author: WIEAND, Judge:

text:
    624 A.2d 651
    Robert E. LAUDIG, Jr., Appellee, v. Barbara J. LAUDIG, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed April 28, 1993.

      Cynthia Ranck, Williamsport, for appellant.
    Robin A. Read, Williamsport, for appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   WIEAND, Judge:

In this appeal we are asked to determine the validity of a post-nuptial agreement and whether it bars the wife from the right to additional marital assets under the Pennsylvania Divorce Code. The trial court held that the agreement was valid and limited the right of wife to equitable distribution in the action granting husband a divorce. After careful review, we affirm.

Barbara Laudig (wife) and Robert Laudig (husband) were married in 1972. In 1987, after husband discovered that wife was involved in an extramarital relationship, the parties separated and wife moved out of the marital home. During the separation, husband contemplated divorcing wife and informed her of his intentions. However, on August 3, 1987, husband and wife reconciled and wife returned to the marital home. In conjunction with the reconciliation, husband requested wife to enter into a post-nuptial agreement which would limit her marital property rights in the event that she subsequently became involved in another extramarital affair.

Shortly after reconciliation, wife scheduled an appointment with her attorney in order to have the post-nuptial agreement drafted. In wife’s presence, her attorney and husband negotiated the precise terms of wife’s marital property rights in the event she would become unfaithful. The terms of the agreement provided, inter alia, that if wife engaged in sexual intercourse with anyone other than husband within a period of fifteen years, while the two were married and living together, wife would

sign all of her right, title and interest in and to any marital property as defined by the laws of the Commonwealth of Pennsylvania to HUSBAND in consideration for the payment of the sum of Ten Thousand ($10,000.00) Dollars and the sum of One Thousand ($1,000.00) Dollars each and every year thereafter for the following fifteen years----

The agreement also provided that should marital misconduct other than infidelity occur, the “normal” divorce laws and settlement procedures would apply. The agreement was memorialized and subsequently sent to the parties for signature. Both parties signed the agreement on August 17, 1987.

Wife remained faithful until December 1988, at which time she renewed her relationship with her former paramour. Husband filed a divorce complaint on May 12, 1989 by which he sought a divorce on both fault and rio-fault grounds. The complaint referred to the April 17, 1987 post-nuptial agree-' ment and alleged that it was determinative of all matters pertaining to equitable distribution. Wife admitted entering into the agreement, but she denied that it resolved any issues regarding equitable distribution of the marital property.

On March 26, 1990, the trial court entered a decree which divorced the parties and retained jurisdiction over unresolved economic issues. A Master recommended that the validity of the post-nuptial agreement be upheld. He concluded that the ■wife’s claim- to the marital property was limited by the terms of the agreement. The trial court adopted the Master’s Report and Recommendation and dismissed wife’s exceptions thereto. Wife appealed.

Our standard of review on appeal is a narrow one. We need determine only whether the trial court committed an error of law or an abuse of discretion. Miller v. Miller, 395 Pa.Super. 255, 259, 577 A.2d 205, 207, alloc. denied, 525 Pa. 664, 583 A.2d 794 (1990). We do not usurp the trial court’s fact-finding function. Id.; Zollars v. Zollars, 397 Pa.Super. 204, 207-208, 579 A.2d 1328, 1330 (1990), alloc. denied, 527 Pa. 603, 589 A.2d 693 (1991); Lyons v. Lyons, 401 Pa.Super. 271, 276, 585 A.2d 42, 45 (1991).

Wife-appellant contends that the post-nuptial agreement does not operate to preclude her statutory rights in the event of a divorce; it merely provides for the transfer of certain property interests in the event infidelity occurs. She also argues that the agreement is unenforceable for its lack of consideration and its violation of public policy. We disagree.

The determination of marital property rights through prenuptial, post-nuptial and settlement agreements has long been permitted, and even encouraged. Karkaria v. Karkaria, 405 Pa.Super. 176, 183, 592 A.2d 64, 68 (1991). In Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162, 165 (1990), the Supreme Court recognized that prenuptial agreements are contracts, and as such, are governed by contract law. Similarly, contract principles apply to antenuptial and post-nuptial agreements. Adams v. Adams, 414 Pa.Super. 634, 637, 607 A.2d 1116, 1118 (1992); Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 510 n. 2, 535 A.2d 664, 667 n. 2, alloc. denied, 520 Pa. 589, 551 A.2d 216 (1988); Magee v. Magee, 360 Pa.Super. 66, 68, 519 A.2d 994, 995 (1987). It has been held that “[a]bsent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.” McMahon v. McMahon, 417 Pa.Super. 592, 597, 612 A.2d 1360, 1363 (1992). See also: Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991).

The Pennsylvania Divorce Code also recognizes the validity of marital agreements. Section 3501 specifically provides that the definition of marital property does not include “property excluded by valid agreement of the parties entered into before, during or after the marriage.” 23 Pa.C.S. § 3501(a)(2). See also: Karkaria v. Karkaria, supra 405 Pa.Super. at 186, 592 A.2d at 69-70.

The paramount goal of contract interpretation is to “ascertain and give effect to the parties’ intent.” Lyons v. Lyons, supra 401 Pa.Super. at 277, 585 A.2d at 45. To accomplish this goal,

“each and every part of [the contract] must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument.” In order to ascertain the intention of the parties, “the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement.” The court will adopt an interpretation that is most reasonable and probable bearing in mind the objects which the parties intended to accomplish through the agreement.

Wrenfield Homeowners Ass’n, Inc. v. DeYoung, 410 Pa.Super. 621, 627, 600 A.2d 960, 963 (1991) (quoted and cited cases omitted). See also: Litwack v. Litwack, 289 Pa.Super. 405, 408, 433 A.2d 514, 515 (1981).

The parties’ intent, as expressed in their post-nuptial agreement in this case, is clear. Husband and wife contractually agreed to dispose of their marital property in a specified manner in the event of infidelity on wife’s part. Although the contract language does not specifically address a divorce proceeding, the intent to preclude any other equitable distribution becomes clear when the contract is construed as a whole. Paragraph seven of the agreement specifically provides that should other marital misconduct occur, “the normal divorce laws and settlement procedures would apply, including the standards setting forth equitable division of marital property, alimony and the like.”

Construing the contract as a whole, it is clear that the parties presumed wife’s infidelity would lead to a divorce. Recognizing this, the parties entered into the post-nuptial agreement to limit wife’s right to participate in the distribution of marital property if the divorce followed wife’s repeated infidelity. If the parties did not contemplate a divorce action in the event of such infidelity, the reference to divorce procedures in paragraph seven is meaningless. One portion of an agreement cannot be interpreted so as to annul another part. Shehadi v. Northeastern National Bank of Pennsylvania, 474 Pa. 232, 236, 378 A.2d 304, 306 (1977).

The record supports this construction as well. Husband testified that the purpose of the agreement was to limit the assets which wife would receive in the event she resumed her adulterous conduct. This intent comes through quite clearly. Paragraph seven indicates that the parties were cognizant of the fact that equitable distribution would occur in a divorce action, and, in the event of a divorce where there had been no infidelity by wife, normal distribution of marital property would be made.

Appellant argues that since the contract language does not specifically address property rights in the event of divorce, the provisions of the agreement do not apply. Under appellant’s interpretation, the occurrence of infidelity would require wife to transfer all of her rights to the marital property to husband in exchange for a lump sum of money, and upon the subsequent filing of a divorce action, the property subject to the prior transfer would then be redistributed according to the Divorce Code. Such an interpretation flies in the face of basic contract law and undermines the validity of marital agreements. Not only is such a construction contrary to the intent of the parties, but the result is absurd. “Before a court will interpret a provision in ... a contract in such a way as to lead to an absurdity or make the ... contract ineffective to accomplish its purpose, it will endeavor to find an interpretation which will effectuate the reasonable result intended.” Pocono Manor Ass’n v. Allen, 337 Pa. 442, 446-447, 12 A.2d. 32, 35 (1940). See also: Berke v. Bregman, 406 Pa. 142, 176 A.2d 644 (1962). We will not adopt this interpretation.

Appellant also contends that husband was physically and verbally abusive prior to her infidelity and that under the terms of paragraph seven, the normal divorce laws and settlement procedures should apply. Even if husband’s conduct had been abusive, such misconduct alone would be insufficient to trigger the usual distribution of marital assets. His alleged misconduct was not litigated in the divorce action. The terms of the agreement unequivocally provided that if wife-appellant were unfaithful, she would transfer her rights to marital property to her husband in exchange for the consideration provided. Once husband learned of appellant’s infidelity, he filed for divorce and sought to enforce the terms of the agreement. If husband committed marital misconduct prior to appellant’s adultery, appellant was free to file for divorce on the grounds of such misconduct. This she did not do. Instead, she engaged in marital infidelity which invoked the provisions of her agreement.

