text:
    574 A.2d 618
    COMPU FORMS CONTROL, INCORPORATED, Appellee, v. ALTUS GROUP, INCORPORATED, David Jefferys, Amy McLaughlin and Charles Chambers, Appellants. ALTUS GROUP, INC., Appellants, v. COMPU FORMS CONTROL, INC. and Michael Vognoni, Appellees. COMPU FORMS CONTROL, INCORPORATED, Appellant, v. ALTUS GROUP, INCORPORATED, David Jefferys, Amy McLaughlin and Charles Chambers, Appellees. ALTUS GROUP, INC., Appellees, v. COMPU FORMS CONTROL, INC. and Michael Vognoni, Appellants.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed April 17, 1990.
    Reargument Denied June 4, 1990.

      James C. Sargent, Jr., West Chester, for Altus Group, Jeffreys, McLaughlin and Chambers, appellants in No. 1959 and appellees in No. 2108.
    William J. Gallagher, Kennett Square, for Compu Forms, appellant in No. 2108 and appellee in No. 1959.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

Both parties in this case have filed appeals from the order of the Court of Common Pleas of Chester County, dated July 13, 1989, which marked as settled and discontinued two consolidated actions then pending in the trial court: Nos. 88-03336 and 88-03467. Following our review of the record before us, we affirm the trial court’s order with a modification.

Compu Forms Control, Inc., a company owned and operated by Michael Vagnoni, is engaged in the sale and distribution of business forms. From 1983 to April of 1988, David Jefferys and Amy McLaughlin worked for Compu Forms. In April of 1988, Jefferys and McLaughlin left Compu Forms and formed their own corporation with Charles Chambers. This new company is known as Altus Group, Inc., and, like Compu Forms, is also engaged in the sale and distribution of business forms. On May 2, 1988, Compu Forms filed a complaint (No. 88-03336) against Altus, alleging that during their association with Compu Forms, both Jefferys and McLaughlin had orally agreed to keep confidential and to return upon their termination, Compu Forms’s “technical know-how, processes, designs, mechanicals, customer lists, fees, data, reports, records and policies.” R.R. at 27a. Compu Forms also claimed that the two had agreed not to contract with Compu Forms’s clients or prospective clients for their benefit as a condition of their employment. Id. at 27a. Compu Forms alleged, inter alia, that after forming Altus, Jefferys and McLaughlin had contacted customers of Compu Forms to solicit business. The complaint filed by Compu Forms set forth the following causes of action: tortious interference with contractual relations, tortious interference with business relations, tortious interference with prospective business relationships, breach of contract, misappropriation of trade secrets, and civil conspiracy.

In addition to the complaint, Compu Forms filed a petition for a preliminary injunction, requesting that the trial court:

a. enjoin the Defendants, Altus, Jefferys, McLaughlin and Chambers, from contacting or soliciting in any manner whatsoever any existing or current customers or clients of the Plaintiff;
b. enjoin the Defendants, Altus, McLaughlin and Jefferys from slandering and defaming the plaintiff;
c. enjoin the Defendants from contacting any future customers and clients of the Plaintiff;
d. order and direct the Defendants, Jefferys and McLaughlin, to return the mechanicals and customer lists and other confidential information to the Plaintiff;
e. prepare an accounting of any profits realized from or attributable to the use of the confidential and secret information____

Id. at 16a-17a.

On May 2, 1988, the trial court entered a temporary restraining order, which enjoined Altus from soliciting business from existing customers of Compu Forms who were customers of Compu Forms prior to September of 1983. A hearing on Compu Forms’s petition for a preliminary injunction was scheduled for May 6, 1988. In responding to the petition for a preliminary injunction, Altus filed preliminary objections on May 5, 1988,. claiming that Compu Forms had an adequate remedy at law, thus precluding equitable relief. Id. at 86a. Further, Altus claimed that Jefferys and McLaughlin had never agreed orally or otherwise to any restrictions on their ability to compete with Compu Forms. Also on May 5, 1988, Altus filed a complaint in equity against Compu Forms (No. 88-03467), alleging that when they came to Compu Forms in 1983, they brought certain customers which remained their exclusive customers even though they were “commissioned salesmen” for Compu Forms. Id. at 107a and 109a. After forming Altus, Jefferys and McLaughlin continued their relations with their customers based upon the «customers’ “course of dealing and good will with Jefferys and McLaughlin.” Id. at 133a. The complaint in equity also alleged that Compu Forms owed Jefferys and McLaughlin approximately $20,000.00 in commissions. Further, it was claimed that Vagnoni, following the formation of Altus, contacted the customers of Jefferys and McLaughlin, and through “veiled threats, misstatements of fact [and] defamatory statements]” attempted to induce the customers not to do business with Altus and to cause irreparable harm to the reputations of Jefferys and McLaughlin. Id. at 114a. Altus sought the following relief:

WHEREFORE, For all the foregoing reasons, Jefferys and McLaughlin pray for entry of an Order in the form attached permanently enjoining Vagnoni and Compu Forms from further contacts with Altus’s customers, its manufacturers, printers and suppliers for the purposes of defaming Plaintiff, wrongfully deterring such third parties from dealing with Plaintiff, or any other actions undertaken for the specific purpose of causing Plaintiffs [sic] economic detriment.

Id. at 116a.

It is not disputed that prior to the hearing scheduled on May 6, 1988, counsel for both parties in the actions outlined above engaged in approximately four hours of settlement negotiations in lieu of participating in the scheduled hearing. In the trial court’s July 13, 1989, Opinion, the court notes that “slightly before noon [on May 6, 1988] we were advised that a ‘settlement’ had been reached and the parties wished to place same ‘on the record.’ ” Op. of Trial Court, July 13, 1989, at 1-2. The following was placed on the record:

THE COURT: Why don’t you put the broad outline on the record here, just so I have some sense of what you folks think is justice, anyway.
MR. GALLAGHER: I guess I will state it then, Judge. Again, subject to somebody correcting me, I think the terms of the settlement is an overall settlement between these parties, the result of which is the defendants [Altus] will agree to pay to the plaintiff [Compu Forms] the sum of $100,000. That will be paid, plus interest at a rate of ten percent, that will be paid at the rate of $1,500 per month on a declining — interest paid on a declining balance with a balloon payment at the end of one year; that the parties will exchange mutual general releases, and in addition to that they will sign a confidentiality agreement that the terms of this settlement are confidential, unless there is a court order to make it public.
And in addition to that, neither of them will interfere with the business relationship of the other with any person, but that includes any of the customers with which they have jointly been dealing with. And in addition, they will not, to other people, disparage the other person, and that the payment will be with an installment judgment note signed by the defendants.
Is that a fair statement?
MR. SARGENT: Only one refinement. I do not understand that the confidentiality agreement will place any restriction on either party from contacting the customers of the other party.
MR. GALLAGHER: That’s correct. It’s just a question of they will not disparage the other, or try to interfere with existing business relationships because I think we have some contracts in place with some people that we anticipate going with the defendants and we want to be able to finish that out, and they have an obvious interest in us not contacting factories that they may use, or customers that they anticipate holding by making disparaging remarks about that.
MR. SARGENT: But contacting those suppliers alone isn’t interference with the business relationship.
MR. GALLAGHER: That’s correct. No, no. It’s the interference or disparaging remarks, not contacting them for business dealings.
THE COURT: Well done.

R.R. 153a-154a.

In the months that followed, the parties in the instant case attempted to execute written settlement documents. When this was not successful, Compu Forms filed a petition to compel settlement on December 23, 1988, requesting that the trial court enforce the terms of the settlement as set forth on the court record on May 6, 1988. Compu Forms claimed that Altus had “failed and refused to abide by the terms of the [oral] Agreement and repeatedly [has] attempted to modify the terms of said Agreement.” Id. at 123a. In responding to the petition to compel settlement, Altus claimed that “after lengthy negotiations in the courthouse” on May 6, 1988, the parties “achieved an agreement in principle, both parties acknowledging that all of the terms of the agreement in principle subsequently would be committed to writing in a separate settlement agreement to be executed by both parties.” Id. at 158a. Thus, Altus took the position that no enforceable settlement agreement had been reached on May 6,1988, but that what had occurred on that date amounted to mere negotiations. Altus further claimed that it was Compu Forms which had refused to go through with the written settlement agreement, thus unilaterally repudiating its terms.

