author: HOFFMAN, Judge:

text:
    554 A.2d 83
    Donna STEINMETZ v. William T. STEINMETZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1988.
    Filed Feb. 8, 1989.

      Allen H. Tollen, Media, for appellant.
    Harry J. Bradley, Media, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order granting appellant’s petition to modify child support. Appellant contends that the lower court erred in failing to adequately reduce his support payments by (1) not treating his alimony payments as an expense in calculating his income; (2) misapplying the guidelines under Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); (3) finding his income to be significantly higher than it actually is; (4) not questioning appellee’s excessive clothing expenses; and (5) not considering the fact that he has remarried and now has an additional child. For the reasons set forth below, we vacate and remand for proceedings consistent with this Opinion.

The parties were married in 1961 and divorced on May 3, 1982. Three children were born of the marriage: Kimberly, Matthew, and Cynthia. On September 25, 1980, pursuant to an agreement between the parties, a temporary support order was entered directing appellant to pay fifty dollars ($50.00) per week. Following a hearing before a Master on September 10, 1981, the Master recommended that the amount of support be increased to sixty-five dollars ($65.00) weekly. Upon entry of the final divorce decree, the support order was amended and appellant’s support obligation was reduced to sixty dollars ($60.00) per week.

Subsequently, appellant filed a petition to modify the support order based on a change in circumstances. In his petition, appellant alleged that he now had custody of one of the minor children and that appellee’s income had increased substantially. A hearing on the petition was held before a Master and the Master recommended that the support order be reduced to twenty-five dollars ($25.00) per week. Appellee excepted to the Master’s recommendation and requested a hearing before the Court of Common Pleas. Following a hearing de novo, the lower court held that under the guidelines set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), appellant is responsible for sixty-eight percent (68%) of the support of the child residing with appellee and appellee is responsible for the remaining thirty-two percent (32%). Lower Court Opinion at 3. Accordingly, the court rejected.the Master’s recommendation, and instead reduced the support order for the minor child residing with appellee to forty-eight dollars ($48.00) per week. This appeal followed.

Appellant first contends that in calculating his support obligation under the guidelines set forth in Melzer, the lower court erred in failing to characterize his alimony payments as an expense to him and income to appellee. Appellant argues that the court erred in including in his net income monies earmarked to fulfill his alimony obligation. Appellant reasons that his alimony payments are not part of his cash flow available for child support, and thus, are properly excludable as a reasonable living expense. We agree with appellant that the alimony award is properly excludable as income.

Our scope of review in child support cases is narrow, and we are limited to determining whether a clear abuse of discretion, as shown by clear and convincing evidence, has occurred. See Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985); Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 607, 489 A.2d 804, 807 (1985); Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 168-69, 481 A.2d 1358, 1359 (1984). “An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” Marshall v. Ross, 373 Pa.Super. 235, 238, 540 A.2d 954, 956 (1988). The general rule is that a child support order is not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359, 362, 474 A.2d 41, 43 (1984). A support order must be fair, not confiscatory, and allow for the reasonable living expenses of the parent, consistent with the parents’ and children’s “station in life” and “customary standard of living”. Funk v. Funk, 376 Pa.Super. 76, 80, 545 A.2d 326, 328 (1988) (citations omitted).

Under the guidelines enunciated by our Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), a parent’s support obligation is calculated by first, determining the reasonable needs of the children and then, determining the respective abilities of the parents to support their children. Id., 505 Pa. at 463, 480 A.2d at 993; DeWalt v. DeWalt, 365 Pa.Super. 280, 284, 529 A.2d 508, 510 (1987). To determine the respective abilities of the parents to support their children, the court must make an allowance for the reasonable living expenses of each parent and then calculate each parent’s net income or earning capacity, if that figure differs from the actual income. Additionally, the court must look beyond the actual earnings of the parents and consider the full value and extent of the parties’ financial resources and ability to pay support. Butler v. Butler, 339 Pa.Super. 312, 316, 488 A.2d 1141, 1142-43 (1985). See Marshall v. Ross, 373 Pa.Super. 235, 238, 540 A.2d 954, 956 (1988).

In Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983), this Court held that in assessing the full measure of a parent’s financial resources, a court must evaluate, inter alia, a parent’s earning capacity, property interests, alimony pendente lite, and investments. Id., 310 Pa.Superior Ct. at 128,456 A.2d at 216 (emphasis added). Importantly, the court must consider each parent’s “actual and potential cash flow from his [or her] property interests, financial resources, stock holdings and other investments” before determining the child support obligation. Ryan v. DeLong, 371 Pa.Super. 248, 250, 538 A.2d 1, 2 (1987).

After ascertaining the children’s needs and the parents’ available income, the court determines each parent’s respective support obligation. Melzer v. Witsberger, 505 Pa. at 468, 480 A.2d at 998. Notably, although this analysis is accomplished according to the directives of the Melzer formula, the trial court is permitted “to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances.” Lampa v. Lampa, 371 Pa.Super. 1, 7, 537 A.2d 350, 353 (1988) (citing DeWalt v. DeWalt, 365 Pa.Super. at 285, 529 A.2d at 508 (1988)).

In this case, in computing the parties’ respective support obligations under the Melzer formula, the court below held that alimony was not deductible and thus, included the monies earmarked for the alimony award as part of appellant’s net income. See Lower Court Opinion at 2-3. The court, however, excluded the alimony award in calculating appellee’s net income. See id. The court reasoned that to include the alimony payments in appellee’s net income would defeat the purpose for which it was intended: to cover the transitional expenses of divorce and entry into fulltime employment. See id. at 4. We find this to be an abuse of discretion.

In order to calculate the support obligation of each parent, a court is bound not only to apply the Melzer analysis but also to consider the financial needs of the parties. See Ryan v. DeLong, 371 Pa.Super. at 250-54, 538 A.2d at 2-3. A parent’s ability to support his or her child is not based solely on the amount of income received by the parent. See Butler v. Butler, 339 Pa.Super. at 316, 488 A.2d at 1143. The court must look beyond the actual earnings of the parents and make allowances for the reasonable living expenses of each parent. See id. Thus, if the court applied the Melzer formula without first deducting each parent’s living costs and other reasonable expenses, the application of the guidelines would result in a fictional financial picture: One not truly representative of the parent’s ability to support the children. Such an approach would be inconsistent with the principles underlying Melzer and DeLong.

Although appellant neither cites nor has our research revealed a reported case which addresses whether a court should consider alimony an excludable expense from a parent’s net income under the Melzer computation, this Court’s prior rulings concerning the effect of alimony pendente lite upon a parent’s net income are instructive. We have held that a trial court must consider and evaluate the effect of alimony pendente lite on the incomes of the parents before determining child support obligations. See Cross v. Cross, 310 Pa.Super. at 127-28, 456 A.2d at 216. Alimony and alimony pendente lite serve the same interest: offsetting the unjust effects of the dissolution of marriage upon a dependent spouse. McNulty v. McNulty, 347 Pa.Super. 363, 370, 500 A.2d 876, 879 (1985). Although alimony and alimony pendente lite both provide for enforcement of a duty of support arising at common law as an incident of marriage, their immediate functions differ. Id., 347 Pa.Superior Ct. at 370-71, 500 A.2d at 879. Alimony pendente lite is awarded for the purpose of enabling the dependent spouse to maintain or defend the divorce litigation. Keller v. Keller, 275 Pa.Super. 573, 586-87, 419 A.2d 49, 56 (1980). Alimony, however, is awarded to ensure that the reasonable needs of the dependent spouse are met. McNulty v. McNulty, 347 Pa.Super. at 371, 500 A.2d at 880. Additionally, alimony continues after divorce, whereas alimony pendente lite continues only during the pendency of the divorce proceeding. Id. See 23 Pa. C.S.A. §§ 501-502. Although alimony and alimony pendente lite are distinguishable, the reasoning behind the necessity for considering their effect on the available portion of a spouse’s income for computation of child support is the same. Thus, it logically follows that in determining a spouse’s net income under the Melzer guidelines, the court must take into consideration that the monies designated to be part of the alimony award are unavailable for the purpose of child support.

Moreover, we note that it does not automatically follow that such payments should be included in the dependent spouse’s income. If the payments were included in the dependent parent’s net income, it would distort the financial picture of the dependent parent’s ability to provide support for his or her child. See Butler v. Butler, 339 Pa.Super. at 316, 488 A.2d at 1141. Because alimony is specifically designated to assist the dependent spouse in overcoming the economic effects of the dissolution of the marriage and not for the support of the children, the inclusion of the alimony award would create the appearance of an inflated income from which the child support obligation would be drawn and would undermine the purpose for which alimony is awarded. See McNulty v. McNulty, 347 Pa.Super. at 371, 500 A.2d at 879. Furthermore, because there is a definitive portion of the supporting spouse’s income that is earmarked by law to be given to the dependent spouse for his or her care, it is equally unjust to include the alimony award in the supporting parent’s income. The inclusion of the alimony award in the computation of the supporting parent’s net income would not realistically reflect that parent’s economic status and would be confiscatory. See Funk v. Funk, 376 Pa.Super. at 80, 545 A.2d at 328. Thus we conclude that for purposes of determining child support under the Melzer formula, alimony should be excluded from the funds available for calculating child support.

Finally, we find further support for our holding in Pa.R. Civ.P. 1910.26. Rule 1910.26 provides a sample Income and Expense Statement Form, which should be substantially followed in all child support cases. See id. at (c); Shutter v. Reilly, 372 Pa.Super. 251, 255, 539 A.2d 424, 429 n. 1 (1988). The form includes space for detailing a parent’s expenses and it specifically identifies alimony as a designated expense the court may consider when computing a parent’s support obligations. See Pa.R.Civ.P. 1910.26(c). The designation of alimony as an expense on the sample Income and Expense Statement is a further indication that the court must consider that the portion of the supporting spouse’s income destined to fulfill his or her alimony obligation is not available to be allocated for child support.

