author: HOFFMAN, Judge:

text:
    670 A.2d 1153
    COMMONWEALTH of Pennsylvania v. Donna Marie WALKO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1995.
    Filed Jan. 30, 1996.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for the Commonwealth, appellee.
    Before DEL SOLE, SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a June 7, 1993 judgment of sentence for criminal solicitation. Appellant, Donna Marie Walko, contends that her trial counsel was ineffective for failing to object to the admission of evidence obtained by warrantless wiretaps. For the following reasons, we affirm.

Undercover State Trooper Richard Ealing was investigating unrelated drug trafficking when he was introduced to appellant. Appellant was being harassed by her ex-boyfriend, Richard Reinhardt, and asked Ealing to help her resolve the problem. As a result of appellant’s request, Ealing obtained permission from Assistant District Attorney Paul Skirtich, pursuant to the Wiretap Act, to record telephone and face-to-face conversations between himself and appellant. Thereafter, appellant agreed to pay Ealing $10,000.00 to murder Reinhardt, and further agreed to pay Ealing an additional $5,000.00 upon collection of insurance money she would receive as the beneficiary of Reinhardt’s life insurance policies. Appellant and Ealing spoke several more times in order to refine the contract, and appellant provided Ealing with Reinhardt’s photograph and other relevant information. Ultimately appellant agreed to pay Ealing $23,000.00 to kill Reinhardt in a manner which would allow her to collect the insurance money. Thereafter, Ealing arrested appellant for criminal solicitation to commit homicide and criminal conspiracy to commit homicide.

Appellant waived her right to a jury. At trial, Ealing testified and the Commonwealth also offered the audiotaped conversations between Ealing and appellant. Appellant relied on the battered women syndrome defense, presenting the expert testimony of Robert Wettstein, Ph.D, and family members who testified to Reinhardt’s abuse. After two days of testimony, the Honorable David R. Cashman found appellant guilty of both charges. Post-trial motions were denied, and on June 7, 1993, appellant was sentenced to two (2) to four (4) years imprisonment. After sentencing, appellant’s trial counsel was permitted to withdraw from the case, but new counsel was not appointed until after the expiration of the thirty-day appeal period. Appellant’s new counsel filed a petition for reinstatement of appellate rights nunc pro tunc, which was granted October 4, 1993. This appeal is now properly before us.

Appellant now contends that her trial counsel was ineffective for failing to challenge the warrantless wiretapping of her home.

In order to establish ineffective assistance of counsel, a defendant must first show his or her claim to be of arguable merit. Commonwealth v. Rainey, 540 Pa. 220, 227, 656 A.2d 1326, 1330 (1995), cert. denied, -U.S.-, 116 S.Ct. 562, 133 L.Ed.2d 488. Here, appellant’s underlying claim is that the trial court improperly admitted audiotaped conversations recorded in appellant’s residence without her consent.

On December 30, 1994, the Supreme Court of Pennsylvania held that Article I, § 8 of the Pennsylvania Constitution precludes the police from sending a confidential informant into the home of an individual to electronically record his or her conversations, without first obtaining a warrant. Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). However, on December 6, 1995, an en banc panel of this Court determined that the Brion decision only applies prospectively. Commonwealth v. Metts, 447 Pa.Super. 275, 669 A.2d 346 (1995). As appellant’s trial was conducted more than a year before the Brion decision was handed down, she may not assert a Brion claim retroactively. Metts at p. 356 (“Appellant is not entitled to new trial on the basis of Brion since the tape recorded conversations were intercepted prior to the applicable date.”). Consequently, we find no merit to appellant’s underlying claim, and thus cannot find appellant’s counsel ineffective. Rainey, supra; Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, 889 (1995) (where new rule of law is not applied retroactively, defense counsel is not ineffective for failing to predict a change in the law), cert. denied, — U.S. -, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995); Commonwealth v. Rompilla, 539 Pa. 499, 510, 653 A.2d 626, 631 (1995) (counsel can never be considered ineffective for failing to raise merit-less claim).

Appellant also contends that her trial counsel was ineffective for failing to object to the admission of typed transcripts of tape-recorded conversations with Ealing, on the specific ground that disclosure of the tape recordings’ contents to a typist was in violation of the Wiretap Act. We find this contention wholly without merit.

First we note that appellant presents no evidence that someone other than Ealing typed the transcript. Moreover, the Wiretap Act allows disclosure to:

another investigative or law enforcement officer, ... or [to] make use of such contents or evidence to the extent that such disclosure or use is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

18 Pa.C.S. § 5717(a). Appellant presents no case law that a police typist would not qualify as a law enforcement officer or that disclosure to a police typist, under these circumstances, would be inappropriate. Consequently, we find that appellant’s claim lacks arguable merit, and therefore appellant’s counsel was not ineffective. Rainey, supra; Rompilla, supra.

Accordingly, for the above mentioned reasons, we affirm.

Affirmed.

      . 18 Pa.C.S. § 902(a).

      . 18 Pa.C.S. § 903(a)(1).

      . One of these recorded conversations took place within appellant’s home.

      . In its August 26, 1994 opinion, the trial court recognized that appellant could not be convicted of both crimes, and that her conviction for criminal conspiracy should be vacated. However, as appellant was only sentenced on the criminal solicitation charge, and she does not raise this issue on appeal, we will not address it.


source: Caselaw Access Project

author:
BECK, Judge.
      OLSZEWSKI, Judge,

license: Public Domain

text:
    670 A.2d 1155
    Gloria Jean HOLCOMB v. David Edward HOLCOMB, Appellant. Gloria Jean HOLCOMB, Appellant, v. David Edward HOLCOMB.
    Superior Court of Pennsylvania.
    Submitted Aug. 28, 1995.
    Filed Jan. 31, 1996.

      Walter P. Eells, West Chester, for David Edward Holcomb.
    Richard P. Klein, West Chester, for Gloria Jean Holcomb.
    Before BECK, HUDOCK and OLSZEWSKI, JJ.
   BECK, Judge.

Husband appeals and wife cross-appeals the trial court’s order modifying the original order of child support. We affirm.

The parties were married in June, 1972 and had two daughters. In June, 1992 they divorced and an order setting out support obligations was entered. In June, 1993, the parties’ older daughter was graduated from high school. In June, 1994, Husband filed a petition to modify the support order, claiming the following changed circumstances: a decrease in his income, an increase in Wife’s income and the emancipation of their older daughter. A hearing on the petition was held and the hearing officer made these recommended findings:

Husband’s monthly income had decreased from $4,900.00 to $3,395.00;
Wife’s monthly income had increased from $1,500.00 to $1,957.00; and
The parties older daughter was emancipated as of the date of her graduation from high school. As a result, Husband was entitled to credit for support payments he made for her from the date of her emancipation forward. To this end, Husband would be credited $150.00 per month in his support payments for his younger daughter until the full amount ($7,545.00) was absorbed.