On January 20, 1989, the trial court consolidated the actions which underlie the present appeal: Nos. 88-03336 and 88-03467. Although Altus continued to file pleadings in the consolidated cases, Compu Forms, in responding to these pleadings, maintained that the litigation between the parties had been settled. Following the trial court’s order of July 13, 1989, which determined that the consolidated cases were indeed settled and discontinued, both Compu Forms and Altus filed petitions for reconsideration and subsequently, filed appeals to this Court.

We will begin by addressing the issues presented on appeal by Altus. First, Altus claims that the trial court erred in finding that a valid and enforceable agreement to settle had been entered into by the parties on May 6, 1988. Further, Altus argues that because Compu Forms “repudiated the written settlement agreement” the parties are entitled to proceed with the prosecution of their respective lawsuits. In Johnston v. Johnston, 346 Pa.Super. 427, 499 A.2d 1074 (1985), this Court recognized the following principles of law which are controlling instantly:

If parties agree upon essential terms and intend them to be binding, “a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 54, 445 A.2d 1288, 1295 (1982).... The intent of the parties is a question of fact which must be determined by the factfinder.... A reviewing court must defer to the findings of the trier of the facts if they are supported by the evidence____

Id., 346 Pa.Superior Ct. at 431, 499 A.2d at 1076-1077 (citations omitted).

In the present case, the trial court’s Opinion of July 13, 1989, makes clear that the trial court found, as a factual matter, that the parties intended to enter into an enforceable settlement. agreement on May 6, 1988. The record supports this factual finding in that the parties agreed upon the terms of the settlement on the record on May 6, 1988, even engaged in some clarification of the exact terms on the record, and then did not proceed to participate in the hearing which had been scheduled for that day. Although it was indeed contemplated that the settlement agreement would be subsequently reduced to writing, neither party stated on the record that there would not be a contract until a writing had been executed. Moreover, in view of the pleadings which had been filed by both sides, the settlement agreement of May 6, 1988, reflected a consideration of the concerns of both sides. It entailed a payment to Compu Forms and, in answer to the claims of Altus in its complaint in equity, all parties agreed to refrain from making disparaging remarks concerning the other party and to refrain from wrongfully disrupting the business of the other party.

This case is analogous to Johnston v. Johnston, supra, wherein the trial court had entered an order which included the following language:

NOW, September 23rd, 1981, the Court hereby accepts the agreement entered into, fully recognizing that it is presented to the Court in rough form but that the contents of the said agreement will be the basis upon which the trust agreement shall be formally prepared and signed by each of the parties and their individual spouses ____

Id., 346 Pa.Superior Ct. at 430, 499 A.2d at 1076. After the agreement had been reduced to a writing, some of the parties refused to sign it. This Court in Johnston rejected the argument that no final, enforceable agreement had been entered on September 23, 1981, noting that after advising the court that an agreement had been reached, and placing the terms on the record, each party advised the court that the oral recitation of the terms was correct. In response to the claim that the statements recorded in court amounted to evidence of only an agreement to negotiate further, this Court stated that “the fact that the parties had already negotiated for two years ... suggests the unlikelihood that [they] would have agreed to terminate their action for something less than a binding agreement.” Id., 346 Pa.Superior Ct. at 432, 499 A.2d at 1077.

We are not convinced by Altus’s attempt to distinguish Johnston from the instant case. As in Johnston, the agreement placed upon the record in the case at bar was in rough or outline form. This does not alter the fact that the parties in both cases had reached an agreement as to the essential terms of the settlement, even though additional terms would be added to embellish the settlement agreement when it was reduced to writing. In both cases, the parties agreed on the record that the statement of the terms of the settlement comported with their understanding of the negotiated agreement. Although settlement negotiations in Johnston had occurred for a two year period prior to the settlement agreement, the present case involved a situation where time was of the essence. Altus had sought preliminary injunctive relief from certain alleged actions of Compu Forms, claiming that as a “fledgling corporation” it was likely to suffer great injury from the actions of Vagnoni in allegedly attempting to disparage the reputations and good will of Jefferys and McLaughlin in the industry. Further, Altus had claimed that immediate judicial relief was needed, because “with less than a month of business activity, with substantial indebtedness, lack of receivables, lack of financial depth____” Altus claimed that relative to Compu Forms it was not in the position to withstand protracted litigation. R.R. at 94a. Likewise, Compu Forms had sought and had been granted a temporary restraining order to prevent Altus from soliciting business from some of Compu Forms’s customers. Thus, the exigent circumstances which existed between these parties on May 6, 1988, make it unlikely that they would not have proceeded with the scheduled hearing if a binding agreement to settle had not been reached between them.

Altus makes much of the fact that the parties spent three months trying to execute a written settlement agreement, arguing that this proves that no agreement was reached on May 6, 1988. This claim is meritless. Our Supreme Court, in Woodbridge v. Hall, 366 Pa. 46, 76 A.2d 205 (1950), held that an oral agreement to settle, which included the essential terms of the agreement between the parties, was enforceable, even though the parties were unable agree, despite numerous drafts, to the terms of a written settlement agreement. See also Kazanjian v. New England Petroleum Corporation, 332 Pa.Super. 1, 480 A.2d 1153 (1984). Additionally, Altus contends that no contract was reached on May 6, 1988, because certain essential terms of the settlement agreement had not been agreed upon. Except for Altus’s bald claim in this regard, there is no evidence in the record to support a finding that the settlement agreement reflected in the May 6, 1988, court record is unenforceable because certain essential terms of the settlement had not been agreed upon at that time. Specifically, Altus refers to a term which appears in the draft written settlement agreement, which required Compu Forms to assign to Altus rights in certain artwork, mechanicals, plates, negatives and other items of good will. R.R. at 207a-208a. While this term was certainly contemplated as an additional term in the proposed written settlement agreement, there is no evidence to support the claim that this term was an essential term of the settlement agreement. Cf. Miller v. Clay Township, 124 Pa.Commw. 252, 555 A.2d 972 (1989) (no enforceable settlement agreement had been reached where there was no evidence that the parties had reached an agreement as to the final placement of a roadway, which was the essence of the dispute between the parties). Indeed, this claim for relief was not even a part of the complaint filed by Altus under No. 88-03467. It is thus, at most, an additional term, which will not prevent the enforcement of the May 6, 1988, settlement agreement.

As we have recognized, if the parties agree on essential terms and intend them to be mutually binding, a contract is formed even though the parties intend to adopt a formal document later which will include additional terms. We do not doubt that Altus now wishes it would have insisted upon this additional term in its earlier pleadings and on May 6, 1988, prior to its agreement to settle the disputes between the parties. However, as our Supreme Court opined in New Charter Coal Co. v. McKee, 411 Pa. 307, 312, 191 A.2d 830, 833 (1963):

The law demands of every man who bargains with another that he should do so only after due reflection of the possible consequences of his bargain and if he misjudges consequences that could have been expected by a reasonably intelligent man, he cannot rely on the law to remedy his fecklessness. Absent some legally recognized infringement of the law of contract by one party, the law will not reform a written contract so as to make a contract for the parties that they did not make for themselves and certainly never to rescue a party who did not reasonably foresee the consequences of his bargain.

The remaining claims of Altus may be disposed of without lengthy discussion, as we find them to be frivolous. Altus claims that the settlement agreement of May 6, 1988, cannot be viewed as a settlement of its action filed under No. 88-03467, as the actions were not consolidated until January of 1989. The language of the record from May 6, 1988, and the subsequent conduct of the parties amply support the trial court’s finding that the parties intended to settle both legal actions and thus to “resolve all matters in dispute. Everyone was aware of the companion action and indeed a settlement of- half a lawsuit is no settlement.” Op. of Trial Court, July 13, 1989, at 6. Altus also claims that the trial court erred when, during a May 11, 1989, proceeding, the court refused to “deem as admitted, pursuant to Pa.R.C.P. 209, all facts contained in its Answer to the Petition [to Compel Settlement.]” Brief for Altus at 32. We will not address this claim, as we have no record of the May 11, 1989, proceeding. In any event, our record contains no docket entry to establish that Altus ever proceeded under the dictates of Pa.R.C.P. 209(b) and, consequently, the trial court was not required to grant Altus the relief it allegedly requested.