In light of the foregoing, we conclude that including the alimony award as part of the supporting spouse’s net income while excluding the alimony from the dependent spouse’s income is inconsistent with the principles underlying Melzer and DeLong. Under the lower court’s analysis, appellant’s net income reflected income available from every financial source, without regard to whether it represented his actual cash flow, whereas appellee’s net income was selectively limited only to reflect her actual earnings minus her reasonable living expenses. Thus, for the purpose of determining child support under the Melzer analysis, alimony should be considered to the extent that is excludable for calculating each parent’s available financial resources and not includable in the net income calculations for either parent. Because orders of child support and alimony must be considered in conjunction with each other as they relate to the obligor’s duty to pay, the court below abused its discretion in computing appellant’s net income by including his alimony obligation as part of his available finances under the Melzer formula. See Cross v. Cross, 310 Pa.Super. at 127-28, 456 A.2d at 216. We, therefore, remand this case for reconsideration of the parties’ respective support obligations in accordance with the principles outlined in this Opinion. See id.

Appellant next contends that in determining his child support obligation, the court misapplied Melzer because it failed to consider the expenses he incurs for the support of the parties’ minor child, who currently resides with him. Specifically, appellant argues that the court erred in excluding the parties’ other child when it computed the respective support obligations under the Melzer guidelines. In her brief, appellee counters appellant’s argument by stating that appellant’s custody of the parties’ other minor child is not relative cto the Melzer guidelines. We agree with appellant’s contention.

It is well-settled that in child support proceedings, the extent to which a parent’s other children, either from the previous marriage or a new marriage, affect the amount of financial resources available for child support is a relevant factor and must be taken into consideration by the court. Marshall v. Ross, 373 Pa.Super. at 238-41, 540 A.2d at 956-57. If a parent has custody of at least one child and provides support for his or her other non-resident children, it is an abuse of discretion for the court not to consider the expenses incurred by the supporting parent when computing his or her child support obligation. Id., 373 Pa.Superior Ct. at 240, 540 A.2d at 957.

Here, it is undisputed that one minor child resides with appellant and the other child resides with appellee. The court’s determination of child support, however, only provided for the allocation of support for the child residing with appellee. Consequently, appellant’s child support payments were calculated to determine the support of one child, but the economic reality is that he is responsible for sixty-eight percent (68%) of the support for the child residing with appellee and one-hundred per cent (100%) of the support for the child residing with him. In applying the Melzer formula, the court determined support payments for the child residing with appellee on the basis of appellant’s net income without considering the expenses incurred by appellant for raising the child in his custody. Furthermore, the court below did not allocate a portion of appellee’s income to contribute to the support of her non-custodial child.

By failing to include both children in the computation for support under Melzer, the court unevenly distributed the financial resources available to support the children. Thus, the procedure utilized by the court apportioned a greater amount of each parent’s income to the child residing with appellee than would be available to the child in living with appellant. Under these circumstances, because the support of the child residing with appellant must be borne entirely by him, this procedure worked an injustice on both the child and appellant. In light of our scope our review, it is clear that the court abused its discretion in not taking into consideration appellant’s expenses for the child residing with him. See Marshall v. Ross, 373 Pa.Super. at 238-41, 540 A.2d at 956-57. Accordingly, we remand for computation of the parties’ child support obligations for both minor children under the Melzer formula. See id.

Appellant next contends that the court incorrectly found his income to be significantly higher than it actually is. Appellant alleges that the court’s finding that he earns $2,643.98 per month is unsupported by the record.

As stated above, our scope of review in child support cases is restricted to determining if the court below has abused its discretion. Here, our review of the transcript indicates that the court’s finding that appellant earns approximately $31,000.00 annually is based on the records of the Delaware County Domestic Relations Office and pays-tubs supplied by appellant’s employer. See N.T. March 3, 1988 at 15-16, 17, 18, 19. Although appellant claims to earn less than the amount determined by the court, he concedes in his brief that the wage statement supplied by his employer shows his weekly gross pay to be $804.78, which computes to a yearly gross income of approximately $41,000.00. See Brief for Appellant at 11. The difference between the court’s computation of appellant’s net income and his own appears to be the result of appellant’s allowing for the deduction of certain expenses, namely the deduction of alimony from appellant’s gross income. Thus, this issue is virtually indistinguishable from appellant’s first claim. Because we have already determined that the court should have deducted the alimony payments from appellant’s net income, we need not examine this claim any further. Accordingly, we remand for the court to specify on the record its findings as to the parties’ gross incomes, allotted expenses, and net incomes under the Melzer analysis.

Appellant also contends that the court did not consider his former wife’s excessive clothing expenses in determining the parties’ respective child support obligations. We disagree.

Here, the record reveals that the court specifically inquired into appellee’s expenses designated as clothing costs. See N.T. March 3, 1988 at 28. Appellee responded that the costs reflected her charges on a major credit card and that her purchases were not limited to clothing items, but also included household purchases for the benefit of her and the child in her custody. See id. at 28, 29. Additionally, appellee explained that she had reason to use the credit card as a source for borrowing money to cover her expenses while awaiting the resolution of the equitable distribution settlement. See id. at 29-30. Accordingly, because the court did consider the expenses claimed by appellee, we cannot conclude that the court committed an abuse of discretion. See Marshall v. Ross, 373 Pa.Super. at 238-41, 540 A.2d at 956-57.

Lastly, appellant contends that the court did not take into consideration that he has remarried and has a child by his second marriage. As we stated above, the extent to which a parent’s other children, either from the previous marriage or a new marriage, affect the amount of financial resources available for child support is a relevant factor and must be considered by the court in its determination of child support obligations. Marshall v. Ross, 373 Pa.Super. at 238-41, 540 A.2d at 956-57. Failure of the court to take into consideration the support necessary to provide for a parent’s other children constitutes an abuse of discretion. Id., 373 Pa.Superior Ct. at 240, 540 A.2d at 957.

Here, our review of the record reveals that the court, although cognizant of appellant’s responsibility for his child from his current marriage, did not take into consideration the finances necessary to support that child when applying the Melzer guidelines. See N.T. March 3, 1988 at 27-28. Because it is an abuse of discretion for the court not to consider a parent’s other children when determining support obligations for children of the previous marriage, we find it necessary to remand this case for reconsideration of appellant’s support obligation in light of his responsibility for the child from his current marriage. See Marshall v. Ross, 373 Pa.Super. at 240, 540 A.2d 957.

Accordingly, based on the foregoing, we vacate the order of the court below and remand for a re-determination of the parties’ respective support obligations consistent with this opinion.

Order vacated. Case remanded. Jurisdiction is relinquished.

      . Following the Pennsylvania Supreme Court’s decision in Melzer, the Pennsylvania Legislature enacted into law child support guidelines paralleling those set forth in Melzer. The Support Guidelines statute reads as follows:
      The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net income and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.
      23 Pa.C.S.A. § 4322, 1985, Oct. 30, P.L. 264, No. 66, § 1, effective in 90 days.


source: Caselaw Access Project

license: Public Domain

text:
    554 A.2d 89
    Patsy D. HUNSINGER v. James H. HUNSINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1988.
    Filed Feb. 8, 1989.

      Thomas E. Leipold, Bloomsburg, for appellant.
    Thomas A. James, Jr., Bloomsburg, for appellee.
    Before BROSKY, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s final decree ordering the parties’ divorce and approving the recommendations and report of the master. Appellant contends that the trial court abused its discretion in (1) concluding that appellee was entitled to a divorce on the ground of indignities; (2) concluding that a 60%/40% distribution in favor of appellee was equitable under the circumstances; (3) refusing him certain credits or deductions from the value of marital property in his possession in calculating the total value of marital property subject to equitable distribution; and (4) awarding appellee $1,000 towards attorney’s fees. For the reasons that follow, we affirm the order of the trial court.

The parties in this action were married on July 6, 1968, initially separated in July of 1985, attempted a reconciliation in 1986, and ultimately separated in August of 1987. On September 12, 1985, appellee initiated a divorce action by filing a complaint alleging indignities and the irretrievable breakdown of the marriage. The court appointed a special master to preside over the divorce and distribution of property. Following the parties’ attempt at reconciliation, a hearing was held before the special master on October 8, 1987. On January 18, 1988, the master filed a report and recommendation with the court. Appellant then filed exceptions to the master’s report. On June 28, 1988, the lower court issued an Opinion and Order granting one of appellant’s exceptions regarding the application of the equitable distribution percentages and remanded the issue to the master to determine the specific form of the award to be made to appellant. The court denied all of appellant’s other exceptions. A final decree in divorce was thereby entered. This timely appeal followed.

Appellant initially contends that the trial court abused its discretion in concluding that appellee was entitled to a divorce on the ground of indignities. Specifically, appellant alleges that appellee failed to prove herself to be an innocent and injured spouse pursuant to section 201(a)(6) of the Divorce Code. Our standard of review is well-settled.

[It] is our duty, on appeal, to make an independent study of the record and to determine whether a legal cause of action for divorce exists. Moreover, while the master’s findings of fact and recommendation that a divorce be granted are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witness, his findings should be given the fullest consideration.