Appellant also contends that the agreement is unenforceable for lack of consideration. Even if there is no consideration — such is not the case here — an agreement may not be avoided for lack of consideration if the agreement contains a provision expressing the parties’ intent to be legally bound thereby under the Uniform Written Obligations Act of May 13, 1927, P.L. 985, 33 P.S. § 6. In Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975), the Supreme Court addressed this very issue. There, wife brought an action against husband to enforce the terms of a separation agreement which the parties had entered into in contemplation of a divorce. Husband argued that the agreement was unenforceable because it was not supported by consideration. The Supreme Court found the contract to be enforceable whether or not consideration existed. The Court stated:

Assuming arguendo that no consideration passed to the appellant in return for his undertaking, the support clause nevertheless states that the [husband] intends to be legally bound by the agreement. Under the Uniform Written Obligations Act, Act of May 13, 1927, P.L. 985, No. 475, § 1, 33 P. S. § 6, the absence of consideration does not render the agreement unenforceable where such statments [sic] are made part of the contract.

Id. 460 Pa. at 684, 334 A.2d at 587. See also: McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), appeal granted, 518 Pa. 619, 541 A.2d 746 (1988), affirmed, 519 Pa. 439, 548 A.2d 1223 (1988); Wilder, Mahood & Greenblatt, Pa. Family Law Practice & Procedure Handbook, § 5-3 (2nd ed. 1991 Suppl.). The agreement in this case contains a clause which states that the parties intend to be legally bound thereby. Such an agreement is enforceable even without consideration under the Uniform Written Obligations Act.

Finally, appellant contends that the agreement is unenforceable because it violates public policy. We dispose of this argument based upon the reasoning set forth by the Master in his Report & Recommendation. One of the recognized purposes of marital agreements is to allow the parties to avoid the operation of equitable distribution. Marital agreements allow parties to dispose of their property rights regardless of the reasons behind the termination of their marriage. If such property rights can be transferred without providing any reason to support the transfer, there should be no reason why a transfer would be invalid if it be conditioned on the occurrence of a specified type of conduct. As the court recognized in Lurie v. Lurie, 246 Pa.Super. 307, 370 A.2d 739 (1976), even marital agreements which by their terms will become inoperative if the plaintiff fails to obtain a divorce by a certain date are valid.

Affirmed.

      . 23 Pa.C.S. § 3101, et seq.

      . Appellant concedes in her brief that such an interpretation would render an illogical result.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    624 A.2d 655
    David R. BAKER v. Beatrice E. BAKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1993.
    Filed April 26, 1993.

      Susan Petroff Rea, Hollidaysburg, for appellant.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   TAMILIA, Judge:

Beatrice Baker appeals from the Orders entered June 19, 1992, one dismissing her exceptions to the Master’s report and the other concerning equitable distribution, costs and expenses. Although she appeals from separate Orders, appellant’s arguments are identical and stem from the same factual precedent.

The parties were married on June 21, 1953 in Hollidaysburg, Blair County. Husband, David R. Baker, is presently 63 years old and wife, appellant, is presently 58 years old. As a result of their union, three children were born, all of whom are now over 18 years of age. The parties separated on March 16, 1985, and husband filed a complaint in divorce on May 16, 1985. The complaint was bifurcated on May 4, 1990, divorce was granted, and a special Master was appointed on April 4, 1991 to hear testimony on the claims for equitable distribution, costs and expenses. According to the trial court, hearings were held on November 7, 1991, May 10, 1991 and May 22, 1991. The Master’s report and recommendations were filed on January 31, 1992, and exceptions were filed by both parties. The trial court denied and dismissed both parties’ exceptions by the Order of June 19, 1992, and these appeals followed.

Appellant first argues the trial court erred in failing to consider husband’s pensions as marital assets while purporting to uphold a division of the marital estate on a sixty-forty basis in favor of appellant. Husband retired from the employ of Conrail in February, 1990, and now receives a monthly gross pension of approximately $2,500 (N.T., 11/7/91, pp. 33-35). Appellant did not raise this issue, however, in her exceptions to the Master’s recommendations, and therefore it is waived on appeal. Pa.R.A.P. 302(a); 2117(c); Preiser v. Rosenzweig, 418 Pa.Super. 341, 614 A.2d 303 (1992).

Appellant’s second claim is that the court erred in finding that appellant is not entitled to permanent alimony. Our standard of review of an Order granting or denying alimony is abuse of discretion by the trial court, which will be found where the trial court fails to follow proper legal procedure or misapplies the law. Barrett v. Barrett, 418 Pa.Super. 334, 614 A.2d 299 (1992).

When determining the nature, amount, duration and manner of payment for an award of alimony the trial court must consider the seventeen factors set forth in 23 Pa.C.S.A. § 3701. The general rule stipulates that “where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.” 23 Pa.C.S.A. § 3701. Recently this court held:
In the context of determining amount of alimony or alimony pendente lite, proper employment of judicial discretion includes the mandate to apply the Divorce Code in a compassionate and reasonable manner to effectuate the overriding goal of achieving economic justice between the parties.
Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991).

Id. at 339, 614 A.2d at 302.

In this case, the parties were married for over 30 years, the vast majority of which appellant spent at home, keeping the house and caring for the parties’ children, while husband was employed by Conrail, from whom he has taken early retirement. Although appellant has obtained employment since the parties’ separation as a deli manager at a Giant Eagle grocery store, her weekly net income of $223.74 is far lower than husband’s monthly gross income of approximately $2,500 in pension benefits. Husband’s needs are now met amply by his pension benefits, while appellant, no longer living in the marital residence, struggles to meet her expenses on her present income.

Recently, this Court upheld an award of alimony of $300 per month to wife where the parties had been married for 22 years, wife was the primary homemaker, husband had substantial pension benefits and wife did not, and wife had little opportunity to advance from her current employment because of her lack of educational background. Schneeman v. Schneeman, 420 Pa.Super. 65, 615 A.2d 1369 (1992). In Schneeman, the trial court considered and was persuaded by “the relative earning capacities of the parties, the duration of the marriage, the Wife’s contribution as homemaker, the parties’ relative needs, ... and the Wife’s relative lack of sufficient property, including property distributed under equitable distribution, to provide for her reasonable needs.” Id. at 77, 615 A.2d at 1378. The court ordered the award of alimony to help wife with her “very real financial needs” until such time as she began to receive income from husband’s pension. Id.

The disparity is even greater in this case than in Schneeman, as the parties were married longer, appellant is much older than the wife there, and appellant was not awarded any portion of husband’s pension benefits, although, generally, retirement benefits constitute marital property. Schneeman, supra; Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). For these reasons, we find the trial court abused its discretion in failing to award alimony to appellant, based on the factors enumerated in 23 Pa.C.S. § 3701, Alimony, and we reverse the Orders of June 19, 1992 in this regard, remanding for proceedings consistent with this decision. On remand, the trial court may consider the issue of husband’s pension benefits and their division on the sixty-forty basis already established.

Orders reversed. Case remanded for further proceedings in accordance with this Opinion.

Jurisdiction relinquished.

      . Appellant also claims the trial court erred in ordering her to pay half of the Master’s fee, in the amount of $480. Due to our resolution of the other issues in this case, we need not address this claim since the trial court, on remand, will have to reconform its entire Order in accordance with this Opinion.


author: TAMILIA, Judge.

text:
    624 A.2d 667
    Robert S. WADDINGTON v. Katrina V. WADDINGTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 28, 1998.
    Filed May 12, 1993.

      Arthur S. Cohen, Hollidaysburg, for appellant.
    Amy E. Webster, Hollidaysburg, for appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   TAMILIA, Judge.

Katrina V. Waddington, wife, appeals the Order of March 18, 1992, which acknowledged the June 8, 1990 Order as binding (No. 702 Pittsburgh, 1992), and the Divorce Decree filed April 6, 1992 and made retroactive to July 8, 1990 (No. 703 Pittsburgh, 1992).

Following four hearings based upon husband’s, Robert S. Waddington’s, complaint and amended complaint in divorce, the Master filed a special report including the following recommendations which were subject of wife’s exceptions and are now subject of this appeal: 1) all rights to husband’s pension (which was not valued) should be distributed to husband; 2) wife would be required to pay husband $16,666.67, that is, a one-third share of the value of the marital home; 3) husband’s payment of alimony pendente lite at the rate of $500 per month would cease April 30, 1990; and 4) husband would pay $2,000 for wife’s costs, and counsel fees. On June 8, 1990, the trial court entered an Order and supporting memorandum confirming the Master’s report in its entirety and dismissing wife’s exceptions. Wife filed a petition for reconsideration under Pa.R.A.P. 1701(b)(3)(ii), Effect of Appeal Generally, on June 25, 1990. On that same date, the trial court filed a rule to show cause why the petition for Order granting reconsideration should not be granted and scheduled a hearing for July 2, 1990. ■ Apparently because wife’s attorney requested a continuance, said hearing did not occur and was never rescheduled thereafter (H.T., 3/18/92, p. 4). The matter lay dormant until December 18, 1991, when husband filed a petition for modification/termination of spousal support and a petition for Order for special relief under Pa.R.C.P. 1920.43, Special Relief, requesting therein that the court enter a final divorce decree and an Order making final the Master’s report and recommendations.