Both parties filed exceptions to the Hearing Officer’s Recommendations. Husband claimed his income was calculated too high while Wife claimed Husband’s income was calculated too low. Wife further claimed that Husband was not entitled to a credit for the post-emancipation support payments beyond the date of his petition to modify.

The trial court reevaluated the calculations underlying Husband’s income and found some errors, resulting in a monthly income of $3,272.00. It also found that Husband was entitled to a modification of his support payments only as of the date of his petition, not the date of emancipation.

On appeal, Husband asserts that the order of support should have been modified as of the date of his daughter’s emancipation. On cross-appeal, Wife asserts that the trial court set Husband’s monthly income too low.

Our standard of review is whether the trial court abused its discretion, that is, misapplied the law, exercised judgment that was manifestly unreasonable or showed partiality, bias or prejudice in reaching its decision. Blue v. Blue, 532 Pa. 521, 616 A.2d 628, 631 (1992).

With respect to the trial court’s careful evaluation of Husband’s income, we find no abuse of discretion. The record reflects that Husband presented his tax return and income statement in an effort to establish that his monthly net income was $2,792.98. He also testified at length about his expense account, his bonuses, his 1099 income and his income from a rental property owned by both parties. Wife’s counsel cross-examined Husband on all of these issues in an attempt to show that Husband’s actual income was $4,018.00. All supporting documents were admitted into evidence. Our review of the record leads us to conclude that the trial court fairly and accurately determined Husband’s monthly income at $3,272.00. We find no abuse of discretion and, therefore, will not disturb the trial court’s findings.

The other issue in this case is more complex. Husband urges us to accept the reasoning of the Hearing Officer who determined that Husband was entitled to a full credit for all support payments he made for his older daughter after the date of her emancipation. This included twelve months of payments Husband made after his daughter was graduated from high school and before he filed his petition to modify. Wife insists that Husband cannot be credited for any payments made prior to the date, of his petition to modify.

Both parties rely on the following statute:
§ 4352 Continuing Jurisdiction Over Support Orders
* * * * * *
(e) Retroactive modification of arrears. — No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there- is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the-date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of emancipation of the child for whose support the payment is made.

. Upon its review of the statute, the trial court stated that had Husband failed to make support payments .for his older daughter after her emancipation, the arrears accrued could have been remitted under § 4352(e). The trial court further reasoned:

We have no authority, however, to require [Wife] to repay monies received for the support of her children. Mother was not put on notice that the monies received were, in effect, a prepayment of child support owed on behalf of the younger daughter. To now require repayment of those sums through a reduction of support for [younger daughter] would be unfair to the younger daughter. [Husband] makes no claim that he was precluded from filing a petition to modify by reason of disability, misrepresentation, or any other compelling reason. [Husband’s] request for modification of the previous support order, prior to the date of filing his petition to modify, is denied.

The trial court found that the case law interpreting § 4352(e) was inapplicable here because this case does not concern arrearages. It then applied § 4352(e) and held since the statute prohibits a trial court from modifying an order retroactively, Husband’s request for a credit from the date of emancipation must be denied.

It is true that the first three sentences in § 4352(e) appear to apply to all petitions for modification, whether or not the obligor is in arrears. However, the entire subsection is titled “Retroactive Modification of Arrears,” therefore, by its plain meaning the subsection refers only to those cases where arrears are at issue.

Since § 4352(e) applies only to arrears, the retroactivity issue in this case is governed by our standard retroactivity rules for support orders. An order modifying an order of support is effective from the date of the filing of the petition for modification, unless the court specifies otherwise. See Pa.R.Civ.P. 1910.17(a) (fixing effective date of support order at date of filing complaint); Young v. Muthersbaugh, 415 Pa.Super. 591, 609 A.2d 1381, 1384 (1992) (modification of support order is to be retroactive to the date when modification was first sought unless court sets forth reasons for failing to do so on the record).

Husband claims it is unfair that' he cannot receive a credit for his post-emancipation payments when an obligor who simply refuses to pay would have his arrears remitted under § 4352(e). Husband reminds us that his wages were attached pursuant to court order, thereby precluding him from refusing to make support payments. Our response to this argument is quite simple. Nothing prevented Husband from filing a petition for modification on the date his daughter became emancipated. If it is true that he would have ceased making payments for his older daughter’s support on that date had he the ability to do so, then it is also true that he was aware that circumstances had changed and he was entitled to have his support obligation reduced. Despite this awareness, he waited a full year before petitioning the court for modification.

Section 4352(e) cannot provide Husband relief in this instance. Like all successful petitioners who seek modification of a support order, the modification granted is effective as of the date the petition was filed.

Order affirmed.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

I agree with the majority that the trial court did not abuse its discretion in the determination of Husband’s monthly income to be $3,272. Further, I agree with the majority that 23 Pa.C.S.A. § 4352(e) is not applicable to the second issue, whether the order of support should have been modified as of the date of emancipation with Husband receiving credit for excess payments made from such date, because such statute relates only to arrearage situations. However, I respectfully disagree with my learned colleagues as to their disposition of the second issue.

While I am most reluctant to disagree with the majority, I find that to agree would overrule our holding in Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986). In Miller, we held that a husband could receive credit for support payments made directly to his child after the date of such child’s emancipation. Id. at 198, 509 A.2d at 404. In the instant case, however, the majority finds that Husband can receive credit for excess post-emancipation support payments made only after the date of the petition to modify the support order, not the date of emancipation. See infra. 23 Pa.C.S.A. § 4323(a) states that the “court shall not order either or both parents to pay for the support of a child if the child is emancipated.” Id. Hence, the statute recognizes that a parent cannot be ordered to pay support for a child after the date of emancipation and Miller recognizes that a parent can receive credit for such payments made following the date of emancipation. To allow Husband credit for excess support payments made only back to the date of the petition would overrule Miller, which we have no power to do. Therefore, I find that the trial court abused its discretion in ordering credit to be given to Husband for excess support payments made only after the date of the petition, as credit should have properly accrued to Husband for such payments made beginning on the date of the child’s emancipation. Miller, supra.