Rorabaugh v. Rorabaugh, 302 Pa.Super. 1, 4, 448 A.2d 64, 66 (1982) (citations omitted). With specific regard to divorce based on indignities, we note that “no general rule can be formulated as to what constitutes indignities in a particular case; such matters depend upon all the circumstances of the particular case ...” Brown v. Brown, 288 Pa.Super. 354, 356-57, 431 A.2d 1085, 1086 (1981). Although there is no strict test that applies in determining whether indignities are present, the Supreme Court has suggested a framework of conduct: “ ‘Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.’ ” McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945) (construing prior divorce code) (quoting Evans v. Evans, 152 Pa.Super. 257, 262, 31 A.2d 590, 592 (1943)). The McKrell court further stated that indignities “must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome ... a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse____” Id. (citations omitted). Furthermore, the plaintiff must prove that he or she is the innocent or injured spouse in order for indignities to be the basis for divorce. Rorabaugh v. Rorabaugh, supra 302 Pa.Super. at 4, 448 A.2d at 66.

******
(6) Offered such indignities to the innocent and injured spouse as to render his or her condition intolerable and life burdensome. Id. at § 201(a)(6).

Keeping these principles in mind, we turn to the record. The master found that:

[Appellee] testified that the problems started about 5 years ago. [Appellant] started going out to parties, with the time of his return getting later and later. It did not take much to get [appellant] drunk and he got nasty when he got drunk, over time this situation got worse. [Appellee] also testified that he degraded her in front of others, found fault with everything she did, would start arguments, would go out and not tell her when he was coming home. [Appellee] testified she felt unwanted, “in the pits,” very low emotionally. While a lot of the testimony comes from the separation period, [appellee] did find a note that was dated before the first separation in reference to a girl friend. [Appellant] did testify to [appellee’s] frigidness in bed, and a difficult child, the Master-does not find these grounds for divorce. [Appellant] also testified to some physical abuse from [appellee], i.e. slapping and throwing objects; however, [appellee] claimed self defense. With all this testimony the master does find that [appellant] offered such indignities to [appellee], an innocent and injured spouse, as to render her condition intolerable and life burdensome.

Master’s Report, R.R. at 16-17. These findings are supported by the testimony before the master. After carefully reviewing the entire record before us, we cannot conclude that the trial court erred in finding that the master was correct in characterizing appellee as an innocent and injured spouse and granting the divorce on the basis of indignities. Appellant’s excessive drinking and continuous unexplained absences from the home late at night, together with his abusive treatment of appellee, was sufficient to make out a case for divorce based on indignities. Compare Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985). Although appellant attempted to show that appellee was not an “innocent and injured” spouse by citing her testimony on cross-examination as to her physical altercations with appellant, the master found her physical attacks to be in the nature of self-defense. See Dukman v. Dukman, 278 Pa.Super. 530, 420 A.2d 667 (1980). The master, as fact finder, had the opportunity to observe the demeanor of the witnesses and found appellee’s testimony to be credible. Because we cannot find that he abused his discretion on this record, we will not disturb his findings. See Rorabaugh v. Rorabaugh, supra.

Appellant next contends that the trial court abused its discretion in concluding that a 60%/40% distribution of marital property in favor of appellee was equitable under the circumstances. The equitable distribution of marital property is within the sound discretion of the trial court and its decision will not be disturbed on appeal absent an abuse of discretion. Johnson v. Johnson, 365 Pa.Super. 409, 411, 529 A.2d 1123, 1124 (1987); Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 283, 463 A.2d 1196, 1197 (1983). Under the abuse of discretion standard, we are not to usurp the trial court’s duty as the finder of fact. Ruth v. Ruth, 316 Pa.Super. 282, 287, 462 A.2d 1351, 1353 (1983).

An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence____ However, an abuse of discretion will be found by this Court if the trial court failed to follow proper procedure or misapplied the law.

Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986) (quoting Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985)).

From the evidence adduced at the hearing, the total value of the marital estate subject to equitable distribution was $159,396.75. The master purported to award 60% of the total sum to appellee and 40% to appellant. Appellant maintains that the 60%/40% allocation of marital property is inequitable under the circumstances and in light of the statutory factors listed in Section 401(d) of the Divorce Code. Appellant specifically contests (1) the master’s distribution of two marital assets: (a) appellant’s employee pension, and (b) the parties’ Prudential Bache investment savings account; and (2) the equitable nature of the overall distributive scheme.

Appellant’s employee pension has a calculated present value of $19,370.00. Appellant claims that while his pension rights are vested, actual receipt of any benefit is contingent upon him attaining retirement at the age of sixty-two, or early retirement at the age of fifty-five if he elects to take a lower monthly payment. Thus, he contends that he must wait at least ten years before receiving any direct benefit from these funds, while appellee has the immediate use and benefit of this asset. In response, appellee claims that the pension plan’s requirement that appellant not collect until he retires is irrelevant to the equitable distribution plan recommended by the master and approved by the lower court. We agree.

In Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), this Court was presented with the question of how to divide retirement benefits that were classified as marital property. We noted that there were two methods of distribution:

One method, the immediate offset method, divides the benefits at the time the equitable distribution order is entered by assigning a present value to them____ As we recommended ... the retirement plan should be valued as of the date of the hearing. As we stated above, only those benefits attributable to the period commencing with the marriage and ending on the date of separation are marital property____ The present value must be multiplied by the “coverture” fraction to reach the present value of the entitlement which was acquired during the marriage____ Next, the court must determine how the sum available for equitable distribution should be apportioned between the spouses according to the provisions of the Divorce Code. After determining the non-employee spouse’s interest in the benefits, the court awards these benefits to the employee spouse and offsets this award by distributing other marital property____
The second method is labeled the deferred distribution or reserved jurisdiction method, since the court retains jurisdiction and apportions the benefits when they enter pay status or mature. Under this method, present value figures are not used. Rather, the “coverture” fraction is applied to the benefits when they enter pay status since there are too many variables projected into the future ____

Id., 339 Pa.Superior Ct. at 197-98, 488 A.2d at 619-20. In comparing the two types of distribution, the Braderman court stated that:

The immediate offset method has the advantage of avoiding further entanglement between the parties. Problems with continuing court supervision and enforcement are also avoided. This method’s greatest virtue, however, is that it effectuates a final and immediate settlement of the distribution of the retirement benefits. In contrast, the deferred distribution method equally divides the risk of forfeiture before maturity among the parties, but also prolongs the strife and hostility between the parties by extending the time for a final resolution of the parties’ assets. Although an immediate offset is preferred, ... this method is impractical where the parties do not possess enough assets to offset the pension award. When the value of the employee-spouse’s pension far exceeds the value of the other marital property, the deferred distribution method must be used.

Id. The Braderman court did not attempt to set a standard distribution scheme to be used in every case. It did state, however, that “the trial courts ... must balance the advantages and disadvantages of each alternative method as applied to the facts of each particular case to determine which method best effectuates a fair and equitable distribution.” Id., 339 Pa.Superior Ct. at 199, 488 A.2d at 620.

In this case, appellant does not contest the inclusion of his pension rights in the marital estate; he does however, contest the use of the immediate offset method in allocating his pension rights between himself and appellee. When a property right is includable the court must allocate the interest fairly, consistent with the legislative intent to effectuate economic justice between the parties. 23 P.S. § 102(a)(6). Here, appellant’s pension rights have vested. See Flynn v. Flynn, supra. In addition, it is undisputed that the total value of the pension as of the date of separation is marital property. Moreover, the parties have enough assets to offset the pension award. On this record, we cannot conclude that the trial court erred in affirming the master’s recommendation for the immediate offset method. See Braderman v. Braderman, supra.

Appellant next contests the division of the Prudential Bache investment savings account, which has a present value of $29,600.00. The master awarded each party 50% of this account, instead of the 60%/40% division of marital assets generally recommended, because a restriction on the account allows removal of only 10% per year without penalty. Appellant contends that the master’s allocation of this asset is inequitable for two reasons. First, appellant argues that the award of 10% of the account to appellee over the next six years gives her the assurance of receiving $14,800.00, while the risk of fluctuation in the value of the investment falls solely on him. Second, appellant claims that he is precluded from receiving any monies from this account for the next six years unless he incurs the penalty imposed on excessive withdrawals, which would be applied solely to his account. These claims are meritless.

First, as appellee notes, the risk of loss will not fall solely upon appellant’s shoulders. Appellee was awarded up to 60% of the investment account (10% for 6 years), and no less than $14,800.00 or 50%. If the investment is sound, then appellant bears no risk of realizing less than 40% of the account. This distributive scheme is consistent with the overall 60%/40% equitable division recommended by the master. Furthermore, if the investment plan is unsound, appellee will receive 10% per year until she has received 50% or $14,800.00. Appellee, therefore, will not receive more than 60% and may in fact only receive 50%.

Second, we are not convinced that the fact that appellant cannot withdraw money from the account without paying a penalty renders the distribution inequitable. The master determined that this plan was the most expedient way to distribute the marital assets, and to give appellee her share while not causing undue burden to appellant. Thus, the plan was consistent with the master’s general objective in awarding appellee her equitable share as efficiently as possible without drawing on appellant’s other assets.

Appellant also argues that the distributive scheme is inequitable because appellee will have the immediate use and benefit of $81,033.00 worth of marital property, while he will have the immediate use and benefit of only $28,-193.75 worth of marital property. The master awarded a distribution of marital assets based upon a 60%/40% division. Once the trial court deducted $1,394.95 from appellee’s share and allocated it to appellant, he received 40% or $48,958.70 of the marital property while appellee received 60% or $80,838.05 as recommended by the master. Appellant has not cited to any authority, and our research has revealed none, to support the proposition that the master must distribute assets based upon their immediate liquid cash value. Thus, appellant’s contention, that he is somehow being deprived of his equitable share simply because he cannot immediately convert his share into cash, is merit-less. Accordingly, we cannot conclude that the trial court abused its discretion in adopting the equitable distribution scheme of the master. See King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

Appellant next contends that the trial court abused its discretion in refusing to credit appellant with certain deductions from the value of marital property in his possession in calculating the total value of marital property subject to equitable distribution. Specifically, appellant maintains that he should have been allowed a deduction for the cost of a family vacation and for the cost of his additional federal income tax liability. We disagree.

