author: OLSZEWSKI, Judge:

text:
    585 A.2d 19
    William F. McCLURE, Appellee, v. DEERLAND CORPORATION, and Peter Borowski and Marilyn Borowski, h/w and Robert Blom and Johanna Blom, h/w, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1990.
    Filed Jan. 8, 1991.

      Charles F. Smith, Norristown, for appellants.
    Lindley M. Cowperthwait, Jr., Norristown, for appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   OLSZEWSKI, Judge:

In the present case, appellants appeal from the order of the Court of Common Pleas of Montgomery County, sustaining appellee’s preliminary objections to appellants’ counterclaims. The roots of this action lie in the law of indemnification and its proper construction in the Commonwealth. Based upon our review of the briefs and the trial court record, wé must affirm.

The factual and procedural history of the instant case span an eleven-year period. On or about April 16, 1979, an agreement for sale was executed by appellee William McClure and Thomas Rorer, as owners of Asbestos Insulating Company, and Deerland Corporation, as assignee of Peter Borowski and Robert Blom, for Deerland Corporation’s purchase of Asbestos Insulating Company.

On August 8, 1979, an addendum to the agreement for sale was executed by McClure, Rorer, and Deerland Corporation, as assignee of Borowski and Blom. An installment note was executed by Deerland Corporation, Marilyn Borowski, Peter Borowski, Johanna Blom and Robert Blom (hereinafter referred to as “Deerland, et al.”) (R.R. 9a). The installment note, in principal amount of $213,000.00 was given as partial payment for the purchase of 100% of the issued and outstanding common stock of Asbestos Insulating Company. On March 31, 1987, an addendum to the installment note was executed by Deerland, et al. (R.R. 11a).

The August 8, 1979 addendum to sale contained an indemnification clause which is the focus of the instant appeal. The language of the clause was as follows:

12.
(a) Sellers shall indemnify the buyer from all losses which are not exhibited in said financial statement in excess of $5,000.00. Such additional liabilities include, but are not limited to, all claims arising from creditors, suppliers, taxing authorities, employees and stockholders.
(b) As to contractual claims by customers relating to improper workmanship or defects in materials, the sellers shall indemnify the buyer against all losses, in the aggregate, which exceed Five Thousand Dollars that occur within two years after final settlement. Indemnity for all other claims shall be covered under Paragraph 12(a).

(R.R. 26a-27a).

The financial statement referred to in Paragraph 12(a) is a balance sheet, dated July 31, 1979, listing the assets, liabilities and equity of Asbestos Insulating Company. (R.R. 30a).

On March 30,1989, appellee McClure instituted suit in the Court of Common Pleas of Montgomery County against Deerland, et al. (R.R. 4a). McClure brought the action seeking to accelerate the obligation of Deerland, et al. under the terms of the March 31, 1987 addendum to the installment note. In response, on May 18, 1989, Deerland, et al. filed a three-count counterclaim against McClure.

In Count I of their counterclaim, Deerland, et al., appellants, requested that a decree of specific performance be entered directing that McClure: reimburse appellants for all funds expended in connection with suits filed against Asbestos Insulating Company; timely pay all future bills when they become due, in the defense of any actions against appellants as a result of the actions of Asbestos Insulating Company; and promptly pay any judgments entered against appellants as a result of the actions of Asbestos Insulating Company. In Counts II and III, appellants allege that they had already incurred expenses well in excess of $5,000.00, and that attorney’s fees in a multiplicity of asbestos suits exceeded $21,500.00. Appellants also alleged that McClure had misrepresented the true value of his company’s stock.

On June 6, 1989, appellee filed preliminary objections to all three counts of appellants’ counterclaim. On December 12, 1989, the Honorable Richard Lowe entered an order sustaining McClure’s preliminary objections. Judge Lowe’s order dismissed all counts of appellants’ counterclaim.

Deerland, et al. filed a petition for reconsideration and clarification of order dismissing Counts I, II, and III on January 8, 1990. On January 9, 1990, Judge Lowe issued an order modifying his earlier order dated December 12, 1989. The second order sustained McClure’s preliminary objections to Count I, II, and III of appellants’ counterclaim. However, Deerland, et al. were granted leave to amend with more specificity Counts II and III. (R.R. 54a). Appellants subsequently filed an amended counterclaim for Counts II and III, and now appeal the dismissal of Count I.

It is important to emphasize that Deerland, et al. have not suffered or paid a judgment, nor settled any of the actions from which their claims of indemnification arise. Furthermore, appellants’ counterclaim lists a number of actions filed against Deerland Corporation which are alleged to have been the result of actions of Asbestos Insulating Company, but no further explanation of the basis of those suits is presented in appellants’ brief.

On appeal, appellants specifically argue that the lower court improperly sustained McClure’s preliminary objections to Count I of appellants’ counterclaim. In addition, appellants argue that they are entitled to a decree of specific performance directing that appellee McClure: reimburse appellants for all funds expended in connection with suits filed against Asbestos Insulating Company or against appellants as a result of the acts of Asbestos Insulating Company; timely pay all future bills when they become due in defense of any action against appellants as a result of the acts of Asbestos Insulating Company; and, promptly pay any judgments entered against appellants as a result of the acts or omissions of Asbestos Insulating Company. According to appellants, by sustaining McClure’s preliminary objections, the lower court has precluded Deerland, et al. from litigating these issues.

In response, appellee argues that although claims for counsel fees and expenses may follow a claim for indemnification under certain circumstances, the indemnitee must be able to establish the underlying right to indemnification. Such a right includes the legal issue of the scope of the indemnification agreement; the nature of the underlying claim; its coverage by the indemnification agreement; the reasonableness of the alleged expenses; and, where the underlying action is settled rather than resolved by payment of a judgment, the validity of the underlying claim and the reasonableness of the settlement. Martinique Shoes Inc. v. New York Progressive Wood Heel Company, 207 Pa.Super. 404, 217 A.2d 781 (1966). Thus, appellee argues that since none of the foregoing matters are known or could be known, appellants’ claim for indemnification is premature. Furthermore, according to appellee, appellants’ claim is not cognizable in equity. Instead, if there is a claim at all, it is only cognizable in law in a suit for damages. We must agree with appellee’s argument.

Careful review of the record reveals that Judge Lowe correctly ruled that appellants’ claims for indemnification are premature until they make payment of an underlying claim by settlement or judgment, because counsel fees and expenses cannot be determined to be either necessary or reasonable until the right to indemnification arises by payment of a judgment or settlement. Here, appellants assert that the ruling of the lower court precludes them from litigating their rights to indemnification. (Brief for appellants at 9, 14). There is no authority in support of their position.

Claims for indemnification arise only when the party seeking indemnity has made a payment on the underlying claim. Appellants’ claims are premature. Furthermore, the appropriateness and reasonableness of the counsel fees and costs allegedly incurred to date cannot be determined until the underlying actions are resolved.

In effect, appellants challenge a central principle of law: “It is clear that before the right of indemnification arises, the indemnitor must in fact pay damages to a third party. Any action for indemnification before such payment, as in the present case, is premature.” F.J. Schindler Equipment Company v. Raymond Company, 274 Pa.Super. 530, 532, 418 A.2d 533, 534 (1980). The Schindler Court also stated the corollary to the preceding rule of law: “Additionally, it may be that the appellant will prevail in the trespass action, in which case appellee will have no duty to indemnify plaintiff.” Id.

In Schindler, appellant argued that while the right of an indemnitee to obtain a recovery from an indemnitor does not arise until the indemnitee has sustained a loss attributable to the indemnitor, indemnitee still has a right to assert a claim before it has actually paid a judgment or settlement. This Honorable Court clearly found appellant’s argument to be questionable.

Under Pennsylvania law, actual payment, and not just a verdict or judgment, is required. Beary v. Container General Corporation, 390 Pa.Super. 53, 59, 568 A.2d 190, 193 (1989). Because the right to indemnification does not arise until payment is made, the party seeking indemnity is not prejudiced by being denied the pursuit of any claim prior to that time. National Liberty Life Insurance Company v. Kling Partnership, 350 Pa.Super. 524, 504 A.2d 1273 (1986). Thus, contrary to the assertions of appellants in the case at bar, they have neither a matured right to indemnification, nor a justifiable claim of prejudice.

We find further support for the lower court decision in the instant case by considering what must be proven to establish a right to indemnification. If an underlying case proceeds to trial, verdict, judgment, and payment, the party seeking indemnification must establish that the claim is within the coverage of the agreement, and that any counsel fees were reasonable. If the case is resolved by settlement, the party must also establish the reasonableness of the settlement and that the underlying claim was indeed valid against it. Martinique Shoes, Inc. v. New York Progressive Wood Heel Company, 207 Pa.Super. 404, 217 A.2d 781 (1966).

In the instant case, the underlying actions are not resolved or settled, and therefore, it is impossible to determine the basis of the claims, and whether they are within the scope of the indemnity clause. If, within either Paragraph (a) or Paragraph (b) of the indemnity provision, it would remain to be determined whether some or all claims are within the paragraph which purports to be continuing for all time [a], or the one which is valid only for claims made within two years of settlement on the agreement [b]. Until the underlying actions are resolved and judgments or settlements paid, it is also impossible to determine the reasonableness and appropriateness of any settlement, or the payment of counsel fees and costs. Under current law, the mere expenditure of counsel fees does not constitute the accrual of a cause of action for indemnification.

Furthermore, if and when appellants’ cause of action accrues, their remedy is an action at law for damages, rather than an action in equity. Under Pennsylvania law, a claim for recovery under an indemnification agreement is an action for breach of contract over which equity lacks jurisdiction. Allegheny Plastics, Inc. v. Stuyvesant Insurance Company, 414 Pa. 381, 200 A.2d 775 (1964). Any such action must be certified to the law side of the court.

