author: TAMILIA, Judge: BECK, Judge,

text:
    492 A.2d 427
    Santo AGATI, Anthony R. Agati and Stephanie V. Agati, Appellants, v. Judith AGATI.
    Superior Court of Pennsylvania.
    Argued July 19, 1984.
    Filed April 26, 1985.

      Charles P. Gelso, Wilkes-Barre, for appellants.
    Brian C. Corcoran, Richard M. Goldberg, Wilkes-Barre, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

The appeal in this case follows denial by the trial court of the father’s request for an Order awarding him shared physical custody of his son.

Anthony Agati, the only child of the parties, was born in 1979 and was four years old at the time of the hearing. The parties are divorced, having married in 1978. In August, 1981, Judge Patrick Toole entered a custody and partial custody Order from which no appeal was taken. Subsequently, the parties, by agreement, modified and extended that Order to accommodate their work schedules and to increase the father’s weekend partial custody to include Friday nights on alternate weekends and for alternating holidays (T.T. 34a). The father filed a Petition for Visitation which requested an extensive increase in partial custody, in effect, to obtain shared custody as permitted under the Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq.

Following a hearing before a master to mediate the dispute on April 28, 1983, the case was appealed to the Common Pleas Court and the matter came to hearing before Judge Chester B. Muroski on October 3, 1983. By consent of the parties, the hearing incorporated without petition, consideration of the request of the paternal grandparents for separate partial custody. Following the hearing, during which an adequate record was made, an Order was expeditiously filed on October 4, 1983, from which this appeal was taken. An Opinion was filed by the trial judge, which in a comprehensive and careful manner, considered all issues raised. Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979).

Our scope of review in custody modification matters is governed by the law as it relates to initial custody hearings. The scope of appellate review in a custody matter is of the broadest type. An appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings, and thus represent a gross abuse of discretion. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, 806 (1984); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

The major issue in this case, as presented by the appellant, is whether a substantial change of circumstance is the legal standard to apply when a petition is heard for modification of a partial custody Order. Appellant argues it is not and would apply the best interest standard negating the need by the petitioner to prove a change of circumstance before reaching the merits of the case. We disagree.

At the outset, prior to the existence of a custody Order, the parties who are parents stand on an equal footing and the only burden carried by either of them is to establish what is in the best interest of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977); Spriggs v. Carson, supra.

It is tempting to modify a partial custody Order on the best interest of the child without first establishing a substantial change in circumstance. This would, however, be extremely destabilizing and could result in spurious petitions based on temporary or vacillating circumstances or a frequent relitigation of issues once resolved. One of the attributes of custody Orders is their temporariness and lack of finality, but change without careful discretion turn the courts into instruments of destruction. Virtually every custody Order also becomes a partial custody Order and while a modification of a custody Order (to bring about an absolute change in custody) requires a change in circumstance which imports some finality, the appellant would subject partial custody to constant tribulation when someone’s perceived best interest test would be suggested, without first being required to show a change of circumstance. The question presents itself as to how one can, at the same time, maintain a change of circumstance standard for a total change of custody while permitting a review of partial custody on a best interest standard. Immediately presented is the additional problem of burden of proof. See In re Custody of Hernandez, supra. In Spriggs v. Carson, supra, the burden of proof as to best interest is equally apportioned between parents; would we now require that this concept be confused by requiring the party alleging best interest for modification of partial custody, carry the burden of proof as he would be required to carry the burden of establishing a change of circumstance? If the petitioners carried no burden in moving directly to consideration of best interest without proof of change of circumstance, would it not be possible to change the custodial parent when it seemed in the best interest of the child to do so? In doing so, the requirement to establish change of circumstance for a total change of custody could be circumvented by petitioning for modification of partial custody. In various contexts, with the exception of the initial custody proceeding between parents, preliminary burdens of proof must be met before best interest can be considered. See In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976); Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976); In re Rose, 161 Pa.Super. 204, 54 A.2d 297 (1947). It would appear that we would be moving to a doctrine wherein best interest would control, regardless of whether the contest was between parents, as it would be difficult not to justify the same standard as it applied to parents and third parties. See Spriggs v. Carson, supra (Dissent by Justice Flaherty). It is probably illusory that a best interest test will produce any fairer result than the change of circumstances standard. Any change of circumstance which would result in a modification of the Order must also be in the best interest of the child and the court must so find. Once a full and comprehensive review of the case was had, and decision rendered awarding custody and partial custody, it must be assumed that to the degree possible, the best interest of the child was served. In practice, while the best interest standard purportedly governs the decisions in custody cases, as between co-equals, the line is so thin as to be virtually nonexistent thus subject to endless reinterpretation and reargument. Witness the result condemned by the Supreme Court in Robinson, supra, when this Court adopted an independent scope of review. If a request was made for a change in partial custody because of the best interest of the child, this could not be accomplished without doing harm to the doctrine of res judicata, permanency of decisions, and stability of the child, unless a sufficient change of circumstance was established to warrant a modification, as the then best interest no longer applies. Change of circumstance is still the standard, which necessarily encompasses a consideration of the child’s best interest. If it is truly in the best interest of the child to modify a partial custody order, it would be unlikely that there would be a lack of proof of change of circumstance.

An additional complicating factor which moves us to a more rigid compliance to the change of circumstance standard is the advent of the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5341 et seq. See Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980). The perplexing problem of child snatching and forum shopping required national cooperation to give some finality to custody Orders and a determined application of the change of circumstance requirement to avoid defeating the intent of the U.C.C.J.A.

