January, 1983 bonus the court retroactively reduced the amount of support the wife was entitled to have received for 1982 under the prior Order. That January, 1983 bonus had already accrued to the wife by year end 1982 is amply demonstrated by the record.” Brief for Appellant at 14.

Before this Court, appellant argues that she was entitled to the 1982 bonus which was to be received in 1983. This entitlement theory, however, is not supported by the record since the record shows that the 1980 support order was a temporary one.

We note that appellant argued at the trial level a position which was contrary to the one she has taken before this Court. The following portion of the record establishes that appellant rejected any notion that the bonus which was received by Michael Chase in the current year “had already accrued to the wife by [the previous] year’s end”:

Appellant’s Attorney:
“In the same Interrogatories, question No. 7, state your gross and net earnings to date for the year 1981 and indicate the source of earnings including a description of the form of the bonus currently in effect. Answer. Gross as of September 29, 1981, $140,000. Net, see response to Interrogatory No. 5 above of the gross earnings, $67,500 was received as salary. $72,500 was received as discretionary bonus paid in January, 1981.
Your Honor, for the record we quarrel with January, 1981, being 1980 income, but we do not quarrel with the amount of $72,500 received, nor the fact it was received in January, 1981. ”
N.T. 8/19/82 at 54-55. (Emphasis added)

Additionally, although appellant now challenges the retroactive aspect of the order, she requested a retroactive increase in the support order at the trial level. The following discussion at trial sheds some insight into the subject:

“BY MR. SCOTT [Appellant’s Attorney]:
Q You heard Ms. Markham state obligations of Mr. Chase pursuant to November 14 Order. Has Mr. Chase made all of the payments required under that Order on time?
A No.
Q Which payments has he not made on time?
MS. MARKHAM [Appellee’s Attorney]: I don’t understand the relevancy.
MR. SCOTT: History of the payment structure from this Defendant to indicate to the Court she has been cash poor for the past two and a half years. We are trying to develop testimony to get retroactive support order. What he has done to her, he has taken her out of the be [sic] able to plan basis and adversely affected her standard of living. She had to borrow money.
MS. MARKHAM: There is no outstanding contempt order. The payments have been received. I don’t understand this line.
THE COURT: To the extent that you are alleging that — I am not sure the lateness of payments are important. If you want to direct questions to her as to the adequacy of the payments she is receiving, what extent she is able to meet her obligations, I have no objections to that. That would be an indication to me either she is getting along just great, does not need any more, which I doubt is the line of your questioning, or indicate to me that, as probably will, based upon her budget, she is coming up short. If you want to direct your questions along that line, I will entertain them.
MR. SCOTT: There is adequate evidence in the record now and the Plaintiff rests.”
N.T. 8/19/82 at 90-92. (Emphasis added)

A careful review of appellant’s claim, although couched in retroactive language, is actually a prospective argument. She is contending that the bonuses which Michael Chase received should have been granted to her prospectively, i.e., from the date of the original support order up to and including the bonus he received in 1983. However, as stated infra, the trial court concluded that appellant was not entitled to the 1983 bonus prospectively. Rather, the court granted appellant a retroactive increase in support instead. Interestingly enough, appellant does not argue that the retroactive increase in support should be retroactive to the date of the filing of the complaint. This is obvious because the final support award does not grant to appellant a percentage of her former husband’s bonus. Thus, the bonus award which appellant did receive from the years 1981 and 1982 were interim payments.

Moreover, the opinion of the trial court reveals a thoughtful consideration of the family’s economic status and the husband’s income and ability to pay. The trial court awarded the marital home to the wife and noted that because the wife was “[f]reed from any mortgage obligations, this should permit wife and children to meet their reasonable living expenses and maintain the standard to which they have been accustomed.” Trial Court’s Opinion at 8.

The remainder of the court’s opinion also indicates a careful balancing of the parties circumstances:

“We will first consider the claim for property division. In the case of Margaret W. v. Paul W., 130 P.L.J. 6 (1982), this court has taken the position that equal division of marital assets is the starting point in determining what is equitable unless other factors intervene for a contrary result. In reviewing the various factors of Section 401 of the Divorce Code, it would appear that wife is 37 years of age while the husband is 39. This was the first marriage for both parties and both are in good health. It would appear that neither party brought any property of substance to the marriage and that which has been previously set forth as the marital assets is that which must now be appropriately allocated between the parties. On balance, both parties contributed equally toward the marital property owned at separation, taking into account wife’s contribution as a homemaker.
Two factors weigh heavily in this matter. One is the fact that the wife is the custodial parent, and, where it is financially possible, we will endeavor to try to maintain as much stability in the children’s lives by way of perpetuating their former life style. To this end, a way must be contrived which will permit them to continue to live with their mother as the agreed upon custodial parent in the familiar surroundings of their family home. The second factor which we find most important is the parties’ ability and likelihood of accumulating additional property and income in the future. In this regard, it is obvious that the husband’s star is on the ascendancy, whereas the wife has little, if any, prospect of bettering herself beyond average employment once she has obtained additional schooling and/or vocational skills. In order to meet the imperatives of these two latter factors, equity demands other than an equal division of the marital property. To that end, we will award her the parties’ residence together with the furniture contained therein, free and clear of any mortgage encumbrance. We will award the husband the net proceeds of the partnership amounting to approximately $35,000.00, his non-contributory savings plan, valued at $20,800.00 as of the time of separation^*] the Big Rivers investment worth approximately $1,000.00, the money market account of $16,000.00 (less the $5,000.00 already received by the wife, which amount we award to her) and, finally, the Dreyfus Fund valued at approximately $2,500.00. In addition, any interest forthcoming on these assets shall be the property of husband. Husband shall have the option to prepay the existing mortgage or to continue to pay it at the current rate. Such payments shall not include taxes and insurance which shall be the responsibility of the wife. Finally, the $18,-000 in joint debts which husband was ordered to pay as part of the initial support order, shall be deemed his sole obligation, the support order having taken these debts into account as his responsibility.
While it would appear that this distribution has the effect of giving to the wife the equivalent of almost the entire marital assets, it does permit the husband to continue installment payments with appropriate interest deductions for tax purposes. In the event of the sale of the residence by the wife, the unpaid mortgage balance which would, of necessity, be satisfied out of the proceeds of sale would then become an obligation under the same terms and conditions payable directly to the wife, by the husband. With his entreprenurial skills, the husband should be able to duplicate all of the marital assets as presently constituted many times over within the next several years. In fact, based upon the record, he is already well on his way toward doing so.
III.
In order for the parties’ children to continue a life style consistent with that of their father, their mother will, of necessity, also benefit from the arrangements. Wife will, of course, require some time before she can reenter the job market and participate in the family earnings. We find her needs, however, to be only incidental to those of the children. To that end, as apparently agreed by the husband, he is to pay the children’s private school charges, including tuition books, transportation and special fees, but excluding meals. In addition, he is to pay for the children’s summer camps and transportation thereto and back. He has already undertaken by the consent custody order to meet their transportation expenses on the extended visits with him in California or whereever he may be residing. In addition to the above, husband will be required to pay to wife for her maintenance (alimony) and support of the children the sum of $2,500.00 per month. Freed from any mortgage obligations, this should permit wife and children to meet their reasonable living expenses and maintain the standard to which they have been accustomed. This sum will permit wife to pay the real estate taxes, her own health insurance, and meet taxes which she will have to pay on this income. The husband will be expected to continue to cover the children on his employer’s health and dental insurance, pay for any orthodontia which they may incur and, in addition, pay for an additional $50.00 per month per child for any unreimbursed medical or dental expenses. When Kevin is 18 years of age, this combined maintenance payment shall be reduced by $500.00 and when Michael is 18 years of age, all maintenance and support payments shall terminate.^*] In the event that wife shall remarry or cohabit, within the meaning of the Divorce Code, in the event the parties cannot agree to a reasonable child support amount, modification may be requested of the court.
The foregoing arrangement should permit a stable income for wife and the children, which amount can, eventually, be supplemented by wife’s entry into the job market. The provisions of this section shall be retroactive to January 1, 1983. To the extent that wife has already made tuition payments for 1983, she shall be entitled to reimbursement from husband.
[*] Although this asset is not now vested, there is no reason to believe that such will not be the case at the appropriate time in 1984. Husband, in effect, will be able to control whether he will eventually be able to receive this asset.
[**] We assume that if he is financially able to do so without undue hardship, that husband will provide appropriate college educations for the children.”

Trial Court Opinion at 5-9.

Accordingly, we are unable to conclude that the trial court abused its discretion in ordering the support award to take effect on January 1, 1983.

Order is affirmed.

      . The bonus "was based on what transpired the year before”; however, the amount was not actually received until the following year. N.T. 11/15/82 at 39. Thus, the bonus which was received in 1981 was based on the services performed in 1980.

      . Section 401(d) of the new Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, sets forth the following relevant factors:
      “(1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.

        (10) The economic circumstances of each party at the time the division of property is to become effective.” 23 P.S. § 401.

      . Section 501(b) states:
      "(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
      (1) The relative earnings and earning capacities of the parties.
      (2) The ages, and the physical, mental and emotional conditions of the parties.
      (3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
      (4) The expectancies and inheritances of the parties.
      (5) The duration of the marriage.
      (6) The contribution by one party to the education, training or increased earning power of the other party.
      (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
      (8) The standard of living of the parties established during the marriage.
      (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
      (10) The relative assets and liabilities of the parties.
      (11) The property brought to the marriage by either party.
      (12) The contribution of a spouse as homemaker.
      (13) The relative needs of the parties.
      (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.” 23 P.S. § 501(b)

      . According to appellant, “[t]he bonus is customarily paid on or about the 2nd of January of each year.” “MOTION FOR AN ACCOUNTING, PAYMENT OF BONUS AND RULE TO SHOW CAUSE WHY THE DEFENDANT SHOULD NOT BE HELD IN CONTEMPT", Allegation No. 2.

      . According to appellant, the court’s final support order "must be based upon facts appearing in the record which show a permanent change in circumstances as to require modification of an existing order.” Brief for Appellant at 14. Appellant, however, misperceives the issue since the initial support order entered by consent of the parties was a temporary one which was rendered pending the outcome of the final decree and did not entitle her to payment of the bonus ad infinitum. In fact, the Chase I appeal involved the bonus which was received in 1981 only. See Appellant’s “MOTION FOR ACCOUNTING, PAYMENT OF BONUS AND RULE TO SHOW CAUSE WHY THE DEFENDANT SHOULD NOT BE HELD IN CONTEMPT" ("This Honorable Court by Order dated November 14, 1980, ordered the Defendant, inter alia, to pay V2 of the bonus upon receipt in 1981 ... net after taxes.”) (Emphasis added)

      . See Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983).