Finally, Altus contends that the trial court erred in failing to hold an evidentiary hearing, rendering its decision without foundation in fact. This claim must be rejected. The trial court’s decision was supported by the record of the May 6, 1988, hearing over which the trial court presided and in turn interpreted in light of the surrounding circumstances.

Compu Forms raises a sole issue on appeal. Stated succinctly, Compu Forms seeks a modification of the trial court’s order which marked the consolidated actions as settled and discontinued to also reflect the specific relief sought by Compu Forms in its petition to compel settlement: an order granting specific performance of the terms of the May 6, 1988, agreement. We agree with Compu Forms that, based upon the specific request for relief set forth in its petition to compel settlement, that the trial court erred in not expressly entering an order of specific performance, obligating both parties to comply with the terms of their contractual undertaking. We thus enter the following order:

The July 13, 1989, Order of the trial court is affirmed as modified with the addition, of the following: Specific performance of the terms of the May 6, 1988, settlement agreement, as set forth in the court record, is ordered.

      . In the interest of clarity, when referring to “Compu Forms” as a litigant, we also refer to Michael Vagnoni. Likewise, when we refer to “Altus” as a litigant, we necessarily include David Jefferys, Amy McLaughlin, and Charles Chambers.

      . It is apparent from the record that prior to the formation of Compu Forms, Vagnoni, Jefferys, and McLaughlin were associated with the same company: Digimatics.

      . Altus argues that because Compu Forms objected to this term in the written settlement agreement, and thus prevented the parties from achieving a written contract, that Compu Forms should be prevented from enforcing the oral settlement agreement. “Judicial policy favors the settlement of law suits and in the absence of fraud and mistake the courts will enforce an agreement to settle a legal dispute.” Miller v. Clay Township, 124 Pa.Commw. 252, 255, 555 A.2d 972, 973 (1989) (citations omitted). We have found no error in the trial court’s holding that the parties entered into an enforceable settlement agreement on May 6, 1988. There is no evidence in the record that this contract was ever rescinded. The subsequent, unsuccessful negotiations between the parties do not discharge Altus’s obligation to perform the basic settlement contract. Johnston v. Johnston, 346 Pa.Super. 427, 499 A.2d 1074 (1985).

      . Altus claims that a number of equitable doctrines prevented the trial court from granting Compu Forms’s petition to compel settlement. We have examined these doctrines, and we find no support in the case law or the facts of the present case to support their application instantly.


source: Caselaw Access Project

author: DEL SOLE, Judge: TAMILIA, Judge,

license: Public Domain

text:
    574 A.2d 625
    Ann RACCIATO, Appellee, v. Peter RACCIATO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1990.
    Filed April 25, 1990.
    Reargument Denied June 6, 1990.

      Donald F. Spry, II, Bangor, for appellant.
    Charles H. Spaziani, Easton, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   DEL SOLE, Judge:

Pursuant to Appellee, Wife’s, request the trial court entered an order directing that Appellant, Husband, pay $890.00 per week for the support of his wife and two minor daughters. This sum was directed to be allocated $185.00 per week for Wife, $557.00 per week for the support of the two children and $148.00 per week for arrearages.

Husband makes an initial claim, with regard to the child support award, which we find to be meritorious. He contends that the court entered the child support order without applying, the formula enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) and the county guidelines. He further suggests that despite the trial court’s “lip service” to Melzer it would have been impossible for the court to apply its formula “given the fact that no calculation or breakdown of expenses attributed to the children was presented.”

In Melzer the Pennsylvania Supreme Court set forth a uniform formula for the calculation of child support. In order to determine the proportion of the child’s support which must be provided by each parent, the formula establishes a ratio between the sum necessary for the children’s support needs and the income available to each parent for payment of support. “While trial courts are required to calculate the Melzer formula, they may adjust the resulting support obligation where the particular circumstances warrant doing so. Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989). The 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. Ryan v. DeLong, 371 Pa.Super. 248, 255, 538 A.2d 1, 3 (1987).

In the instant case it is clear that the court did not apply the Melzer formula. The trial court denied that it failed to apply this formula and recounted how it accepted Wife’s estimated ordinary expenses of $4,845.00 per month. However as noted by Husband, the expenses set forth by Wife did not separately list the children’s expenses. The court does not indicate what figure it used to account for the children’s portion of the expenses or the figures which represent the Husband and Wife’s income which is available for support.

The law has recognized that the Melzer formula need not be shown on the record in every case. Two exceptions have been applied. In Griffen v. Griffen, supra., 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 Griffen 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.” Neither situation is applicable in the instance case. Although Wife urges us to conclude that Husband, much like the father in Olson, has intentionally withheld information which would excuse the failure to apply the Melzer formula, there is no evidence of record to support this conclusion. The trial court did not find that Husband “intentionally withheld” information or provided “inaccurate” information. The trial court noted that Husband had reduced his hours of employment thereby reducing his income. Husband stated that this extra free time was spent with his children. The trial court found that Father, “cannot avoid his duty of support by reducing the hours at his practice even where ... he spends the time visiting his children.” These statements by the trial court do not amount to “intentionally withholding” information as was done in Olson where the father stated he earned only $228.00 per week for twelve weeks in the preceding year as unemployment compensation, yet he leased a new automobile for 60 months at $412.00 per month. On the application and car lease, the father in Olson listed his income as $40,000 per year plus $300.00 per month for part-time teaching. The factual situation in Olson in inapposite to that found here and we decline to excuse the failure of the trial court to apply the Melzer formula to the facts of this case.

With regard to this issue Appellant has additionally stated that the trial court failed to apply the county guidelines along with the Melzer formula. We note that after this case was argued, the Pennsylvania Supreme Court amended the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1910.-16-1, et seq., 42 Pa.C.S.A., effective September 30, 1989, adopting uniform support guidelines. See: Moore v. Moore, 390 Pa.Super. 174, 568 A.2d 250 (1990). Upon remand the trial court should harmonize these guidelines with the formula provided in Melzer and consideration of the particular circumstances, to create an appropriate award. See: Marshall v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988).

Three issues remain in Appellant’s appeal. In his second and third issues he contends that the spousal and support awards were “punitive and confiscatory” given the facts of the case, and that the spousal support award was made without properly considering Wife’s needs and earning capacity. The portion of Appellant’s claim which addresses the “confiscatory” nature of the child support award will not be addressed in light of our decision to reverse this award and remand for recalculation. Appellant’s claims which concern the separate spousal award will also not be considered in this appeal. Spousal support requested in a divorce complaint, as was done instantly, is indistinguishable, in the procedural context of the divorce, from alimony pendente lite, and an order awarding or denying such support is interlocutory under the rationale of Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986).

The remaining claim made by Appellant concerns the trial court’s conclusions regarding the parties’ income. Appellant contends that the court did not properly deal with the depreciation of certain properties. Since this claim may effect the trial court’s decision in its recalculation of the child support we have examined it and we find the court properly addressed these concerns in it’s August 10, 1989 Memorandum Opinion.

That portion of the trial court order which determines the amount of child support Appellant is required to pay is reversed and remanded for recalculation in accordance with this opinion. Husbands’ appeal of the spousal support award is interlocutory and is quashed.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting.

I respectfully dissent to the holding by the majority that this case must be reversed and remanded for recalculation of the expenses incurred by the mother for the support of the children. In domestic relations cases, the standard of review is abuse of discretion by the trial judge. Lasky v. Lasky, 385 Pa.Super. 508, 561 A.2d 791 (1989), citing Steenland-Parker v. Parker, 375 Pa.Super. 457, 544 A.2d 1010 (1988). The very learned trial judge, Richard D. Grifo, Jr., heard this case de novo, and in his Opinion stated the Melzer formula was complied with in that the reasonable expenses of rearing the children, in addition to the expenses incurred by the mother, were detailed at the domestic relations conference and became part of the record, at the hearing de novo, without objection by the appellant. The trial judge considered that the mother’s income was insufficient to pay the housing, maintenance and educational costs for herself and the children, and that the $1,000 per month mortgage on their home and the cost of private schooling for the two children, $4,500 per year, was born by maternal grandfather. These considerations, with other factors concerning appellant’s ability to earn, fully justify the court’s conclusions and Order.