On March 18, 1992, following oral arguments on husband’s petitions, the court entered an Order finding that since no Order of reconsideration had been entered within thirty (30) days of the June 8, 1990 Order, it lost jurisdiction to further reconsider the case’s merits. The court found the effect of the June 8th Order to be binding and further ordered that the divorce be granted effective July 8, 1990, the final day of the 30-day appeal period. The court reasoned:

This Court notes that although we have used the word “affirmed” in this order, we believe that we have have [sic] affirmed nothing since we lack jurisdiction of this matter to entertain it on either the merits or on an equitable status. We acknowledge, in our judgment, that this matter became final on July 8, 1990, rendering both parties in contempt[,] we would reasonably expeet[,] for failure to abide the time periods during which certain things were likely to have been required of each after the passage of the appeal period on July 8, 1990. Since neither party has requested a finding of contempt and each has waited for the resolution of this issue, we exercise our own sound judgment, an exercise of judicial economy, by reinstituting (affirming) the Master’s Report as of this date to avoid contempt petitions which would be denied by this Court in any event on the fact of the record, both parties having awaited this decision.

(Order, Carpenter, III, J., 3/18/92, p. 3.) Thereafter, on April 6, 1992, the court made final the divorce decree retroactive to July 8, 1990.

In addition to the allegations of error noted in her exceptions, supra, wife now argues the court erred in entering the divorce decree retroactively since, by so doing, wife’s right to due process was violated. She contends that since no final divorce decree was filed until recently, she never had the ability to appeal the equitable distribution findings, and a retroactive decree leaves her "without any remedy to appeal from the loss of her property rights.

Husband counters the court’s action was proper since no Order of reconsideration was entered within the 30-day period following the court’s Order of June 8, 1990 which confirmed the Master’s report and dismissed wife’s exceptions thereto. He argues the court correctly determined the effective date of the final divorce decree to be the date said decree could have been entered since both parties had lost any further rights of review.

While we recognize the basis for husband’s reasoning, we do not accept his ultimate conclusion. Retroactivity could be construed to be proper to avoid the consequence of an intervening marriage, but for purposes of appeal and distribution of marital'property, the effective date of the decree is the date it was filed by the trial court. Although appellant claims an appeal was filed in this Court and was quashed (Appellant’s brief, pp. 5, 8), appellant has not included a copy of the filed notice of appeal nor has she supplied us with an appeal number. Moreover, our review of the trial court’s docket entries and the record and our search of the indexing system/computerized files of this Court in our prothonotary’s office fails to disclose the filing of a previous appeal. This, however, is of no consequence to the wife’s right of appeal in this matter, as such an appeal would have been interlocutory and subject to quash or dismissal pending entrance of a final decree of divorce.

Pursuant to the trial court’s theory, under Pa.R.A.P. 1701(b)(3)(H) a timely ... within the 30 days and failure of the court to grant reconsideration expressly within the 30-day period does not work as an extension of the appeal time and must be treated as a denial of reconsideration. Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912 (1989). As discussed below, however, Rule 1701(b)(3)(ii) is not applicable in this situation and does not result in the loss of jurisdiction by the court or the loss of the right to appeal by the appellant. The Divorce Code has uniquely provided for the resolution of this issue. While the Master may be appointed pursuant to 23 Pa.C.S. § 3321, Hearing by master, to take testimony and make a report and findings, either party may demand a hearing de novo before the court. When the court, following exceptions by the wife, filed an Order and supporting Memorandum confirming the Master’s report and dismissing wife’s exceptions, all that remained to be done was entry of the decree by the court. The petition for reconsideration was redundant and unnecessary and Pa.R.A.P. 1701(b)(3)(ii) doe's not apply.

Rule 1920.55, Master’s report. Notice. Exceptions. Final Decree, provides:

(c) If exceptions are filed ... the court shall hear argument on the exceptions within ten days and enter an appropriate final decree. No motion for Posfi-Trial Relief may be filed to the final decree.

It, therefore, follows that the court in this case should have entered its decree following argument on the exceptions and appeal would lie directly from the decree. Despite the erroneous finding by the trial court that it lost jurisdiction of the matter after thirty days, it in fact had jurisdiction to enter the decree at any time.

In a very similar case, Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc), we found that pursuant to Pa.R.A.P. 1701(b)(6), the court may “(6) [p]roceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.” Id. (emphasis added). So, in either event, whether an appeal had been taken or a petition for reconsideration had been filed, the court had jurisdiction to enter a decree and the right of appeal would properly lie from the decree. The Divorce Code provides at 23 Pa.C.S. § 3323, Decree of court:

(a) General rule. — In all matrimonial causes, the court may either dismiss the complaint or enter a decree of divorce or annulment of the marriage.
(b) Contents of decree. — A decree granting a divorce or an annulment shall include, after a full hearing, where these matters are raised in any pleadings, an order determining and disposing of existing property rights and interests between the parties, ....
(c) Bifurcation. — In the event that the court is unable for any reason to determine and dispose of the matters provided for in subsection (b) within 30 days after the report of the master has been filed, it may enter a decree of divorce or annulment....

The remedies available to the trial court were explicit and effective to bring this case to a conclusion with a final appeal-able Order.

In Campbell, we held:

A pre-divorce Order of equitable distribution, even one entered upon the mistaken assumption that a divorce decree has already been entered, is not a final Order.... The courts of common pleas are only empowered to make equitable distribution contemporaneously with or subsequent to a decree of divorce. This is because the settlement of economic and property claims is merely a part of the trial court’s broader power to terminate the marriage. Equitable distribution is an incident of divorce, not .marriage.

Id. at 488-489, 516 A.2d at 365-366 (citations omitted.) The decree in this case, despite its characterization as being retroactive by the trial court, was entered as a final appealable Order on March 18, 1992. The Order of March 18, 1992, as to equitable distribution and nonappealability is a nullity. The appeal by the parties from that decree was timely and we may properly review the matters on their merits.

Due to the hiatus in this case, the record before us is insufficient to make an explicit determination on the issues presented. Two matters call for further hearing and review because of apparent abuse of discretion in affirmance of the Master’s findings by Judge Quigley and denial of reconsideration by Judge Carpenter. The Master ignored the requirement that value be placed on the husband’s pension accumulated between the date of marriage, September 15, 1959, and the date of final separation in March 1985, with its present value to be determined at the time of distribution. Since husband retired in 1979 with a vested pension, the wife’s share must be computed on its value in 1979 and include increased value to the date of distribution in accordance with the “coverture fraction” of the marital asset. See T.T., 4/6/89, pp. 200-202; Master’s Report, 1/12/90, pp. 5-6. The wife’s pension, if any, must be similarly treated. LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). The very size of the sum may require a deferred distribution of the wife’s share of the pension as opposed to direct payment in full, to her. See King, supra. The second has to do with the proper award of alimony pendente lite and counsel fees. Since this reevaluation and distribution will totally distort the validity of distribution awarded in the trial court as well as the basis for alimony pendente lite and counsel fees, we are unable to go further in ascertaining the propriety of the decree of distribution.

We, therefore, direct that on remand the evidence presented by the Master’s report be reviewed by the trial court in a trial de novo and additional testimony be taken to bring the value of the pensions up to date so that an appropriate distribution can be made. The need for alimony pendente lite must be determined from the 1990 date of cut-off to the present, as well as the continuing need until this matter is terminated.

Divorce decree affirmed, but its effective date is modified to April 6, 1992. Order of distribution vacated and case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.


author: HOFFMAN, Judge:

text:
    624 A.2d 661
    COMMONWEALTH of Pennsylvania v. Charles Richard BRETER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 28, 1993.
    Filed May 17, 1993.

      Joseph P. Burt, Erie, for appellant.
    Joseph P. Conti, Asst. Dist. Atty., Erie, for Com.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the March 4, 1992 judgment of sentence for driving under the influence, homicide by motor vehicle, careless driving, driving a vehicle at safe speed, and operating a vehicle without inspection. Appellant, Charles Breter, presents the following question on appeal:

Whether the sentencing court erred and abused its discretion when it imposed a manifestly and unreasonable sentence, including a sentence outside the top of the aggravated range of the guidelines, under the circumstances and the facts of the case, without expressing specific reasons to justify imposition of such a severe sentence?

Appellant’s Brief at 2. For the reasons that follow we affirm the judgment of sentence for driving under the influence and vacate the judgment of sentence for homicide by motor vehicle and remand for resentencing.