The first deduction that appellant maintains was erroneously disallowed was in the amount of $1,506.37, and was attributable to travel and lodging expenses incurred during a Florida vacation with the family. It is undisputed that these expenses were incurred during a period of time when appellant and appellee were attempting a reconciliation and living together as husband and wife. Because they were not expenses incurred after final separation, but money appellant voluntarily spent when taking his family on vacation during a period of reconciliation, credit for this sum was properly denied. See Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984); Pangallo v. Pangallo, 329 Pa.Super. 25, 477 A.2d 885 (1984).

The second deduction that appellant claims was erroneously disallowed concerns his payment of federal income tax for the 1986 tax year. Appellant and appellee were residing together as husband and wife at the time of the tax payment and appellee exercised her option not to file a joint income tax return with appellant. Appellant argues that because he had to file his tax returns in the status of married filing separately, he was placed in a higher tax bracket and incurred an additional tax liability of $3,438.00. Thus, appellant claims that because appellee declined to file joint tax returns for the 1986 tax year, she should be held liable for his higher tax liability. Appellant cites no authority and our research has revealed none, to suggest that a spouse who chooses not to file a joint income tax return thereby becomes liable for the additional tax liability due to their separate filing. Accordingly, we cannot conclude that the trial court abused its discretion in finding that payments made by appellant to satisfy his tax obligations during his marriage were not deductible from the value of the marital assets credited to him.

Appellant finally contends that the trial court abused its discretion in awarding appellee $1,000 towards attorney’s fees. The court, in its discretion, is permitted to award reasonable amounts for fees and costs pursuant to section 502 of the Divorce Code. Thomson v. Thomson, 359 Pa.Super. 540, 544, 519 A.2d 483, 486 (1986). An award of counsel fees is appropriate when necessary for either spouse to maintain or defend a divorce action. Id. The court makes this determination by examining the size of the moving party’s estate, the value of counsel’s services, and the ability to pay. Semasek v. Semasek, 331 Pa.Super. 1, 10, 479 A.2d 1047, 1054 (1984).

In the instant matter, the trial court adopted the master’s recommendation to award counsel fees to appellee. The master had noted that there was a great disparity between the parties’ incomes and their ability to bear expenses, and awarded appellee $1,000 “to help her defray her costs and attorney’s fees,” while denying her request for alimony. The recommendations of the master were based upon adequate evidence. See Trial Court Record, R.R. at 148-230. Accordingly, we conclude that the trial court did not abuse its discretion in adopting the master’s recommendation and awarding $1,000 in counsel fees to appellee.

For the foregoing reasons, we affirm the order below.

Order affirmed.

      . 23 Pa.S.A. § 201 reads in relevant part:
      (a) It shall he lawful for the court to grant a divorce to the innocent and injured spouse whenever it shall be judged that the other spouse shall have:

      . We note that the master erred in assigning the various assets to the parties and a misalloeation of the sum of §1,394.95 in favor of appellee resulted. The lower court has since corrected this misallocation in its opinion.

      . 23 P.S. § 401(d).

      . In a situation where immediate offset distribution is employed to divide non-vested pension rights, the employee spouse is required to bear all the risk of non-payment. Flynn v. Flynn, 341 Pa.Super. 76, 92, 491 A.2d 156, 161 (1985). "To say that the nonemployee-spouse shares this risk by ‘receiving an immediate offset of property that may prove less than the worth of the pension benefits ultimately received ...’ still does not equalize the risk of nonpayment.” Id.

      . We note that the marital property to which appellant claims appellee has "immediate access to” consists largely of the marital home, her own personal assets in savings and a life insurance policy. See Master’s Report, R.R. at 17-18.

      . Appellant arrives at these figures by first taking the $82,233.00 allocated to appellee and subtracting her $1,200.00 share of the pension. He arrives at the $28,193.75 by subtracting the value of his pension worth $19,370.00 from his $47,563.75 equitable share. In addition to these sums, each party has an expectation of receiving income from the investment account.

      . But cf. Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

      . 23 P.S. § 502.


author: BECK, Judge:

text:
    554 A.2d 96
    John MATHIS and Elaine Mathis, h/w, Appellees, v. UNITED ENGINEERS & CONSTRUCTORS, INC., Appellee. Appeal of PHILADELPHIA ELECTRIC COMPANY. John MATHIS and Elaine Mathis, h/w, Appellees, v. UNITED ENGINEERS AND CONSTRUCTORS, INC., Appellant. John MATHIS and Elaine Mathis, h/w, Appellees, v. PHILADELPHIA ELECTRIC COMPANY, Appellant. John MATHIS and Elaine Mathis, h/w, Appellees, v. PHILADELPHIA ELECTRIC COMPANY, Appellee. Appeal of UNITED ENGINEERS AND CONSTRUCTORS, INC.
    Superior Court of Pennsylvania.
    Argued May 12, 1988.
    Filed Feb. 10, 1989.

      James D. Coleman, Philadelphia, for Philadelphia Elec. Co., appellant (at Nos. 3496 and 3497).
    Harry A. Short, Jr., Philadelphia, for United Engineers, appellant (at Nos. 75 and 76). ■
    Joseph Lurie, Philadelphia, for Mathis, appellees.
    Before BECK, TAMILIA and JOHNSON, JJ.
   BECK, Judge:

In this case, we consider consolidated appeals by the Philadelphia Electric Company (PECO) and by United Engineers and Constructors, Inc. (UE & C) from a judgment entered following a jury verdict in favor of plaintiff-appellees John and Elaine Mathis.

John Mathis is a laborer who was assigned by his employer, Henkels and McCoy, Inc., to perform maintenance work at the Eddystone Plant, an electric generating station which is owned and operated by PECO. On May 5, 1981, while John Mathis was dismantling a scaffold which had been erected on a grated catwalk, a portion of the catwalk collapsed beneath his feet. Mathis fell twenty-five feet and sustained serious injuries. He and his wife Elaine initially filed suit against PECO for negligently maintaining the catwalk. The Mathises later brought a separate suit against UE & C, the manufacturer of the catwalk, based on the theory that UE & C had designed and installed the catwalk in a negligent manner. The two suits were consolidated and were tried before a jury in the Court of Common Pleas of Philadelphia County. On May 29, 1986, the jury returned a verdict finding PECO 70% negligent and finding UE & C 30% negligent. The jury awarded John Mathis $161,000 for pain and suffering, loss of earnings, and loss of future earning capacity, and awarded Elaine Mathis $17,000 for loss of consortium.

Both defendants filed timely post-trial motions which were denied. Plaintiffs moved for the award of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238. On November 19, 1982, the court issued an order entering judgment in favor of the Mathises and assessing total delay damages of over $67,000. From this final order, UE & C and PECO filed timely appeals.

Counsel for UE & C contends that UE & C is entitled to judgment n.o.v. on the grounds that the company did not breach any duty to the plaintiffs and that UE & C’s actions were not the proximate cause of John Mathis’ injury. In the alternative, counsel for UE & C also argues that the trial court erred: 1) by failing to mold the verdict by ordering PECO to indemnify UE & C; 2) by failing to strike the testimony of plaintiffs’ expert witness on catwalk design; 3) by charging the jury in accordance with the principles of causation set forth in section 447 of the Restatement (Second) of Torts; and 4) by assessing delay damages. After careful consideration, we grant judgment n.o.v. for UE & C. Accordingly, we need not consider UE & C’s remaining allegations of error.

Counsel for PECO contends that the electric company is immune from suit under the provisions of the Pennsylvania Workmen’s Compensation Act. In the alternative, counsel for PECO argues that the trial court erred: 1) by refusing to submit to the jury the issue of whether UE & C is liable to indemnify PECO; 2) by allowing the jury to consider the testimony of plaintiff’s expert witness on damages for loss of earning capacity; and 3) by assessing delay damages. We find that PECO is not immune from suit and is not entitled to either indemnity from UE & C or a new trial. PECO is therefore liable for the full amount of the verdict awarded by the jury. However, we must remand for a recalculation of delay damages.

I. UE & C’s Appeal

We first consider UE & C’s claim that the evidence was insufficient to establish that UE & C was negligent. Since UE & C appeals from the denial of a motion for judgment n.o.v., we must view all of the evidence, together with all of the reasonable inferences therefrom, in the light most favorable to appellees as verdict winners. Tua v. Brentwood Motor Coach Company, 371 Pa. 570, 572, 92 A.2d 209, 210 (1952); Olson v. Dietz, 347 Pa.Super. 1, 6-8, 500 A.2d 125, 129 (1985). We find that UE & C cannot be held legally responsible for the accident at the Eddystone Plant.

The facts relating to the collapse of the catwalk are as follows. In 1972, PECO entered into a contract with UE & C for the construction of waste water facilities on the premises of the Eddystone Plant. Pursuant to the contract, UE & C was required to design, construct and install a catwalk which would encircle a waste water holding tank at an elevation of twenty-five feet. Both PECO and UE & C were aware that the catwalk would block an access door on the side of the tank which needed to be opened once every few years so that the tank could be cleaned. In order to address this problem, UE & C selected a structural design which would enable PECO to dismantle the portion of the catwalk closest to the access door. UE & C erected a catwalk which consisted of metal grates that were tack-welded to underlying structural supports. This design permitted PECO to gain entrance to the tank by burning through the tackwelds and lifting off the metal grates. PECO approved the design, and never notified UE & C of any problem with how the catwalk was constructed.