The husband’s annual gross income dropped between 1984 and the last figure used at time of the hearing (1987) from $400,000 to $256,536, and the time spent in his profession as an ophthalmologist went from an average of 40 hours per week to 29 hours per week, a reduction of 25 per cent. In addition, he inflated his expenses by claiming payment of $1,000 per month on a loan to his father-in-law, which he failed to repay, claimed capital expenditures which did not exist and reduced his net income by attributing salaries totaling $20,000 per year to his two daughters, ages 12 and 8. A father may not set aside income for the future education of his children while denying them present support.

Under these circumstances, the trial judge was absolutely within his discretion in determining the appellant’s ability to pay within the reasonable net income he actually earned and finding a voluntary reduction, without justification, in earning power. I believe this case comes within the holding in Olson v. Olson, 384 Pa.Super. 224, 558 A.2d 93 (1989), which does not require a detailed application of Melzer when subterfuge is practiced. Also I believe the trial court correctly determined temporary support from a grandparent does not justify a reduction in support payments from the father. Also a parent may not intentionally reduce his earnings in order to receive a lower child support Order. Roberts v. Bockin, 315 Pa.Super. 52, 461 A.2d 630 (1983); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976).

Finally, while the mother is earning $7,800 per year in her job as director of a day care center, the trial judge was correct in determining she is not required to give up that job to take a higher paying job as a nurse. Many considerations come into play in making such a determination. The day care job entails regular day-time work, which frees the mother to be available when the children are normally at home. Nursing, for which she was trained, would undoubtedly require shift and weekend hours, probably overtime and other limitations on her availability to her children. This could well entail much higher expenses in additional child care, transportation and clothing than would be realized in income. Nothing in the record justifies a finding that appellee should return to nursing and the trial court correctly held he should not speculate on that issue.

I would affirm on the basis of the Memorandum Opinion of August 10, 1989 by the Honorable Richard D. Grifo, S.J.


author: MONTEMURO, Judge:

text:
    574 A.2d 628
    Wanda COLMON, Appellant, v. MARYLAND AUTOMOBILE INSURANCE FUND, Appellee.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed April 25, 1990.
    Reargument Denied June 6, 1990.

      Barry A. Rosen, Philadelphia, for appellant.
    Warren Sperling, Philadelphia, .for appellee.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from the August 2, 1989, Order of the Court of Common Pleas of Philadelphia, wherein the court dismissed the complaint against the appellee, the Maryland Automobile Insurance Fund (“MAIF”). The trial court was compelled to dismiss the complaint filed by the appellant, Wanda Colmon, as the court determined that it did not have personal jurisdiction over MAIF. We have carefully reviewed this matter is light of the existing case law, and we affirm.

We are mindful that Pennsylvania courts may exercise personal jurisdiction over nonresident defendants “to the fullest extent allowed under the Constitution of the United States and [it] may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa.C.S.A. § 5322(b). As this Court has recognized “[t]he critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant’s activities would have an injurious effect in the forum state, but whether the defendant’s conduct and his connection with the forum state were such that he could reasonably anticipate being ‘haled’ into court there____ Unilateral activity in the forum state by others having a relationship with a nonresident defendant cannot satisfy the requirement that a defendant have minimum contacts with the forum state.” Skinner v. Flymo, Inc., 351 Pa.Super. 234, 242, 505 A.2d 616, 619-620 (1986) (citations omitted). It is also well settled that the “minimum contacts” test “us not susceptible of mechanical application (but requires that) the facts of each case ... be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978).

In reaching our decision in the case presently before us, we are guided by the decision of our Supreme Court in United Farm Bureau Mutual Insurance Company v. United States Fidelity and Guaranty Company, 501 Pa. 646, 462 A.2d 1300 (1983), even though we recognize that its factual underpinnings are distinguishable from the instant case in a number of ways. In United Farm Bureau Mutual Insurance Company v. United States Fidelity and Guaranty Company, the Palmer family, residents of the State of Indiana, became involved in an automobile accident in Mercer County, Pennsylvania. Four members of the family filed claims for no-fault benefits from the Assigned Claims Plan of the Pennsylvania No-Fault Act. The United States Fidelity and Guarantee Company (“U.S.F. & G.”) was assigned to administer the claims. In response to an action filed against it by the Palmers, U.S.F. & G. filed a Petition for Declaratory Judgment, seeking to determine whether the United Farm Bureau Mutual Insurance Company (“United Farm”), Loran Palmer’s insurer, was responsible for Pennsylvania no-fault benefits. United Farm had issued a liability policy to Loran Palmer. This insurance policy did not provide for basic loss benefits, and Indiana did not have a no-fault statute. Further, United Farm was licensed and incorporated in the state of Indiana and did business exclusively in that state. It had no offices or agents in Pennsylvania, and had never consented to the exercise of jurisdiction by Pennsylvania courts.

The Pennsylvania Supreme Court determined that United Farm did not have the requisite “minimum contacts” with the state of Pennsylvania to support the exercise of personal jurisdiction over the Indiana company under the particular circumstances before the Supreme Court in that case. The Supreme Court specifically noted that “United Farm did not purposely avail itself of the privilege of writing no-fault auto insurance in Pennsylvania or elsewhere. It wrote only a liability policy for residents of a state which does not have no-fault. We do not believe that by promising to indemnify against liability appellant could reasonably foresee such a promise would subject it to direct action in Pennsylvania on a no-fault theory.” Id., 501 Pa. at 649, 462 A.2d at 1305-1306.

The Supreme Court went on to address the following section of the Pennsylvania Long Arm Statute, 42 Pa.C.S.A. § 5322(a), which in relevant part reads as follows:

(a) General Rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person ... who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(6)(i) Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting.

42 Pa.C.S.A. § 5322(a)(6). The Court opined:

Assuming United Farm under its liability policy insured a risk located within this Commonwealth when it issued the policy, nevertheless the risk was limited by its promises to defend its insureds and indemnify them in suits against the insureds, not itself, for damages arising out of the insureds’ liability for claims for bodily injury or damage to property incurred in accidents involving the specifically insured car. Thus, it insured only the risk of paying those sums which its insureds become obligated to pay____ The policy does not, however, require United Farm to submit itself to the jurisdiction of a foreign state as a defendant in its own person____
Having no formal contacts with Pennsylvania, United Farm can at best be held to have foreseen the possibility of suit against the Palmers in our courts, and thus to reasonably expect to be brought into court here to defend them. Although traditional notions of fair play and due process would not be offended by requiring United Farm to defend the Palmers in our courts, we cannot uphold personal jurisdiction over United Farm in the present declaratory judgment action.

Id, 501 Pa. at 659-660, 462 A.2d at 1306-1307.

In the present case, the appellant, Wanda Colmon, is a resident of Pennsylvania. In her complaint against MAIF, appellant alleges that in August of 1986, she was operating a motor vehicle with the permission of its owner, Rodney Colmon, in the state of Pennsylvania. She alleges that she became involved in an accident while operating the vehicle in the city of Philadelphia, and was injured. Appellant’s complaint contains the following averments in support of her claim for medical and work loss benefits under the MAIF policy :

6. At the time of the aforementioned accident, Plaintiff was operating the automobile of Rodney Colmon with his permission and authority.
7. At the time of the aforementioned accident, Rodney Colmon was insured by the Defendant under policy number 799-11-04, which policy included bodily injury coverage.
8. At the time of the aforementioned accident, Plaintiff was insured by Defendant under policy number 799-11-04, by reason of her possession of the aforementioned automobile with the permission and authority of Defendant’s insured, Rodney Colmon.

MAIF is an agency of the state of Maryland, and exists by virtue of Maryland statutory law for the specific and express purpose of providing motor vehicle insurance to Maryland residents who are unable, despite good faith efforts, to obtain automobile insurance in the private market. See Md.Code Ann., Art. 48A, § 243B. It is undisputed that the state agency, MAIF, is authorized to do business solely in the State of Maryland, and may provide insurance coverage only to Maryland residents for vehicles registered in the State of Maryland. MAIF does not have any employees or agents in Pennsylvania, and does not own any property in Pennsylvania. It is quite clear that MAIF has never undertaken any action to purposely avail itself of the privilege of issuing auto insurance policies outside of the state of Maryland to residents of any other state except Maryland. Although the insurance policy issued by MAIF to Rodney Colmon does provide first party benefits to persons injured while operating the insured vehicle with the permission of the named insured, specifically excepted from this coverage is the precise situation in the case at bar. The MAIF policy, in such a situation, does not apply to any person other than a Maryland resident, if the accident occurs outside of the state of Maryland.