      . The statute mandates that “no court shall modify or remit any support obligation.” See 23 Pa.C.S.A. § 4352(e) (emphasis supplied)

      . Clearly, the last sentence in subsection (e) explicitly refers to arrears. "In the case of an emancipated child, arrears shall not accrue from and alter the date of the emancipation of the child for whose support the payment is made.” 23 Pa.C.S.A. § 4352(e).

      . The dissent states that our holding today effectively overrules our decision in Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986). Miller involved a request by mother for education expenses for her emancipated son. This court reversed and remanded, holding that the trial court failed to consider 1) son's potential for contribution, 2) mother's ability to contribute and 3) post-emancipation payments father made directly to son. With respect to the direct payments father made to son, this court stated that father should receive credit for those payments which were not designated as gifts. Id. at 198, 509 A.2d at 404.
      In light of the statutory mandate that forbids a court from ordering a parent to make support payments for a child after he or she becomes emancipated, see 23 Pa.C.S.A. § 4323(a), and the holding in Miller .which grants father in that case a credit for post-emancipation payments, the dissent concludes that credit likewise must be granted in the instant case. We disagree.
      The facts in Miller are materially different from this case in that Miller involved a post-emancipation request for education support payments. Father opposed such payments, the matter was fully litigated and an order was entered directing father to make payments in the amount of S300.00 per month. This court ordered that a credit be applied against the court ordered payment for the payments father gave to son directly. Miller holds that where an outstanding order for post-emancipation support exists, an obligor who has made payments directly to the child must receive credit for such payments against his court-ordered obligation.
      Flere, there is no court order directing father to make post-emancipation payments. This fact makes 23 Pa.C.S.A. § 4323(a) inapplicable and distinguishes this case from Miller. Appellant failed to seek cessation of his support obligation either by stopping payments (as was done in Miller but which could not be accomplished here due to the wage attachment) or by promptly filing a petition to modify. He cannot now receive a credit for post-emancipation payments, and Miller does not entitle him to one.


author: OLSZEWSKI, Judge:

text:
    670 A.2d 1159
    Ann SMATHERS, Appellant, v. John SMATHERS, Appellee. (Two Cases.)
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1995.
    Filed Jan. 31, 1996.

      Ann Smathers, Pro Se, appellant.
    Jack I. Lowe, Jr., Clarion, for appellee.
    Before DEL SOLE, POPOVICH and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant Ann Smathers and appellee John Smathers divorced on April 26, 1989. Following entry of the final divorce decree, appellant filed a series of appeals with this Court and the Supreme Court, all of which were unsuccessful.

In February of 1995, appellant filed a pro se petition seeking a hearing on “alimony-modification.” The Honorable Paul B. Greiner denied appellant’s requested relief on May 19, 1995.' Additionally, Judge Greiner found that appellant’s petition was obdurate and vexatious. The court therefore ordered appellant to pay appellee’s counsel fees in the amount of $425. Appellant has appealed both the denial of the hearing and the award of counsel fees.

While the essential facts outlined above were easily uncovered, appellant’s argument on appeal is not so easy to discern. Appellant’s handwritten brief contains no statement of jurisdiction, no reference to the order in question, no statement of questions involved, and no summary of the argument, as required by the Rules of Appellate Procedure. See Pa.R.A.P. Rule 2111. Rather, this brief contains only one lengthy and unorganized section entitled “Facts and Statements” and one very brief section called “Argumént.” In the abbreviated argument section, appellant has not cited any cases or statutes, and has not developed or explained any clear argument or theory. After review, it is clear that appellant has failed to clearly identify, let alone develop, her issues for appeal.

In finding that appellant’s brief is inadequate, we particularly highlight the lack of a statement of questions presented. As this Court noted in Commonwealth v. Maris, the omission of a statement of questions presented is “particularly grievous since the statement ... defines the specific issues this court is asked to review.” 427 Pa.Super. 566, 569, 629 A.2d 1014, 1016, 629 A.2d 1014, 1016 (1993). When the omission of the statement of questions presented is combined with the lack of any organized and developed arguments, it becomes clear that appellant’s brief is insufficient to allow us to conduct meaningful judicial review. See id.

We are mindful of the fact that appellant is proceeding pro se in this appeal. Nevertheless, this pro se representation does not relieve appellant of her duty to properly raise and develop her appealable claims. In O’Neill v. Checker Motors Corp., we noted the following:

While this court is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because she lacks legal training. As our supreme court has explained, “any layperson choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise and legal training will prove [her] undoing.”

389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989) (citations omitted). In this case, a liberal construction of appellant’s brief cannot remedy the inadequacies. Appellant has chosen to proceed pro se and she cannot now expect this Court to act as her attorney. See Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982) (“We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.”).

Since the substantial defects in appellant’s brief preclude us from conducting meaningful judicial review, we find that quashal is the appropriate disposition for this appeal. See Pa.R.A.P. Rule 2101; Maris, supra; Sanford, supra.

Appeal quashed.

      . Since we make no inquiry into the merits of this case, and no specific finding as to whether appellant’s behavior in bringing this appeal was obdurate or vexatious, we decline to award attorney fees to appellee. See Pa.R.A.P. Rule 2744 (allowing award of attorney fees after a court determination "that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious.”). Hence, appellee’s petition entitled “Request For Costs” is hereby denied.


author: TAMILIA, Judge:

text:
    670 A.2d 1161
    Tammie L. CALABRESE v. John J. CALABRESE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed Feb. 2, 1996.

      Elizabeth A. Hambrick-Stowe, Lancaster, for appellant.
    James D. Wolman, Lancaster, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and SAYLOR, JJ.

       President Judge Rowley did not participate in this decision.

   TAMILIA, Judge:

John J. Calabrese takes this appeal from the October 11, 1994 Order which granted appellee/wife’s claim for spousal and child support in the amount of $3,832 per month. The parties were married on October 14, 1978 and are the parents of two children, a son born on July 24, 1979, who presently lives with husband, and a daughter born on August 1, 1984, who resides with wife. Prior to separation, the parties owned and operated several businesses which were formed in 1989. Calabrese Associates Architects, Inc., was an architectural service corporation, in which husband, a registered architect and certified interior designer, owned a two-thirds interest and wife, a nurse by trade, owned a one-third interest. A complimentary design service, MDC Associates Interior Design, which also had two subsidiaries, was owned solely by wife. In addition, the parties were the joint owners of the commercial building housing their respective corporations. The parties separated in November, 1992, when husband left the marital home. Wife thereafter filed a complaint for spousal and child support on July 2, 1993. Pursuant to the final Order entered October 11,1994, husband filed this appeal raising the following four allegations of trial court error:

A. Whether the trial court erred as a matter of law in entering a support order based solely on the support guidelines, without considering the Melzer formula, where the court determined that the combined net monthly income of the parties exceeded $10,000.00.
B. Whether the trial court abused its discretion and erred as a matter of law in failing to attribute an earning capacity to appellee where she had owned and operated a profitable business prior to the separation of the parties.
C. Whether the support order was based on a flawed and inherently contradictory calculation, even assuming, arguendo, that the net incomes attributed to the parties were accurate.
D. Whether the court erred as a matter of law in failing to adequately explain how it calculated appellant’s net income so as to permit meaningful appellate review.