In 1978, PECO ordered its employees to remove three grates immediately adjacent to the side of the tank and raise the access door. A welder, with the assistance of a machinist, riggers, and helpers, used an oxygen acetylene torch to melt all of the tackwelds on the grating. William MacGregor, the former head of PECO’s maintenance department, testified at trial that the workers were never instructed to reweld the grates to the supports after the tank had been serviced. MacGregor said that he had simply assumed that the workers would properly reassemble the catwalk.

In 1980, the same process was repeated. PECO employees were directed to open the access door, but the maintenance department did not instruct anyone to restore the welds. The maintenance department also failed to conduct any subsequent inspection to ensure that the structure was in good condition.

On May 5, 1981, the three grates adjacent to the side of the tank slipped out from beneath John Mathis causing him to fall and injure his back. William Mustard, an accident investigator employed by PECO, arrived on the scene and determined that the displaced grates had never been rewelded. Mustard testified that after the welds were removed, the position of the grates had shifted until they no longer rested on their structural supports. Mustard described the condition created by the removal of the welds as an obvious hazard, but he noted that the hazard was apparently not recognized by the PECO craftsmen who left the grates unwelded. PECO had a safety education program for the work force but did not include in this program any instruction on proper catwalk maintenance.

Under these circumstances, there can be little doubt that PECO’s negligent maintenance of the catwalk was the direct cause of John Mathis’ injury. The question on appeal, however, is not whether PECO was negligent but whether UE & C was negligent. Appellees’ theory at trial was that UE & C breached a duty of care owed to workers at the Eddystone Plant by designing a catwalk which could become unstable if PECO did not take necessary safety precautions. In support of this position, appellees called as an expert witness George Rago, a construction safety specialist. Rago testified that UE & C could have avoided the accident by installing hinged grates that would swing open whenever workers needed to enter the tank’s access door. Appellees therefore assert that by securing the grates with tackwelds rather than hinges, UE & C created an unreasonable risk that PECO would remove the tackwelds and would never replace them.

UE & C argued that hinged grates are more dangerous than welded grates because a worker may fall through a catwalk if a hinged grate is inadvertently left open. However, we need not determine whether hinged grates or welded grates are the optimum catwalk design. The central issue in this case is not whether UE & C built the safest possible catwalk but whether UE & C negligently constructed an unreasonably dangerous catwalk. This in turn depends upon whether UE & C should have been expected to anticipate that PECO would leave the grates unwelded.

A company which manufactures and erects a structure owes a duty of care to people who must work in the vicinity of that structure. Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949). This duty includes an obligation to design the structure in such a way that it will not be rendered unsafe because of the foreseeable actions of a third party. Smith v. Hobart Manufacturing Company, 302 F.2d 570, 573 (3rd Cir.1962). See generally Restatement (Second) of Torts § 302 (1965) (negligent act or omission may involve an unreasonable risk of harm to another through the foreseeable action of a third person.) However, the wrongful actions of a third party are not deemed to be foreseeable simply because the defendant could have speculated that they might conceivably occur. “Want of ordinary care consists in failure to anticipate what is reasonably probable — not what is remotely possible.” Tua v. Brentwood Motor Coach Company, 371 Pa. at 575, 92 A.2d at 211 (1952). See, e.g., Kronk v. West Penn Power Co., 422 Pa. 458, 462, 222 A.2d 720, 721-22 (1966); Jowett v. Pa. Power Co., 383 Pa. 330, 335, 118 A.2d 452, 455 (1955); Scurfield v. Federal Lab., Inc., 335 Pa. 145, 150, 6 A.2d 559, 561 (1939); Jamison v. City of Philadelphia, 355 Pa.Super. 376, 380-82, 513 A.2d 479, 481 (1986).

Although we are not aware of any Pennsylvania court decision which concerns a negligence suit against a manufacturer for failing to prevent the removal of a safety devise, the Third Circuit addressed this issue in Smith v. Hobart Manufacturing Company, supra. In Smith, the plaintiff mangled his hand when he slipped while feeding meat into an electrically powered grinding machine. The machine had been delivered to plaintiffs employer with a hand guard blocking the revolving blade, but a supervisor removed the guard so that larger pieces of meat could be cut and production thereby increased. Plaintiff argued that the manufacturer had a duty to secure the guard so that it would have been more difficult for the supervisor to detach. In a decision applying Pennsylvania law, the Third Circuit concluded that the manufacturer could not foresee that the grinder would be operated without a guard, and that plaintiff’s theory of liability should not have been submitted to the jury.

In the instant case, appellees claim that the accident was foreseeable because UE & C knew that PECO would someday remove the tackwelds. We find, however, UE & C was not on notice that the welds would be removed and then never replaced. Appellees did not present evidence that UE & C was aware or should have been aware of any history of safety violations on PECO’s part. Nor did appellees present evidence that UE & C or any other manufacturer had ever constructed a catwalk which later had been disassembled and not rewelded. Compare Lambert v. PBI Industries, 244 Pa.Super. 118, 866 A.2d 944 (1976) (manufacturer should anticipate uses of product which are usual and customary in the industry).

The accident was the result of exceptionally careless acts which occurred many years after UE & C had relinquished control of the catwalk to PECO. The supervisor of PECO’s maintenance department ordered a team of craftsmen to remove the welds but never bothered to make arrangements for the grates to be rewelded. PECO employees then stacked the unwelded grates on top of their structural supports creating an obvious hazard. Finally, PECO failed to conduct any subsequent safety inspection for a period of months or perhaps years. Under all of the circumstances, we conclude as a matter of law that UE & C was not negligent for failing to anticipate PECO’s misconduct.

In reaching this conclusion, we also bear in mind that weld removal was not a routine part of the maintenance of the waste water tankP At trial, the engineer who designed the catwalk testified that he had been told that the tank would be cleaned only once every two years or less often. The evidence of record shows only that the tank was cleaned twice — once in 1978 and once in 1980. Appellees’ position would be stronger if they had been able to demonstrate that UE & C had reason to expect that PECO would remove the catwalk grates once a week or once a month. As it was, the frequency of the tank cleaning program was not sufficient to indicate that sooner or later the welds might not be restored.

The evidence presented at trial was insufficient to prove that UE & C created a foreseeable danger by designing a tackwelded catwalk. Accordingly, we grant judgment n.o.v. in favor of UE & C.

II. PECO’s Appeal

PECO does not deny its negligence but instead contends that it is immune from suit under the Pennsylvania Workmen’s Compensation Act. Pa.Stat.Ann. tit. 77, §§ 1-1601 (Purdon 1952 & Supp.1988). The Act grants employees the right to a fixed level of compensation for work-related injuries and, in return, exempts their employers from common law liability for negligence. See generally McGinn v. Valloti, 363 Pa.Super. 88, 525 A.2d 732 (1987). The central question on appeal is whether PECO qualifies as the employer of John Mathis under the statute. Viewing the facts in the light most favorable to the verdict winners, we find that PECO was not John Mathis’ employer and was therefore subject to suit.

Mathis was hired as a laborer by Henkels and McCoy, Inc. (Henkels). Henkels had entered into a contract with PECO in which it agreed to furnish laborers to perform maintenance work at the Eddystone Plant. Henkels paid the laborers, and provided supervisors to oversee the performance of their duties. Henkels also retained ultimate authority to discharge laborers. PECO informed the Henkels supervisors of what work needed to be done, reimbursed Henkels for the cost of wages, benefits, taxes, and insurance, and supplied the laborers with tools.

John Mathis reported for work every day at the Eddy-stone Plant. The work consisted of general maintenance, such as removing debris and sweeping floors, as well as more complex tasks, such as dismantling scaffolds. Mathis testified that he received all instructions concerning which tasks to do and how to do them from Samuel Mench and Joshua Whitaker, two Henkels foremen. Mench and Whitaker received general directions from Leon Yacyshyn, a PECO manager who did not ordinarily communicate directly with individual laborers. On May 5, 1981, Whitaker assigned Mathis to a crew of Henkels laborers and ordered the crew to tear down scaffolding which had been erected above the UE & C catwalk. At the time that Mathis fell through the catwalk, Yacyshyn was not present at the plant.

PECO first argues that even assuming that Henkels actually employed Mathis, PECO was the “statutory employer” of Mathis under section 52 of the Workmen’s Compensation Act. Under section 52, the employees of a subcontractor are sometimes deemed to be employees of a principal contractor for workmen’s compensation purposes. PECO, however, is not a principal contractor but is instead the owner and operator of the Eddystone Plant. As such, PECO is not eligible for statutory employer status.

In McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), the Pennsylvania Supreme Court held that the statutory employer doctrine does not apply unless five elements are present. These are:

(1) An employer who is under contract with an owner or one in the position of an owner.
(2) Premises occupied by or under the control of such employer.
(3) A subcontract made by such employer.
(4) Part of the employer’s regular business entrusted to such subcontractor.
(5) An employee of such subcontractor.

302 Pa. at 294-95, 153 A. at 426 (1930). These requirements have been strictly construed by the appellate courts of Pennsylvania. See, e.g., Cox v. Turner Construction Co., 373 Pa.Super. 214, 540 A.2d 944 (1988); Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987); Zizza v. Dresher Mechanical Contractors, 358 Pa.Super. 600, 518 A.2d 302 (1986) (en banc); Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 231 A.2d 894 (1967). PECO does not meet the first requirement since PECO is an owner — not an employer under contract with a separate entity that is an owner or one in the position of an owner.

PECO emphasizes that the job which Mathis performed was an essential part of the day to day operations of its electric power plant. We recognize that PECO controlled the premises of the plant and that PECO entrusted part of its regular business operations at the plant to Henkels, Mathis’ direct employer. This information is relevant to the second and fourth of the McDonald requirements but is not sufficient to create the relationship of statutory employer between PECO and Mathis.