Based upon the record before us, we find no error in the trial court’s holding that MAIF has not purposely established minimum contacts with Pennsylvania to subject it to the personal jurisdiction of our courts in this litigation. Rodney Colmon’s unilateral action in driving the insured automobile into Pennsylvania and then permitting a Pennsylvania resident to operate the auto does not establish minimum contacts between MAIF and Pennsylvania. By Maryland statute, MAIF’s business is limited to insuring Maryland residents in specified situations. Given the express terms of the MAIF policy, and the complete absence of any conduct on the part of MAIF to affiliate itself with Pennsylvania, we agree with the trial court that, consistent with traditional notions of fair play and substantial justice, MAIF could not have reasonably anticipated being haled into court here to respond to a Pennsylvania resident’s claim for first party benefits when such claim arises from an accident which did not occur in the state of Maryland. “As has long been settled ... a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist “minimum contacts” between the defendant and the forum State____ The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Voldswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980) (citation omitted).

Order affirmed.

      . We recognize that the appellant has also filed a second complaint in the Philadelphia Court of Common Pleas which apparently seeks to recover uninsured motorist benefits from MAIF. This matter is not a part of the present appeal and will not be addressed. We are limited to a consideration of appellant's claim that she is entitled to pursue an action against MAIF in our courts to recover first party benefits under the MAIF policy.

      . Appellant argues that minimum contacts between MAIF and Pennsylvania can be established because, inter alia, Mr. James W. Himes, assistant attorney general for the state of Maryland, testified during his deposition testimony that MAIF “has filed papers that authorize the Commonwealth’s Secretary of Transportation to accept service of process on [MAIF’s] behalf." Brief for Appellant at 11. This description of the testimony of Mr. Himes is not complete and is thus misleading. As Mr. Himes testified, the filing with the Department of Transportation was necessitated by the ICC and related to interstate truck carriers. N.T., November 30, 1988, at 33. We do not find this testimony relevant in determining the minimum contacts of MAIF with Pennsylvania for the purposes of a direct action filed by a Pennsylvania resident, brought on a contract of insurance issued to a private individual for his personal automobile. Likewise, appellant claims that minimum contacts exist between MAIF and Pennsylvania for the purposes of appellant’s action, because MAIF may be subject to the jurisdiction of a Florida court in another lawsuit. Brief for Appellant at II. Mr. Himes vaguely referred to a lawsuit in Florida where one of MAIF’s policyholders was apparently responsible for an accident. N.T., November 30, 1988, at 31-32. The fact that a Maryland resident, an insured of MAIF, was sued in another state, and MAIF became involved in that litigation has little to do with the case presently before us.

      . Our holding in the present case is limited to a determination of whether personal jurisdiction may be exercised over MAIF in the present action. We do not determine whether appellant could ultimately prevail on her claim for first party benefits should she institute a claim for such benefits, or others, in the state of Maryland. It is for the Maryland court to determine the validity of any exclusion provisions which exist in the MAIF policy issued to Rodney Colmon.


author: CIRILLO, President Judge:

text:
    574 A.2d 631
    COMMONWEALTH of Pennsylvania v. ONE 1988 FORD COUPE VIN # 1FABP41A9JF143651 Real Estate with Dwelling House Located at 149 North Bedford Street, Carlisle, Pennsylvania. Appeal of Jorge ECHEVARRIA.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1990.
    Filed April 26, 1990.

      Arthur T. McDermott, Carlisle, for appellant.
    Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com.
    Before CIRILLO, Presiding Judge, and BECK and JOHNSON, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of forfeiture entered in the Court of Common Pleas of Cumberland County. Appellant Jorge Echevarria was arrested and charged with unlawful possession with intent to deliver a Schedule II controlled substance, 35 P.S. § 780-113(a)(30), and unlawful possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). On October 14, 1988, prior to Echevarria’s criminal trial, the Commonwealth filed two forfeiture petitions seeking forfeiture of three automobiles and certain real estate allegedly belonging to Echevarria. On December 29, 1988, following a hearing on the forfeiture petitions, the Honorable George E. Hoffer determined that the property in question had been used to facilitate drug trafficking, and ordered that one of Echevarria’s vehicles and his residence be forfeited to the Commonwealth. This appeal was taken from that order. On appeal, Echevarria raises the following five issues:

(1) whether his due process rights were violated by the Commonwealth’s failure to allege material facts in its forfeiture petition under 42 Pa.C.S. § 6802(a)(5);
(2) whether the trial court’s order pursuant to 42 Pa.C.S. § 6802 was illegal because it was based on information obtained through a search warrant which violated the Pennsylvania and United States Constitutions;
(3) whether the criminologist who testified at his trial was not an expert witness in the identification of controlled substances;
(4) whether the Commonwealth failed to meet its burden of proof in demonstrating that his automobile and real estate were unlawfully used or possessed; and
(5) whether the Commonwealth’s presentation of evidence regarding his cooperation with the police was prosecutorial misconduct.

We will first address issues one and four, concerning forfeiture. Echevarria contends that his due process rights were violated by the Commonwealth’s failure to allege material facts in its forfeiture petition as required by the Controlled Substances Forfeiture Law, 42 Pa.C.S. § 6802 (“the Forfeiture Law”). Section 6802(a)(5) of the Forfeiture Law provides that the Commonwealth’s petition requesting forfeiture of seized property contain “an allegation that the property is subject to forfeiture pursuant to section 6801(a) and an averment of material facts upon which the forfeiture action is based.” 42 Pa.C.S. § 6802(a)(5) (emphasis added).

Echevarria argues in his brief that the Commonwealth’s petition fails to aver any material fact in support of the petition so as to “provide reasonable belief that the property in question was subject to forfeiture, in particular, that the Commonwealth had probable cause to believe that [a] substantial connection existed between property to be forfeited and the violation of the Controlled Substance law.” Echevarria contends that the Commonwealth’s assertion that he was arrested and was in possession of the property in question at that time does not satisfy the requirements of section 6802.

Section 6802(a) of the Forfeiture Law provides that every petition shall contain: (1) a description of the property seized; (2) a statement of the time and place where seized; (3) the owner, if known; (4) the person or persons in possession, if known; (5) an allegation that the property is subject to forfeiture pursuant to section 6801(a) (relating to loss of property rights to Commonwealth) and an averment of material facts upon which the forfeiture action is based; and (6) a prayer for an order of forfeiture that the property be adjudged forfeited to the Commonwealth, condemned, and be ordered sold according to law, unless cause be shown to the contrary. 42 Pa.C.S. § 6802(a). Here, we are concerned with subsection (a)(5), which sets forth the requirement that the petition contain an averment of material facts upon which the forfeiture action is based.

We point out that the issue of the Commonwealth’s compliance with subsection (a)(5) differs substantially from the Commonwealth’s compliance with its burden of proof at the hearing on the forfeiture petition. Compare 42 Pa.C.S. § 6801(a) with 42 Pa.C.S. § 6801(j). Though fundamental, it appears that this distinction has been- the source of some confusion in the appellant’s brief. Echevarria argues in his brief that the Commonwealth failed to prove a substantial connection between the property and the criminal activity “by its failure to present any material facts in its petition for forfeiture.”

Echevarria’s argument is based on an incorrect premise, and is therefore misleading. The Commonwealth need only aver material facts in its petition; proof of the nexus between the property and the crime is required at the time of the hearing. At that hearing, the Commonwealth must prove by a preponderance of the evidence that the property in question was used to facilitate a drug transaction. See 42 Pa.C.S. §§ 6801(a)(4); 6801(a)(6)(i)(C); see also Commonwealth v. Tate, 371 Pa.Super. 611, 614, 538 A.2d 903, 905 (1988); Commonwealth v. One 1971 Ford LTD, 245 Pa.Super. 303, 369 A.2d 414 (1976).