Our scope of review in support matters is well settled. The amount of a support Order is within the sound discretion of the trial judge, whose judgment will not be disturbed on appeal absent a clear abuse of discretion. Connor v. Connor, 434 Pa.Super. 288, 642 A.2d 1136 (1994) (citation omitted). An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. Id.

We shall address appellant’s first argument that the trial court erred as a matter of law in failing to consider the Melzer formula. In the instant case, the combined income of the parties exceeded $10,000 or the maximum amount upon which a support Order can be determined pursuant to Pa.R.C.P. 1910.1 et seq. Hence, the trial court was required to apply Melzer. We therefore conclude the trial court erred in applying the guidelines rather than Melzer.

An examination of the Pennsylvania Rules of Civil Procedure and, in particular, Pa.R.C.P. 1910.16-5(a), provides that “Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), applies only in cases where the parties’ combined income exceeds the amount of the guidelines which can be calculated according to the formula.”

The formula in Melzer resulted in child and spousal support calculations based on the court’s case-by-case determination of reasonable needs and expenses of the parties. The Pennsylvania Supreme Court in Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192 (1994), recognized the clear import of Pa.R.C.P. 1910.16-1 et seq., viz, to supercede Melzer and remove the discretionary aspect of its application by the trial court.

The guidelines assume that similarly situated parties, at least with respect to income levels, will have similar reasonable needs and expenses.... The clear intent of the guidelines, therefore, was to do away with individual, case-by-case determinations of just what constitutes the reasonable needs and expenses of the particular parties involved and thus to limit the trial court’s discretion.

Minnick, supra at 451-452, 648 A.2d at 1197 (emphasis in original).

The rules provide for a presumptive minimum amount of child support in cases in which Melzer applies to insure that the trial court’s discretion is not unbridled. The presumptive minimum amount of support shall be the highest guideline amount which can be derived from the formula for the appropriate number of children and using the highest payor income available.

In cases where the combined net monthly income of the parties exceeds $10,000, the presumptive minimum amount of support is calculated as if the parties have only a $10,000 combined net income.

Pa.R.C.P. 1910-16.5(a).

Rule 1910.16-5(a) details the procedure to be followed by the court in calculating the presumptive minimum amount of child support. Since the grids and formula only apply where the combined net monthly income of the parties does not exceed $10,000, the presumptive minimum must be calculated based on this $10,000 cap. Rule 1910.16-5(a) explains the calculation of presumptive minimum amount of the child support Order where payee’s net monthly income is less than $2,000 as follows:

1. Where payee’s monthly net income is less than $2,000, the presumptive minimum amount of support must be calculated using the formula.
For example, where:
Payor’s monthly net is $15,000, and
Payee’s monthly net is $1,000
the presumptive minimum amount of support for three children would be derived from the formula as follows:
The formula can be used to calculate guideline amounts for parties with a combined total net monthly income of $10,000. Therefore $10,000 less payee’s $1,000 income is $9,000. The $9,000 is then multiplied by the appropriate percentage for three children and a combined income of $10,000 (24.1%), resulting in a presumptive minimum amount of support of $2,169. OR
$9,000 x .241 = $2,169.

Pa.R.C.P. 1910.16-5(a). Melzer applies “in cases where the parties’ combined income exceeds the amount of the guidelines which can be calculated according to the formula.” The calculation of the presumptive minimum, pursuant to Rule 1910.16-5(a), does not take the calculation of the support obligation away from Melzer and back into the guidelines. On the contrary, the presumptive minimum is simply the level of support below which the trial court cannot descend. A Melzer calculation, without the safeguard of the presumptive minimum, could result in a support Order in an amount less than the maximum amount under the guidelines, notwithstanding the’ fact that the combined monthly incomes of the parties exceeds the guidelines amount. This result would nullify the Pennsylvania Rules of Civil Procedure and the dictates of the Pennsylvania Supreme Court. Minnick, supra.

Additionally, once it is determined that Melzer is applicable, “[t]he calculated Melzer formula must be in the record to insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children.” Racciato v. Racciato, 393 Pa.Super. 307, 309, 574 A.2d 625, 626 (1990) (citing Ryan v. DeLong, 371 Pa.Super. 248, 255, 538 A.2d 1, 3 (1987)) (emphasis supplied). See also Caplan v. Caplan, 400 Pa.Super. 352, 355, 583 A.2d 823, 825 (1990).

In the case at bar, the trial court recomputed payor’s gross income per month from that which appeared on his 1993 income tax return. The only reason given for the recomputation was because husband “is the sole shareholder of corporations which he alone operates with a practice of applying corporate funds for some personal uses while also treating such uses of funds as deductible corporate expenses!.]” Specifically, the trial court opined as follows:

Likewise, for the defendant, his actual income, rather than earning potential, will be used in calculating an appropriate level of support. However, in Mr. Calabrese’s situation, because he is the sole shareholder of corporations which he alone operates with a practice of applying corporate funds for some personal uses while also treating such uses of funds as deductible corporate expense, “income” for Mr. Calabrese must include also a consideration of the extent to which his own expenses have been met by such use of corporate funds, as well as monies which, at his direction, have been applied for the benefit of his present companion, excluding any adequately document loan transactions.

(Slip Op., Kenderdine, J., 9/30/94, p. 2.)