Appellants cite the case of United Bonding Insurance Company v. Stein, 273 F.Supp. 929 (E.D.Pa.1967), for the proposition that agreements to indemnify may be enforced specifically. A careful reading of United Bonding reveals that it did not involve an ultimate right to indemnification, but rather a then-existing right to require a reserve for claims to be immediately posted and held as collateral. The United Bonding contract was not a contract to indemnify against actual loss, and is therefore distinguishable from the case at bar.

In conclusion, we find that appellants have no current right to indemnification. Moreover, if such a right does arise in the future, the cause of action must be'for damages and not for specific performance. Order affirmed.

      . Before proceeding, we note that in allowing the instant appeal, we have applied the flexible standard of Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), which held: "Certain orders which have not put a litigant literally out of court or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.” Id. 459 A.2d at 1258-1259. In the case at bar, Count I of the counterclaim seeks specific performance of an indemnification clause. The order of January 9, 1990 effectively put appellant out of court indefinitely until all underlying claims are resolved. We therefore proceed to analyze the case on its merits.

      . Eg., as penalty for dilatory, obdurate or vexatious conduct of the opponent, pursuant to 42 Pa.C.S.A. § 2503(6), (7), (9). Such taxable costs are generally incident only to a final judgment. 25 Standard Pa.Practice 2d § 127:3.


source: Caselaw Access Project

license: Public Domain

text:
    585 A.2d 24
    Harry J. BOOTH, Appellant, v. McDONNELL DOUGLAS TRUCK SERVICES, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1990.
    Filed Jan. 14, 1991.

      Roger J. Harrington, Philadelphia, for appellant.
    John M. Elliott, Philadelphia, for appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   OLSZEWSKI, Judge:

Presented herein is an appeal from an order of the Court of Common Pleas of Philadelphia County granting the motion of McDonnell Douglas Truck Services, Inc. (MDTS), defendant below, for partial summary judgment. The trial court dismissed three counts of Harry Booth’s complaint against MDTS.

The present dispute arose out of an employment relationship between Booth and MDTS whereby Booth served as a National Account Executive for MDTS. Booth essentially provided customer contact for MDTS for large accounts which leased commercial truck fleets from MDTS. In 1984, a dispute arose between Booth and the management of MDTS as to the amount of commissions due and owing Booth as a result of his services. In January 1985, Booth was instructed by MDTS to no longer contact any MDTS customers. On February 6, 1985, Booth was terminated by MDTS.

Booth filed a complaint against MDTS alleging, in essence: (I) MDTS still owes Booth a substantial balance of the commissions earned prior to his termination; (II) Booth and MDTS had contracted for a year’s employment, and as a consequence, Booth is entitled to a commission for all renewals of the accounts he handled occurring in 1985; (III) as Booth and MDTS had contracted for a year’s employment, Booth is entitled to the balance of his 1985 salary; (IV) MDTS’s termination of Booth violates public policy and/or was done with the specific intent to harm Booth, giving rise to a cause of action for wrongful discharge; and (V) MDTS improperly set off amounts from Booth’s advance account against the portion of the commissions MDTS paid Booth.

Booth’s action survived preliminary objections by MDTS and a prior motion for summary judgment. Following our Supreme Court’s opinion in Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), MDTS moved for partial summary judgment seeking dismissal of counts II through IV of Booth’s complaint, relating to the breach of the alleged yearly employment contract and wrongful discharge. The motion was granted by the trial court, and an order dismissing those counts was entered on June 7, 1990. This timely appeal followed.

Booth alleges three errors by the trial court. First, Booth claims that there was a disputed issue of material fact as to the existence of a contract for a yearly term of employment which must be submitted to a jury, rendering summary judgment as to counts II and III improper. Booth also contends that his termination by MDTS violated public policy, because MDTS discharged Booth to avoid paying Booth the amount of commissions Booth believes is owed him. Alternatively, Booth argues that the termination was done with specific intent to harm, as it was done to prevent payment of those commissions. Finding no merit to these allegations of error, we affirm.

I.

Booth appeals an order dismissing three counts of a five-count complaint. As a general matter, an order dismissing some, but not all, counts of a multi-count complaint is considered interlocutory and so not appealable. Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983) (citations omitted). Exceptions do exist:

Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed____ The plaintiff is “out of court” with respect thereto____ This is to be distinguished from the situation in which separate counts have been used to state alternate theories of recovery on the same cause of action.

Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 79-83, 500 A.2d 163, 166-167 (1985) (citations omitted). The order at issue here precludes Booth from pursuing his cause of action for breach of the employment contract he alleges existed for 1985, or in the alternative for wrongful discharge. The remaining counts address Booth’s claims for breach of the employment contract in 1984. The dismissed counts envision a recovery for prospective damages Booth suffered when he was terminated. The remaining counts envision a recovery for commissions Booth claims have been earned but remain unpaid by MDTS. The dismissed counts are based on a separate cause of action from the remaining counts. As stated by this Court in Praisner:

The appealability of the summary judgments entered in this case becomes readily apparent if we understand the basis upon which separate causes of action may be joined in the same complaint. Pa.R.C.P. 1044(a) permits, but does not require, the joinder of causes of action which arise out of the same transaction or occurrence or series of transactions or occurrences. If appellant had not joined his ... causes of action in one complaint but had used ... separate complaints ... there could be no doubt about the appealability of judgments entered against him.

Praisner, supra, 313 Pa.Superior Ct. at 339, 459 A.2d at 1259 (footnote omitted). Accordingly, as it dismisses causes of action separate from those that remain, we hold the order granting partial summary judgment to possess sufficient aspects of finality to be properly appealable.

II.

We now turn to the order in question, noting that the burden on a party seeking summary judgment is heavy indeed. Summary judgment is only proper where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b), 42 Pa.C.S.A. The movant must demonstrate that no material factual issues exist to secure summary judgment. Thomp son Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-206, 412 A.2d 466, 468-469 (1979). An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences therefrom. Pennsylvania Gas & Water, Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 297, 467 A.2d 330, 333 (1983) (citation omitted). All doubts as to the existence of a genuine issue of material fact must be resolved against the movant, as summary judgment is proper only in the clearest of cases. Thompson Coal, supra at 202-206, 412 A.2d at 468-469. Still, a trial court’s grant of summary judgment will be reversed only for an error of law or a clear abuse of discretion. Incollingo v. Maurer, 394 Pa.Super. 352, 362, 575 A.2d 939, 944 (1990) (citations omitted). With these principles in mind, we examine Booth’s arguments.

III.

The dismissal of counts II and III of Booth’s complaint turned upon the trial court’s determination that, as a matter of law, Booth could not prove the existence of an employment contract of a year’s duration. We agree. Booth’s deposition indicates that he believed that his employment was on a year-to-year basis. (Booth Deposition, 1/30/87 [B.D.] at 53.) Booth based this belief upon the following facts: the position carried an annual salary and he would be, and was, evaluated annually (B.D. at 53-54.) Booth also received a memorandum in 1981 describing benefits on an annual basis. Nonetheless, Booth admitted that he was aware that he would continue in MDTS’s employ “[a]s long as they felt that I was doing a satisfactory job.” (B.D. at 54.) Further, Booth believed he was free to leave MDTS at any time:

Q. ... Harry could say, T don’t like this company and I’m leaving?’
A. Yes.

(B.D. at 57.) We agree with the trial court that it is clear that Booth understood his employment to be terminable at-will, despite his protestations to the contrary.

Booth argues that he is entitled to a jury determination whether the evaluations, salary, and memo give rise to an implied yearly term of employment, relying on Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987). It is clear that the legal presumption that employment is at-will can be rebutted only by clear evidence that the parties intended a definite term of employment. DiBonaventura v. Consolidated Rail Corp., 372 Pa.Super. 420, 424-425, 539 A.2d 865, 868 (1988). No such evidence was presented here. Salary computed per a specific time period, such as annually, does not evidence an intent that the contract is for that period. Tishock v. Tohickon Valley Joint School Bd., 181 Pa.Super. 278, 280-281, 124 A.2d 148, 149 (1956). It would be inconsistent to give the 1981 memorandum describing benefits more weight than the description of Booth’s salary. As the trial court aptly stated: “It is common knowledge that employees throughout industry and businesses are evaluated annually and that such practices alone could not support a finding of a definite term of one year.” (Trial court opinion at 4). Were such evidence sufficient to overcome the presumption of at-will employment, there would be nothing left of it.

Booth’s reliance on Greene is misplaced; a party is entitled to a jury determination “unless it is so clear that reasonable minds could not possibly differ.” Greene, supra, 363 Pa.Superior Ct. at 555, 526 A.2d at 1202. As MDTS states, to adopt Booth’s position would mean “the summary judgment procedure ... can never be used in a case in which a plaintiff alleges existence of a contract of employment for a specific and definite time.” (Appellee’s brief at 10.) Such is not Pennsylvania law. See, among others, Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986); Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986); Betts v. Stroehmann Brothers, 355 Pa.Super. 195, 512 A.2d 1280 (1986) [all cases where the court, rather than the jury, decided this issue].

As no contract of employment for the calendar year 1985 between Booth and MDTS has been shown, summary judgment as to counts II and III was proper.

IV.