In its petition, the Commonwealth avers the following:

1. On September 22, 1989, Tri-County Narcotics Task Force arrested Jorge Echevarria for various violations of the Pennsylvania Crimes Code and the Controlled Substance, Drug, Device and Cosmetic Act, 35 [P.S.] Section 780-101 et seq. [hereinafter the “Controlled Substance Act”]. At the time of arrest, which coincided with the above activities, the defendant was in possession of the above-captioned vehicles [and real] property.
2. Seizure was made at approximately 6:00 A.M. on September 22, 1988 at the time of the arrest.
3. The owner of the property, to the best knowledge of the Petitioner, is Jorge Echevarria.
4. The above-captioned property is subject to forfeiture pursuant to 42 Pa.C.S. § 6801, 6802.

(emphasis added). The question of whether the Commonwealth has averred any material facts upon which the forfeiture is based in paragraph 1 as required by section § 6802(a)(5), is arguably of merit. Cf. United States v. 124 East North Ave., 651 F.Supp. 1350 (N.D.Ill.1987) (government alleges sufficient nexus between drug activity and house to provide basis for forfeiture where complaint stated house was to be used for delivery of cocaine and phone in house was regularly used to negotiate cocaine sales, because such facts constitute probable cause that property was used or intended to be used to facilitate violation of federal narcotic laws). However, Echevarria’s challenge to the petition is belated. In his answer to the petition and rule, Echevarria did not raise any defect on the face of the Commonwealth’s petition, nor did he file a motion to dismiss the petition. See Commonwealth v. One 1974 Chevrolet Box-Type Truck, 126 Pa.Commw. 173, 559 A.2d 76 (1989) (forfeiture petitions contained requisite elements as required by the forfeiture law, and thus hearing should have been held at which time the Commonwealth, as well as the owner of the property, would have been afforded the opportunity to present evidence before the trial court disposed of forfeiture petitions). Thus, we will not address the merits of this claim.

We now proceed to Echevarria’s fourth issue. Echevarria claims that the Commonwealth’s evidence at the hearing on the forfeiture petition was insufficient to prove by a preponderance of the evidence that the automobile and real property in question were used to facilitate a violation of the Controlled Substance Act. Echevarria argues that the Commonwealth’s evidence failed to prove a connection between the property and the alleged criminal act, and that therefore his due process rights were violated.

The roots of forfeiture law can be traced to the Bible: “When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh may not be eaten____” Exodus 21:28. At common law, the basis for forfeiture was the concept that breach of the criminal law was a breach of the King’s peace. The breach of the King’s peace was viewed as justification for denying the right to ownership of certain property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682, 94 S.Ct. 2080, 2091, 40 L.Ed.2d 452 (1974), citing 1 W. Blackstone Commentaries 299. In Calero, the Supreme Court set forth the history of forfeiture as follows:

At common law the value of an inanimate object directly or indirectly causing the accidental death of a King’s subject was forfeited to the crown as a deodand [from the Latin Deo dandum, meaning “to be given to God”]. The origins of the deodand are traceable to Biblical and preJudeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man’s soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries 300.

Id. at 680-81, 94 S.Ct. at 2090-91 (footnotes omitted); see also Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976); Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty, 46 Temple L.Q. 169, 182 (1973).

“Long before the adoption of the Constitution the common law courts in the Colonies — and later in the states during the period of Confederation — were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes[.]” C.J. Hendry Co. v. Moore, 318 U.S.

133, 139, 63 S.Ct. 499, 503, 87 L.Ed. 663 (1943). These statutes provided for the forfeiture of commodities and vessels which were used in commerce in violation of the law. Id. at 145-148, 63 S.Ct. at 505-07. After the adoption of the Constitution, ships and cargoes involved in the violation of customs laws were made subject to forfeiture under federal law, as were vessels used to deliver slaves to foreign countries, and later, to deliver slaves to this country.

Thus, forfeiture as a means of punishment and deterrence is not a novel concept. Due to the mounting drug battles faced by this country, the use of forfeiture has received widespread attention. Federal and state use of forfeiture laws has figured prominently in the attempts to curb drug trafficking and drug use. Despite growing popularity, forfeitures are not favored in the law and are to be strictly construed. See Commonwealth v. Beloff, 166 Pa.Super. 286, 70 A.2d 689 (1950). In Pennsylvania, forfeiture in connection with a violation of the Controlled Substance Act exists by virtue of statute. “[T]he divestiture of property without compensation, in consequence of a default of an offense, ... is a method deemed by the legislature to restrain the commission of the offense and to aid in prevention.” 36 Am.Jur.2d Forfeitures § 1 (emphasis added). In Pennsylvania, the forfeiture law has been enlarged considerably since its original enactment in 1972. See footnote 3, supra. The legislators saw fit to broaden the law as a means to combat the problem of illicit drugs. The legislators sought to “expand the ability of law enforcement agencies, both the local district attorneys and the State Attorney General, to seize real estate which is involved in drug trafficking, [and] allow law enforcement officials to seize other property which could not heretofore be seized[.]” Pa. Senate Journal, April 18, 1988, p. 2078 (Debate on Act of June 30, 1988, P.L. 464, No. 79); see also Commonwealth v. Landy, 240 Pa.Super. 458, 464-65, 362 A.2d 999, 1002 (1976) (“It is not only the policy of the Controlled Substance, Drug, Device and Cosmetic Act, but also the policy of our criminal law to deprive a criminal of the fruits of his illegal act.”); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 552, 468 A.2d 1125, 1126 (1983) (“The object of [35 P.S.] § 780-128 is to impose a penalty on those who are significantly involved in criminal enterprises in violation of the Drug Law.”) (citations omitted).

Our state constitution provides that “no person can be deprived of his life, liberty or property, unless by the ... law of the land[.]” Pa. Const, art. 1, § 9. The “law of the land” is the legal equivalent of the due process guarantee in our federal constitution. See U.S. Const., amend. V; U.S. Const, amend. XIV, § 1. Although our battle against the lords and kingpins of the drug world is compelling, our focus remains fixed on the constitutional right to due process, lest it too become another casualty. Despite our government’s zealous pursuit to combat drug traffic and end the destruction it breeds, we cannot lose sight of the fact that our duty is to protect the alleged drug dealer’s constitutional right to fundamental fairness. Said Justice Frankfurter: “The requirement of ‘due process’ is not a fair weather or timid assurance. It must be respected in periods of calm and in times of trouble[.]” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951). We are bound to remain unswayed by public clamor or a fear of criticism, notwithstanding the national temper. See Code of Judicial Conduct, Canon 3.

The Forfeiture Law insures notice to all owners and possessors of property, provides for an opportunity to respond to the Commonwealth’s forfeiture petition, both in writing and at a hearing, and sets forth the respective burdens of proof for each party. 42 Pa.C.S. § 6802(a)-(k). The legislature expressly provided for these procedural protections, as well as other limitations. See, e.g., 42 Pa. C.S. § 6801(a)(4)(i)-(iv); (a)(6)(ii)-(iii). Cf. Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990) (where forfeiture of a vehicle involved in the crime of driving under the influence occurred in the absence of notice to the defendant, and without a hearing, the court remanded for a hearing on the propriety of the forfeiture). Essential to our concept of procedural due process in a forfeiture proceeding, and the basis of Echevarria’s claim here, is the Commonwealth’s burden of proving by a preponderance of the evidence the connection, or nexus, between the crime and the property subject to forfeiture at the forfeiture hearing. See 42 Pa.C.S. § 6802; Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985); Commonwealth v. One 1976 Oldsmobile Cutlass Supreme, 85 Pa.Commw. 433, 482 A.2d 686 (1984). “The limitations, rules, and safeguards established by the legislature when authorizing forfeiture of certain derivative contraband, are essential to the orderly administration of justice, to the protection of constitutional due process concerns, and to the rights of innocent third parties affected by the forfeiture.” See Commonwealth v. Crosby, 390 Pa.Super. at 153, 568 A.2d at 240. A person need not fear that his property will be automatically forfeited to the state because he allegedly violated a provision of the Controlled Substances Act; the state must first establish that the property was used or intended to be used to facilitate a violation of the Controlled Substance Act. 42 Pa.C.S. §§ 6801(a); 6802(j). It is contrary to our notion of fundamental fairness to provide for seizure of property based only on the fact that a violation of the Controlled Substance Act has occurred. It is equally unfair to provide for constitutional safeguards and pay them no mind. See, e.g., Commonwealth v. One 1979 Lincoln Four Door Sedan, 344 Pa.Super. 171, 496 A.2d 397 (1985) (use of automobile to bring sandwiches and coffee to workers in clandestine laboratory used in illegal manufacture of drugs was held to provide sufficient nexus so as to justify forfeiture).