In order to calculate income available for support, where a payor owns his own business, the court must consider actual available financial resources. “Otherwise put, ‘cash flow' ought to be considered and not federally taxed income.” Heisey v. Heisey, 430 Pa.Super. 16, 19, 633 A.2d 211, 212 (1993) (citing McAuliffe v. McAuliffe, 418 Pa.Super. 39, 43, 613 A.2d 20, 22 (1992)) (emphasis omitted). The court made a finding as to husband’s income that can be justified if the income, transfers and questionable loans are computed to establish income rather than tax and business write-offs. However, the court did not clearly spell out the rationale of the cash flow, business/personal mixing of income, as did appellee’s brief, exhibit “A”, to establish net income available for calculation and application pursuant to the Melzer formula. The trial court in this case abused its discretion by failing to apply Melzer. Minnick, supra. Its failure to do so results in an absence of the Melzer calculations necessary to provide a record sufficient for appellate review. Like the Court in Branch v. Jackson, 427 Pa.Super. 417, 629 A.2d 170 (1993), we are unable to determine whether the court Order was excessive, inadequate or just right. We are constrained therefore to vacate the Order and remand for further proceedings. We direct that Melzer calculations and assignments of income be detailed on the record. In light of this disposition, we need not address the remaining issues.

Order vacated and remanded for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . This amount, consisting of $1,475 for child support and $2,357 for spousal support, was effective January 7, 1994 and required husband to also pay $193 per month toward arrearages and to provide major medical and hospital insurance for spouse and children.

      . According to the trial court, wife worked as a bookkeeper for all of the businesses and as chief operating officer for certain of the companies.

      . Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

      . The Pennsylvania Rules of Civil Procedure "govern all civil actions or proceedings brought in the court of common pleas to enforce a duty of support....” Pa.R.C.P. 1910.1(a). Only the following actions are excepted from the scope of the Rules of Civil Procedure:
      (1) an action or proceeding for support based upon a contract or agreement which provides that it may not be enforced by an action in accordance with these rules, and
      (2) an application for a temporary order of support and other relief pursuant to the Protection From Abuse Act of December 19, 1990, P.L. 1240, NO. 206, 23 PA.C.S. § 6101 et seq.
      Pa.R.C.P. 1910.1(b).

      . Pa.R.C.P. 1910.16-5(d) defines the limitations inherent in the guidelines for calculating support orders.
      Net Income Affecting the Application of the Guidelines. The guidelines contain two stated limitations based upon monthly net income. First, the Chart of Proportionate Expenditures which is the basis for the calculation of support amounts by the formula in Rule 1910.16-3 states percentages for joint monthly net income between $500 and $10,000. When the obligor's net income is below $500 per month, a minimal support order shall be entered after consideration of the obligor's reasonable living expenses. If, on the other hand, the parties’ joint monthly net income exceeds the maximum, the amount of support is to be determined pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).
      Pa.R.C.P. 1910.16—5(d). It is clear that the guidelines do not apply to cases in which the parties’ combined net income is either below $500 per month or exceeds $10,000 per month. Pa.R.C.P. 1910.16—5(d).

      . The Court in Melzer stated the following:

        [I]n each case the hearing court must first calculate the reasonable expense of raising the children involved, based upon the particular circumstances — the needs, the custom, and the financial status — of the parties. See Bethea v. Bethea, 43 N.C.App. 372, 258 S.E.2d 796, 799 (1979) ("What constitutes necessities depends upon the facts and circumstances of the particular case. They include food, clothing, lodging, medical care and proper education. They are not limited to those things which are absolutely necessary to sustain life, but extend to articles that are reasonably necessary for the proper and suitable maintenance of the child in view óf his social station in life, the customs of the social circle in which he lives or is likely to live and the fortune possessed by him and his parents.”).
      The court must next determine, as a matter of fact, the respective abilities of the parents to support their children. This Court has held that “[e]ach parent's ability to pay is dependent upon his or her property, income and earning capacity....” Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975). In arriving at the amount which a parent can contribute to the support of his or her children, the court must "make due allowance for the reasonable living expenses of the parent.” Id. (emphasis added).
      Once the court has determined the reasonable needs of the children and the amount of each parent’s income which remains after the deduction of the parent’s reasonable living expenses, it must calculate each parent's total support obligation in accordance with the ... formula.

        Melzer, supra at 471-472, 480 A.2d at 995-996.

      . The rule also provides for the calculation of the presumptive minimum amount of support where the parties' combined monthly income exceeds $10,000 and the payee’s monthly net exceeds $2,000. The rule states as follows:
      2. Where the payee’s monthly net income is $2,000 or more, the appropriate grid figure should be used:
      For example, where:
      Payor's monthly net is $15,000, and
      Payee's monthly net is $3,000
      the presumptive minimum amount of support for three children would be found on the grid for three children using incomes of $8,000 and $2,000 for payor and payee, respectively: $1,928.
      Pa.R.C.P. 1910.16-5(a). The Melzer formula, however, would still be applied because the parties’ net income exceeds $10,000 per month. Minnick, supra.

      . There are two exceptions to the rule that the Melzer formula-must be included in the record.
      The law has recognized that the Melzer formula need not be shown on the record in every case. Two exceptions have been applied. In
        Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989), it was held that the trial court did not err in failing to utilize the formula where the wife had no income to plug into the calculation. Citing Griffin [,] the court in Olson v. Olson, 384 Pa.Super. 224, 558 A.2d 93, 95 (1989) held "that where the party requesting benefits of the Melzer formula intentionally withholds or fails to provide accurate information required under the formula, the court may calculate support without an on the record reference to the formula.”

        Racciato, supra at 309, 574 A.2d at 626. Neither of these exceptions is applicable in the case sub judice.


author: POPOVICH, Judge:

text:
    670 A.2d 1165
    PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Vernon F. WALTMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued May 18, 1995.
    Decided Sept. 11, 1995.
    Reargument Denied Nov. 17, 1995.

      Anthony J. Basinski, Pittsburgh, for appellant.
    William E. Hager, III, New Bethlehem, for appellee.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   POPOVICH, Judge:

Pennsylvania Electric Company (“Penelec”) appeals from the judgment entered in the Court of Common Pleas of Clarion County following a bench trial in a boundary dispute. After careful review, we affirm.

The factual background of this dispute revolves around ownership to a strip of approximately ten acres of land abutting the Clarion River. Penelec, an electric utility company, operates a hydroelectric plant on the Clarion River. This plant was constructed by Penelec’s predecessor as part of the Piney Dam Project. Construction of the plant required approval by the Federal Power Commission, and an alleged prerequisite to this approval was that the utility acquire all property along a particular stretch of the Clarion River to an elevation of 1105 feet. The dispute arose as a result of certain structures that appellee, Vernon Waltman, constructed on what he believed was his property. Penelec contended that the structures were on its property because the land was allegedly for the dam construction project.