Except in an initial custody action, best interest is generally the second consideration, there being an evidentiary gate which must be passed before it can be considered. Making best interest the gate instead of the support for custody decisions predisposes to irrational and/or untenable decisions. See LaRue, DeSavage, Rose, supra.

Some states have relied on section 407(b) [Visitation] of the Uniform Marriage and Divorce Act (UMDA) (1973) for introducing a new relaxed standard of best interest when modification of a partial custody Order is required. This may well be a misinterpretation of that section as it relates to the act as a whole.

The UMDA section 407(b) on Visitation simply articulated the traditional rule that visitation was presumed to be in the best interest of the child, and that standard would apply in granting visitation, although an extraordinary standard of “ ‘seriously (endangering) the child’s physical, mental, and moral, or emotional health would apply in denying visitation’ ” (Commissioner’s notes). It does not appear that it was meant to be a different standard than applied in section 409 (Modification) which contains a change of circumstance and a best interest standard for modification. All sections of the UMDA must be read together and where possible consistent with each other. It would be untenable to find that a visitation or partial custody Order could be modified without also modifying the underlying custody Order. To the degree one adds or subtracts from the time and circumstances of a custody degree to enhance or restrict visitation or partial custody, it is a modification of the custody Order. The salient point is made by section 409(a), Modification, “No motion to modify a custody decree may be made earlier than 2 years after its date, unless the court permits it be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral, or emotional health.”

While this appears clearly to speak primarily to custody it must speak with equal force to visitation and partial custody as the effect of either the custodial or noncustodial environment is a critical consideration in custody and would subject the case to review under proper circumstances. While the UMDA makes no distinction between visitation and partial custody, Pennsylvania case law and rules make a very clear distinction. Pa.R.C.P. 1915.1(b) defines partial custody and visitation as follows:

Rule 1915.1(b) Scope. Definitions
‘partial custody’ means the right to take possession of a child away from the custodial person for a certain period of time;
‘visitation’ means the right to visit a child, but does not include the right to remove the child from the custodial person’s control.

This distinction is important as the UMDA does not spell out the difference between visitation and partial custody, thus we cannot be certain that they are considered the same and that the same standard of review would be applicable to both. It is far easier to advocate a relaxed standard for modifying a ‘visitation’ Order as opposed to a ‘partial custody’ Order.

With new concepts gaining vogue in custody cases, shared custody, joint custody and partial custody become a continuum with sole custody, upon which a decision is based. The line of demarcation becomes extremely blurred and it becomes increasingly difficult to determine, as between the two parents, who is the de facto custodian, especially when “shared custody” pursuant to Pa.R.C.P. 1915.1(b) is imposed. “Shared custody” means shared legal or shared physical custody or both of a child in such a way as to assure the child of frequent and continuing contact, including physical access, to both parents.

The “commissioner’s notes” following section 409 point out,

Most experts who have spoken to the problems of post-divorce adjustment of children, believe that insuring the decree’s finality is more important than determining which parent should be custodian. See Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L.Rev. 55 (1969). This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child’s interest.

In a renowned broadly publicized work, J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interest of the Child, 97-101 (1973), the authors propose provisions for a child placement code and would deny visitation (partial custody) entirely. At Para. 30.5, Final Unconditional Disposal,

All placements shall be unconditional and final, that is, the court shall not retain continuing jurisdiction over a parent-child relationship or establish or enforce such conditions as rights of visitation.

This proposal is obviously inappropriate to our philosophy and legal tradition. It does point out, however, the consequence of carrying the concept of best interest, to its ultimate conclusion, i.e. placing stability of the child (best interest) beyond any rights of parents.

Our rules make no distinction between full custody hearings and subsequent modification hearings, nor do they provide for a different procedure for visitation and partial custody as opposed to custody. To impose a new and different standard of review for partial custody would simply increase the vexation and the likelihood of rehearing, make less certain the appropriateness of a decision and assure a greater probability of chronic litigation. Nothing disturbs the child’s perception of stability and harmony more than frequent litigation concerning him by his parents.

The need to establish change of circumstance in a modification hearing was reaffirmed by Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982), which stated, “Under current case law, (the) party seeking modification of (a) custody award continues to have (the) burden of proving (a) substantial change in circumstances which will justify (the) court’s reconsideration of (the) extant custody award,____” In footnote 2, 301 Pa.Superior Ct. at 40, 446 A.2d at 1324, the court quoted:

‘To permit a party to relitigate a subject of relative fitness of parents to have custody of children by an inquiry into the same or other facts existing at the time of or prior to the former decree would lay a foundation for interminable and vexatious litigation____’ Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super.Ct. 22, 24, 184 A.2d 290, 291 (1962) (quoting Commonwealth ex rel. Crawford v. Crawford, 170 Pa.Super.Ct. 151, 154, 84 A.2d 237, 238 (1951) (further citations omitted).

For this reason as well as others cited above, the clear requirement of change of circumstance prior to application of best interest is necessary to avoid the uncertainty and instability that a best interest test alone would provide. This is not the only time that a prior standard is required before looking to best interest, Rose, supra (a finding of dependency must be made before best interest can be considered), La Rue, supra (removal of a child from its home requires a. finding of clear necessity rather than best interest). The change of circumstance requirement places the courts review of partial custody matters between the best interest standard espoused by the appellant and the denial of any review proposed by Beyond the Best Interest of the Child, supra. Here, the review was sought within one and one-half years of the original custody Order based primarily on the passage of time for a child who went from two and one-half to four years of age.