Booth’s complaint alleged an alternative basis for recovery in count IV, wrongful termination of at-will employment. As we agree that Booth’s employment with MDTS was at-will, we must examine whether a cause of action for wrongful discharge will lie under Pennsylvania law due to MDTS’s termination of Booth’s employment. It is clear that where employment is at-will, the relationship can be ended by either party for “any reason or no reason.” Geary v. United States Steel, 456 Pa. 171, 174, 319 A.2d 174, 176 (1974). Nonetheless, if the termination of an employee violates a clear mandate of public policy, or is done with the specific intent to harm the employee, a cause of action will lie. Id. Booth claims that his termination by MDTS fits both or either exception. We disagree.

The public policy claimed to have been violated must go to the heart of a citizen’s rights, duties, and responsibilities, or the discharge is not wrongful. McGonagle v. Union Fidelity Corp., 383 Pa.Super. 223, 237, 556 A.2d 878, 885 (1989) alloc. denied, 575 A.2d 115 (1990). An employer must intrude into an area of the employee’s life in which the employer has no legitimate interest for the discharge to be actionable. Geary, supra, 456 Pa. at 184, 319 A.2d at 180.

Booth presents a two-fold public policy argument which can be summarized as follows: The Pennsylvania Constitution contains clauses prohibiting laws which impair the obligations of contracts (citing Pa.Const. Art. I § 17). The Wage Payment and Collection Law provides statutory protection to the compensation due employees under their contract with the employer (citing 43 P.S. § 260.1 et seq.). Clearly, public policy protects contract rights; as MDTS discharged Booth to prevent him from obtaining his rights under the contract, public policy has been violated. (Appellant’s brief at 25-34.)

First, we note that no law has been enacted which impairs Booth’s contract rights. This is a dispute between private parties; as no allegation of state action has been made, the constitutional provision cited by Booth does not apply. Further, while the statute cited by Booth applies to protect the commissions earned by Booth prior to his discharge, Booth has not told us how his discharge prevents him from enforcing this contract. In point of fact, the two counts remaining in the case are proof that Booth is quite able to pursue his contractual cause of action for the commissions he claims are due him. We can agree that individuals have a public policy right to enforce their contracts. We do not understand how such a right is infringed by Booth’s discharge by MDTS.

MDTS disputes the amount of commissions owed Booth; the compensation due an employee is clearly an area where the employer has a legitimate interest, and we find no violation of public policy here. Booth asks: “[h]ow can public policy permit the employer to fire the employee for insisting on pay as promised?” (Appellant’s brief at 34.) It is sufficient to reply that the law allows an employer to discharge an at-will employee for any reason or no reason at all. MDTS’s actions may be regrettable; they are not actionable.

Alternatively, Booth argues that MDTS terminated him with a specific intent to harm him, thereby giving rise to a cause of action for wrongful discharge, citing Tourville v. Inter-Ocean Insurance Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), alloc. denied, 514 Pa. 619, 521 A.2d 933 (1987), as authority that this exception to at-will employment rule exists. MDTS responds by arguing that no such action will lie under Pennsylvania law. We agree that a termination by an employer with the specific intent to harm the employee gives rise to a cause of action for wrongful discharge; but we hold that Booth has not made out a case of termination with specific intent to harm.

The substance of Booth’s argument is that MDTS terminated him so as to prevent him from receiving the commissions he claims are due and owing. Booth conveniently overlooks the fact that the amount of the commissions is disputed by MDTS. Viewed from MDTS’s side of the action, Booth was terminated for insisting on receiving more than was owed him.

Booth cites Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 543 A.2d 1092 (1988), as authority that termination to prevent the employee from receiving economic benefits is actionable. We find it to be distinguishable. Mudd allowed a cause of action for wrongful discharge where plaintiff alleged that the firing was done to prevent her pension benefits from vesting. In Mudd there was no question that plaintiff would be entitled to the pension benefits. Here, the amount which Booth claims is due is disputed. There is a substantial question as to the economic benefit due Booth, rendering Mudd inapposite.

Again, we fail to see how the discharge of Booth by MDTS prevents him from attaining what he claims is due him. The remaining counts of his complaint will be heard as to whether or not Booth will recover anything. The termination of Booth by MDTS in no way prevents him from maintaining that action. At most, Booth can claim that his termination by MDTS financially harms him because he will no longer earn any commissions or salary from MDTS. That type of harm is not actionable.

To adopt Booth’s position would mean that any time an employee is discharged due to a dispute over compensation due him, the employer would be liable because it asserted its position. It is true that Booth has a right to attempt to enforce the contract as he sees it. It is just as true that MDTS has right to resist what it views to be overreaching by Booth. MDTS has another right: to discharge Booth, an at-will employee, for no reason or any reason. We refuse to hold that an employer who exercises that right because of a dispute over compensation due the employee is liable for wrongful discharge.

Conclusion

In summary, we find that the trial court properly decided that Booth has failed to rebut the presumption of at-will employment to show a contract of a year’s duration. Not all cases require a jury determination of this issue. The trial court properly dismissed counts II and III of Booth’s complaint. Further, Booth has failed to demonstrate that MDTS terminated him in violation of public policy or with a specific intent to harm him. Therefore, the dismissal of count IV of Booth’s complaint was also proper.

Order affirmed.

      . We note that Booth’s brief violates Pa.R.A.P. 2131 by constant references to MDTS as the appellee. Further, Booth’s statement of the case contains argument. MDTS’ position is variously characterized as "bogus," "completely false,” and a “complete fabrication.” This is a violation of Pa.R.A.P. 2117(b). This Court does not condone violations of its procedural rules. Nonetheless, in the interests of justice we will not quash this appeal pursuant to Pa.R.A.P. 2101, as is our prerogative under Pa.R.A.P. 105.

      . We recognize that the difference between separate causes of action and alternative theories of recovery on the same cause of action is often indistinct. We do not mean to imply that separate counts of a complaint must contemplate recovery of different damages to constitute separate causes of action. Nonetheless, the fact that the counts in the complaint at issue here do address separate items of damages is an important factor in the determination.

      . Question by counsel for MDTS. Answer by Booth.

      . We note that even were we to accept Booth’s contention that a year-to-year contract existed, he has pointed us to no indication that such a contract was renewed for the year 1985. In fact, this dispute, which arose in 1984, would seem to be a clear indicator that MDTS would not renew Booth's contract if one ever existed.


author: WIEAND, Judge: MONTEMURO, Judge,

text:
    585 A.2d 29
    Helen M. GRIMES, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Filed Jan. 14, 1991.

      Charles A. Bierbach, Huntingdon, for appellant.
    Charles P. Wasovich, Altoona, for appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   WIEAND, Judge:

On or about March 19,1986, Prudential Insurance Company issued a policy of insurance in the amount of twenty-five thousand ($25,000) dollars on the life of Pauline Grimes. Named as beneficiary was Helen M. Grimes, the sister of the insured. Pauline Grimes died on March 18, 1987, and her sister made claim for the policy proceeds. After investigation, Prudential denied the claim on grounds that the insured had materially misrepresented her health and medical history. The beneficiary then filed suit. After discovery had been completed, Prudential moved for summary judgment. The trial court concluded that the insured, knowingly and in bad faith, had withheld from Prudential material information regarding a fatty infiltration of the liver and diagnostic testing and treatment for hypertension. Therefore, the court entered summary judgment for the insurer. This appeal followed.

The law applicable to motions for summary judgment was set forth in Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11 (1988), allocatur denied, 520 Pa. 570, 549 A.2d 131 (1988), as follows:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insur ance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982) . In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983) ; Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Id. at 273-274, 538 A.2d at 13, quoting Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984).

The Pennsylvania Supreme Court has established the law pertaining to an insurer’s right to avoid a policy of life insurance for fraudulent information contained in the application by the following language:

In order to avoid the policy sued upon, the burden [is] upon the defendant to establish that the statements made by the insured in the application were material to the risk and were falsely and fraudulently made by the insured: Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 186 A. 133 (1936)____ Inquiries in applications for life insurance as to prior medical attendance and hospitalization are material to the risk and fraudulent answers thereto must permit the insurer to avoid the policy, not only because of a failure to report the exact nature of the previous illness, but also because of a failure to furnish information from which the insurer could protect itself through further investigations. Reeder v. Metropolitan Life Ins. Co., 340 Pa. 503, 17 A.2d 879 (1941); Prevete v. Metropolitan Life Ins. Co., 343 Pa. 365, 22 A.2d 691 (1941).

Shafer v. J. Hancock Mutual Life Ins. Co., 410 Pa. 394, 398-399, 189 A.2d 234, 236 (1963). See also: Lynch v. Metropolitan Life Ins. Co., 427 Pa. 418, 235 A.2d 406 (1967); Schleifer v. Nationwide Life Ins. Co., 421 Pa. 359, 219 A.2d 692 (1966); Piccinini v. Teachers Protective Mutual Life Ins. Co., 316 Pa.Super. 519, 528-529, 463 A.2d 1017, 1023-1024 (1983).

Ordinarily, whether a misstatement of fact was made in bad faith is an issue of fact for the jury. Lynch v. Metropolitan Life Ins. Co., supra; Schleifer v. Nationwide Life Ins. Co., supra; Evans v. Penn Mutual Life Ins. Co., 322 Pa. 547, 555, 186 A. 133, 139 (1936); Piccinini v. Teachers Protective Mutual Life Ins. Co., supra 316 Pa.Super. at 530, 463 A.2d at 1024, citing Baldwin v. Prudential Ins. Co. of America, 215 Pa.Super. 434, 258 A.2d 660 (1969). However,

where it is established by uncontradicted documentary evidence that the insured has consulted physicians so frequently, or undergone medical or surgical treatment so recently, or of such a serious nature, that a person of ordinary intelligence could not have forgotten these incidents in answering a direct and pointed question in an application for insurance, bad faith may be inferred as a matter of law if the insured denies in his answer that any physician has been consulted, or any medical or surgical treatment has been received during the period of inquiry.
Freedman v. Mutual Life Insurance Company of New York, 342 Pa. 404, 409, 21 A.2d 81, 84 (1941); quoted in McCloskey v. New York Life Insurance Company, supra 292 Pa.Super. [1,] 6-7, 436 A.2d [690,] 692 [(1981)].