The procedural history of this case is as follows. On January 2, 1992, appellant pled guilty to driving under the influence, homicide by motor vehicle, careless driving, driving a vehicle at unsafe speed and operating a vehicle without inspection. On March 4, 1992, appellant was sentenced to a term of imprisonment of six to twenty-four months on the driving under the influence charge, and a consecutive term of imprisonment of twenty-four months to five years imprisonment on the homicide by motor vehicle charge. Fines of sixty-five dollars each were imposed on the other charges. A motion to modify sentence was filed and denied. This timely appeal followed.

The relevant facts are as follows. On December 8, 1990, appellant was driving home from a local store in the southbound lane. Another vehicle was stopped in the northbound lane. The victim, Sharon Smith, was standing along side the vehicle with one other teenage girl and two children. As appellant approached the stopped vehicle, one of the small children began to run across the road directly in the path of appellant’s vehicle. The victim pulled the child back and in the process was hit by appellant’s vehicle. The victim died shortly thereafter. The appellant was then taken to a hospital where a blood test was taken approximately two hours after the accident. Appellant’s blood alcohol level was determined to be .07 percent. On July 15, 1991, appellant was charged in connection with the above accident.

Preliminarily, we note that appellant’s brief contains a concise statement of the reasons relied upon for allowance of appeal with regard to his sentencing claims. Thus, the brief complies with the procedural dictates of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and we may proceed to “determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court.” Commonwealth v. Krum, 367 Pa.Super. 511, 519, 533 A.2d 134, 138 (1987).

In Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), this court stated:

Appellant’s challenge to his sentence can be divided into three components: (1) that the trial court failed to adequately consider mitigating factors; (2) that the sentence imposed was excessive; and (3) that the trial court failed to specify the reasons for imposition of a sentence in excess of the aggravated range on appellant’s conviction for homicide by motor vehicle. As to appellant’s first claim, a challenge to the weight accorded sentencing factors does not raise a substantial question absent extraordinary circumstances. Commonwealth v. Mobley, 399 Pa.Super. 108, 116, 581 A.2d 949, 952, (1990); Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1988). We find no such circumstances in the instant case. Regarding appellant’s second claim, a claim of excessiveness does not raise a substantial question where the sentence is within the statutory limits. Mobley, 399 Pa.Super. at 116, 581 A.2d at 952 (1990); Commonwealth v. Dungan, 372 Pa.Super. 323, 539 A.2d 817 (1988). Finally, appellant argues that the trial court abused its discretion by imposing a sentence outside the aggravated range of the guidelines without expressing specific reasons to justify the sentence. We agree and accordingly vacate appellant’s sentence for homicide by motor vehicle and remand for resentencing. In essence, appellant’s third contention charges that the trial court sentenced appellant outside of the guidelines, without providing an adequate contemporaneous statement of the reasons for such deviation. This claim presents a substantial question for our review. See Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc) aff'd 522 Pa. 153, 560 A.2d 148 (1989); Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989). Thus, as appellant has presented a colorable argument that a substantial question exists, we will exercise our discretion to hear the appeal.

Where the trial court deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendants presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range. The Act states that failure to provide an appropriate contemporaneous written statement shall be grounds for vacating the sentence and resentencing the defendant.

In the instant case, appellant was sentenced to a term of imprisonment of twenty-four months to five years. The sentencing guidelines provide that the mitigated range for this crime is nonconfinement, the standard range is between zero to twelve months imprisonment, and the aggravated range is twelve to eighteen months imprisonment. Therefore, it is clear that appellant was sentenced outside of the sentencing guidelines.

It is also equally apparent from the record, that the trial court failed to set forth in appellant’s presence the permissible range of sentences from the guidelines. Moreover, while the sentencing court did provide reasons for the imposition of appellant’s sentence, the court did not indicate that it was sentencing appellant outside of the guidelines. Accordingly, we must vacate the judgment of sentence imposed for homicide by motor vehicle and we remand the case for resentencing on that conviction.

For the foregoing reasons,- we affirm the judgment of sentence for driving under the influence; we vacate the judgment of sentence for homicide by motor vehicle and remand for resentencing on that conviction. Jurisdiction relinquished.

Affirmed in part, reversed and remanded. Jurisdiction relinquished.

      . 75 Pa.C.S. § 3731.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3714.

      . 75 Pa.C.S. § 3361.

      . 75 Pa.C.S. § 4703.

      . The court also indicated on the Pennsylvania Commission on Sentencing Guideline Form that appellant was being sentenced within the standard guideline range.


text:
    624 A.2d 1059
    Peter H.N. KADEL, Appellant v. Mary Ellen A. McMONIGLE and Charles Moles Associates, Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed March 26, 1993.
    Reargument Denied June 8, 1993.

      Joseph V. Restifo, Philadelphia, for appellant.
    Jeffrey Matteo, Norristown, for McMonigle, appellee.
    Mary C. Cunnane, Philadelphia, for Moles Associates, appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

In this action in equity to recover the consideration paid for the sale of real estate in Philadelphia and to construct a trust of real estate in New Jersey, the trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. Although we disagree with the trial court’s reasoning, we nevertheless affirm its judgment.

In reviewing an order sustaining preliminary objections in the nature of a demurrer, we are guided by the principles enunciated by the Supreme Court in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), as follows:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed ... the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that “[e]very cause of action ..., however, was once a novel claim, and the absence of Pennsylvania authority for appellant’s proposition is not an end to the issue.” Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

Id. 486 Pa. at 149-150, 404 A.2d at 673-674.

The facts appearing from the complaint in this case are as follows: Prior to their marriage in August, 1981, Peter H.N. Kadel conveyed to Mary Ellen A. McMonigle premises known as 507 Leonard Street, Philadelphia, and 230 Woodbine-Petersburg Road, Petersburg, New Jersey. Following divorce in January, 1989, McMonigle listed the Philadelphia property for sale with Charles Moles Associates, Inc. (Moles), a real estate broker, and in due course the same was sold for the sum of nineteen thousand, five hundred ($19,500) dollars. Kadel then filed an action in equity to recover the consideration paid for the Philadelphia real estate and to construct a trust of the New Jersey real estate. In support thereof, he alleged an oral, pre-marital agreement that McMonigle would hold title to the real estate in trust and reconvey the properties upon request. He also named as a defendant the broker, Moles, whom Kadel contended had engaged in a conspiracy with McMonigle to deprive him of his real estate. Both defendants filed preliminary objections in the nature of a demurrer to the complaint, which the trial court granted.

“In the absence of fraud, accident or mistake, the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol.” Wysinski v. Mazzotta, 325 Pa.Super. 128, 132, 472 A.2d 680, 682-683 (1984). As a general rule, “parol evidence is inadmissible to show a contemporaneous oral agreement which, if made, would naturally and normally have been contained in the written agreement between the parties.” Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991). “[PJarol evidence of a contemporaneous oral agreement is not admissible to alter, vary, add to, modify, or contradict a written instrument complete within itself unless the oral agreement was omitted through fraud, accident, or mistake.” Id. Moreover, the Statute of Frauds, Act of April 22, 1856, P.L. 532, 33 P.S. § 2, generally bars the introduction of evidence of an oral agreement modifying a deed which on its face transfers land in fee simple.

However, our Supreme Court has adopted the Restatement of Trusts, 2nd, § 44 (1959), as an exception to the Statute of Frauds. See Truver v. Kennedy, supra [425 Pa. 294, 229 A.2d 468 (1967) ]; Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966); Metzger v. Metzger, 338 Pa. 564, 14 A.2d 285 (1940). Section 44 provides, in pertinent part:
“(1) Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, as required by the Statute of Frauds, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the transfer- or, if
“(a) the transfer was procured by fraud, duress, undue influence or mistake, or
“(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or “(c) the transfer was made as security for an indebtedness of the transferor.”
In order to impose a constructive trust pursuant to § 44, a chancellor must find “both a confidential relationship and reliance upon a promise to reconvey induced by that relationship .... ” Silver v. Silver, supra, 421 Pa. at 537, 219 A.2d at 661. See also Foster v. Schmitt, 429 Pa. 102, 239 A.2d 471 (1968); Metzger v. Metzger, supra.

Moreland v. Metrovich, 249 Pa.Super. 88, 94-95, 375 A.2d 772, 775 (1977). This was explained further by the Supreme Court in Metzger v. Metzger, 338 Pa. 564, 14 A.2d 285 (1940), as follows:

“Where the owner of land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, the transferee will be compelled to hold the land upon a constructive trust for the transferor, if the transferee at the time of the transfer was in a confidential relation to the transferor. This is true even though at the time of the transfer the transferee intended to perform the oral trust, and even though he was not guilty of undue influence or other abuse of his confidential relation to the transferor in procuring the transfer. Such a confidential relation exists not only when there is a fiduciary relation such as exists between attorney and client, trustee and beneficiary, guardian and ward, and the like, but also where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.”