In this case, the matter would have been resolved more expeditiously and without injustice if dismissed on the basis of failure to show a change of circumstance. However, the court did incorporate into the Order the increased periods of partial custody the parents themselves had worked out since the prior Order. This we approve since to a great extent the most satisfactory custody Orders are those in which the parents have worked out a reasonable accommodation. The court correctly determined on the facts that there were no changes of circumstance proven since the Order of August 13, 1983. It further determined that the case did not warrant consideration of expanded shared custody, which was an unnecessary finding in view of the prior one. We will not consider it further.

The one remaining issue relates to the oral request, acceded to by the parties, to consider independent partial custody for the paternal grandparents.

The court found that the grandparents enjoy a regular, meaningful and significant relationship with their grandchild and frequently the overnight visits to the father have been spent at the home of the grandparents. In order to increase the grandparents time, it would be necessary to subtract from that of the mother. The lower court took into consideration the de facto arrangement worked out by the father and his parents, and incorporated into the Order a direction that “one of the weekday periods for partial custody be a period in which the grandparents would be entitled to a period of partial custody as selected by the father and with his consent.” This fulfills the requirements of the Custody and Grandparents Visitation Act, supra, and appears to be in the child’s best interest. Commonwealth ex rel. Zaffarano v. Genaro, 286 Pa.Super. 436, 429 A.2d 17 (1981).

The Order of the court below is affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority’s decision to affirm the trial court’s order of October 4, 1983. However, my reasons for affirmance differ from those expressed by the majority. Contrary to the majority, I would hold that a showing of a substantial change in circumstances is not a prerequisite to a hearing on a petition to modify partial custody.

The scope of appellate review in partial custody matters is analogous to that in custody matters. The appellate court is bound by the trial court’s factual findings if supported by competent evidence of record. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). The scope of appellate review is otherwise broad. Id.; Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984).

Three issues are raised in this child custody case: (1) whether a parent seeking modification of a partial custody order must make a threshold showing of changed circumstances before the trial court may hear the petition on its merits; (2) whether the trial court erred in denying the father’s petition for shared custody, and (3) whether the trial court erred in denying the paternal grandparents’ petition for separate partial custody.

I. Modification of Partial Custody

The initial issue in this case is whether a parent seeking modification of partial custody must make a threshold showing of changed circumstances before the trial court may hear the petition on its merits. The appellant argues that he need not, and I. agree.

It is clear that the petitioner who seeks modification of a child custody order must preliminarily show a change of circumstances. English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). Whether a showing of changed circumstances is required as a predicate to modify partial custody is not entirely clear from case law. See Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super. 332, 264 A.2d 420 (1970), allocatur denied (changed circumstances required for petition to modify partial custody order). But see Bury v. Bury, 312 Pa.Super. 393, 458 A.2d 1017 (1983) (best interests of child standard applied to petition for expanded partial custody, no mention of changed circumstances); In re Stuck, 291 Pa.Super. 61, 435 A.2d 219 (1981) (best interests of child standard applied to petition to modify partial custody order, no mention of changed circumstances).

Seeking guidance, I examine how other jurisdictions have resolved this issue. Some states require a petitioner to show significant, or at least, some change in circumstances before a petition for modification of partial custody will be considered on its merits. These states include Indiana, State ex rel. Jemiolo v. LaPorte Circuit Court, Ind., 442 N.E.2d 1060 (1982); Maryland, Kemp v. Kemp, 287 Md. 165, 411 A.2d 1028 (1980) (dicta), and New Jersey, Hoy v. Willis, 165 N.J.Super. 265, 398 A.2d 109 (1978) (dicta). Other states allow modification of partial custody orders under standards more flexible than those for modifying custody orders. See, e.g., In re Stevens, 86 Mich.App. 258, 273 N.W.2d 490 (1979); Mich.Comp.Laws § 722.27(b); Tex.Fam. Code Ann. § 14.08 (Vernon).

Several states have adopted the flexible standard of Section 407 of the Uniform Marriage and Divorce Act (1973) [UMDA] and hold that a court may entertain a petition to modify partial custody whenever modification would serve the best interests of the child. The petitioner is not required to show change of circumstance as a predicate to a hearing on the merits.

I would adopt the standard of Section 407(b) of the UMDA and hold that a court may modify an existing partial custody order whenever modification would serve the best interests of the child. The petitioner need not show changed circumstances.

I would adopt this flexible standard because I believe that amendments in partial custody do not affect the child’s basic stability in the same way that changes in custody do. Unlike a change in custody, a modification of partial custody does not remove the child from the sure and strong home base with the custodial parent. Shifts in partial custody may be necessary to accommodate a growing child’s changing schedule of activities or desire to spend more or less time with the non-custodial parent. Or these shifts may be indicated because the non-custodial parent’s life has stabilized and he or she may be in a position to assume a more significant parental role. The growth of a child is not static, but dynamic. As the child grows and matures, changes in partial custody may be indicated, and it is desirable that the party petitioning for such change be heard in court.