Piccinini v. Teachers Protective Mutual Life Ins. Co., supra 316 Pa.Super. at 530, 463 A.2d at 1024.

In the instant case, it is clear that the applicant failed to inform Prudential fully regarding her medical history. The information withheld, moreover, was material to the risk. See: Piccinini v. Teachers Protective Mutual Life Ins. Co., supra at 529, 463 A.2d at 1024. In order for the insurer to avoid liability, however, it must also appear that the failure to disclose was fraudulent.

To show bad faith, Prudential relied upon the deposition testimony of Dr. James E. Savory, who had been the insured’s physician. As a general rule, summary judgment may not be granted on the basis of oral testimony offered on behalf of the moving party. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). This principle was more recently expressed in Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 260 A.2d 785 (1970), where the Supreme Court articulated the rule as follows:

[I]t has long been the rule in Pennsylvania that where the testimony of the party having the burden of proof is oral, the credibility of that testimony is always for the jury: Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966); Exner v. Safeco Ins. Co. of America, 402 Pa. 473, 167 A.2d 703 (1961); Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); and Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). As we stated in Nanty-Glo Borough v. American Surety Co., supra, at 238, [163 A. 523], quoting from Reel v. Elder, 62 Pa. 308, 316 (1869): “However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.”

Id. 436 Pa. at 498-499, 260 A.2d at 787. The credibility of Dr. Savory’s testimony, therefore, is for the jury to determine.

Moreover, a careful review of the record suggests that Dr. Savory’s testimony does not support the trial court’s determination that, as a matter of law, the applicant’s answers were intentionally false because she was “well aware of her condition.” Dr. Savory testified that Pauline Grimes had appeared for office examinations approximately three times per year between February, 1982 and March, 1985 and that he had tried to impress upon her during this period the importance of controlling her blood pressure. He conceded, however, that Pauline Grimes may have experienced difficulty in comprehending the seriousness of her hypertension. Thus, he testified that

throughout my relationship with this lady ... I felt she had difficulty understanding just how serious her problem was. She had trouble just going to work. I’m not sure this lady ever drove a car, she was cared for, in my impression was that she was cared for by her sister most of her life, her sister always brought her to her appointments even though at times she worked just a few blocks from here, her sister had to pick her up from work and bring her over, and I believe that I talked to her about her problems and how serious they were but it’s hard to be sure just how much she understood.

Hypertension is chronic and insidious, but from the patient’s perspective it is usually asymptomatic. Pauline Grimes was last examined by Dr. Savory in March, 1985, a year before she applied for a policy of life insurance from Prudential. At the time of that examination she was told by her doctor that her blood pressure was satisfactory. On her employee physical form, Dr. Savory also recorded that her blood pressure was “normal.” The record does not disclose that Pauline Grimes continued thereafter to take medicine or that she comprehended that she still had a condition of hypertension.

In 1982, 1983 and 1984, the applicant dutifully had appeared three times a year for checkups, but it does not appear unequivocally that she understood that these regular visits were anything more than regular checkups. She discontinued these visits in 1985 and may well have believed that her hypertension had been controlled or alleviated when she applied for insurance in 1986. In view of the fact that the applicant’s appearance for checkups had been at her physician’s request; that the visits had been uneventful and entailed neither dramatic testing nor treatment; that she, herself, had experienced no discomfort and had not, at her instance, consulted or sought treatment; and that her physician, on her last visit, had told her that her blood pressure was satisfactory, it cannot be said as a matter of law that her failure to refer to her hypertension or disclose her office visits between February, 1982, and March, 1985, was intended to deceive the insurance company.

There is no evidence in the record before this Court that Pauline Grimes was ever aware of a fatty infiltration of her liver. Although a slight elevation in liver enzymes was disclosed by diagnostic tests performed in 1982, the patient was told that the test results were normal. Therefore, it cannot be said on the basis of the present record that the applicant fully understood that she was suffering from a liver abnormality or that when she applied for life insurance four years later she intentionally sought to conceal this portion of her medical history from the insurer.

The law is clear that
[m]ere mistakes, inadvertently made, even though of material matters, or the failure to furnish all details asked for, where it appears there is no intention of concealing the truth, does not work a forfeiture, and a forfeiture does not follow where there has been no deliberate intent to deceive, and the known falsity of the answer is not affirmatively shown.

Evans v. Penn Mutual Life Ins. Co., supra 322 Pa. at 553, 186 A. at 143. In this case, it will be for a jury to decide on the basis of all the evidence whether Pauline Grimes answered the questions on the application with knowledge that her responses were false or incomplete or whether the incomplete narration of her medical history was unintentional and inadvertent.

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

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

Although I find that the majority has properly stated the law with regard to an insurer’s right to avoid a policy of life insurance issued on the basis of fraudulent information, I disagree with the majority’s application of those principles. I therefore dissent.

I agree with the majority’s determination that the information provided by Pauline Grimes in her insurance application was false, and that the subject matter was material to the risk assumed by the insurance company. I believe, however, that as a matter of law, we may infer that the statements were made in bad faith.

The majority aptly notes that
where it is established by uncontradicted documentary evidence that the insured has consulted physicians so frequently, or undergone medical or surgical treatment so recently, or of such a serious nature, that a person of ordinary intelligence could not have forgotten these incidents in answering a direct and pointed question in an application for insurance, bad faith may be inferred as a matter of law if the insured denies in his answer that any physician has been consulted, or any medical or surgical treatment has been received during the period of inquiry.

Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 530, 463 A.2d 1017, 1024 (1983).

My review of the deposition testimony of Dr. James E. Savory, Ms. Grimes’ treating physician from 1982 through the time of her death in March, 1987, convinces me that she acted in bad faith in responding to the questions posed by the insurance application. Dr. Savory testified from his medical records that Pauline Grimes suffered from hypertension and that medication had been prescribed for this condition throughout the five year period that Dr. Savory treated her. R.R. at 66a, 80a, 82a, 88a, 90a. In fact, when Pauline Grimes first visited Dr. Savory in February of 1982, she had already been taking blood pressure medication which had been prescribed by another physician. At the time of the February, 1982 visit, Dr. Savory informed Pauline of her blood pressure problem, prescribed medicine to lower the pressure, and recommended that she diet. In addition, on February 2, 1982, within the five years preceding the March, 1986 date on which Pauline Grimes had applied for life insurance, Pauline underwent an electrocardiogram, chest x-ray, liver x-ray, urinalysis, and blood tests. R.R. at 68, 69.

Dr. Savory next saw Pauline three months later, in May of 1982. Her blood pressure was down but her weight had not changed. Dr. Savory’s notes indicated that Pauline had communicated to him that she was working hard on her diet. Four months later, in September, 1982, Pauline again visited Dr. Savory. Her blood pressure had lowered and she had lost 10 pounds on the diet. Dr. Savory continued her on the combined medication/diet program to lower her blood pressure.

Pauline Grimes again visited Dr. Savory in February of 1983, May of 1983, July of 1983, January of 1984, April of 1984, November of 1984, and March of 1985. The purpose of each of these visits was to check Pauline’s blood pressure and weight. Throughout this entire period she continued on the prescribed regimen of medication and diet to reduce her high blood pressure.

Dr. Savory next saw Pauline over one year later, in June of 1986, when she was hospitalized. At the time of her admission, Pauline indicated that she was still taking the medicine for high blood pressure. R.R. at 82, 88.

Contrary to the majority’s reading of the record, the testimony of Dr. Savory indicates unequivocally that Pauline’s visits to him were made for the continued treatment and monitoring of her hypertension.

In March, 1986, one year after her last visit to Dr. Savory, Pauline Grimes answered “no” to the following questions in her insurance application:

17. Has any person named in la or 10, within the last 12 months:
******
b. ... taken medication for high blood pressure. ******
26. Is any person to be covered now being treated or taking medicine for any condition or disease?
******
28. Other than as shown above, in the past 5 years has any person to be covered ...
******
b. had electrocardiograms, x-rays for diagnosis or treatment, or blood, urine, or other medical tests? ******
29. Does any person to be covered now have a known sign of any physical disorder, disease or defect not shown above?

R.R. 23a-24a. Pauline responded “yes” to the following question:

28. ... in the past 5 years has any person to be covered: a. consulted or been attended or examined by any doctor or other practitioner?

R.R. at 24. Although Pauline named Dr. Savory as her treating physician in response to the question which requested the “full details” of the doctor visits, she merely explained the visits as “annual checkup” “ok.” I believe that Pauline’s omission of her lengthy and intensive treatment for her hypertension constituted bad faith, as the “uncontradicted documentary evidence” shows that Pauline Grimes had “consulted physicians so frequently [and] undergone medical ... treatment so recently ... that a person of ordinary intelligence could not have forgotten these incidents in answering a direct and pointed question in an application for insurance.” Piccinini, supra at 530, 463 A.2d at 1024. In further support of my position, I note that Pauline recalled and accurately reported some of her medical history in the insurance application, such as the fact that her gall bladder was removed when she was seventeen years old. Given the 10 visits Pauline made to Dr. Savory during the three year period between 1982 and 1985 for treatment of her high blood pressure, and the fact that she did remember her last checkup with Dr. Savory, I am hard pressed to believe that she did not know her responses on the application were false. I find that the holdings in Freedman v. Mutual Life Insurance Company of New York, 342 Pa. 404, 409, 21 A.2d 81 (1941) and Piccinini, supra, cited by the majority, are controlling.