Id. at 570, 14 A.2d at 288, quoting the Restatement of Trusts, Section 44, Comment (c) (emphasis in opinion).

“A transaction between persons so situated [as husband and wife] is watched with extreme jealousy and solicitude, and if there be found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.” Shapiro v. Shapiro, 424 Pa. 120, 128, 224 A.2d 164, 169 (1966), quoting Darlington’s Appeal, 86 Pa. 512, 518 (1878). Thus, “where a husband purchases real estate or personal property with his own funds and places it in his wife’s name or transfers such property to his wife without consideration, there is a factual presumption that a gift was intended and, in order to rebut that presumption and establish a resulting trust in his favor, the husband must support his claim by clear, explicit and unequivocal — though not necessarily uncontradicted — evidence.” Shapiro v. Shapiro, supra, 424 Pa. at 129, 224 A.2d at 169; Chambers v. Chambers, 406 Pa. 50, 53, 176 A.2d 673, 675 (1962); Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 171-172, 125 A.2d 451, 454 (1956); Christy v. Christy, 353 Pa. 476, 477, 46 A.2d 169, 170 (1946). Cf. Semenza v. Alfano, 443 Pa. 201, 279 A.2d 29 (1971).

Nevertheless, “[o]ral trusts in real property are not favorites of the law. They must be strictly proved---- Evidence to support a parol trust must be direct, positive, express, unambiguous and convincing.” . In re Brenneman’s Estate, 360 Pa. 558, 563, 63 A.2d 59, 61 (1949), quoting Moffitt v. Moffitt, 340 Pa. 107, 109, 16 A.2d 418, 419 (1940).

Here, the averments of the complaint are that appellant conveyed both properties to appellee prior to their marriage, without any consideration and upon her promise to hold the same in trust for him and reconvey the same upon request. Such averments are sufficient to prevent the sustaining of preliminary objections in the nature of a demurrer. In such circumstances, an oral agreement creating a trust relationship involving real estate may be enforceable. See: Nirmaier v. Hamilton, 467 Pa. 355, 356 A.2d 788 (1976).

Appellant’s claims, however, should have been asserted in the divorce action. By the provisions of the Divorce Code, he is now collaterally estopped from preventing his former wife from dealing with the property as her own. Thus, at 23 Pa.C.S. § 3503, the legislature has provided as follows:

§ 3503. Effect of divorce on property rights generally
Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, all property rights which are dependent upon the marital relation, except those which are vested rights, are terminated unless the court expressly provides otherwise in its decree. All duties, rights and claims accruing to either of the parties at any time theretofore in pursuance of the marriage shall cease, and the parties shall severally be at liberty to marry again as if they had never been married.

Again, at 23 Pa.C.S. § 3504, the legislature provided:

§ 3504. Disposition of property after termination of marriage
Unless provided otherwise by the court, whenever a decree of divorce or annulment is entered by a court of competent jurisdiction, both parties whose marriage is terminated or affected shall have complete freedom of disposition as to their separate real and personal property and may mortgage, sell, grant, convey or otherwise encumber or dispose of their separate property, whether the property was acquired before, during or after coverture, and neither need join in, consent to or acknowledge a deed, mortgage or instrument of the other.

Appellant argues that his claim is not dependent upon the marital relationship but upon appellee’s agreement to hold the real estate in trust for him. Such an argument is specious. Although the argument, at first blush, appears to contain merit, closer examination discloses that appellant’s claim is so interwoven with the marital relationship that it must be deemed a part of and dependent upon the marital relationship. If, as appellant now contends, the conveyance of the real estate was not intended to be a gift thereof to McMonigle, it would be unrealistic not to require that ownership of the property be determined in the divorce action. The Divorce Law was intended to provide a full and complete forum for the determination of property rights between the spouses. This intent would be defeated if either spouse could withhold property from the court in the divorce action in order to obtain a separate determination in a later action. Where, as here, a final decree in divorce has been entered, we hold that, in the absence of fraud, the decree constitutes a final determination of the rights between the parties. Thereafter, either party may “mortgage, sell, grant, convey or otherwise encumber or dispose of [property titled in his or her own name].” 23 Pa.C.S. § 3504. The other party is thereafter estopped from attacking the title to such property in collateral proceedings.

Because there is no averment that the real estate and the claims with respect thereto were omitted from the divorce action by fraud, it follows that appellant cannot now maintain a separate action to impose a trust on real estate vested in the name of his wife following divorce. It follows also that Moles, the real estate broker, can have no liability to appellant for accepting a listing of the real estate by the appellee-wife.

In order to state a cause of action for civil conspiracy, Kadel was required to allege “(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.” Smith v. Wagner, 403 Pa.Super. 316, 322-323, 588 A.2d 1308, 1311-1312 (1991); Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 277-278, 505 A.2d 973, 980 (1985); Gordon v. Lancaster Osteopathic Hospital Ass’n, 340 Pa.Super. 253, 267, 489 A.2d 1364, 1372 (1985). Because the appellee-wife was free to sell and convey her own real estate, the broker cannot be liable on a theory of civil conspiracy for aiding her in doing so.

Affirmed.

      . Because the courts in Pennsylvania have jurisdiction over appellee's person, it can act even though one of the tracts of real estate is situated in New Jersey. See: 1 Std.Pa.Prac.2d §§ 2:66, 2:67.


author: BECK, Judge.

text:
    624 A.2d 1063
    Clarence L. HUGHES and Doris A. Hughes, H/W, Appellants, v. PRUDENTIAL LINES, INC., Defendant, American Steamship Owners Mutual Protection & Indemnity Association, Inc., Garnishee.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1993.
    Filed May 3, 1993.

      Ronald L. Wolf, Philadelphia, for appellants.
    Stephen M. Calder, Philadelphia, for appellees.

      Before BECK, POPOVICH and BROSKY, JJ.
   BECK, Judge.

In this personal injury action we decide whether plaintiffs-appellants, Clarence L. Hughes and Doris A. Hughes, can maintain a garnishment action against appellee American-Steamship Owners Mutual Protection & Indemnity Association, Inc. (“American Club”), in order to collect a judgment against Prudential Lines, Inc. (“PLI”), on the basis of an indemnity insurance policy. The parties to the indemnity policy were PLI and American Club. The terms of the policy provided that only upon payment by PLI to an injured claimant would American Club become obligated to indemnify its insured, PLI. We affirm the trial court’s entry of summary judgment in favor of American Club.

Appellant Clarence Hughes was injured during the course of his employment on board PLI’s vessel, the S.S. Saroula. He and his wife brought suit against PLI, and a judgment in the amount of $200,000 was entered by agreement in their favor. PLI was insured at the relevant time by American Club, through a $50,000,000 indemnity policy, with a $50,000 deductible.

Under the terms of the indemnity policy, in order to invoke American Club’s liability, its insured PLI must first make payments on a covered claim. See 11 Couch Ins.2d § 44:4 (1992) (under an indemnity contract the insurer is required to indemnify the insured only after the insured has sustained an actual loss, i.e., after the insured has paid). The relevant language in PLI’s policy provides that American Club “agrees to indemnify the assured against any loss, damage or expense which the assured shall become liable to pay and shall pay.... ” (emphasis added). In this case, although PLI consented to the entry of judgment, PLI never made any payment to the Hugheses on the judgment. Instead, an involuntary petition in bankruptcy was filed against PLI two days after judgment was entered. Obviously, any payment to appellants, except through the bankruptcy proceedings, then became impossible.

The Hugheses instituted garnishment proceedings against American Club, in order to execute on the judgment against PLI. They allege that the “prepayment” clause of PLI’s indemnity policy is void under Pennsylvania law. In other words, the appellants argue that Pennsylvania law voids the condition in the policy under which American Club’s liability arises only after PLI has paid on the judgment. Therefore, the Hugheses assert that they are entitled to payment by American Club directly. They further argue that even if the indemnity provision is upheld, American Club waived its right to deny liability under the policy by taking control of PLI’s defense.

On the other hand, appellee American Club insists that New York law, not Pennsylvania law, applies to this case, and that the prepayment provision of the indemnity policy is enforceable. In addition, American Club asserts that even Pennsylvania law would uphold the indemnity contract. In the alternative, American Club argues that any payment which it must make to the Hugheses is subject to a set-off for overdue premiums left unpaid by insolvent PLI.

The trial judge granted summary judgment in favor of the insurer American Club, holding that the Hugheses had no cause of action against it. This appeal ensued. Because the relevant facts are not in dispute, we must decide whether American Club was entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b).