The majority inappropriately equates partial custody with custody and argues that the same principles apply to both. I disagree. To the extent that the law can provide flexibility in parent-child relationships, it should. All families, whether intact or divided (by divorce) are dynamic entities, changing as individual members of the family mature. For the law to make rigid rules relating to family relationships under the banner of maintaining stability will not achieve a beneficial result for the family. The status quo will be preserved at the risk of disregarding or thwarting the development of family members and familial interrelationships.

The majority injects needless rigidity because it fears “spurious petitions based on temporary and vacillating circumstances” and is concerned that “change without careful discretion turns the courts into instruments of destruction.” Slip op. at 433.

I do not share the majority’s fear. I do not believe that the flexibility I advocate would send parents rushing to the courthouse to resolve questions of partial custody. For the most part, parents recognize that such actions are disruptive to children, as well as to themselves, and the cost of pursuing court action imposes economic burdens on each parent. Parents’ reluctance to use the courts to adjudicate custody matters has been reflected in recent years in a marked decline in custody and partial custody litigation. The vast majority of custody and partial custody arrangements evolve in the lawyers’ offices, not in the courthouse. The law established by the appellate courts sets guidelines for such non-judicial negotiations. Parents who know that their partial custody agreements will not be inflexibly interpreted by the courts are more likely to negotiate sensible partial custody schedules between themselves because they know the schedules can, without a showing of changed circumstances, be revised to accommodate developments in their lives. Flexibility is certainly to the parents’ advantage, but more importantly, it serves the children’s best interests by permitting them to adjust more readily the time spent with each parent.

The majority does not recognize the vast difference between custody and partial custody. The former represents core stability for the child while the latter does not have as pervasive an impact on the child’s life. Therefore, this court should not obdurately advocate the same rules for both under the guise of achieving uniformity in the law.

Although in the case before us the trial court articulated that it was not empowered to hear a modification absent changed circumstances, it nevertheless heard the matter on the merits, developed a comprehensive record, and wrote a thorough and well considered opinion supporting its decision to expand the father’s partial custody. See In re Custody of Hernandez; 263 Pa.Super. 312, 397 A.2d 1225 (1979); Daniel K.D.

Based upon the extensive record and the trial court’s thorough opinion, I conclude that the trial court’s order expanding the father’s partial custody was grounded on competent evidence of record and made in the best interests of the child. That is, I find that the trial court properly modified its 1981 partial custody order.

Prior to the hearing, the parties had informally modified the original 1981 court order so that the father enjoyed expanded partial custody. On alternate weekends, the child spent time with the father from Friday at 5:30 PM to Sunday at 8:30 PM. For six weekends during the summer of 1982, the child was with him from Thursday at 5:30 PM to Monday at 8:30 PM.

In his 1983 modification petition the father requested that the child be with him overnight during his weekday partial custody, that he be granted partial custody for a total of six weeks during the summer, and that major holidays be divided on an alternating basis.

The record indicates that the father has been able to maintain a close and meaningful relationship with his son. The mother recognizes the importance of this relationship. This schedule has proved workable, has not placed an unfair burden on either party and has been beneficial to the child. That the father desires additional partial custody is understandable. I however, find that the trial judge carefully considered the matter and sensibly accommodated the needs of the parents in light of the best interests of the child.

All parties agree that the child is a healthy young boy who is thriving. The trial court’s decision not to expand weekday contact to include overnight periods serves the best interests of the child. The child is about to enter school and the court found the overnight stay during the week night to be disruptive. In actuality, the father’s request would afford little additional waking time between father and son.

Similarly, I conclude that the two week vacation period which the trial judge awarded serves the child’s best interests. I note that the 1983 order gives the father vacation time which he did not have under the original 1981 partial custody and thereby affords the father and son more uninterrupted contact. During the rest of the summer, of course, the father will continue to have weekday and weekend contact as allowed by the regular partial custody schedule.

The trial court’s order also provides a detailed, even-handed holiday schedule which is designed to resolve the parties’ dispute regarding these periods.

I would, therefore, affirm the schedule which the trial court established in its order.

II. Shared Custody

The father also argues that the trial court erred in denying his petition for shared custody. See Section 11 of the Custody and Grandparents Visitation Act (“Act”), Act of Nov. 5, 1981, P.L. 322, 23 P.S. § 1011. The Act grants the trial court broad discretion in awarding shared custody. See Section 11 of the Act. In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982), outlines the factors that the trial court must consider: whether both parents are fit and desire continuing, active involvement with the child; whether the child sees both parents as sources of security and love, and whether the parents are able to communicate and cooperate with each other to promote the child’s best interests.

In the case sub judice the trial court considered the pertinent factors and concluded that because of the bitterness between the parties, shared custody “simply will not work under the circumstances.” Opinion at 20.

Although the record indicates that the parties cooperated in revising the partial custody schedule to accommodate changes in work schedules, the record also reveals that they do not sufficiently cooperate to make a shared custody arrangement workable. For example, they were not able to resolve a 1982 Christmas schedule dispute without emergency court intervention. Both parties testified that differences of opinion about the child often result in arguments. The trial court found that the father refuses to inform the mother of the child’s whereabouts when he has partial custody, and has even refused to provide her a phone number when he takes the child outside the town.

After a thorough and independent review, I conclude that the trial court properly determined that shared custody would be inappropriate at this time.

III. Grandparents’ Partial Custody

Finally, the grandparents argue that the trial court erred in denying their request for separate daytime partial custody under Section 13 of the Act, 23 P.S. § 1013. I disagree.