The parties trace their titles to one J.P. Maxwell. Penelec’s title originated in an August, 1922, option that Maxwell granted to County Realty Company (“County Realty”) for a section of a tract of his property situated below the 1105 foot elevation. Specifically, the option provided: “On the west by . land of James Campbell heirs; being that part of my lands lying below said elevation 1105 feet above sea level; containing 10 acres more or less ...” The option was accepted by County Realty in November of 1922.

Maxwell conveyed the property to County Realty by deed in December of 1922. County Realty subsequently conveyed the tract to the Clarion River Power Company followed by a conveyance of the same tract to Penelec by deed in March of 1942. This deed made no mention of conveying all land below the 1105 foot elevation. Instead the description of the property conveyed was done by courses and distances.

Waltman’s title originated in a 1978 deed from Maxwell’s widow to one Jack Baum. This deed conveyed the remaining property in the Maxwell tract and contained an express exception for the property that was conveyed to County Realty. In 1984, Baum conveyed, by deed, a tract of approximately 15 acres to Waltman. This deed stated that the conveyance was subject to the property deeded to Penelec.

Upon taking possession of his property, Waltman constructed a concrete boat dock, a house and several other improvements below the 1105 foot elevation. Penelec became aware of these improvements in 1986, and asked Waltman to remove them. When this request was refused, Penelec brought an action for injunctive relief requesting the removal of these structures.

The boundary dispute centers around the deed from the Maxwell’s to County Realty (“County Realty deed”). Penelec alleges this deed is ambiguous. The ambiguity supposedly arises because the deed was missing two distance calls and the deed description did not close. At trial, Penelec presented the testimony of surveyor Gregg Facciani, who provided support for Penelec’s contention that the deed was ambiguous. Mr. Facciani based his opinion upon a survey he performed using a U.S. Geological Survey topographical map. He used this map because Penelec wanted to have its property tied into the 1105 foot elevation and a “stated plan coordinate system.” Penelec believed that it should be able to introduce extrinsic evidence to clarify the descriptions in the deed because of these alleged ambiguities.

Waltman, on the other hand, contended that the Maxwell to County Realty deed.was unambiguous. Harold Frank Scott testified as a surveying expert for Waltman. Mr. Scott was familiar with the property because of a 1978 lot development survey he had prepared on the Maxwell tract. He stated that it was possible to calculate the courses and distances in the deed even though some of these were now underwater. Wait-man’s structures were on his own property according to Mr. Scott. Mr. Ron Scott also presented expert testimony for Waltman and stated that he established the missing corner of the deed using information from adjoining deeds. Mr. Scott further testified that Penelec was mistaken as to its property line and that he was able to establish Penelec’s property using the course and distance calls in the County Realty Deed.

William McGarvey, a surveyor, also testified for Waltman and stated that the description in the deed provided sufficient information to ascertain the exact property conveyed to Penelec. McGarvey also opined that, as a result of his various surveys and computer simulations, Waltman’s improvements did not encroach upon Penelec’s property. Further testimony provided that it was possible to calculate, with mathematical certainty, where the property in the County Realty deed was located.

The Honorable Paul Greiner heard this evidence at a trial in May of 1994, and subsequently entered judgment on an August 16, 1994, verdict in favor of Waltman. The verdict stated that Penelec did not meet its burden of proving the boundary line in dispute to be at an elevation of 1105 feet. Judge Greiner also adopted Waltman’s proposed findings of fact and conclusions of law. This timely appeal followed.

Penelec now presents the following questions for review:

Did the lower court err as a matter of law in disregarding extrinsic evidence to determine the intent of the grantor in conveying property by deed to Penelec’s predecessor in title?
Did the lower court err as a matter of law in determining that Waltman owned the property lying below the 1105 elevation where the undisputed evidence was that the conveyance to Waltman’s predecessor in title expressly excepted all land lying below the 1105 elevation?
In the alternative, if the deed to Penelec’s predecessor in title is not ambiguous, did the lower court err as a matter of law in disregarding the prevailing natural monuments and adjoining calls in determining the boundary line of Penelec’s property?
In the alternative, did the lower court err as a matter of law in failing to find that Penelec owned the disputed property by defacto taking?

Penelec, in its first argument, contends that the lower court improperly refused to consider extrinsic evidence to aid in interpreting the ambiguities in the Maxwell to County Realty deed.

The court determines whether a written instrument is ambiguous. Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1 (1984). We stated in Wysinski v. Mazzotta, 325 Pa.Super. 128, 472 A.2d 680 (1984):

In the absence of fraud, accident or mistake, the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol. Covert Appeal, 409 Pa. 290, 295, 186 A.2d 20, 23 (1962); Highland v. Commonwealth, 400 Pa. 261, 283, 161 A.2d 390, 402 (1960), cert. denied, 364 U.S. 630, 81 S.Ct. 357, 5 L.Ed.2d 363 (1961); Johns v. Castellucci, 264 Pa.Super. 591, 596, 401 A.2d 753, 755 (1979). When the language of the deed is clear and free from ambiguity, the intent of the parties must be determined from the language of the deed. Teacher v. Kijurina, 365 Pa. 480, 486, 76 A.2d 197, 200 (1950); Detwiler v. Coldren, 311 Pa. 44, 49, 166 A. 374, 375 (1933); South Connellsville Borough, Inc., 47 Pa.Super. 350, 365 (1911). With respect to unambiguous deeds, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol. Covert Appeal, supra 409 Pa. at 295, 186 A.2d at 23; Highland v. Commonwealth, supra, 400 Pa. at 283, 161 A.2d at 402; Kimmel v. Svonavec, 369 Pa. 292, 295, 85 A.2d 146, 148 (1952); Johns v. Castellucci, supra 264 Pa.Super. at 596, 401 A.2d at 755. To permit a variation of a deed description which is complete and unambiguous on its face, there must be evidence of a mutual mistake which is clear, precise and convincing. Central Transportation, Inc v. Board of Assessment Appeals, 490 Pa. 486, 494, 417 A.2d 144, 147-148 (1980); In re Estate of Kostelnik, 471 Pa. 94, 99, 369 A.2d 1211, 1213 (1977).

Wysinski, 472 A.2d at 682-683.

However, the boundaries to property are not always clear from the plain reading of a written deed. Doman v. Brogan, 405 Pa.Super. 254, 592 A.2d 104 (1991) (citations omitted). Where a deed is uncertain because of vague or ambiguous language, extrinsic evidence may be used to explain, but not vary, the writing in the deed. Id. at 109 (citation omitted). “[T]he primary function of a court faced with a boundary dispute is to ascertain and effectuate the intentions of the parties at the time of the original subdivision.” Id.