We first address appellants’ argument that this is a garnishment action and therefore Pennsylvania law applies. It is well established in Pennsylvania that the laws pertaining to procedures and exemptions in attachment and garnishment are governed by the law of the forum state. Caddie Homes, Inc. v. Falic, 211 Pa.Super. 333, 235 A.2d 437 (1967), citing Bolton v. Pennsylvania Co., 88 Pa. 261 (1879). The Hugheses argue that if Pennsylvania law applies, the prepayment clause in the American Club indemnity policy should not be enforced. They claim that, once the indemnity provision of the policy is avoided, they may stand in the shoes of insured PLI and may recover the insurance proceeds, despite the fact that PLI has made no payment on the outstanding judgment.

In support of their contention appellants cite a Pennsylvania garnishment case which purportedly limits the validity of “prepayment” clauses. See West v. MacMillan, 301 Pa. 344, 152 A. 104 (1930) (judgment creditor could garnish insurance proceeds of indemnity policy prior to insured’s payment because insurer took control of defense of liability action). However, the situation described in West is not presented here.

Even if the decisions cited by appellants were analogous, this is not a “garnishment action” which would require the application of Pennsylvania law. Instead, the threshold question in this appeal is whether plaintiffs are entitled to garnishment under the terms of an insurance contract. In other words, the issue is whether American Club owes a debt either to its insured PLI or to the Hugheses — this clearly is a question of contract construction. The appellants themselves concede that if this case involves contract interpretation, New York law applies. Brief of Appellants at 22.

Relevant New York law would uphold the prepayment clause under the facts of this case. See generally Burke v. London Guarantee & Accident Co., 47 Misc. 171, 93 N.Y.S. 652 (N.Y.Sup.Kings Cty.1905); Cucurillo v. American Steamship Owners Mut. Protection & Indemnity Ass., 1969 A.M.C. 2334 (N.Y.Sup. Part I 1969). See also Miller v. American Steamship Owners Mut. Protection & Indemnity Ass., 509 F.Supp. 1047 (S.D.N.Y.1981) (if marine insurance policy is one of indemnity, New York law precludes direct action against insurer — even by insured — until payment is made); Ahmed v. American Steamship Owners Mut. Protection & Indemnity Ass., 444 F.Supp. 569 (N.D.Cal.1978) (same, applying New York law).

Even if Pennsylvania law did apply, however, the result in this case would be no different. See Pfeiler v. Penn Allen Portland Cement Co., 240 Pa. 468, 87 A. 623 (1913) (where bankrupt debtor has not paid judgment, judgment creditor is not entitled to recover insurance proceeds under indemnity only contract). Nonetheless, appellants assert that, under Pennsylvania law, American Club must be es-topped from relying upon the prepayment provision in its policy because of its overriding involvement in PLI’s defense of the underlying liability action. See West, supra; Malley, supra. We disagree.

Our review of the record reveals that American Club did request and receive regular updates on the status of the litigation from PLI’s lawyers, and the insurer did get involved in analyzing the settlement value of the case. Although appellants make much of the fact that American Club sought to keep itself informed of the events and value of the case, such involvement is to be expected where the insurer eventually may be required to indemnify the insured. However, PLI hired its own lawyers and conducted its own defense; we find no error in the trial judge’s finding that American Club’s involvement in the case did not rise to the level of total control over the litigation.

In cases which hold that the indemnity insurer had waived the prepayment clause, the insurer actually took charge of its insured’s entire liability defense. For example, in Malley, supra, the insurer was held hable to the injured plaintiff after judgment was rendered against the insured, even without its insured’s prepayment. The “indemnity” insurance policy provided that the insurer “shall defend such suits in the name and on behalf of the insured.” Id. Because the insurer did assume “entire charge of the litigation,” it “adopted the insured’s liability” and thus was immediately liable on the judgment.

Similarly, in West, supra, the judgment creditor initiated garnishment proceedings against the defendant’s indemnity insurer, despite the defendant’s failure to pay on a judgment. The policy specifically prohibited direct action by a judgment creditor prior to the insured’s actual payment, but our supreme court allowed recovery. The court reasoned that the policy actually provided indemnity against liability, rather than just damages; after the insurer exercised its right to defend the underlying action, “appearing by counsel, who conducted the trial,” it could no longer hide behind the “joker of the policy” — the prepayment clause. Id. at 350, 152 A. at 106. The circumstances and policy language presented in West and Malley are absent here.

Therefore, we hold that appellants have no right of action in garnishment against American Club. The insurance contract is between PLI and American Club; the Hugheses have no third party beneficiary rights under the contract. American Club cannot be liable to PLI until PLI pays on the judgment. The unfortunate fact that PLI now is in bankruptcy does not alter the terms and effect of the insurance contract. Plaintiffs are no different than any other judgment creditors of a bankrupt entity; they must file the appropriate proofs of claim in the bankruptcy court and await the outcome of that proceeding.

Because we affirm the trial court’s decision and hold that plaintiffs are not entitled to recovery from American Club, we need not reach the issue of set-off of premiums owed by PLI. We note that American Club’s claim for the sums allegedly owed by PLI is likewise a claim against the debtor’s estate, and this issue must be litigated in the bankruptcy forum.

Order affirmed.

      . Appellants also refer to other Pennsylvania cases which created exceptions to the prepayment condition in indemnity policies, but these cases do not involve garnishment actions. Their facts also are otherwise distinguishable from this case. See, e.g., Malley v. American Indemnity Co., 297 Pa. 216, 146 A. 571 (1929) (indemnity insurer will be estopped from claiming protections of policy where it took charge of insured’s entire defense); Barr v. General Accident Group, 360 Pa.Super. 334, 520 A.2d 485 (1987) (prepayment by insured not required where insured assigned its rights to judgment creditor, who could then pursue direct action against insurer). PLI has not assigned its rights against American Club to the Hugheses; such assignment is prohibited under the express terms of the policy. Furthermore, as is discussed in detail below, the record does not establish involvement by American Club in PLI's defense sufficient to impose liability under Malley, supra and West, supra.

        . Our supreme court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), adopted an “interests analysis” approach to determining choice of law. In Griffith, an airplane crash occurred in Colorado, but the court applied Pennsylvania law to the resulting litigation, since the contract (the purchase of an airline ticket) was entered into in Pennsylvania. Id. It was held that Pennsylvania, and not the place of the injury, had the most "significant relationship” with the occurrence and the parties. Id. Similarly, this court has held that the state with the most compelling interest in an insurance policy issued in New Jersey, to a New Jersey resident, is New Jersey. Nationwide Mut. Ins. Co. v. Walter, 290 Pa.Super. 129, 434 A.2d 164 (1981). See also Caputo v. Allstate Ins. Co., 344 Pa.Super. 1, 495 A.2d 959 (1985). Here, a New York insurer issued the indemnity policy to a New York insured in New York, and therefore, under a Griffith analysis, New York law applies; no other state has a comparable interest in the outcome of this matter.

      . There is a New York statute that authorizes a direct right of action by an injured claimant against the insurer of an insolvent insured, even when the insurance policy is an indemnity contract. N.Y.Ins.Law § 167. However, the statute is expressly inapplicable to marine insurance contracts. § 167(4).

      . Appellants rely upon 40 Pa.C.S.A. § 117 for the proposition that Pennsylvania policy favors a direct action against American Club for the insurance proceeds now that PLI is bankrupt. Section 117 prohibits the issuance (presumably in Pennsylvania) of indemnity policies unless such policies provide that the insolvency of the insured shall not release the insurer of its obligations to the injured party. However, this statute applies only to personal injuries or damage to property caused by motor vehicles or animals. Cf. Philadelphia Forrest Hills Corp. v. Bituminous Casualty Corp., 208 Pa.Super. 461, 222 A.2d 493 (1966) (loss was caused by fire, not by motor vehicle or animal, but judgment creditor could recover directly from indemnity insurer because insurance policy expressly provided for direct payment by indemnity insurer where insured was insolvent).

      . Details of American Club's involvement were stipulated to by the parties and do not present issues of fact. The stipulated information is included in the trial judge's opinion and is summarized as follows: PLI’s lawyer sent status reports to PLI with copies to American Club; at the request of PLI's lawyer, American Club recommended the name of an undercover investigator; PLI’s lawyer informed both PLI and American Club of the case’s movement on the trial list; American Club received copies of medical reports and expert reports, including deposition summaries, regarding plaintiff's condition; American Club received a copy of the report of plaintiff’s vocational expert;, American Club was notified when the case reached trial, and was also notified when a consent judgment was entered against PLI.

      . The policy also expressly provided that “the insolvency or bankruptcy of the insured shall not release” the insurance company. Matley, 297 Pa. at 220, 146 A. at 571. • •

      . At one point prior to trial, PLI did tty to leave the entire case in American Club's hands. PLI asked American Club to take over its defense as PLI could no longer pay its lawyers. American Club rejected this request, and reminded PLI of its obligation to "defend at  all times its own interests as well as those of American Club in full compliance with the terms and conditions of the policy.”


author: POPOVICH, Judge:

text:
    624 A.2d 1068
    In the INTEREST OF S.J. Appeal of S.J.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1993.
    Filed May 11, 1993.