With these principles and thoughts in mind, we will review appellant’s due process claim. We must determine whether the evidence presented at the hearing established that it was more likely than not that Echevarria used or intended to use his car and home to facilitate a violation of the Controlled Substance Act.

At the hearing on the forfeiture petition, Detective Michael F. Strine, a police officer with the Carlisle Police Department, testified that early in 1988 he began to investigate the reports he had received about Jorge Echevarria’s involvement in drug trafficking. The reports were received on June 20, 1988 via an anonymous telephone call to Crime Stoppers in Pennsylvania. The Carlisle Police Department initiated a surveillance of Echevarria’s house and interviewed persons, including known drug offenders, seen frequenting the house. Detective Strine elicited the aid of a confidential informant and arranged for two controlled purchases.

Thereafter, a confidential informant, working in conjunction with the Carlisle Police Department, made two controlled cocaine purchases from Echevarria with official police funds. The first controlled cocaine purchase occurred on September 14, 1988. Just prior to the controlled purchase, Detective Strine had searched the informant. No contraband or money was found on the informant. Detective Strine then transported the informant to within two blocks of Echevarria’s residence. From his vehicle, which was about one and a half blocks from Echevarria’s house, Detective Strine watched the informant enter the house. The informant was inside the house for about three minutes, and then exited with Echevarria. The two men entered Echevarria’s automobile, a black Ford Mustang, and drove to a nearby park. Echevarria walked a short distance away from the park and then returned to the car where the informant had waited for him. Echevarria and the informant drove back to Echevarria’s house, at which time the informant got out of Echevarria’s automobile. Still under surveillance, the informant went directly to a prearranged location about a half block away where he gave Detective Strine an eighth of an ounce of cocaine.

The second controlled cocaine purchase occurred only a few days later, on September 20, 1988. Again, Detective Strine searched the informant, found no contraband or money on him, drove him to an area approximately one block from Echevarria’s residence, and observed him walk into the house. This time, the informant was inside Echevarria’s house for approximately twenty-one minutes. The informant then left Echevarria’s house and pretended he was walking home. In his vehicle, Detective Strine followed the informant for about five minutes. The informant then returned to Detective Strine’s vehicle possessing cocaine.

Both cocaine purchases were made with official police funds. On the first occasion, Detective Strine testified that he gave the informant $250.00 or $300.00. He testified that on the second occasion, he gave the informant $250.00. Detective Strine recorded the serial numbers of the currency-

On September 22, 1988, the police executed a search warrant at Echevarria’s house. The officers found 84.58 grams of cocaine with a $6,766.00 to $10,150.00 street value, a triple beam balance scale (commonly use in weighing cocaine), a grinder (for chunks or rocks of cocaine), inositol powder (common cutting agent for cocaine), rifle and handgun shells, and Echevarria’s wallet containing $895.00. Two one-hundred dollar bills in the wallet had the same serial numbers as the two one-hundred dollars bills that Detective Strine had given the confidential informant on September 20, 1988 to purchase cocaine from Echevarria.

The relevant provisions of the statute are as follows:

§ 6801. Loss of property rights to Commonwealth
(a) Forfeitures generally. — The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
(4) All conveyances, including aircraft, vehicles or vessels, which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of, property described in paragraph (1) or (2) ...
******
(6)(i)(C) Real property used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act, ...

42 Pa.C.S. § 6801.

The evidence presented at the hearing leads us to conclude that an illicit nexus was established. Detective Strine’s testimony regarding his search of the informant prior to the controlled buys, his constant surveillance of the informant, and his search of the informant after the informant had left Echevarria’s home and car on the first occasion, and after the informant had left Echevarria’s home on the second occasion, establishes that that it is more likely than not that Echevarria’s home and car were utilized to facilitate the first controlled purchase, and that his home was utilized to facilitate the second sale. “It is the use to which the property is put that renders property, otherwise lawful, rightful to have, use, and possess, subject to seizure and forfeiture.” Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 543, 201 A.2d 427, 429 (1964), (quoting Hemenway & Moser Co. et al. v. Funk et al., 100 Utah 72, 81, 106 P.2d 779, 783 (1940), rev’d. on other grounds, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Because Echevarria used both his vehicle and his home to facilitate the first sale of cocaine, and used his home to facilitate the second sale of cocaine, in violation of 35 P.S. § 780-113(a)(30), the forfeiture was justified under the statute. 42 Pa.C.S. § 6801(a)(4), (a)(6)(i)(c). Moreover, we point out that, although he was not required to do so, Echevarria presented no evidence to rebut the Commonwealth’s proof. See Commonwealth v. Tate, 371 Pa.Super. 611, 538 A.2d 903 (1988) (the presumption that money discovered in close proximity to illegal controlled substance is proceeds derived from the sale of an illegal substance was rebutted by defendant’s evidence; the defendant had shown that he had drawn a certain sum of money from a particular bank and that he had not made a sale of drugs between the time of the bank withdrawal and his arrest because a lesser sum of money was found in the envelope marked with the name of the bank); see also Commonwealth v. One Blue/Silver Oldsmobile Car Seized from Louis Thompkins, 389 Pa.Super. 53, 566 A.2d 612 (1989) (evidence in forfeiture proceeding was sufficient to establish that owner’s automobile was used to facilitate transportation, sale, receipt, possession and concealment of cocaine and marijuana; police had observed defendant’s passenger buy two small plastic packets from unidentified male, and packet of cocaine was found between defendant’s inner thighs when police stopped vehicle); Commonwealth v. $15,836.85-Cash, 354 Pa.Super. 279, 511 A.2d 871 (1986) (Commonwealth proved by a preponderance of the evidence that money was derived from illegal drug transactions, and was therefore properly forfeited, where money was found with approximately two pounds of marijuana and various paraphernalia, informant testified about numerous drug sales by defendant and stated defendant claimed to make three times his construction earnings by engaging in illegal drug dealing, and trial court properly did not credit defendant’s claim that the money belonged to his mother); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983) (police officer’s testimony that the informant and the defendant were in the defendant’s car, that he received a signal from the informant that the drug buy had been consummated, that he arrested defendant, and the defendant told the officer that he come to sell an ounce of cocaine, was sufficient to establish by a preponderance of the evidence that defendant’s car was used to facilitate transportation and possession of a controlled substance and thus forfeiture was sustained).

In his second issue, Echevarria argues that the trial court’s order pursuant to 42 Pa.C.S. § 6802 was illegal because it was based on information obtained through a search warrant which violated both the Pennsylvania and United States Constitutions. We are unable to review Echevarria’s challenge to the validity of the search warrant; Echevarria has not included the search warrant and affidavit of probable cause in the record on appeal. As the trial court notes, Echevarria raised this issue in a motion to suppress evidence in his related criminal trial. Echevarria’s direct appeal in that case, docketed at 511 Harrisburg, 1989, is the appropriate place for review of that issue.

Next, Echevarria argues that Lee Ann Grayson, who testified as an expert in controlled substance identification, was not qualified to testify as an expert because she was not a chemist. We disagree. The determination of the qualification of a witness to express an expert opinion is within the trial court’s discretion, and its ruling will not be reversed absent an abuse of that discretion. Commonwealth v. Mangini, 478 Pa. 147, 159-60, 386 A.2d 482, 488 (1978). “If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert.” Ragan v. Steen, 229 Pa.Super. 515, 522, 331 A.2d 724, 728 (1974).

The record reveals that Ms. Grayson, a criminalist employed by the Pennsylvania State Police, holds a Bachelor of Science degree in biology with a minor in chemistry. She received her training in the identification of drugs at both the Pennsylvania State Police Laboratory and at a Drug Enforcement Agency training seminar. She had performed between 500 and 1,000 drug analysis tests on substances suspected of being cocaine at the State Police Laboratory, and had testified as an expert on the results of those tests on thirteen occasions. Based on this foundation, we find no abuse of discretion. Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980).