Here, we find that the lower court did not err in finding that the deed was free from ambiguity and refusing to consider extrinsic evidence. Waltman presented three surveying experts, Mr. Frank Scott, Mr. Ronald Fox and Mr. William McGarvey. Mr. Scott prepared a survey for Wait-man’s predecessor in title, Mr. Jack Baum, of the original J.P. Maxwell tract. The northern and eastern boundaries of this tract were established by Mr. Scott by the use of certain physical evidence. Mr. Scott also stated that courses and distances could be established even though they were under water.

Surveying expert, Mr. Fox added support to Mr. Scott’s testimony with his testimony that lost corners or lost points in a deed could be reestablished. The corner in this dispute could be re-established using deed information from deeds of adjoining properties. Mr. Fox further stated that he found the northern boundary and that the Penelec line of monuments were further away from the water’s edge than the Penelec deed stated. Evidence also was presented that the Penelec line was not meant to be at an elevation of 1105 feet.

Finally, Mr. McGarvey testified that modern computer simulation could establish the acreage of a tract within an inch. He further stated that he was able to establish the Maxwell to County Realty tract of land accurately by using the courses and distances in the deed and by using deeds for surrounding conveyances. In fact, Mr. McGarvey determined that Penelec was claiming ownership of approximately twenty-four acres which contradicted the ten and one-half acres that the Maxwell to County Realty deed conveyed. Finally, review of the condemnation proceedings for the Piney Dam Project reveals that land was not condemned at an 1105 foot elevation. Instead, it was condemned using course and distance descriptions.

Penelec, through its expert Gregory Facciani, did not prove that it owned the disputed property. Mr. Facciani, stated that he used a United Stated Geological Survey and attempted to tie in Penelec’s property line with this survey. Mr. Facciani admitted that the courses and distances in this map did not close and contained no reference to the 1105 foot elevation. Moreover, he ran his survey at an 1105 foot elevation because Penelec believed that its property line was at this elevation. In essence, Mr. Facciani appears to have established that Penelec owned at the 1105 foot elevation by assuming that its property line was at that elevation. The trial court, in its November 17, 1994, order stated, “[Gregory] Facciani’s testimony did not support Plaintiffs burden of proving it’s [sic] claim by the fair weight or preponderance of the evidence.” Our review of the record leads us to conclude that Judge Greiner did not err in his conclusions.

Penelec also argues that the deed is ambiguous because it differs from the option agreement. This argument fails in light of the doctrine of merger by deed which provides “as a general rule an agreement of sale merges into the deed and no recovery may be had based upon an earlier agreement.” Valvano v. Galardi, 363 Pa.Super. 584, 592, 526 A.2d 1216, 1220 n. 2 (1987), citing Stoever v. Gowen, 280 Pa. 424, 124 A. 684 (1924); See also, Doman v. Brogan, supra. Accordingly, Penelec’s first allegation of error fails.

Second, Penelec contends that the lower court erred as a matter of law in determining that Waltman owned the property lying below the 1105 elevation where the undisputed evidence was that the conveyance to Waltman’s predecessor in title expressly excépted all land lying below the 1105 foot elevation.

When anything is excepted from a deed all things that are dependent upon it and necessary for obtaining it are also excepted. Walker v. Forcey, 396 Pa. 80, 151 A.2d 601 (1959). Where a doubtful reservation or exception exists in a deed, the deed will be construed most strongly in favor of the grantee. Heidt v. Aughenbaugh Coal Company, 406 Pa. 188, 176 A.2d 400 (1962), citing Bundy v. Myers, 372 Pa. 583, 94 A.2d 724 (1953); Sheffield Water Co. v. Elk T. Co., 225 Pa. 614, 74 A. 742 (1909). “This rule applies with special force to a reservation or exception which amounts to a cutting down of the grant ...” Heidt, 176 A.2d at 402, (citation omitted).

In this case, we find that the exception did not establish that Penelec owned all the land below the 1105 foot elevation. Contrary to Penelec’s assertion, the evidence was not undisputed that Waltman’s predecessor in title excepted all land lying below the 1105 foot elevation. Waltman’s expert, Mr. Fox, even though conceding that he did not run his survey with the exception, stated that he ran his survey using the course and distance calls in the unambiguous deed. By so doing, he was able to establish that Waltman’s structures were not on Penelec property. Thus, this exception was doubtful and must be construed in favor of Waltman. Heidt, supra. Moreover, Federal Energy Regulatory Commission proceedings for the original Piney Dam Project showed that the dam was to be established at an elevation of 1085 feet. Accordingly, we find appellant’s argument meritless.

Penelec next contends that if the deed to its predecessor in title is not ambiguous, the lower court erred as a matter of law in disregarding the prevailing natural monuments and adjoining calls in determining the boundary line of Penelec’s property.

We stated, in Baker v. Roslyn Swim Club, 206 Pa.Super. 192, 213 A.2d 145 (1965):

The general rules to be applied in boundary cases were set forth in Walleigh v. Emery, 193 Pa.Super. 53, 58, 163 A.2d 665, as follows: “Courses and distances in a deed must give way to monuments on the ground. Merlino v. Eannotti, 177 Pa.Super. 307, 110 A.2d 783.
“Parol evidence is admissible to establish the existence of monuments. New York State Natural Gas Corp. v. Roeder, 384 Pa. 198, 120 A.2d 170. Boundaries may be established by circumstantial as well as direct evidence. Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719; Guerra v. Galatic, 185 Pa.Super. 385, 137 A.2d 866.”
The general rule for establishing the order of precedence between inconsistent calls in a deed is found in 12 Am.Jur.2d Boundaries § 65, at page 603, as follows: “Where the calls for the location of boundaries to land are inconsistent, other things being equal, resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument), and thereafter to courses and distances.” However, the same paragraph continues with the following language: “Where, however, it is apparent that a mistake exists with respect to the calls, an inferior means of location may-control a higher one. In the last analysis the call adopted as the controlling one should be that most consistent with the apparent intent of the grantor.”
Likewise, the same general rule and the same exceptions are cited in 11 C.J.S. Boundaries § 51, as follows: “The rule that artificial monuments control courses and distances in case of conflict is not an imperative and exclusive one, but is a rule of construction to ascertain, or to aid in determining, the intention of the parties; and it is not followed where strict adherence to the call for a monument would lead to a construction plainly inconsistent with such intention.
“Accordingly, courses and distances will prevail over monuments where absurd consequences might ensue by giving controlling influence to a call for the latter, or where, in any given case, a consideration of all the facts and circumstances shows a call for distance to be the more reliable or certain, or where the call for the monument was inserted by mistake or inadvertence.”