The majority focuses on whether Dr. Savory’s testimony shows that Pauline fully appreciated the seriousness of her condition. According to my reading of the relevant case-law, this is not the proper inquiry in determining bad faith on the part of the insured. Regardless of whether Pauline comprehended the seriousness of hypertension, she knew that she had the illness, and that she was on medication to alleviate the problem. The insurance application did not inquire only as to serious illnesses, but instead requested the “full details” of any consultations with doctors. Thus, the question is not whether Pauline realized how ill she was; the question is whether at the time she completed her application, she knew she had been treated for the hypertension. I find that Pauline’s failure to report her treatment for high blood pressure constituted bad faith as a matter of law.

For the foregoing reasons, I would affirm the judgment of the trial court.

      . When Prudential denied the claim, it forwarded to Helen Grimes a check refunding the premium, plus interest, and a release. The beneficiary signed the release and returned it, together with the check, to Prudential. This incident did not figure in the trial court’s entry of summary judgment and is not presently before this Court for consideration. With respect thereto, we express no opinion.

      . The pertinent part of the insured’s application appears as follows:

      . The author of the dissenting opinion suggests that we have erred by focusing on whether the applicant perceived her condition to be serious because the application did not request information solely about serious conditions. The relevant issue, in our judgment, is whether the information withheld from the insurance company pertained to a condition or treatment so obviously serious or dramatic that it would necessarily be called to mind by the questions asked in the application. Under the circumstances here present, we conclude that this is an issue for the jury.

      . The record does disclose that Dr. Savory scheduled Pauline Grimes’s visits in order to monitor her blood pressure and, if necessary, to adjust her medication. However, our inquiry is not directed to the physician’s intent. Our inquiry, rather, must focus upon the understanding which Pauline Grimes had of her condition and the reasons for her office visits.

      . The author of the dissent finds significant the contrast between the applicant's failure to report diagnostic testing four years before making application for coverage and her inclusion of a reference to gallbladder surgery performed many years earlier. However, gallbladder surgery is the type of treatment which is perceived as being so dramatic and serious that an ordinary person would not forget to report it when reciting his or her medical history. Diagnostic tests may be performed frequently during a person’s life. In the absence of dramatic treatment, such diagnostic tests may soon be forgotten by the average person. We conclude, therefore, that it cannot be said as a matter of law that the applicant’s failure to report uneventful diagnostic tests was fraudulent and not inadvertent. This, too, will be an issue for the jury.

      . The majority concludes that summary judgment was inappropriate in this case because the summary judgment was granted on the basis of the deposition testimony of Dr. Savory. While it is true that summary judgment will generally not be granted on the basis of oral testimony offered on behalf of the moving party, the record in this case reveals that Dr. Savory's testimony was simply a summarization of his medical records; neither party disputes the accuracy of the records evidencing Pauline’s numerous visits to Dr. Savory. In Piccinini, supra, this Court held that despite the trial court’s finding that the testimony of the insured’s treating physician was not credible, ”[w]e are simply unable to believe that he was not aware that one of the conditions from which he was suffering and for which he sought treatment was arthritis, a common condition, especially when he had received treatment for that condition for so prolonged a period of years." 316 Pa.Super. at 531, 463 A.2d at 1025.

      . I contrast Pauline’s ability to remember the operation performed 25 years earlier with her failure to report her extensive treatment for high blood pressure, not with her failure to report the diagnostic testing.


author: OLSZEWSKI, Judge: FORD ELLIOTT, Judge:

text:
    585 A.2d 36
    COMMONWEALTH of Pennsylvania v. Wesley Alfred JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1990.
    Filed Jan. 15, 1991.

      Leigh P. Narducci, Blue Bell, for appellant.
    Mary M. Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

In this case, appellant appeals from the judgment of sentence of the Court of Common Pleas of Montgomery County, following his conviction for rape and involuntary deviate sexual intercourse. (18 Pa.C.S. §§ 3121, 3123). He primarily alleges ineffective assistance of counsel, and violations of Rule 1100 of the Pennsylvania Rules of Criminal Procedure and 42 Pa.C.S.A. § 9718, regarding mandatory sentencing for offenses against infants. We find no error and must affirm.

The factual and procedural history of the instant case requires close attention. Appellant Jackson was arrested in September, 1988, and charged with raping a four-year-old girl and transmitting gonorrhea to her. Appellant was tried before the Honorable William Nicholas, sitting without a jury, on May 23-24, 1989. At that time, appellant was convicted of rape and involuntary deviate sexual intercourse, as well as indecent assault and statutory rape. (18 Pa.C.S. §§ 3126, 3122). The latter two crimes were considered merged with the crimes sentenced. (Opinion at 1).

Appellant’s counsel at trial was Abraham Hobson, serving as public defender. Mr. Hobson filed a timely motion for a new trial, raising two issues: (1) that the evidence was insufficient; and (2) that the court erred in denying a continuance requested by the defense so that telephone records of Poindexter Brown, a Commonwealth witness, be subpoenaed. Before argument on the motion, Mr. Hobson left the public defender’s office, and was replaced by William English. After consulting with appellant, Mr. English determined that appellant sought to claim ineffective assistance of counsel. Therefore, Mr. English filed a motion for appointment of private counsel to represent appellant at the post-verdict stage and subsequently, if necessary.

On September 27, 1989, Judge Nicholas issued an order appointing Leigh Narducci to represent appellant, and granted leave to file an amended motion for new trial and in arrest of judgment within 45 days. Mr. Narducci proceeded to file additional motions in support of the request for new trial. Allegations included that trial counsel was ineffective for: (1) failing to petition for funds to hire an expert specifically on the issue of the nature and transmission of the disease, gonorrhea; and (2) failing to advise appellant regarding jury trial waiver. The court conducted hearings on the ineffectiveness claims on January 29, and February 26, 1990.

Appellant’s motion for new trial was denied on March 26, 1990. Sentencing occurred on April 23, 1990. The sentence consisted of concurrent sentences of six-to-fifteen years’ imprisonment to date from September 27, 1988. (N.T. Sentencing, at 34). Appellant filed a petition for reconsideration of sentence on April 25, 1990, which was denied on the same date. Pursuant to court order dated May 8, 1990, appellant filed a statement of matters complained of on appeal. (Pa.R.A.P. 1925a).

I.

On appeal, appellant first argues that the trial court erred by not allowing him to hire an expert witness in the area of venereal diseases. He claims that trial counsel was aware of this need, and was also aware of available medical literature and medical opinion to support the expert testimony. (Appellant’s brief, at 6). Our careful review of the record and briefs in the case leads us to disagree with appellant’s claim. We must agree with the Commonwealth that the record is

devoid of any information to support appellant’s position that such an expert would have helped his defense. In fact, the clear import of the testimony at trial and at the post trial hearing is that there is no such expert, that is a qualified expert who could testify as to any known case where gonorrhea was transmitted by other than sexual contact.

(Appellee’s brief, at 2).

The benchmark for establishing ineffective assistance of counsel is whether counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of establishing ineffective assistance rests upon appellant because counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Appellant’s obligation is to demonstrate both that the “omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result.” Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987).

Our initial inquiry in an ineffectiveness claim must always be “whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.” Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989). It must next be determined that the particular course followed by counsel had no reasonable basis designed to effectuate the client’s interest. Id. Finally, it is necessary to establish the precise manner in which counsel’s omission or commission prejudiced appellant. Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether, “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

In making allegations of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective. As our Supreme Court has aptly stated,

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can con-elude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Finally, we note that appellants cannot meet their burden in an ineffectiveness hearing with the bare assertion that the defense might have been handled differently. Commonwealth v. McKenna, 498 Pa. 416, 446 A.2d 1274 (1982).

In light of our narrow scope of review, we find no ineffectiveness in the case at bar. The whole issue of ineffectiveness here hinges on the present state of scientific knowledge of the disease, gonorrhea. Under any of the tests for ineffectiveness mentioned thus far, appellant must state sufficient facts for appellate determination. Instantly, appellant has merely stated theories upon which to base his claim that an expert could be called who would state with certainty that gonorrhea can be transmitted non-sexually. Under the facts of this case, appellant was the victim’s baby-sitter. Appellant, therefore, did not deny contact with the little girl, but merely sexual contact. Both appellant and victim were diagnosed with Neisseria gonorrhea, one of fifty types of the disease.

As thoroughly documented in the record and reviewed in the trial court opinion, the Commonwealth presented the testimony of two separate medical experts. Dr. Evans, a pediatrician, testified that Neisseria gonorrhea is “transmitted through intimate sexual contact—sexual intercourse or other sexual acts.” (N.T. Trial, at 78). On cross-examination, the witness was asked if he had read any confirmed cases where gonorrhea had been contracted through nonsexual acts. He answered in the negative. (N.T. Trial, at 78-79). Furthermore, also on cross-examination, Dr. Evans stated that there was only a remote possibility that the gonorrhea organism would survive long enough outside the body to be transmitted through masturbation. (N.T. Trial, at 99-100).

The Commonwealth also presented the testimony of Dr. Bruce Kleger, Director of the Division of Clinical Microbiology for the Pennsylvania Department of Health Laboratory. Dr. Kleger testified that “Neisseria bacteria is very fragile and won’t live outside the body.” (N.T. Trial, at 103). Dr. Kleger also testified that the incubation period for the bacteria is from two days to one week, and that Neisseria is not a commonly encountered strain of the bacteria. (N.T. Trial, at 123).