Finally, Echevarria claims that the Commonwealth’s presentation of evidence at trial regarding his cooperation with the police following his arrest was prosecutorial misconduct. This issue is not properly before us. The appeal here is from an order of forfeiture. Echevarria’s complaints with respect to admission of testimony at trial should be raised in his appeal from judgment of sentence. That appeal is not presently before us. Accordingly, we will not review this claim.

Affirmed.

      . We note that Jorge Echevarria’s timely filed January 6, 1989 Notice of Appeal states that he is appealing from an order "entered” on December 29, 1988. This order was actually entered on January 3, 1989. Therefore, it was an appealable final order on January 3, 1989. Pa.R.A.P. 301(a), (c). Additionally, the cover of Echevarria’s brief omitted designation of the order from which the appeal was taken in violation of Pa.R.A.P. 2172(a)(5). Although these errors are harmless here, counsel should be aware of these rules of appellate procedure.

      . We note that Echevarria was tried and convicted on both charges on January 24, 1989, after entry of the forfeiture order. Conviction of a crime is not necessary to support an order of forfeiture. Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985); Estate of Peetros by Peetros v. County Detectives and Dist. Attorney’s Office, 341 Pa.Super. 558, 492 A.2d 6 (1985); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983). At common law, forfeiture could not attach unless there was a conviction, and evidence of that conviction was necessary to prove a forfeiture claim. See generally, Annotation, 38 A.L.R. 4th 515 (1985).

      . Ordinarily, post-trial motions are not filed in forfeiture cases; rather, it appears that most appeals in forfeiture cases are taken directly from the order denying or granting the forfeiture petition or the motion for return of property. See, e.g., Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983); Commonwealth v. One 1984 Blue/Silver Oldsmobile Car Seized from Louis Thompkins, 389 Pa.Super. 53, 566 A.2d 612 (1989); Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Super. 390, 538 A.2d 71 (1988); Commonwealth v. $15,836.85-Cash, 354 Pa.Super. 279, 511 A.2d 871 (1986); Commonwealth v. One Electronic Poker Game Machine, 302 Pa.Super. 350, 448 A.2d 1077 (1982), affirmed at 502 Pa. 186, 465 A.2d 973 (1983); Commonwealth v. McDermond, 127 Pa. Commw. 17, 560 A.2d 901 (1989); Commonwealth v. Liquor, 46 Pa.Commw. 490, 407 A.2d 83 (1979); see abo 42 Pa.C.S. § 6801 et seq.; Pa.R.Crim.P. 324. On December 19, 1989, the Pennsylvania Supreme Court amended Pennsylvania Rule of Civil Procedure 227.1 to include the following:
      NOTE: A motion for post-trial relief may not be filed to matters governed exclusively by the rules of petition practice.

        Note, Pa.R.C.P. 227.1 (amended December 19, 1989, effective January 1, 1990) (emphasis added). Since a forfeiture proceeding is governed by the rules of petition practice, no motion for post-trial relief is filed; the appeal is taken directly from the forfeiture order.

      . The original law codifying common law forfeiture was enacted in 1972. Act of April 14, 1972, P.L. 233, No. 64, § 28, 35 P.S. § 780-128, effective June 14, 1972. In 1984, the statute was amended by Act of December 14, 1984, P.L. 988, No. 200, § 2, effective in 60 days. The 1984 amendments expanded the scope of the forfeiture provisions, adding “money, negotiable instruments and securities used or intended to be used to faciliate any violation of [the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq.] [Controlled Substance Act],” to the list of property subject to forfeiture. Act of December 14, 1984, P.L. 988, No. 200 § 2. Real property was also made subject to the forfeiture provisions. Id. In 1988, the statute was repealed and essentially reenacted at 42 Pa.C.S. §§ 6801 et seq. Act of June 30, 1988, P.L. 464, No. 79, § 7, effective immediately. This statute clarified that “real property used or intended to be used to facilitate any violation of the [Controlled Substance Act], 42 Pa.C.S. § 6801(a)(6)(i)(C), and any firearm “used or intended for use to facilitate a violation of the [Controlled Substance Act]” 42 Pa.C.S. § 6801(a)(7), are subject to forfeiture. The 1988 statute also added that no valid lien or encumbrance was subject to forfeiture. 42 Pa.C.S. § 6801(a)(6)(iii). In addition, the statute made it clear that when an owner of property claims that a third party used the property to violate the Controlled Substance Act without his knowledge or consent, the lack of knowledge or consent must be “reasonable.” 42 Pa.C.S. § 6802(j). Prior to the 1988 amendments, a person’s property could be forfeited even if its owner had no knowledge of and did not consent to the prior unlawful use of the property by another person. See, e.g., Estate of Peetros by Peetros v. County Detectives and Dist. Attorney's Office, 341 Pa.Super. 558, 492 A.2d 6 (1985).

      . We note that there are two forfeiture petitions which are the subject of this appeal. One of the petitions concerns the automobile; the other concerns the real property. Both petitions use identical language, differing only in the references to the property in question. We therefore refer to the petitions in singular form.

      . Act of July 31, 1789, §§ 12, 36, 1 Stat 29 39, 47.

      . Act of Mar. 22, 1794, 1 Stat 347.

      . Act of Mar. 2, 1807, 2 Stat 426.

      . The deterrent effect of these laws is largely due to the characterization of the forfeiture action as civil. Forfeiture proceedings in Pennsylvania, while quasi-criminal in nature, are civil in form. See 42 Pa.C.S. § 6802 (forfeiture proceedings shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant); see also Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 552, 468 A.2d 1125, 1126 (1983); Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990). One commentator has theorized that the courts’ reluctance to extend constitutional rights to forfeiture claimants is due to the fact that forfeiture actions are characterized as in rem civil proceedings. See Rosenberg, Constitutional Rights and Civil Forfeiture Action, 88 Colum.L.Rev. 390 (1988). See also Wisotsky, Crackdown: The Emerging ‘Drug Exception’ to the Bill of Rights, 38 Hastings L.J. 889 (1987).

      . One commentator has recently traced what he describes as "the current retreat from the historic constitutional mission of shielding citizens from governmental overreaching.” Wisotsky, Crackdown: The Emerging ‘Drug Exception’ to the Bill of Rights, 38 Hastings LJ. 889, -(1987). Wisotsky notes that the “retreat results principally from continuing escalations in the paramilitary march of the War on Drugs.” Id. at-. He states:

        One of the most serious incursions into the rights of criminal defendants arises from the Department of Justice's tactic of using the criminal forfeiture provisions of the [Comprehensive Crime Control Act of 1984, 18 U.S.C. § 3142] against fees paid to defense counsel. When so used, prosecutors claim that the fee received by counsel represents derivative contraband, in other words, the proceeds of a controlled substances violation.... Even more extreme action results from pretrial orders prohibiting a defendant from transferring funds to retain counsel in the first instance.

        Id. at — (footnotes omitted). Wisotsky points out that this cavalier attitude toward the right to counsel clause of the sixth amendment is characteristic of the "forces of justice in the War on Drugs.” Id. at

      . See Commonwealth v. Beloff, 166 Pa.Super. 286, 70 A.2d 689 (1950). This portion of the Forfeiture Law is substantially the same as the repealed Act. See 35 P.S. § 780-128 (amended, 1984).

      . Judge Wieand dissented, stating: There was no evidence that the vehicle was used to facilitate the transportation, sale, receipt, possession, or concealment of methamphetamine.... delivery of food and beverages ... [does] not bear a direct, causal connection with the possession or manufacture of illegal drugs. One 1979 Lincoln Four Door Sedan, 344 Pa.Super. at 171, 496 A.2d at 397.

      . We point out that the Commonwealth’s allegations were based on the use or intended use of the car and residence to facilitate a drug transaction; the Commonwealth’s allegations were not based on claims that the car or home were proceeds from a drug transaction. See 42 Pa.C.S. § 6801(a)(6)(i)(A) (“Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of [the Controlled Substance Act], and all proceeds traceable to such an exchange^]” are subject to forfeiture to the Commonwealth).