      Stuart Lev, Asst. Public Defender, Philadelphia, for appellant.
    Mary Porto, Asst. Dist. Atty., Philadelphia, for Com.
    Before BECK, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

An appeal has been perfected from the adjudication of delinquency and commitment entered by the Court of Common Pleas of Philadelphia County, Juvenile Branch, by the Defendant/Appellant, S.J. We reverse.

The sole issue raised for our consideration is whether the court below erred in denying the Defendant’s motion to suppress. In reviewing the rulings of a suppression court, our standard of review is well-defined and narrow. We are limited to determining whether the factual findings of the lower court are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228, 1237 (1992).

In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Chiesa, 329 Pa.Super. 401, 478 A.2d 850, 851 (1984).

In the instant case, the record discloses that Philadelphia Police Officer Jecal Dulany was on “tour duty” on March 10, 1992. He received a radio call at approximately 2:35-:40 p.m. The radio call came in on “911”, but the officer did not know when the call was received or who phoned the authorities. N.T. 5/1/92 at 10. It was reported that a black female, wearing a red jacket, blue jeans, red sneakers and curlers in her hair was selling narcotics on the 2300 block of West Turner. Additionally, it was communicated that the female was keeping the narcotics inside her jacket.

Within ten minutes of the radio call, Officer Dulany arrived in the area and, upon turning onto 24th Street, observed the Defendant for five to fifteen seconds before pulling along side her at 23 West Turner. She matched the description relayed over the radio and was in the company of two males standing within a couple feet of each other. The Appellant, upon seeing the cruiser, “just stared” at the police.

Officer Dulany exited his vehicle and walked toward the Appellant. He told the two males to disperse. The officer placed the Appellant’s hands against the trunk of his vehicle, her legs were spread and the officer had placed his hand “on her back” until policewoman Barnette arrived on the scene to conduct a “patdown”.

Officer Barnette was Officer Dulany’s backup. She had heard the same radio broadcast, knew what the “job” entailed and that narcotics were reported to be inside the Appellant’s jacket. N.T. 5/1/92 at 16.

Officer Barnette patted-down the Appellant, which included “reaching] into the ... inside jacket pocket” of the Appellant and pulling out a plastic bag containing seventy-one clear plastic vials with red tops and fifty-five dollars in U.S. currency. Thereafter, the Appellant was arrested. N.T. 5/1/92 at 6 & 16.

After hearing testimony and argument on the search and seizure, the court denied the Appellant’s motion to suppress and imposed a sentence of probation. The present appeal followed and assigns error to the court in failing to suppress evidence claimed by the Appellant to have been secured on the basis of an anonymous radio call, uncorroborated by the police prior to seizing the evidence in question, i.e., cocaine.

Initially, we need to decide whether the conduct of the police constituted a “stop and frisk” (requiring only á reasonable suspicion that criminal activity was afoot) or an arrest (necessitating probable cause to believe that a crime is being or was committed and that the Defendant is the perpetrator). See Commonwealth v. Campbell, 418 Pa.Super. 391, 614 A.2d 692, 696 (1992); Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014, 1015-16 (1992). The information necessary to legitimize a “stop and frisk” versus an “arrest” being different in quantum and quality, id.; Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), we find that the facts before the police did not rise to the level of probable cause (“a fair probability that contraband or evidence of a crime will be found,” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)), and, thus, we are left with a determination of whether the level of suspicion required for a Terry stop was present:

“The officer [making a Terry stop] ... must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ [Terry, 392 U.S.,] at 27 [88 S.Ct. at 1883]. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U.S. 210, 217 [104 S.Ct. 1758, 1763, 80 L.Ed.2d 247] (1984). That level of suspicion is considerably less than proof of a wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ [Gates, 462 U.S., at 238, 103 S.Ct. at 2332], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.”
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, [407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)] supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been rehable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S., at 147, 92 S.Ct., at 1923-24. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established.

Commonwealth v. Wilson, 424 Pa.Super. 110,---, 622 A.2d 293, 295-96 (1993) (Citation omitted).

At bar, there can be no question that Officer Dulany “seized” S.J. when he directed her to stand, with her legs spread, facing the police cruiser and her arms outstretched with palms against the trunk of the vehicle and his one hand placed upon the lower portion of her back, see Terry v. Ohio, 392 U.S. 1, 16-17, 88 S.Ct. 1868, 1877-78, 20 L.Ed.2d 889 (1968), and Officer Barnette subjected her to a “search” when she patted-down S.J. and placed her hand inside S.J.’s jacket. Id.

We need to decide whether at the point the officers acted as they did it was reasonable for the police to have interfered with S.J.’s personal security. In making this determination, Terry teaches us that:

... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief’ that the action taken was appropriate?
sN * * * * *
If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.”

392 U.S. at 21-22, 88 S.Ct. at 1880 (Emphasis added; citations omitted; footnotes omitted).

Applying the Terry principles to this case, it must be recognized that effective crime prevention and detection allow for the police, in an appropriate manner and circúmstances, to approach a person for purposes of investigating possible criminal behavior.

Officer Dulany testified that when he arrived on the scene, S.J. “looked in [his] general direction”. However, S.J. did not run, walk away, drop anything to the ground, accept any item(s) from either of the two black males in her company, nor did she give anything to these individuals. N.T. 13. Thus, we have the observance of no “unusual conduct” by Officer Dulany which, when coupled with the innocuous behavior of SJ.’s mere presence at the stated location matching a “911” caller’s description of one selling and possessing drugs, would lead a reasonable person to conclude that criminal activity was afoot.

Further, absent articulable facts, Officer Dulany’s partner was likewise precluded from completing the second-leg of the Terry investigative procedure, i.e., the “frisk”. As stated by Terry, supra, on this subject; to-wit:

... where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquires, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

392 U.S. at 30-31, 88 S.Ct. at 1884-85 (Emphasis added).

There is no disputing the fact that, given the information received, the police, as part of good investigative procedures, were “allowed to ‘stop’ [S.J.] and detain [her] briefly for questioning upon suspicion that [s]he may be connected with criminal activity.” Terry, supra, 392 U.S. at 10, 88 S.Ct. at 1874. In fact, Officer Dulany did just that when he arrived on the scene: “[I] stopped her for investigation. I had her put her hands on the patrol car. I was asking her name, her date of birth [when Officer Barnette came on site, searched her person and found cocaine].” N.T. 14.

However, when Officer Dulany failed to observe any conduct corroborating the radio dispatch of criminal activity attributed to S.J., and when his questioning of S.J. did not disclose evidence (e.g., furtive activity, evasive conduct and/or erroneous information to his questions) indicative of criminal activity, the police had no reason to detain S.J. any longer nor search the inside of her jacket.

The absence of any “specific facts” being articulated by the officers to establish their “reasonable suspicion” that criminal activity was afoot or that the Appellant was armed and dangerous render the search illegal. Contrast Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Terry, supra.

The trial court relies upon Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988), to justify the denial of the Appellant’s motion to suppression.

In Lagaña, our Supreme Court was confronted with a “stop and frisk” prompted by a police radio call containing information from an unidentified source that there was a white male, twenty to twenty-five years of age, wearing a yellow raincoat in possession of a gun on a specific corner in Philadelphia.

Within a couple of minutes of the call, the police arrived at the location and observed a man fitting the description looking through binoculars at a business establishment approximately thirty feet away. The officer exited his vehicle, approached the Defendant, immediately frisked him and found a revolver in the waistband of his slacks. The Defendant was arrested for illegal possession of a firearm.

Also, the officer observed at the feet of the Defendant a black camera case, a brown case and a small purple pouch. These items were seized, searched at the police station without a warrant and proved to contain stolen items resulting in burglary charges being filed against the Defendant. A motion to suppress was granted and affirmed by Superior Court, which held that the police did not have a reasonable suspicion justifying a Terry-stop. On appeal, the Supreme Court reversed holding that the police had reason to believe that the Defendant was armed and dangerous because he was suspected of possessing a weapon and the police observed conduct (a man fitting the description “casing” a business establishment with a pair of binoculars) suggesting that the Defendant was engaged in criminal activity. Specifically, our Supreme Court ruled that:

This suspicious conduct under the circumstances, taken as a whole, suggested that [the Defendant] was involved in criminal activity and was the person with the gun who the officer was seeking.

Id. at 377, 537 A.2d at 1354 (Emphasis added).

In the present- case the information (as to location and description) broadcast over the police radio was verified. However, unlike in Lagaña (where description and location were juxtaposed with observing the Defendant “casing” a business -with binoculars), sub judice the police were unable to point to specific and articulable facts which, taken together with rational inferences to be drawn therefrom, reasonably warranted the intrusion.