In the McDonald case, the Levinson Steel Company hired Uhl, another steel company, to construct a steel crane shed for Levinson on property which Levinson had leased. Levinson asserted that it was the statutory employer of an injured worker that Uhl had hired. In rejecting this claim, the Supreme Court specifically noted:

We may concede that the regular business of Levinson was constructing similar work for others, and he was an employer to his own employees. Further the work was done on premises leased by him. However, the work under which the accident took place was that let to a independent contractor by Levinson as lessee-owner. Merely because the work is on his own property and is done in the course of his regular business does not bring him within the act. There must be a relation of principal contractor and subcontractor under him, and Levinson must be such principal contractor.

302 Pa. at 295, 153 A. at 426-27 (citations omitted) (emphasis added). In this case, PECO stands in the shoes of Levinson and Henkels stands in the shoes of Uhl. We therefore find that PECO cannot qualify under section 52 of the Workmen’s Compensation Act as Mathis’ statutory employer.

PECO also argues that it should be recognized as Mathis’ employer for workmen’s compensation purposes by virtue of the “borrowed employee” doctrine. This doctrine is an outgrowth of the common law rule that a servant who is loaned by his master to a third party is regarded as the servant of that third party while under that third party’s direction and control. See Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 313-14, 448 A.2d 1054, 1058 (1982). In order to come within the scope of the doctrine, the borrowing employer must control or have the right to control the borrowed employee with regard to both the work to be done and the manner of performing it. Martin v. Recker, 380 Pa.Super. 527, 535, 552 A.2d 668, 672 (1988); English v. Lehigh County Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981). At trial, PECO alleged that Henkels loaned Mathis to its maintenance department and that Mathis was wholly subject to the authority of its maintenance department. The court referred the question of PECO’s authority to the trial jury. In response to a special interrogatory, the jury found that that the maintenance department did not control or have a right to control Mathis.

[81 PECO maintains that under Venezia v. Philadelphia Electric Co., 317 Pa. 557, 177 A. 25 (1935), the borrowed employee issue should have been resolved in its favor as a matter of law. We disagree. In Venezia, the plaintiff was injured while digging ditches for PECO pursuant to a contract between PECO and his direct employer, Anthony Tinaglia. Plaintiff testified that he worked under two supervisors: a foreman provided by Tinaglia who told him which job to go to and checked his attendance, and a foreman provided by PECO who actually directed his work. The Supreme Court found that PECO was the plaintiff’s true employer since it was clear from the plaintiff’s own testimony that PECO controlled the manner in which he performed his work. On the other hand, Mathis testified that he received work instructions from the foremen provided by Henkels, and not from PECO supervisors. Accordingly, the jury was free to conclude that Henkels actually controlled Mathis, and that PECO was therefore not immune from suit as a borrowing employer.

PECO also asserts that the testimony of the two Henkels foremen, Whitaker and Mench, clearly established that PECO had reserved the right to control Mathis’ work. We find that this testimony was ambiguous. Whitaker testified that he had disagreements with Leon Yacyshyn, the PECO supervisor, about how the work should be done, and that sometimes he would prevail and sometimes Yacyshyn would prevail. When asked on cross-examination if Yacyshyn was “the boss”, he replied “I guess he was.” R.R. at 657a. Mench said that Yacyshyn rarely ventured forth from his office, but he conceded on cross-examination that Yacyshyn would have had authority to tell the Henkels laborers “Don’t sweep there; sweep there ... or that sort of thing.” R.R. at 857a. Neither Whitaker nor Mench ever stated that Yacyshyn had authority to direct the precise manner in which laborers carried out more complex tasks — such as dismantling a scaffold.

When the evidence could reasonably give rise to contrary inferences as to the scope and extent of an employer’s control, the question is for the jury. See Mature v. Angelo, 373 Pa. 593, 598, 97 A.2d 59, 61-62 (1953). Since the jury found that PECO did not have the right to control the manner in which Mathis did his work, the trial court properly concluded that PECO could not claim immunity as an employer under the Workmen’s Compensation Act.

PECO next alleges that the trial court erred by refusing to submit to the jury the question of whether UE & C must indemnify PECO. Since we determined in section I of this opinion that UE & C is entitled to judgment n.o.v., this claim is clearly without merit.

PECO next alleges that the trial court improperly admitted expert testimony on damages for loss of future earning capacity. Before the catwalk accident, Mathis’ duties included lifting heavy objects and performing other strenuous manual labor. After the accident, he resumed work for the Henkels Company at the Eddystone Plant, and he continued to receive the union wage of $13.60 per hour. However, his physician stated in a deposition that was introduced into evidence that Mathis could only perform light janitorial work because of his back injury. At trial, plaintiffs called Dr. Robert Wolf, a specialist in vocational rehabilitation, who testified that as a result of the injury, the value of Mathis’ services in the job market had declined from $13.60 per hour to $5.00 per hour. PECO objected to this testimony as misleading and unduly speculative, espedally in light of the fact that Mathis had kept his old job and had not suffered any actual reduction in his wages.

In DiCiacchio v. Rockcraft Stone Products Company, the Pennsylvania Supreme Court explained that when assessing loss of earning capacity:

The test is not exclusively a comparison of before-and-after figures, but a determination as to whether, because of the injuries, the injured man’s economic horizon has been shortened____ A tortfeasor is not entitled to a reduction in his financial responsibility because, through fortuitous circumstances or unusual application on the part of the injured person, the wages of the injured person following the accident are as high or even higher than they were prior to the accident. Parity of wages may show lack of impairment of earning power if it confirms other physical data that the injured person has completely recovered. Standing alone, however, parity of wages is inconclusive.

424 Pa. 77, 82, 225 A.2d 913, 915 (1967) (lead opinion). See also Christides v. Little, 274 Pa.Super. 343, 418 A.2d 438 (1980); Wright v. Engle, 256 Pa.Super. 321, 389 A.2d 1144 (1978).

The case sub judice is analogous to Gary v. Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979). The plaintiff in Gary was a nurse whose injury prevented her from, continuing to lift and move patients. Although she was allowed to return to her former position, she established that she was permanently disabled and that she would not have been able to secure a job as a nurse at another hospital. The Court held that “[s]uch evidence, on the basis of which a reasonable jury could reasonably infer appellant’s physical inability to continue work as a practical nurse, also forms an adequate predicate for the challenged testimony of the actuarial expert who calculated appellant’s projected future loss of earnings based on an assumption of total loss of earning capacity.” 485 Pa. at 529-30, 403 A.2d at 89-90. In the instant case, the jury could have concluded that Mathis was no longer capable of working as an all purpose laborer and that he would not be able to secure another position at union wage if he lost his job with Henkels. We find that the testimony of Dr. Wolf was admissible, and we further note that PECO had ample opportunity to cross-examine Dr. Wolf as to any aspect of his testimony that was arguably misleading.

Finally, PECO asserts that the trial court erred by awarding delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 On November 7, 1988, while this case was pending on appeal, the Pennsylvania Supreme Court rescinded the original Rule 238 and promulgated a new Rule 238 effective immediately. In Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988), an en banc panel of this court found that new Rule 238 applied to an action in which a properly preserved challenge to the assessment of delay damages was pending in the Superior Court as of the date of the promulgation of the new rule. In light of Ceresini, we remand for a recalculation of delay damages under new Rule 238.

We grant judgment n.o.v. to United Engineers and Constructors, Inc., and we remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appellees do not assert that UE & C was strictly liable for supplying a defective catwalk or that UE & C negligently failed to warn PECO of any danger inherent in the catwalk.

      . Appellees also claim that UE & C was negligent for building the catwalk with grates which did not fit more snugly onto the underlying structural supports. However, the record does not indicate that the fit between the component parts of the catwalk posed any danger as long as the grates and supports were welded together. Since UE & C could not foresee the removal and nonreplacement of the tackwelds, UE & C did not have a duty to build grates with a tighter fit.

      . Section 52 provides:
      An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable [for workmen’s compensation benefits] to such laborer or assistant in the same manner and to the same extent as to his own employe.
      Tit. 77 § 52 (Purdon 1952).

      . In the original answer and new matter which PECO filed in response to plaintiffs’ complaint, PECO asserted that it was Mathis’ statutory employer, but PECO did not specifically allege that it was a borrowing employer. UE & C claimed that PECO thereby waived the borrowed employee defense, but the trial judge correctly rejected this waiver argument. In English v. Lehigh County Authority, supra, this court held that by referring to the statutory employer doctrine in its answer, the defendant employer preserved the closely related issue of whether it was entitled to Workmen’s Compensation Act immunity by operation of the borrowed employee doctrine. Moreover, in LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986), the Supreme Court held that the question of whether a defendant is immune from suit under the Workmen’s Compensation Act is a non-waivable jurisdictional issue.

      . PECO properly preserved this issue by specifically asserting in a timely post-trial motion filed on June 6, 1986 that the assessment of delay damages under Rule 238 would be unconstitutional. See Craig v. Mcgee Memorial Rehabilitation Center, 512 Pa. 60, 65-66, 515 A.2d 1350, 1353 (1986).


author: KELLY, Judge:

text:
    554 A.2d 104
    COMMONWEALTH of Pennsylvania v. James DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Feb. 14, 1989.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   KELLY, Judge:

James Davis, appellant, appeals nunc pro tunc from the judgment of sentence imposed following his convictions of first degree murder, conspiracy and possession of an instrument of crime. We affirm.