Section 13 provides:

§ 1013. When parents’ marriage is dissolved
In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter, the court may, upon the request of the parent or grandparent of a party, grant reasonable visitation rights to the unmarried child, after dissolution of marriage, if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

The paternal grandparents in this case requested separate partial custody from 9:00 AM to 4:00 PM on one weekday every other week so that they would have time of their own with Anthony and could enable Anthony to see their friends and relatives who were unavailable on weekends.

The uncontradicted testimony reveals that the grandparents regularly spend meaningful periods of time with their grandson during the father’s partial custody period and that they have a strong, loving relationship with him. The mother has no objection to this arrangement but would not want the child’s schedule further disrupted by separate grandparent visitation during the week.

The trial court denied the grandparents’ request because under the existing arrangement the grandparents enjoyed sufficient periods of contact to maintain their relationship with the child. The court determined that the best interests of the child would be served by retaining the status quo. Accordingly, the court ordered that on alternating weeks the father’s weekday evening be spent with the grandparents.

I conclude that the trial court did not err. It is clear from the record that the child and his grandparents are able to maintain a thriving relationship under the existing partial custody schedule. It is in the best interests of the child to continue that arrangement.

Accordingly, I would affirm the trial court’s order of October 4, 1983.

      . In reality, a Petition to Extend Partial Custody to include Shared Custody. See Actions for Custody, Partial Custody and Visitation of Minor Children, Pa.R.C.P. 1915.1 et seq.

      . Child’s dependency must be established before the court can consider best interest.

      . Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana and Washington are among those states.

      . Kentucky has adopted section 409(a). See S. v. S., 7 F.L.R. 2132 (1980).

      . New York treats identically the modification of custody orders and partial custody orders. A trial court may modify any custody order where under the totality of the circumstances, including the existence of a prior order, the best interests of the child will be served by a modification. Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 432 N.E.2d 765, 447 N.Y.S.2d 893 (1982); Larisa F. v. Michael S., 120 Misc.2d 907, 466 N.Y.S.2d 899 (N.Y.Fam.Ct.1983).

      . These states include Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington.

      . The UMDA contains two standards. Section 407 relates to partial custody and Section 409 relates to custody and imposes a stricter standards.

      . The hearing was not limited to consideration of the petition for expanded custody, but testimony was also taken relevant to the petition for shared custody and grandparent partial custody. Therefore, testimony was not limited to the issue of changed circumstances.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    492 A.2d 436
    COMMONWEALTH of Pennsylvania v. Marlin EBERSOLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed April 26, 1985.
    Petition for Allowance of Appeal Denied Oct. 1, 1985.

      Joseph J. Huss, Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy Dist. Atty., Harrisburg, for Commonwealth, appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This is an appeal from a judgment of sentence entered on February 15, 1984, by the Honorable William W. Lipsett of the Dauphin County Court of Common Pleas. The first issue raised by the appellant concerns whether his arrest was in violation of the Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8951, et seq. Our disposition of that issue is determinative of the second issue, which is whether the lower court erred in refusing to suppress inculpatory Statements made by the appellant following his arrest.

On November 26, 1982, Officer David Teel of the Harrisburg Police Department went to the Cumberland County Prison located in the Borough of Carlisle. His purpose in going to Carlisle was to serve an arrest warrant upon the appellant, who was being held in the Cumberland County facility in lieu of bail on charges lodged against him in that county. The arrest warrant which Officer Teel had in his possession had been issued by Dauphin County District Justice Joseph Pinamonti, and it resulted from an alleged misdemeanor theft by receiving stolen property offense committed in Harrisburg, Dauphin County.

Upon his arrival at the Cumberland County Prison, Officer Teel spoke to Sergeant John Short, who was the shift supervisor on duty. Officer Teel showed him the warrant for the appellant’s arrest. No attempt was made by either Teel or Short to contact the local police department or any of Short’s supervisors at the prison in connection with Officer Teel’s request for the appellant. Nevertheless, Short consented to surrender the appellant to Officer Teel.

Officer Teel transported the appellant to a Cumberland County District Justice for the purpose of a bail hearing. He then transported the appellant to the office of District Justice Joseph Pinamonti, who was the issuing authority with respect to the arrest warrant in question. The District Justice preliminarily arraigned the appellant in connection with the receiving stolen property charge.

Following the preliminary arraignment, Officer Teel transported the appellant to the Harrisburg Police Department where he was interrogated. During the course of the interrogation, and following his execution of a written waiver of his Miranda Rights, the appellant admitted his involvement in an incident which was unrelated to that for which he had been arrested. This second incident involved the “mugging” of a woman in Harrisburg. Based upon the appellant’s statements, Officer Teel procured warrants charging him with robbery, indecent assault, and theft by unlawful taking.