Indeed, the Appellant was talking with two others on a street. This is completely consistent with innocent behavior. And, when the police arrived on the scene, she merely “stared” at the authorities. Further, the two black males in her company stayed on the scene and, in fact, had to be directed to leave. Lastly, and most importantly, there were no furtive attempts at concealment, no fleeing of the scene and no other activity which would remove the Appellant’s behavior from that of an ordinary citizen to that of a suspected criminal warranting a Terry “frisk”.

Based on information received and corroborated as to location and description, the police were permitted to “stop” (for investigative purposes) the Appellant briefly for questioning to dispel or confirm her connection with criminal activity. Terry, supra. Officer Dulany had embarked on such an investigative course — questioning the Appellant. His inquiry was curtailed, however, by Officer Barnette’s pat-down and search of the inside of the Appellant’s jacket. See note 2, supra.

Given the particular facts here, Officer Barnette’s conduct constituted an invasion of S.J.’s person beyond the permissible “frisk” of the outer clothing of a suspect’s apparel under Terry, supra, not only because there was no information obtained by the police giving them reasonable cause to believe that criminal activity was afoot, but, viewed in light of the antecedent deficiency of the “stop”, the subsequent “frisk” was tainted as well. Terry, supra, 392 U.S. at 29-30, 88 S.Ct. at 1884.

For the reasons herein stated, we find the court below erred in refusing to grant the Appellant’s motion to suppress.

Order reversed.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968), provides that:
      ... an officer [who] is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, [this entitles the officer] ... to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [Emphasis added]
      Officer Dulany testified that he never "patted-down” SJ. before Officer Barnette arrived and ”reache[d] into the ... inside jacket pocket” of S.J. and removed a plastic bag containing vials of cocaine. N.T. 16. We have no idea what Officer Barnette felt during her pat-down of the Appellant, which caused her to reach into the Appellant’s jacket, since Officer Barnette did not appear at the suppression hearing to give her version of the events in question.
      Although drug investigations are incredibly rich in diversity and are prone to violence, Officer Dulany received no information over the radio that S.J. had a weapon, nor was he ”threaten[ed]” in any way by S.J. N.T. 14-15. Further, Officer Dulaney did not cite any conduct assignable to the Appellant which would prompt him reasonably to believe that his safety or that of his partner or the public was at risk.
      For example, the Appellant had been directed to face the police cruiser, spread her legs and place her hands on the trunk of the vehicle. Her two male companions had been directed to leave the area and there were no other pedestrians at the site at the time of the ''stop”. As such, the facts did not, objectively viewed, reveal a situation either establishing the presence of criminal activity or the need to “pat-down” the Appellant as a protective measure for the safety of the officers or others in the vicinity. Therefore, the search was violative of Terry, supra.


author: WIEAND, Judge.

text:
    624 A.2d 1078
    In re ESTATE OF Werner L. HESS, Deceased. Appeal of Phyllis B. HESS.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1993.
    Filed April 28, 1993.

      R. Stephen Shibla, Harrisburg, for appellant.
    David E. Lehman, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   WIEAND, Judge.

Werner L. Hess was killed in an automobile accident on November 9, 1989. He died testate, and letters testamentary were duly issued to Commonwealth National Bank. Phyllis Braverman Hess, the decedent’s widow, filed an election to take against her deceased husband’s will. This was followed by a petition filed by the executor of the decedent’s estate and the beneficiaries under his will to vacate the widow’s election because of a post-nuptial agreement. The widow answered that the post-nuptial agreement was unenforceable because there had been a failure of consideration. After discovery had been completed, both parties moved for summary judgment. The trial court denied the widow’s petition, granted the petition filed by the executor and beneficiaries, and held that the widow’s right to take against the will was barred by the terms of the post-nuptial agreement. The widow has appealed.

Werner Hess and his wife, Phyllis, were married on November 9, 1974. Both had been married before and had had children by their prior marriages. In order to preserve their separate estates for their children, the parties entered a post-nuptial agreement, by the terms of which Mrs. Hess relinquished her statutory right of inheritance, including the right to take against her husband’s will. Werner, in addition to waiving statutory rights in his -wife’s estate, agreed to make various payments to or on behalf of his wife and, further, to purchase and maintain a life insurance policy, -with a minimum death benefit of fifty thousand ($50,000.00) dollars, in which his wife was named beneficiary. Phyllis signed the agreement contrary to the advice of her counsel.

Pursuant thereto, Werner purchased from Fidelity Life Insurance Company a policy of life insurance in the face amount of fifty thousand ($50,000.00) dollars and named his wife as beneficiary. This policy remained in effect until on or about March 21, 1988. On that date, Werner replaced the Fidelity policy with a new one which he purchased from New England Mutual Life Insurance Company. This came about at the urging of F.M. Richard Simons, an insurance agent, who represented that he could obtain for Werner the same amount of coverage for a lower premium. After Werner’s death, New England Mutual Life denied liability and asserted that it was entitled to rescind the policy because the state of Werner’s physical and mental health had been misrepresented in the application.

The widow did not pursue a claim against New England Mutual Life. Instead, she elected to take against her deceased husband’s will. The executor and beneficiaries have resisted this claim. They have urged her to bring an action contesting New England’s attempt to rescind the policy and have offered to pay to her the amount of fifty thousand ($50,000.00) dollars which she would have received if the policy had been paid.

A motion for summary judgment may be granted if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). See: Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982).

In Harrison Estate, 456 Pa. 356, 319 A.2d 5 (1974), the Supreme Court held that when a party to an antenuptial agreement fails to perform the promises agreed upon, there is a failure of consideration, and the surviving spouse need not accept a substituted performance by the executor but may assert her claims against the decedent’s estate. The Court reasoned:

An antenuptial agreement is more than an ordinary contract. As we noted in Hillegass Estate, 431 Pa. 144, 149, 244 A.2d 672, 675 (1968): ■
Antenuptial agreements are instruments designed and executed for a particular purpose — to alter or extinguish a spouse’s statutory rights of inheritance. It is true that by a valid antenuptial agreement either party may waive his or her right to the family exemption. Nevertheless, our courts will carefully examine the agreement to make certain that it reflects “the highest degree of good faith.” See Hillegass Estate, supra; Gelb Estate, 425 Pa. 117, 228 A.2d 367 (1967). Before the release of such significant rights may be enforced, the bargain on which the release is based must be performed. Here, in the absence of the bargained-for performance — execution of a new will — the surviving spouse retains her [statutory rights].

Id. 456 Pa. at 359, 319 A.2d at 6-7. See also: Levine’s Estate, 383 Pa. 354, 118 A.2d 741 (1955). Compare: In re Estate of Cummings, 493 Pa. 11, 425 A.2d 340 (1981).

The defense of “failure of consideration” has been defined at 8 P.L.E. Contracts § 66 as follows:

When the consideration for a promise wholly fails, the promise is held not judicially enforceable. As stated by Professor Corbin, a failure of the consideration does not mean lack of consideration; nor does it often mean that the promise, now unenforceable, was never a valid contract. It does mean, on the other hand, that a performance for which the promisor bargained has not been rendered; in many cases, though not in all, that failure is a good legal excuse for his refusal to perform his own promise....

In the instant case, if the deceased husband had simply failed to purchase the agreed insurance, everyone would agree that there was a failure of consideration which entitled the appellant-wife to disregard her agreement and take against her deceased husband’s will. In that event, the appellant-wife could not be required to accept a substituted payment of fifty thousand ($50,000.00) dollars by the executor. Similarly, if the husband had obtained a policy of insurance which was avoided by the insurer because of fraudulent misrepresentations made by the insured, almost everyone would agree that there had been a failure of consideration entitling the wife to avoid her agreement to make no claim against her husband’s estate.

In fact, however, it is not now clear whether the policy purchased by the deceased husband from New England Mutual Life is subject to avoidance, under the circumstances of this case, for alleged false information contained in the application. If the policy is not subject to avoidance by the insurer, then the wife-appellant will be unable to meet her burden of showing a failure of consideration for her agreement to waive her statutory rights in and to her deceased husband’s estate. On the other hand, if the insurance company is correct in its claim that it was defrauded and that, therefore, it can avoid the policy, then it would appear that there was a failure of consideration for the wife-appellant’s promise. In that event, she cannot be required to accept substituted performance by the executor of her deceased husband’s estate.

Because this issue cannot be determined finally on the present state of the record, it is apparent that a genuine issue of fact remains. Therefore, the entry of summary judgment was premature and inappropriate. If the validity of New England Mutual Life’s policy is not litigated in a separate action, it may be necessary that it be litigated within the present proceedings. In that event, the burden of proving a failure of consideration will be on the appellant widow. In re Estate of Kester, 486 Pa. 349, 353, 405 A.2d 1244, 1246 (1979). Until the validity of the policy is determined, however, it cannot be said, as a matter of law, that there has been or has not been a failure of consideration.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . There is some evidence that the face amount of the policy had been reduced by sums borrowed by Werner from the insurer.