Appellant has raised four contentions of error for our consideration on this appeal. Primarily, we are concerned with appellant’s first contention, i.e. that the trial court erred by denying his motion for a mistrial and admitting into evidence the testimony of a police officer regarding a visibility/identification experiment which was offered to corroborate the testimony of the Commonwealth’s principal witness whose testimony regarding her observation of the crime had been impeached by the defense as not credible. Upon our review of the record, the briefs, the applicable authorities and caselaw, we find that this contention, as well as appellant’s three other contentions, are without merit. Consequently, we affirm the judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On March 19, 1978, between 9:80 p.m. and 9:45 p.m., appellant and Willie Truesdale (hereinafter “Truesdale”) were engaged in a fight with Melvin Fields on the sidewalk in front of 1904 N. Napa Street, Philadelphia. Appellant and Truesdale punched Fields and knocked him to the ground. After Fields had fallen, appellant and Truesdale ran to the corner of Napa and Berks Streets where they stopped, turned around, and returned to the place where Fields was lying. At that point, they stabbed Fields three times in the chest and then fled the scene together. Fields died a short time later as a result of knife wounds to his heart and lungs.

On March 5, 1984, appellant was arrested and charged with murder, conspiracy and possession of an instrument of crime. On November 9, 1984, a jury, presided over by the Honorable Joseph T. Murphy, found appellant guilty of first degree murder, conspiracy and possession of an instrument of crime. On January 22, 1986, appellant’s post-trial motions were denied and he was sentenced to a term of imprisonment for life on his first degree murder conviction and a concurrent term of five to ten years imprisonment on his conspiracy conviction. A notice of appeal was filed and subsequently dismissed on July 14, 1986, without prejudice, for failure to file a brief. On February 26, 1988, an order entered by the Court of Common Pleas of Philadelphia County granted appellant the right to appeal nunc pro tunc. Appellate counsel was appointed and this timely appeal followed.

I. MISTRIAL:

VISIBILITY/IDENTIFICATION EXPERIMENT

Appellant first contends that the trial court erred when it denied his request for a mistrial after the court overruled his objection to the Commonwealth’s proposed testimony concerning a visibility/identification experiment conducted by Sergeant Michael Ryan and Lieutenant Thomas Grady. Appellant argues that Sergeant Ryan’s testimony regarding the visibility/identification experiment was irrelevant and prejudicial, and thus the trial court erred when it denied his motion for a mistrial. We do not agree.

On the first day of trial, Friday, November 2, 1984, the principal Commonwealth witness, Fay Shaw, testified during direct and redirect examination that between 9:30 p.m. and 9:45 p.m. on March 19, 1978, she witnessed appellant and Truesdale stab Melvin Fields in front of 1904 Napa Street from her porch at 3102 Berks Street. She testified that she had known appellant for six or seven years before the incident. She stated that as she was standing at 31st and Berks, she looked across the street and watched appellant and Truesdale punching another man for about five minutes, and that after the man fell down, appellant and Truesdale ran to the end of Napa Street. They stopped at the corner of Napa and Berks Streets and then turned back to where Fields was lying. When they returned to Fields, they bent over him holding a ‘shiny object’ which looked like a knife and struck him in the chest area about two or three times in an up and down motion. Ms. Shaw was unable to see which of the two, appellant or Truesdale, held the knife. Ms. Shaw stated that after the stabbing, the two men ran away together. Throughout the entire incident, Ms. Shaw was standing on her front porch at 31st and Berks. (N.T. 11/2/84 at 73-80, 120).

Ms. Shaw was questioned extensively by counsel for appellant and counsel for co-defendant Truesdale during cross and re-cross examination about her ability to see the incident, as well as the alleged impairment of her ability to see and to recollect the incident due to her acknowledged consumption of beer and marijuana prior to the incident. Ms. Shaw was questioned specifically about: the weather conditions on the night of the incident; the lighting of the area in which the incident occurred; how many other people were present in the area during and after the incident occurred; whether appellant or Truesdale had a beard, a mustache or sideburns; whether appellant or Truesdale were wearing glasses, hats, sneakers or shoes; whether appellant or Truesdale were wearing coats and, if so, what color were the coats; whether Fields was lying on the street, the pavement or the steps; whether she could see him lying on the pavement; whether it was possible to see the incident from where she stood; whether appellant or Truesdale held the knife; how recently she had seen appellant prior to the incident; how could she tell the assailant was appellant and not another black man; and whether she was positive about what she saw. See generally N.T. 11/2/84 at 95-119.

On Monday, November 5, 1984, the second day of trial, the Commonwealth called Police Sergeant Michael Ryan to testify. The defense promptly requested an offer of proof to which the prosecutor responded:

Your Honor, Sergeant Ryan has no real connection with this case other than he was available Saturday night to go out to the scene and to look from 3102 Berks to 1904 Napa, and he will testify that he did that, and he was able to see and distinguish faces from that distance.

(N.T. 11/5/84 at 11). The defense objected stating that the proposed testimony was irrelevant and prejudicial. The trial court overruled the objection and the defense made a motion for a mistrial which was denied. (N.T. 11/5/84 at 11-13).

Police Sergeant Michael Ryan testified that on November 4, 1984, at approximately 1:30 a.m., he accompanied Police Lieutenant Thomas Grady to the crime scene; that he stood on the porch of the house at 3102 Berks while Lieutenant Grady went to an address on Napa Street; that from that distance he was able to see and to distinguish Lieutenant Grady’s face; that Lieutenant Grady also stood at the corner of 31st and Napa Streets and that he was able to see and to distinguish Lieutenant Grady’s face from that distance. In addition, Sergeant Ryan stated that from 3102 Berks Street, he could see the sidewalk in front of 1904 Napa Street. (N.T. 11/5/84 at 14-16).

Sergeant Ryan was cross-examined by counsel for appellant and counsel for co-defendant Truesdale. The testimony elicited during cross-examination highlighted the differences between Sergeant Ryan and Ms. Shaw. Sergeant Ryan was questioned about whether he had been at the scene of the murder on the night of March 19, 1978; whether he had consumed any alcoholic beverages or marijuana on the night the visibility/identification experiment was conducted; whether he knew about the murder and the trial prior to visiting the scene of the murder; and what his height was. (N.T. 11/5/84 at 17-19).

Initially, we note that a motion for a mistrial is addressed to the discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988). We find no abuse of discretion. We recognize, however, the true essence of appellant’s contention is that the trial court abused its discretion by admitting, over objection, the testimony of Sergeant Ryan concerning the visibility/identification experiment. The admissibility of evidence is, likewise, a matter left to the sound discretion of the trial court and may only be reversed on appeal upon a showing that the trial court abused its discretion. Commonwealth v. Osborn, 364 Pa.Super. 505, 516, 528 A.2d 623, 629 (1987). “ ‘[A]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias.or ill will as shown on the record, discretion is abused.’ ” Commonwealth v. Grove, 368 Pa.Super. 328, 346, 526 A.2d 369, 378 (1987), quoting Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 102 (1982).

The basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Commonwealth v. Potts, 314 Pa.Super. 256, 275, 460 A.2d 1127, 1137 (1983). Though “relevance” has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Potts, supra, 314 Pa.Superior Ct. at 276, 460 A.2d at 1137; see also Commonwealth v. Doe, 316 Pa.Super. 1, 7, 462 A.2d 762, 765 (1983).

The decision whether or not to admit evidence which, though relevant, is merely corroborative of other substantive evidence requires a balancing test. Corroborative evidence may be excluded if its probative value is outweighed by its potential prejudicial effect, i.e., confusion of issues, undue delay, needless repetition of cumulative evidence, or tendency to inflame or incite prejudice or bias. When the testimony of a key eyewitness has been impeached, the probative value of corroborative evidence may outweigh potential prejudicial effects; however, corroborative evidence in such cases must be related to the impeachment which it is to deny, rebut or explain. Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972). Moreover, while corroborative evidence may be admitted for rehabilitative purposes, the use of such evidence may not violate any of the other exclusionary rules of evidence. Commonwealth v. Fisher, supra.

The corroborative evidence offered to rehabilitate the key eyewitness in the instant case involved the results of an experiment. The decision to admit the results of experiments, like the decision to admit other forms of evidence, is ordinarily one for the trial court’s discretion, reviewable only for an abuse of discretion. Commonwealth v. Sero, 478 Pa. 440, 449, 387 A.2d 63, 68 (1978). “Authority is unanimous that test results of experiments are admissible if the conditions under which the experiment was conducted are ‘substantially similar’ to the conditions involved in the commission of the crime; to attain identical conditions is often impossible.” Commonwealth v. Sero, supra, 478 Pa. at 449-450, 387 A.2d at 68 (results of a neutron activation tests on scarf worn by victim introduced to discredit defendant’s version of the shooting held admissible).

The requirement of similarity of conditions is a relative one: “[p]erfect identity between experimental and actual conditions is neither attainable nor required____[dissimilarities affect the weight of the evidence, not admissibility.” Ramseyer v. GM Corp., 417 F.2d 859, 864 (8th Cir.1969). Thus, the general rule regarding corroboration by results of experiments is that unless some other exclusionary rule is violated, the results of experiments may be admitted into evidence when the circumstances under which the experiment was performed were sufficiently similar to the event in question to throw light on a material point in controversy and to assist the jury in arriving at the truth rather than to confuse the jury, inflame passions or prejudices, or unnecessarily delay proceedings.

In the instant case, the Commonwealth witness testified that she witnessed the murder of Melvin Fields at 1904 Napa Street as she stood on her porch at 3102 Berks Street. The defense attempted during cross-examination to impeach her by extensively questioning her ability to make a positive identification of the assailants from the distance indicated under the circumstances present. Thus, whether a person could see and distinguish faces from where the witness stood was a fact specifically placed in issue by the appellant. Sergeant Ryan’s testimony as to visibility was therefore relevant because it made a fact in issue, i.e. the credibility of the eyewitness’ identification of the assailants from the distance indicated, more probable.