Ultimately, Dr. Kleger testified that “With a reasonable degree of certainty, I can say that the victim acquired the strain from Wesley Jackson.” (N.T. Trial, at 113). He based his conclusion on the fact that there was no difference in the strains of the bacteria found in the victim and appellant, and on the fact that Neisseria is not a common strain. (N.T. Trial, at 122). Appellant now relies on a comment in a police report regarding a conversation with a physician from the Center for Disease Control in Atlanta, Georgia, in which the doctor stated that no one could say with absolute certainty that the transmission of gonorrhea is sexual. (N.T. Motion for New Trial, at 50).

Appellant further attempts to bottom his argument on the Merck Manual, treating it as a learned treatise. The Merck Manual states: “Sexual intercourse is the principal mode of transmission, but nonvenereal innoculation is possible, especially in female infants and in children under puberty.” (N.T. Motion for New Trial, at 51). Under Pennsylvania law, and in common usage as well, treatises are systematic expositions in writing including methodical discussion of facts and principles. Learned treatises are highly reliable because they are written for professionals, they are subject to scrutiny and testing by experts in the field, and the writers are unlikely to be partial with regard to any specific litigation. See, e.g., Packel & Poulin, Pa. Evidence § 803.18 (1987); Webster’s New College Dictionary (1980 Ed.).

As demonstrated by examining the relevant page from the manual, presented as Defendant’s Exhibit 2, the Merck Manual is a commercial publication which abstracts scientific data. It is not subject to testing. Appellant does not present any cases which might arguably support his claim. Moreover, Attorney Hobson clearly chose not to bring in his own medical expert, for strategic reasons, at trial. In Mr. Hobson’s own exact words,

And I am aware that reasonable doubt in a case is not all doubt. I remember the charges that the Judges give. So I believe if I were to have brought an expert in this case, the best I could have hoped for that an expert would say, would have said, yes, it is theoretically possible, period. I believe that if the D.A. cross-examined that expert, I believe that the D.A. could have taken what I purported to be a shield and turned it into a semaphore and cut my head off and destroy my case.
And also given my position as a defense lawyer ... and keep in mind that I was trying to win the case ... I believed that if I were going to win the case the way to win it would be to turn the Commonwealth witnesses around, to have them equivocate to try and create on the record some question.
As I say, I believed Doctor Evans, I reviewed the Notes and I believe, on the record, he told this Court and told me everything that my expert would have said. I believe what he said is consistent with what I understood the present medical state is today about gonorrhea, sexual transmission.

(N.T. Motion for New Trial, at 24-25).

Although not directly on point, our Court has ruled on the failure to pursue exculpatory medical evidence in Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990). In Weinder, the Superior Court refused to consider a claim of ineffectiveness based on possible exculpatory evidence only. The Court noted that appellant’s claim was “persuasive in theory, but deficient in fact.” Id. at 1368. The case at bar lacks sufficient factual support for a claim of ineffectiveness. The trial court was correct in concluding that appellant did not meet his burden of proving ineffective assistance of counsel because he has not demonstrated prejudice by his attorney’s actions. (Opinion at 13).

II.

Appellant next alleges a Rule 1100 violation in that he was neither discharged on nominal bail nor was his case tried upon the expiration of 180 days from the date of his incarceration. Pa.Rules Civ.Proc.Rule 1100(a)(2). Contrary to appellant’s claim, we find no Rule 1100 violation. Appellant was brought to trial in a timely manner. It is true that appellant was incarcerated beyond the 180th day, and that he was brought to trial approximately two months after the expiration of the 180th day, but Rule 1100 mandates that the Commonwealth has 365 days in which to bring a criminal defendant to trial. (Opinion at 16-17). Under Rule 1100(e), if a defendant is incarcerated for more than 180 days, he is entitled to release on nominal bail.

Careful review of the record in the instant case reveals that on May 15, 1989, Judge Lowe granted appellant’s motion for nominal bail. Bail was set at $1.00. Appellant was not released, however, because other charges were pending for which he did not post bail. (Opinion, at 17). Furthermore, appellant was tried in a timely manner, within 365 days of the filing of the criminal complaint against him on September 26, 1988. Thus, appellant’s claim regarding Rule 1100 is without merit.

III.

Appellant next argues that the evidence was insufficient to sustain the guilty verdicts. We must disagree. Our Supreme Court, in Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), stated the following test for sufficiency of the evidence:

The reviewing court must determine whether, viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.

Furthermore, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989). The entire trial record must be considered. In the instant case, the record reveals that Judge Nicholas carefully considered all relevant information in determining appellant’s guilt. (N.T. Trial, at 159-166). The verdict was bottomed on the evidence of the gonorrhea infection; the fact that appellant had the opportunity to be alone with the victim; the fact that no one else in the household had tested positive with the disease; and the fact that appellant had attempted to influence the testimony of the child’s father, Poindexter Brown, by trying to get Mr. Brown to state that appellant did not have access to the child. (N.T. Trial, at 127-135). As Judge Nicholas aptly notes, evidence that a defendant has threatened or tried to influence witnesses is admissible to show the defendant’s consciousness of guilt. Commonwealth v. Hatten, 344 Pa.Super. 362, 366 fn., 496 A.2d 837, 839 fn. (1985). (Opinion at 15). Appellant, himself, testified at trial, and was not found to be a credible witness. Thus, we must agree with the Commonwealth that the evidence was sufficient to support the verdict.

IV.

Appellant’s final argument concerns the mandatory minimum guidelines under 42 Pa.C.S.A. § 9718. Appellant admits that the Commonwealth gave notice of its intention to request imposition of a sentence pursuant to § 9718 in August, 1989. Appellant, however, argues that in order to effectuate a valid jury trial waiver, he should have been made aware not only of the statutory minimum, but also of the district attorney’s intent upon conviction to seek imposition of mandatory sentences. (Appellant’s brief, at 18-19). Appellant argues that such a notice should be served prior to trial because of the possibility that such notice might influence appellant’s decision to waive his right to a jury trial. Appellant provides no authority for his claim. The statute requires notice following trial, the procedure followed by the Commonwealth.

It is axiomatic that sentencing is a matter vested in thé sound discretion of the trial court, and the lower court’s judgment of sentence will not be disturbed absent abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981). In reviewing sentencing matters, we accord great weight to the sentencing court, since it is in the best position to evaluate defendant’s character, displays of remorse, defiance, indifference, and the overall nature and extent of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987), alloc. den., 515 Pa. 619, 531 A.2d 427 (1987). Finally, a sentence will not be disturbed when it is demonstrated that the judge was aware of the sentencing considerations, and weighed all relevant factors in a meaningful fashion. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

In the instant case, the transcript of the sentencing proceeding reveals that Judge Nicholas weighed the circumstances of the offense along with the background and personal attributes of appellant Jackson. (N.T. Sentencing, at 28). See 42 Pa.C.S.A. § 9721; Commonwealth v. Smith, 369 Pa.Super. 1, 5-6, 534 A.2d 836, 838 (1987). In his colloquy on the record, Judge Nicholas stated:

It was a circumstantial case, but I was certainly convinced beyond a reasonable doubt of the Defendant’s guilt after all the evidence was considered ...
Suffice it to say I was satisfied the Defendant was guilty then and I remained satisfied that there were no due process violations, no ... there was no violation of Defendant’s right to the effective assistance of counsel in the person of Mr. Hobson, and that the trial result was reliable, that it was a reliable adjudication of guilt based on the evidence presented ...
Whenever we’re dealing with a young victim of crimes so serious, the court certainly must be mindful of the need to send a strong message to the Defendant and others who would engage in similar conduct. I believe for all those reasons the appropriate sentence in this case is a sentence in the aggravated range. Frankly, I do not believe the mandatory minimum sentence is adequate for this purpose.

(N.T. Sentencing, at 28-29).

The court proceeded to describe what it considered to be aggravating circumstances:

And the aggravating circumstances are certainly the age of this child and the communication to her of a serious communicable disease, the circumstances where defendant was entrusted with the care of this child and notwithstanding that trust violated that trust by engaging in the conduct that I found him guilty of.

(N.T. Sentencing, at 30).

Based upon our review of the record, we find no abuse of discretion regarding the matter of sentencing. The sentencing court had the benefit of a pre-sentence report and considered all relevant factors, as previously discussed herein.

In summary, we find no error in any of the matters raised by appellant.

Judgment of sentence affirmed.

Concurring statement by FORD ELLIOTT, J.

Concurring Statement by

FORD ELLIOTT, Judge:

I join in the majority’s disposition of the Rule 1100, sufficiency of evidence and sentencing claims presented by appellant. However, I concur in their resolution of appellant’s ineffectiveness claim in that I would find no ineffectiveness based solely on a determination that appellant’s trial counsel had a reasonable basis designed to effectuate his client’s interests.


author: HOFFMAN, Judge:

text:
    585 A.2d 42
    Luana B. LYONS, Appellant, v. Thomas P. LYONS.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Filed Jan. 17, 1991.

      Elizabeth L. Bellissimo, Pittsburgh, for appellant.
    Richard J. Catalano, Pittsburgh, for appellant.
    Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant-wife (hereinafter “Wife”) appeals from a December 15, 1989 equitable distribution and child support order. The order in question denied Wife’s motion for post-trial relief and modified a September 15, 1989 order to require appellee-husband (hereinafter “Husband”) to provide medical insurance coverage for two of the parties’ minor children and to pay for half of their unreimbursed medical expenses. Wife contends that the trial court erred in: (1) failing to distribute Husband’s pension on a 50/50 basis; (2) underestimating the present value of the marital portion of Husband’s pension; and (3) failing to order Husband to pay all of the children’s medical and dental expenses that are not covered or reimbursed by insurance. For the reasons that follow, we affirm the trial court’s order regarding Husband’s payment of uncovered or unreimbursed medical expenses, and we vacate the portion of the court’s order disposing of Husband’s pension and remand for proceedings consistent with this Opinion.