The first issue raised by the appellant and preserved for review by this Court is whether his arrest was unlawful due to Officer Teel’s failure to comply with the requirements of the Municipal Police Jurisdiction Act when he served the arrest warrant upon the appellant in the Cumberland County Prison. The appellant’s challenge to the arrest is based on Section 8953(a)(1) of the act, which provides as follows:

(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an order issued by a court of record or an order issued by a district magistrate whose magisterial district is located within the judicial district wherein the officer’s primary jurisdiction is situated, or where the officer is otherwise acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure, except that the service of an arrest or search warrant shall require the consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services in the municipality wherein the warrant is to be served. (Emphasis-ours)

It is the appellant’s contention that the exception emphasized above is applicable in this case and that his arrest was, therefore, unlawful because Officer Teel had not obtained the consent of the Chief of Police in Carlisle before serving the warrant upon him. The Commonwealth has taken the position that the arresting officer did comply with the letter and intent of the statute by obtaining permission for the arrest from an authorized agent of the prison warden, who is the chief law enforcement officer in the prison. Our courts have not previously had occasion to address this particular statutory provision. Therefore, we have no precedent upon which to base our decision. The cases cited by the appellant are inapposite since they do not address this particular statutory provision. After a careful consideration of the statute, we have determined that the Commonwealth is correct.

In order to reach the conclusion reached by the appellant, one would have to apply a strict, literal construction to the statute. However, the rules of statutory construction, 1 Pa.C.S.A. § 1921 et seq., provide otherwise. We must first point out that “the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). Secondly, in ascertaining that intention, we must note that this statute does not fall within the classes of statutes which are to be strictly construed. See 1 Pa.C.S.A. § 1928(b). This statute, therefore, must be liberally construed to effect its objects and to promote justice. 1 Pa.C.S.A. § 1928(c).

A careful reading of the subject statute reveals that its purpose is to provide police officers with authority to make arrests outside of their primary jurisdictions in limited situations. In providing for such authority, the statute also insures that police departments will be kept apprised, to the greatest possible extent, of action taken in the municipality by police from outside the jurisdiction. Therefore, it is clear that one of the goals of the legislature in enacting the statute was to promote a cohesive working relationship among municipal police departments.

Section 8953(a)(1) does not specifically address the procedure to be followed when an arrest warrant is to be served upon one being held in a county prison. Clearly, if the appellant had been residing at a place in Carlisle other than the county prison, Officer Teel would have been required to obtain the consent of the Chief of Police before serving the warrant. However, the fact which is determinative of the outcome of this case is that the appellant was being held in the county prison. The Carlisle Police, even if they had been notified, would have had no authority to consent to the appellant’s arrest and release from the prison. Officer Teel would still have been required to obtain the consent of the warden or another officer at the prison. We do not believe that the legislature intended to require police officers to take this intermediate step under these circumstances, particularly since the purpose of the statute is effectuated by requiring them to obtain the consent of prison officials.

We hold that Section 8953(a)(1), when liberally construed, requires a police officer who is outside of his primary jurisdiction to obtain the consent of the county prison warden, or one authorized by him to give consent, before serving an arrest warrant upon one being held in a county prison. It does not require the police officer to obtain the consent of the chief law enforcement officer of the municipality in which the prison is located.

Applying the statute as we have construed it to the facts of this case, we find that the appellant’s arrest was lawful. Before serving the arrest warrant upon the appellant, Officer Teel obtained the consent of Sergeant John Short who was the shift supervisor on duty. Sergeant Short testified that he had been authorized to consent to such arrests by his supervisor, Mr. Powers, who is the director of Daily Operations at the prison. Likewise, Mr. Powers testified that the warden had delegated the authority to him and he, in turn, delegated it to the shift supervisors. It is clear, therefore, that Officer Teel had obtained the properly authorized consent.

Having determined that the arrest was lawful, the appellant’s contention that the statements made by him following the arrest should have been suppressed is without merit.

Judgment of sentence affirmed.

LIPEZ, J., concurs in the result.


author: WIEAND, Judge:

text:
    492 A.2d 439
    John R. HURLEY, Appellee, v. Thelma I. HURLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed May 3, 1985.

      Judith A. Calkin, Harrisburg, for appellant.
    Leslie M. Fields, York, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a verdict for personal injuries sustained by a spouse prior to separation, where the verdict is recovered and satisfied by payment after separation, is marital property for purposes of effecting equitable distribution between the spouses. The trial court held the verdict to be marital property and included the proceeds in its decree of distribution. We reverse.

John Hurley (appellee) and Thelma Hurley (appellant) were married in 1955, separated in January, 1981, and divorced in 1983. At the time of hearings in the divorce action, the husband earned $310.53 per week as Chief of Police of the Borough of Wormleysburg; and the wife received a salary of $112.42 per week doing clerical work in the offices of Commercial Union Insurance Companies. Marital property was held by the trial court to include proceeds from the sale of a home, a vacation cottage, cemetery lots, husband’s pension, which had a present value of $27,760, and wife’s recovery of -$28,131.80 for personal injuries sustained prior to separation. The court awarded the entire pension to husband and the entire personal injury recovery to wife. Husband was also awarded the vacation cottage, some of the cemetery lots and approximately one-third of the proceeds from the sale of the home. Wife was awarded some of the cemetery lots and approximately two-thirds of the proceeds from the sale of the home. On appeal, the wife argues that the recovery of damages for personal injuries was not marital property, that husband’s vested pension should have been divided between them, and that the court otherwise erred in decreeing distribution.

In Platek v. Platek, 309 Pa.Super. 16, 21-23, 454 A.2d 1059, 1061-1062 (1982), this Court reviewed the legislative history of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq., and concluded that settlement proceeds recovered during marriage because of personal injuries sustained by one of the spouses were marital property and subject to equitable distribution. In the instant case, the cause of action arose and a civil action was commenced while the parties were living together, but the action was tried and a verdict recovered following separation but prior to divorce. The recovery was limited, by language inserted by the jury in the verdict slip, to damages sustained by the wife. No damages were awarded to the husband. The wife’s damages consisted of pain, suffering and disfigurement.