Baker, 213 A.2d at 148-149.

Here, Penelec contends that a stream, which is a natural monument, existed at the 1105 foot elevation. A stream did exist, but according to Mr. McGarvey’s survey the stream was not at the 1105 foot elevation as Penelec contends. Mr. McGarvey ran the course and distance calls in the County Realty deed and the stream coincided with these calls. However, Mr. McGarvey found that the stream was not at the 1105 foot elevation but instead at a lower elevation. Thus, he concluded that Waltman’s structures were not on Penelec’s property. Contrary to Penelec’s contentions, the monument was not ignored but was taken into account by Mr. McGarvey when he established the calls in the deed. Because there was doubt as to the placement of the stream, Waltman’s experts, using the courses and distances in the County Realty deed, established the proper boundaries of Penelec’s and Waltman’s property. As the court in Baker stated, courses and distances will prevail over monuments when there is doubt as to the monument. Baker, 213 A.2d at 150. Accordingly, Penelec’s argument must fail. See, Baker, supra (holding that a stone monument mentioned in three deeds did not prevail over courses and distances in the deeds because the monument was not free from doubt and could lead to an absurd result); Yoho v. Stack, 373 Pa.Super. 77, 540 A.2d 307 (1988) (holding that monument must yield to deed description where expert testimony pertaining to the deed description was more credible and that courses and distances will prevail over monuments where the monuments are doubtful); Howarth v. Miller, 382 Pa. 419, 115 A.2d 222 (1955).

Penelec’s final contention is that the lower court erred as a matter of law in failing to find that Penelec owned the disputed property by de facto taking. We disagree.

The requirements of a de facto taking can be summarized as follows:

A de facto taking occurs when an entity, clothed with the power of eminent domain, exercises that power causing damages to the property owner which are the immediate, necessary and unavoidable consequences of that exercise. Harborcreek Township v. Ring, 48 Pa.Commonwealth Ct. 542, 410 A.2d 917 (1980). To find a de facto taking, there must be exceptional circumstances which have substantially deprived the property owner of the use and enjoyment of his or her property. Jacobs Appeal, 55 Pa.Commonwealth Ct. 142, 423 A.2d 442 (1980), appeal dismissed, 499 Pa. 337, 453 A.2d 336 (1982). Hence, in determining whether a de facto taking occurred, each case must be examined on its own factual situation. McGaffic v. Redevelopment Authority of City of New Castle, 120 Pa.Commonwealth Ct. 199, 548 A.2d 653 (1988), appeal denied, 523 Pa. 644, 645, 565 A.2d 1168, 1169 (1989).

Appeal of D.R.E. Land Developing, Inc., 149 Pa.Cmwlth. 290, 294, 613 A.2d 96, 98 (1992).

Here, Penelec contends that a de facto taking resulted because it had marked off the property with wires. This fact was disputed at trial by Waltman, and there was only evidence of one small piece of wire through a tree. In fact, Penelec presented no evidence of a de facto taking at trial. This contention was raised for the first time in its Closing Argument/Trial Brief/Proposed Findings of Fact. Penelec in making this argument is basically conceding that it did not obtain the property legitimately by deed. Such an argument, would support Waltman’s view that he is the legitimate owner of the disputed property.. Accordingly, Penelec’s final allegation of error fails.

Judgment affirmed.

      . The option included the following description of the property:
      On the north by that part of our lands lying above elevation 1105 feet above sea level; said elevation being determined from a bench mark established by the United States Geological Survey;
      On the west by lands of James Campbell Heirs; being that part of my lands lying below said elevation 1105 feet above sea level; containing 10 acres more, or less ...

      . The deed specifically contained the following course descriptions: [T]hence with the line of other lands of J.P. Maxwell for the following fourteen Courses:
      (1) North 30 degrees - 19' East 184.6 feet

        (2) North 33 degrees -04' East 232.2 feet
      (3) North 35 degrees —03' East 262.2 feet
      (4) North 13 degrees —50' East 149.2 feet,
      (5) South 57 degrees -56' East 61.0 feet,
      (6) North 70 degrees -29' East 156.9 feet,
      (7) North 65 degrees —00' East 243.9 feet,
      (8) North 63 degrees —04' East 334.5 feet
      (9) North 71 degrees —24' East 190.1 feet.,
      (10) North 76 degrees -40' East 238.7 feet,
      (11) North 82 degrees -00' East 218.1 feet,
      (12) South 88 degrees 42' East 285.3 feet,
      (13) South 85 degrees 40' East 293.9 feet,
      (14) South 79 degrees 53' East 219.2 feet to a post and stones, a corner to other lands of J.P. Maxwell . . .

      . This action was commenced in equity by motion for pieliminary injunction. However, as it was a boundary dispute, and counsel did not object, the court entered its verdict as a boundary dispute in law without transferring the case from Equity to Law.

      . Penelec contended that the following descriptions in the deed created ambiguity:

        ... Beginning at a point at low water mark on the Clarion River, opposite a stone on the right bank (looking downstream) of the Clarion River, said stone being located about 1600 feet upstream from the mouth of Calico and being a corner to the lands of M.M. Kaufman and Mrs. James Braden; thence 3 degrees — 50' East to a stone; ... thence south 4 degrees 43' west to low water mark on the Clarion River ...

      . The "stated plan coordinate system" is a system on which the entire Commonwealth is based. This system establishes monuments from the United States Geological Survey and apparently can be used to tie in deed calls to establish property lines. It does not establish deed bearings.

      . This entry of judgment was also based upon a November 17, 1994, order denying Penelec's post-trial motion.

      . Penelec relies on the case of Fulmer v. White Oak Borough, 146 Pa.Cmwlth. 473, 606 A.2d 589 (1992), to support its contention that there was a de facto taking. In Fulmer there was a clear taking of land by White Oak Borough. Id. at 592. Moreover, the main issues addressed in Fulmer were whether the Fulmer’s action was properly brought as an action in trespass or whether it should have been brought under the Eminent Domain Code and what a proper remedy would be. Id. at 590. Obviously, Fulmer is inapposite to this case. There was not a clear taking of property by Penelec. Furthermore, Penelec is trying to shift the burden to Waltman by claiming there was a de facto taking.