The conditions between the actual occurrence and the experiment were sufficiently similar to warrant admissibility. Sergeant Ryan stood in the eyewitness’ position as Lieutenant Grady stood in the appellant’s position. Appellant was permitted unbridled cross-examination of Sergeant Ryan wherein counsel carefully brought out the differences between Sergeant Ryan and the Commonwealth witness. The extent to which the experiment may have deviated from the actual conditions was a consideration for the jury in determining the weight to be accorded the experiment results and not a bar to its admissibility so long as the differences did not render the results of the experiment more confusing or misleading than probative. The trial court found the similarities sufficient to warrant admission despite the differences, and we find no abuse of discretion in this respect.

We note similarity between this case and Howser v. Commonwealth, 51 Pa. 332 (1865). In Howser, a witness testified that he had overheard a conversation between the appellant and his co-defendant who were in an adjoining cell while all three were in prison. The witness testified that the appellant and his co-defendant discussed their plan to murder and to rob the victim after they were discharged from prison. He testified further that he had subsequently demonstrated to visitors how a conversation in one cell could be heard and understood by a prisoner in an adjoining cell. This testimony concerning the audibility experiment conducted by the witness was deemed admissible corroborative evidence by our Supreme Court. Later, in Common wealth v. Wilson, 394 Pa. 588, 148 A.2d 234 (1959), our Supreme Court commented on the audibility experiment testimony in Howser, as follows:

It was very proper, therefore, to corroborate him, and surely if he could demonstrate to his visitors that communication between cells was possible, he had a right to prove the fact in corroboration of his statement that such communications had actually taken place.

148 A.2d at 242-243. A like result obtains in the instant case.

We find no abuse of discretion by the trial court in refusing to declare a mistrial, as it was entirely proper under the circumstances of this case for the trial court to permit Sergeant Ryan to testify to the results of the visibility/ identification experiment conducted. Appellant’s first contention, therefore, is found to be without merit.

II. JURY CHARGE

Appellant’s second contention is that the trial court erred in its jury instructions concerning accomplice liability. Appellant contends that the trial court’s instructions were improper and denied him a fair trial. As a result of the trial court’s instructions, appellant alleges, the jury was permitted to find him guilty, not because he acted as the accomplice of the co-defendant, but because he acted as an accomplice of a third person or because a third person acted as his accomplice. Because the evidence presented by the Commonwealth did not support the inference alleged to have been suggested by the jury instructions, appellant argues that he is entitled to a new trial. We do not agree.

Our standard of review is well-settled. See Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986). Having reviewed the jury instructions in entirety, we find that they adequately set forth the law with regard to accomplice liability. See N.T. 11/8/84 at 102-104; see also 18 Pa.C.S.A. § 306. While the evidence at trial established that the criminal act was committed by appellant and his co-defendant, it was not apparent which defendant actually stabbed the victim to death. Thus, the Commonwealth’s evidence supported the inference suggested by the accomplice liability instructions. We find the instructions given were appropriate, correct, and complete. Appellant’s second contention is without merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, we consider appellant’s two claims of ineffective assistance of counsel. Counsel is presumed competent and the burden is upon the appellant to establish ineffectiveness. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). In order to establish ineffectiveness, appellant must establish that: an act or omission by counsel was arguably ineffective; no objectively reasonable basis designed to effectuate appellant’s interest could exist for the act or omission; and, but for the act or omission challenged there is a reasonable probability that the result would have been more favorable to appellant. See Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987); cf. Kitrell v. Dakota, 373 Pa.Super. 66, 540 A.2d 301 (1988). When the underlying claim lacks merit, the ineffectiveness claim must fail. Id.

A. PROSECUTORIAL MISCONDUCT

Appellant contends that trial counsel rendered ineffective assistance of counsel when he failed to object to instances of prosecutorial misconduct and failed to raise this issue in post-trial motions. Appellant alleges that the prosecutor committed prosecutorial misconduct during his summation by misstating the law and by improperly commenting on the need for law and order. We do not agree.

With regard to the prosecutor’s closing argument, a new trial is required only when a prosecutor’s improper remarks are prejudicial, i.e., when they are of such a nature or delivered in such a manner that they may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988). In Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987), the Pennsylvania Supreme Court reaffirmed the use of the “unavoidable prejudice test” as articulated in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975) to determine the impact of prejudice in closing arguments.

We have reviewed the prosecutor’s closing argument as a whole, while keeping in mind the “unavoidable prejudice test.” We do not find, nor has appellant demonstrated, that the prosecutor’s allegedly objectionable closing remarks individually or collectively created such bias and hostility toward appellant in the minds of the jury that a true verdict could not be reached. Hence, there was no reason for trial counsel to object to the prosecutor’s closing argument, or to raise this issue in the post-trial motions.

B. ALIBI WITNESSES

Appellant next contends that trial counsel was ineffective when he failed to call alibi witnesses at trial. On October 18, 1984, trial counsel filed a Notice of Alibi with the names and addresses of four witnesses. At trial, none of those witnesses were presented on appellant’s behalf. Appellant claims that because trial counsel made identification an issue at trial, the presentation of an alibi defense would have been consistent with the strategy pursued by trial counsel at trial and therefore counsel was ineffective in failing to present the alibi witnesses. We do not agree.

The failure to call a possible witness is not per se ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Bulard, 305 Pa.Super. 502, 451 A.2d 760 (1982). The decision whether to call a witness generally involves a matter of trial strategy. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). A defendant is not entitled to relief simply because the strategy was unsuccessful. Commonwealth v. Gaerttner, 335 Pa.Super. 203, 484 A.2d 92 (1984). Rather, appellant is required to establish the following to obtain relief on such a claim:

1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial.

Commonwealth v. Petras, supra, 534 A.2d at 485. Appellant has failed to meet these requirements.

Appellant has provided the names and addresses of the four alleged alibi witnesses. It appears that three of the four are related to appellant and one, Joanne Davis, resided with appellant. The affidavit of Joanne Davis was attached to appellant’s brief. In her affidavit, Ms. Davis alleges that she was available to testify at trial that on March 19, 1978, between 9:30 p.m. and 9:45 p.m., appellant was inside his residence. Appellant has failed to attach the affidavits of the remaining three witnesses. Thus, he has failed to establish that they were available, willing to testify, and could have provided material evidence.

We must determine, therefore, whether trial counsel’s strategy, which did not include calling Ms. Davis, had an objectively reasonable basis. Upon review of the record, it is apparent that trial counsel chose to emphasize the Commonwealth’s failure to meet its burden of proving guilt beyond a reasonable doubt, rather than attempt the more difficult task of establishing an alibi defense. Trial counsel extensively cross-examined the Commonwealth witnesses, especially the sole eyewitness, Ms. Shaw. Trial counsel concentrated on Ms. Shaw’s admitted impairment due to her consumption of alcohol and marijuana, and her purported ability to recognize the appellant despite her inability to identify which assailant was the murderer. (N.T. 11/2/84 at 105-119). By calling an alibi witness, trial counsel would have risked a shift in focus from the credibility of the Commonwealth’s witness to that of the alibi witness. If successfully impeached, the alibi witness could have done more harm than good to the defense. There was also a risk that the alibi witness might volunteer evidence of appellant’s good character and thereby open the door to admission of particularly damaging and otherwise inadmissible evidence. Moreover, even unimpeached, alibi evidence would have been of limited value as it would have been coming from a person sharing the same residence with appellant, and would have been limited to an assertion that, during the relevant fifteen minute period, appellant was in a house close to the scene of the incident, apparently, alone with the alibi witness. The decision of whether to call an alibi witness under such circumstances is obviously a matter of trial tactics not subject to a challenge on ineffectiveness grounds after the fact.

Moreover, if appellant had been dissatisfied with trial counsel’s strategy at trial, he could have brought the matter to the trial judge’s attention. Our review of the record does not reveal any objection made by appellant concerning trial counsel’s decision not to call the four alibi witnesses. Additionally, we note that the alibi testimony presented by appellant’s co-defendant was similar to the alibi testimony that appellant’s counsel chose not to introduce. The jury found both trial tactics unpersuasive, and convicted both appellant and Truesdale.

Our review of the entire record reveals that there was an objectively reasonable basis for the strategy employed at trial. Moreover, we are of the opinion that even if the evidence had been presented, there is no reasonable likelihood that the verdict would have been more favorable to appellant. Appellant’s claims of ineffectiveness of counsel, therefore, are found to be without merit.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed.

      . Willie Truesdale was appellant’s co-defendant. The jury convicted him of the same offenses and the trial court imposed identical sentences. Thereafter, he appealed to this Court twice. Each appeal, however, was dismissed for failure to file a brief. See Commonwealth’s Letter of August 26, 1988 at 2 n. 1.

      . Both attorneys questioned Ms. Shaw on how she could be so positive about what she saw and yet not remember anything else, i.e., who held the knife, etc. (N.T. 11/2/84 at 98, 112).

      . Howser had objected to this testimony on the grounds that corroborative evidence was not admissible because the witness had not been impeached. Our Supreme Court held, however, that while the witness had not been formally impeached, he testified “under circumstances that tended strongly to discredit him" because he was a pardoned convict. Commonwealth v. Howser, 51 Pa. at 340.

      . Appellant lived with his mother at 1926 North 32nd Street in Philadelphia. It is not clear who else resided with him, hence Joanne Davis could be appellant’s mother.

      . Willie Truesdale’s younger sister testified adamantly that her brother was with her during the time of the murder. (N.T. 11/7/84 at 6-8, 32-39).