Section 401(f) of the Divorce Code, 23 P.S. § 401(f) provides as follows:

(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

Subsection (e) provides:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.

(Emphasis added).

Modern decisions suggest that the term “property” refers generally “to rights of action arising out of tort as well as contract, whether such right of action is for injury to the person or to property.” 73. C.J.S. Property § 22 (1983). Decisions in Pennsylvania, however, have held that there are significant property differences which distinguish unliquidated personal injury claims from claims based on contract. As a general rule, personal injury claims in tort are not assignable. Demmery v. National Union Fire Insurance Co., 210 Pa.Super. 193, 197, 232 A.2d 21, 23 (1967). “A right of action strictly personal is not assignable and the general doctrine is, both in law and equity, that a right of action for a pure tort is not the subject of assignment____ Such a right does not seem to us to be a property right, capable of assignment, prior to liquidation____” Sensenig v. Pennsylvania Railroad Co., 229 Pa. 168, 172, 78 A. 91, 91-92 (1910). See also: Sniderman v. Nerone, 336 Pa. 305, 9 A.2d 335 (1939), affirming per curiam, 136 Pa.Super. 381, 7 A.2d 496 (1939). A personal injury claim in tort, as a general rule, remains unliquidated until such time as it is reduced to a definite amount by verdict or agreement to settle.

Did the legislature intend to require that a spouse’s unliquidated claim for personal injuries in tort be deemed marital property? We think not. In the first place, the Pennsylvania courts have been reluctant, as we have observed, to attach a complete panoply of property rights to such a claim. Secondly, to require a court to distribute an unliquidated personal injury claim between spouses would introduce a degree of speculation not conducive to that economic justice which the legislature has attempted to achieve. Only after an unliquidated claim for personal injuries has become liquidated by settlement, verdict, or otherwise should it be deemed “marital property” and become subject to distribution between the spouses. Appellant’s claim for personal injury in the instant case became liquidated by verdict after the parties had separated. We conclude, therefore, that appellant’s recovery of damages for personal injuries in this case was not marital property which the court could properly divide between the parties. It represented property acquired after separation.

Because the trial court concluded that the wife’s tort recovery was marital property and balanced it against husband’s pension, it will be necessary that we remand for further consideration. In effecting an equitable distribution to achieve economic justice between the parties, however, the trial court need not close its eyes to appellee’s recovery. We hold only that the proceeds thereof are not marital property subject to distribution between the parties.

Appellant contends that the trial court erred in considering as marital property the sum of $5,185 given by husband to wife to assist in purchasing a mobile home. Wife argues that this was a gift and should not have been considered in the court’s calculations for purposes of effecting equitable distribution. We disagree. The court found that this sum had been transferred in an attempt to facilitate a property settlement. The trial court said:

Moreover, the circumstances surrounding this transaction only support the conclusion that this sum was no gift. At the time plaintiff [Mr. Hurley] gave defendant [Mrs. Hurley] this sum, the parties were separated and the original divorce complaint had been filed. The parties’ relationship during this time certainly was not amicable and, as the purpose of a gift is to provide happiness and goodwill to the recipient, it is inconceivable that plaintiff would have intended to make a gift of $5,000 to his wife. These circumstances, together with plaintiff’s testimony, found credible by the master, that he understood the payment to be a property settlement, convince us that the payment was properly included in defendant’s marital property.

The court’s finding is fully supported by the evidence; and we find therein no abuse of discretion.

Upon remand, the trial court will be able to resolve any error or ambiguity regarding the division in kind of cemetery lots owned by the parties and may otherwise alter or amend its decree to achieve economic justice between the parties. “[T]here is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case____ Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions. The concept of equitable distribution is not [necessarily] an equal division of marital property.” Semasek v. Semasek, 331 Pa.Super. 1, 11, 479 A.2d 1047, 1052 (1984).

Reversed and remanded for reconsideration and the entry of a decree of distribution consistent with the foregoing opinion. Jurisdiction is not retained.

      . Due to our holding, it is unnecessary that we consider wife’s arguments that this court should adopt the approach utilized in Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639 (1981) and in many community property states where the marital estate, the injured spouse and the uninjured spouse each are compensated separately for their respective losses by apportioning the tort recovery.

      . In effecting distribution of husband’s vested pension rights, the trial court may be guided by this Court’s decision in King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).


author: OLSZEWSKI, Judge:

text:
    492 A.2d 443
    COMMONWEALTH of Pennsylvania v. Patrick Eugene HOOVER, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1985.
    Filed May 3, 1985.

      Jerry L. Spangler, Assistant Public Defender, Somerset, for appellant.
    David J. Flower, Assistant District Attorney, Somerset, for Commonwealth, appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

This appeal follows judgment of sentence for murder of the third degree, No. 339 Criminal 1983, and simple assault, No. 21 Criminal 1982. Appellant limits his challenge to an attack on the validity of his sentence at No. 339 Criminal 1983.

On December 29, 1983, appellant entered a plea of guilty to the charge of murder in the third degree. 18 Pa.C.S. Sec. 2502(c). The charge followed the brutal slaying of a young woman. Murder of the third degree, a felony of the first degree, is punishable by a fine not exceeding $25,000 and incarceration for not more than 20 years. 18 Pa.C.S. Sec. 1101 and Sec. 1103(1). Appellant received a sentence of 10 to 20 years incarceration.