The parties herein married on April 18, 1962, and separated in March of 1987. After their separation, Wife resided at the marital residence with four of the parties’ six children. Subsequently, two of the four children took up residence with Husband, and Wife remarried. On April 27, 1987, during the pendency of the divorce action, the court ordered Husband to pay Wife $595.00 per month in alimony pendente lite and child support for four of the parties’ six children. The parties were divorced by decree entered September 10, 1987. At the time of the divorce decree, economic issues remained concerning alimony, distribution of Husband’s pension, counsel fees, and other expenses relating to child support. The two main economic assets were the marital residence and Husband’s pension. The parties executed a handwritten document (the “Agreement”) which provided that they would divide these assets 50/50, once the marital residence was sold. Thereafter, however, Wife would not consent to the sale of the marital home unless she was guaranteed $55,000.00 from the net proceeds. Consequently, when the house was later sold for $110,750.00, Wife received $55,000.00 and Husband $42,-000.00 of the proceeds.

Subsequently, the parties were unable to agree on a value for Husband’s pension, and Wife praeciped for an equitable distribution conciliation. On January 10, 1989, the court below held a hearing on support, equitable distribution and related issues. On September 15, 1989, the court entered an order modifying the April 27, 1987 order to $225.00 per month for child support for the two minor children who were residing with Wife, awarding Husband his entire pension, and dismissing all other claims of both parties for equitable distribution, alimony and counsel fees. No appeal was taken from this order.

On September 21, 1989, Wife filed a motion for post-trial relief. On December 15, 1989, the Court denied the motion, but modified the September 15th order by requiring Husband to provide medical insurance for two of the children, and ordering him to pay one-half of their unreimbursed medical expenses. Wife then filed this timely appeal from the December 15th order.

I. THE PENSION

Wife’s first two claims concern Husband’s pension and are interrelated. Wife first asserts that the trial court erred in failing to distribute Husband’s pension on a 50/50 basis. Wife claims that this determination was contrary to the parties’ agreement, and thus she is entitled to half of Husband’s pension in accordance with that agreement.

We note at the outset that our scope of review in equitable distribution matters is limited. See Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988). Trial courts have broad equitable powers to effectuate justice in these matters, see 23 Pa.S.A. § 401(c); see also Teribery v. Teribery, 357 Pa.Super. 384, 516 A.2d 33 (1986), and a trial court’s award of equitable distribution will not be reversed absent an abuse of discretion. See Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990). We will find an abuse of discretion only if the trial court misapplied the law or failed to follow proper legal procedures. Id.

The central question presented for our review concerns the effect of the parties’ agreement on the equitable distribution issues. We have noted that “a property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally.” See VanKirk v. VanKirk, 336 Pa.Super. 502, 505, 485 A.2d 1194, 1196 (1984) (quoting Kleintop v. Kleintop, 291 Pa.Super. 491, 495-96, 436 A.2d 223, 225 (1981)); Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981); see generally Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc) (comparing and contrasting enforcement of property settlement agreements under contract law and Divorce Code). It is well-established that the paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent. See Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 539, 526 A.2d 1192, 1194 (1987) (citing Burns Mfg. Co. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976)); see also Litwack v. Litwack, supra 289 Pa.Super. at 407, 433 A.2d at 515 (in construing separation agreement court must adopt construction that gives effect to parties’ intent in view of surrounding circumstances and purpose of contract). When the trier of fact has determined the intent of the parties to a contract, an appellate court will defer to that determination if it is supported by the evidence. See Yellow Run Coal v. Alma-Elly-Yv Mines, 285 Pa.Super. 84, 90, 426 A.2d 1152, 1155 (1981) (citing Hatalowich v. Redevelopment Auth. of Monesum, 454 Pa. 481, 312 A.2d 22 (1974)).

In reviewing the propriety of the determination below, it is essential to keep in mind the manner in which this case was presented to the trial court. The parties’ August 31, 1987 agreement reveals a clear intention that the principal marital assets (the house and the pension) would be split on a 50/50 basis. When the parties appeared before the trial court, however, one of the two assets already had been sold, and the proceeds had been distributed, at Wife’s insistence, on an unequal basis, with Wife receiving the lion’s share. This distribution was in direct contravention of the parties’ intent as expressed in their agreement.

On these facts, the court below apparently determined that a 50/50 split of Husband’s pension would not effectuate an equal division of the two major marital assets, and thus would contravene the parties’ contractual intent. See Trial Court Opinion, September 18, 1989, at 7 (“... it would appear that the equal division originally envisioned by the parties is not applicable to the instant case but rather the division should be weighted in favor of the Husband”). The court therefore attempted to account for the $6500.00 windfall Wife had received from the sale of the home.

Despite the fact that the court below attempted to insure a 50/50 division of the two assets consistent with the parties’ intent, Wife argues that the trial court should have distributed the pension 50/50 as per the letter of the pension provision in the agreement. Wife thereby suggests that the court was obliged to view the pension distribution provision with blinders, focusing not on the entire agreement, but on the pension provision alone. We cannot agree. As we have already noted, the paramount goal of contract interpretation is to give effect to the intent of the parties. See Greene v. Oliver Realty, Inc., supra at 539, 526 A.2d at 1194 (citing Burns Mfg. Co. v. Boehm, supra); Litwack v. Litwack, supra 289 Pa.Super. at 407, 433 A.2d at 515. Here, the court’s apparent finding that the parties intended to distribute both major marital assets equally, rather than to distribute each item on a 50/50 basis, was supported by the evidence. Accordingly, the court did not err in refusing to divide the marital portion of husband’s pension 50/50.

Although we have concluded that the trial court did not err in refusing to distribute the pension on a 50/50 basis, we note that there is an apparent inconsistency in the court’s application of this conclusion. The court stated that it would divide the marital portion of Husband’s pension on a 65/35 basis, in favor of Husband. See Trial Court Opinion, September 18, 1989, at 7. The purpose of the downward adjustment of Wife’s share apparently was to compensate for the extra $6500.00 Wife received from the sale of the house. After making this calculation, however, the court went on to hold that since Wife had already received the extra $6500.00, that advance must be credited against any distribution of Husband’s pension. Accordingly, the court awarded Husband his entire pension. Id. By both adjusting the distribution ratio and crediting the advance that Wife received against her share of the pension, the trial court twice penalized Wife for the extra money that she received from the sale of the residence. Although we might, under certain circumstances, attempt to correct this error ourselves, we think the better course is to remand for the trial court to redetermine Wife’s proper share of the pension.

Wife’s second pension claim challenges the method of valuation of Husband’s pension adopted by the trial court. Specifically, Wife claims that the trial court’s determination of the present value of the marital portion of Husband’s pension was erroneous because it applied an improper coverture fraction. As a result, she argues, the court undervalued her proper share of the pension.

There are two approaches to distributing a pension: the immediate offset method and the deferred distribution method. See Lowry v. Lowry, supra; Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). The immediate offset method distributes the pension benefits, even if they are to be received in the future, at the time of the equitable distribution hearing. See Lowry v. Lowry, supra. This method of distribution is advantageous in that it avoids further entanglement between the parties. See Braderman v. Braderman, supra. The immediate offset method requires a calculation of the present value of the pension benefits because the non-employee spouse will receive an actual present distribution of his or her share of the pension despite the fact that the pension itself will not actually be received, if at all, until some time later. Id. The present value reflects the present worth to the employee-spouse of these future benefits. Id. The court then must calculate the marital portion of the present value of the benefit. This value may be determined through use of a “coverture” fraction. See Lowry v. Lowry, supra 375 Pa.Super. at 404, 544 A.2d at 983. The numerator of the coverture fraction represents the total period of time in which the employee-spouse participated in the pension plan during marriage, and the denominator, the total period of time that the employee-spouse participated in the benefits program. See Braderman v. Braderman, 339 Pa.Super. at 198, 488 A.2d at 619; King v. King, 332 Pa.Super. 526, 533, 481 A.2d 913, 916 (1984). See generally Troyan, Pension Evaluation and Equitable Distribution, 10 Fam.L.Rep. 3001 (1983).

Deferred distribution, on the other hand, causes the trial court to retain jurisdiction and distribute the pension benefits when they enter pay status. See Lowry v. Lowry, supra. This method of distribution is the preferred means of dividing unvested pension benefits which may never actually be received by the employee-spouse due to contingencies such as early termination or death. Id. It is also preferred when the parties’ other assets are insufficient to offset a present award of the pension to the nonemployeespouse. See id. (citing DeMasi v. DeMasi, 366 Pa.Super. 19, 50, 530 A.2d 871, 886 (1987)). Deferred distribution has been criticized for prolonging hostility between the parties.

We have recognized that neither distribution scheme will be appropriate to all cases. Rather, the trial court must balance the advantages and disadvantages of each method according to the facts of the case before it in order to determine which method would best effectuate economic justice between the parties. See generally N. Perlberger, Pennsylvania Divorce Code § 5.4, at 71 (Supp.1987). In the case before us, the parties do not dispute that the immediate offset method is the proper method of dividing the pension. The present value of the marital portion of Husband’s pension can be ascertained, and Wife’s share can be offset against the value of the other major marital asset, the house. The only issue is the court’s computation of that present value.

At trial, Wife’s expert testified that the present value of Husband’s pension was $37,382.35. Wife’s expert further testified that the proper coverture fraction to be used to determine the present value of the marital portion of the pension should be .8834 (88.34%). This number was calculated by dividing 22.08 years, the length of time the parties were married while Husband’s pension was in effect, by 25 years, the period of time it took for Husband’s pension to fully accrue. Wife’s expert then multiplied the present value of Husband’s pension, $37,382.35, by .8834, and determined the present value of the marital portion of the pension to be $33,023.57.

Husband contended, on the other hand, that the present value of his pension was only $17,886.00. This calculation was based on a projected pension benefit of $545.00 per month. In addition, Husband argued that the court should employ a coverture fraction of .5786 (57.86%). His coverture fraction was arrived at by dividing 22.08 years of marriage by 38.16 years of employment. Husband’s denominator represented the amount of time Husband would have to work until he was age 65, the earliest time when he could retire from his present employment and actually begin to receive the pension benefits. Husband’s suggested coverture fraction resulted in a present value of the marital portion of Husband’s pension of $10,349.00.

The trial court did not accept either party’s calculation of the marital portion of the pension. The court found that the present value of Husband’s pension was $37,382.35, as determined by Wife’s expert. However, the trial court then multiplied the present value of the pension by Husband’s coverture fraction of .5786. The trial court therefore determined that the present value of the marital portion of the pension was $21,629.00.

Wife’s specific claim is that the trial court erred in employing the coverture fraction suggested by Husband. We should note that the parties’ disagreement in fixing the denominator may be a result of some imprecision in cases filed in this Commonwealth concerning use of the coverture fraction. This Court has variously referred to the denominator as representing “the total period the employee participated in the benefits program,” Braderman v. Braderman, supra 339 Pa.Super. at 198, 488 A.2d at 619; see also Mantell v. Mantell 384 Pa.Super. 475, 482, 559 A.2d 535, 539 (1989) (impossible to discern coverture fraction at time of hearing because employee-spouse still active with no plans for retirement); King v. King, supra 332 Pa.Super. at 533, 481 A.2d at 916, and as representing “the total period of time the employee spouse was accruing benefits.” E.g., Lowry v. Lowry, supra 375 Pa.Super. at 404, 544 A.2d at 983. In many instances, there will be no difference between these two figures, and hence no dispute. In this case, however, the different descriptions of the denominator do result in different computations. Wife argues that, because Husband’s pension fully accrued after 25 years, the calculation of his years of participation in the pension plan must be fixed at that point, regardless of whether Husband would have to wait another 13 years to receive the benefit. Husband, on the other hand, focuses on the number of years (38) that he, in fact, will participate in the plan. We should note that, although there is authority in favor of both arguments, the central focus in these cases remains an attempt to determine as practically and accurately as possible the marital portion of the pension. See Lowry v. Lowry, supra (“the point in valuing a pension for equitable distribution purposes is to estimate as accurately as possible the real present value of a future and somewhat contingent marital asset and to equitably distribute it in the present”)- Here, the trial court reasoned that, because Husband intended to continue working until age 65 and had to wait until age 65 to receive the benefits of his pension, Husband’s proposed coverture fraction more accurately reflected the marital portion of the pension. See Trial Court Opinion, September 18, 1989, at 5; see also N.T. January 10, 1989, at 152-53. The court’s conclusion clearly was supported by the evidence concerning the plan and the parties’ intentions. In light of the facts of this case, and the authorities cited above, see Braderman v. Braderman, supra; see also N. Perlberger, Pennsylvania Divorce Code § 5.4, at 70 (Supp.1987) (denominator of coverture fraction represents total period spouse participated in plan), we cannot hold that this determination was error. Accordingly, we conclude that the trial court did not err in applying a coverture fraction of .5786 to the present value of the pension in order to determine Wife’s proper share, and in fixing the marital portion at $21,629.43.

II. MEDICAL EXPENSES

Wife’s remaining claim focuses on that portion of the court’s order concerning medical expenses. The facts relating to this claim are as follows. The September 15th order, which modified the prior alimony pendente lite and child support order, did not address the issues of which party would maintain medical insurance for the parties’ children, Natalie and Allison, and which party would be responsible for the childrens’ medical and dental expenses that were not covered or reimbursed by insurance. After consideration of Wife’s Motion for Post-Trial Relief, the trial court modified its September 15th order as follows:

The Defendant shall provide medical insurance coverage for the parties’ minor children and shall be responsible for one-half (V2) of all medical expenses not reimbursed by said coverage.

Trial Court Order, December 15, 1989, at 1-2.

Wife argues that the court erred because its order accounted only for unreimbursed medical expenses and not for uncovered medical expenses or for dental expenses. We disagree. The phraseology of the December 15 order clearly is broad enough to encompass these expenses.

Wife also argues that the court erred because it should have required Husband to pay all of the children’s uncovered and unreimbursed medical and dental expenses. At the outset we should note that a child support order will not be disturbed on appeal unless there is insufficient evidence to sustain it, or the court abused its discretion in fashioning the award. Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985). See also Bedford v. Bedford, 386 Pa.Super. 349, 353-54, 563 A.2d 102, 104 (1989); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987). Chapter 43 of the Divorce Code contains general provisions governing support. See 23 Pa.C.S.A. § 4301 et seq. Section 4324 of this chapter provides that “the court may require that an obligor pay a designated percentage of a child’s or spouse’s reasonable and necessary health care expenses.” Id. at § 4324.

Wife asserts that the trial court should have required Husband to pay all of the children’s medical and dental expenses that are not covered or not reimbursed by insurance pursuant to this statute. See Appellant’s Brief at 42-43. We disagree. Under § 4324, both the question whether to require the obligor spouse to pay these expenses, as well as the question of the proper percentage to assess, is within the discretion of the trial court. Here, the court had before it extensive testimony concerning the parties’ financial situation and earning capacity. On this record, we cannot conclude that there was an abuse of discretion in the trial court’s order requiring Husband to pay one-half of the children’s medical expenses that are not covered or reimbursed by insurance.

For the above-stated reasons, we conclude that: (a) the trial court did not err in refusing to distribute the marital portion of Husband’s pension on a 50/50 basis; (b) the trial court nevertheless erred in twice penalizing Wife for the excess money she received from the sale of the marital home; and (c) the trial court did not err in refusing to require Husband to pay all of the children’s medical and dental expenses that are not covered or reimbursed by insurance. Accordingly, we affirm the portion of the trial court’s order directing Husband to pay half of the children’s unreimbursed medical expenses, but we vacate that part of the order distributing Husband’s pension, and we remand the case for further proceedings consistent with this Opinion.

Affirmed in part, distribution order vacated, case remanded. Jurisdiction is relinquished.

      . The September 15, 1989 order had (1) reduced the amount of child support which Husband was to pay wife from $595.00 per month to $225.00 per month, (2) awarded Husband his entire pension, and (3) dismissed all other claims of both parties for equitable distribution, alimony and counsel fees.

      . Wife also makes two claims regarding the amount of child support awarded in the September 15th order. Specifically, Wife contends that the trial court erred in (1) awarding an insufficient amount of child support; and (2) failing to adjust the child support award to provide for Husband’s payment of the children’s private school tuition. The order of September 15 decreased the child support order from $595.00 per month to $225.00 per month, but failed to address the issue of private school tuition. In accordance with Pa.R.C.P. 1920.52(b), claims involving child support are specifically excluded from those matters in which post-trial motions are required. Therefore, Wife should have taken a direct appeal from the September 15th order within 30 days. As Wife failed to take a direct appeal from the September 15th order, her two support claims are waived. See, e.g., Baraff v. Baraff, 338 Pa.Super. 203, 487 A.2d 925 (1985).

      . The Agreement provided, in relevant part, that:
      I Thomas P. Lyons do agree to sign the divorce papers this week to set Luana Lyons free providing she agrees to dividing the sale of the marital home equally 50/50 just as soon as the real estate finds a buyer. I will also give her 50% of my retirement fund just as the law says she is entitled to.
      I Luana Lyons do agree to give Thomas Lyons 50% of the marital home just as soon as the real estate finds a buyer and I will also receive a 50/50 split of his retirement fund up to the date the law says I am entitled to providing Thomas Lyons signs the divorce papers this week.

      . The marital residence was sold for a profit of $97,000.00. Out of this amount, Wife received $55,000.00, and Husband received $42,-000.00. Had the proceeds from the sale of the home been distributed equally between Husband and Wife as contemplated by their agreement, however, each would have been entitled to $48,500.00. Thus, Wife received $6,500.00 more than she was entitled to out of the net proceeds from the sale of the parties' home.

      . Wife also suggests that the court did not have the authority to look to the overall intent of the parties because the single question before it was the value of Husband’s pension and not its distribution. This argument is disingenuous. It was Wife who praeciped for an equitable distribution conciliation when she and Husband were unable to agree on a value for the pension. See Praecipe For Conciliation. Wife cannot, on the one hand, come into court asking for an “equitable” distribution, and then, on the other hand, attempt to limit the court’s powers in effectuating that distribution. See Teribery v. Teribery, supra (courts have broad equitable powers to effectuate justice in equitable distribution matters). When Wife sought relief under this agreement, she ran the risk that the court’s interpretation of it would not be to her liking.

      . This valuation was based on Husband’s being entitled to pension benefits of $1200.00 per month when he reaches age 65.

      . Husband’s pension fully accrued on February 1, 1990 after he had completed 25 years of service from the time his pension plan went into effect.