Appellant argues that he was improperly sentenced within the aggravated minimum range of the Sentencing Guidelines. 42 Pa.C.S. Sec. 9721. Commonwealth counters that because the sentence falls within the minimum range of the Guidelines, id., the question of whether or not aggravated circumstances justified sentencing in the aggravated range is moot. Like the blind men, both of them are right and both of them are wrong.

To resolve the issue of the propriety of appellant’s sentence, we must first decide the underlying dispute. The dispute arises because the minimum and aggravated minimum sentencing ranges overlap. Under the Sentencing Guidelines, the upper bound of the minimum range forms the lower bound of the aggravated minimum range. See 204 Pa.Code Sec. 309.9. Appellant’s sentence, a minimum of 10 years, falls on the cusp.

The lower court assumed the sentence belonged in the aggravated minimum range. The Code is silent on this point. Caselaw and the Sentencing Commission offer little help. Absent some clear statement by the legislature, we presume that a sentence at the bound of the minimum and aggravated minimum ranges belongs in the higher range.

A presumption that the sentence belongs in the aggravated minimum range forces the trial judge either to assert the contrary or to state on record what aggravating circumstances occasioned his choice. 204 Pa.Code 303.3. By forcing the trial judge to make explicit his decision, we further the policy of accountability inherent in the Sentencing Code. See 42 Pa.C.S. Sec. 9701 et seq.

In the case at bar, the sentencing judge made explicit findings of aggravating circumstances. He looked first to the nature of the crime. Appellant had beaten his victim with a broken mile marker, gouged her with a Phillips screwdriver and kicked her about the head and chest with his work shoes. The sentencing judge looked further to appellant’s statements that he (appellant) had considered sending aid but decided against it.

Section 303.3 of the Sentencing Guidelines provides only that the trial judge state on record his reasons for sentencing in the aggravated range; it fails to offer instruction or guidance as to what constitutes sufficient reason for sentencing in the aggravated range. Further, Pennsylvania decisional law is also silent on this point. Mindful of our traditional deference to the sentencing judge’s discretion, our court has recently adopted a three-part analysis. First, a sentencing judge may consider any legal factor in deciding whether a defendant should be sentenced within the Aggravated range. Second, the sentencing judge’s statement of reasons on record must reflect this consideration. Finally, the sentencing judge’s decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985).

Applying that standard to the case at bar, we find no reason to disturb appellant’s sentence. Appellant argues that he should not have been sentenced in the aggravated range because the interaction of the alcohol he consumed that night with his severe mental handicaps effectively deprived him of the power of logical thinking. He points to the absence of any substantial criminal record and to the existence of some nine psychiatric disorders. We are satisfied that the trial court considered and properly weighed appellant’s claims. See Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978).

With respect to appellant’s remaining claim, the lower court did determine that the Deadly Weapon enhancement, 204 Pa.Code Sec. 303.4(a), was applicable. Appellant argues that a screwdriver and a roadsign do not fit the statutory definition of “deadly weapon.” 18 Pa.C.S. Sec. 2301. We need not, however, reach that issue. The sentence without the weapon enhancement had already reached the statutory maximum. The question is moot.

Judgment affirmed.


author: CERCONE, Judge: McEWEN, Judge, HANDLER, Senior Judge,

text:
    492 A. 2d 445
    COMMONWEALTH of Pennsylvania v. Darryll James BONCZAK, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed May 3, 1985.

      William J. McCabe, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.

      Before McEWEN, CERCONE, and HANDLER , JJ.

       Judge Earl R. Handler, Senior Judge, of the Court of Common Pleas of Indiana County, Pennsylvania, is sitting by designation.

   CERCONE, Judge:

In the early morning hours of July 23, 1983, state troopers went to a residence in Westmoreland County pursuant to a complaint by the owner that a person was racing his vehicle up and down the road and yelling obscenities. The actor was reported to have driven the vehicle over the complainant’s lawn, thereby causing damage. Shortly after the troopers’ arrival, the complainant directed them to appellant’s residence. The testimony of one of the troopers at the hearing below was that appellant refused to be interviewed by the troopers and became out of control. As a result, a fight ensued and one of the troopers suffered a broken arm. Appellant was charged with disorderly conduct, criminal mischief (both summaries), resisting arrest, aggravated assault and driving under the influence.

A preliminary hearing was held, after which all charges, including the two summaries, were held for court. After the adjudication, counsel for appellant, who is not present counsel, requested that his client be permitted to plead guilty to the summary offenses of disorderly conduct and criminal mischief. The district justice entertained the guilty plea and imposed a sentence of time served by appellant, as he had been incarcerated in lieu of posting bond. An information charging aggravated assault, resisting arrest, and driving under the influence was filed by the District Attorney on August 26, 1983. Appellant filed a motion to dismiss on Fifth Amendment double jeopardy grounds and under § 110 of the Crimes Code which was denied by the trial court on November 21, 1983. This appeal is from that dismissal.

Appellant claims that the information against him should be quashed since charges arising from the same criminal incident have already been adjudicated before the district justice. 18 Pa.C.S.A. § 109(3). Under § 110 of 18 Pa.C. S.A., when prosecution is barred by former prosecution for different offenses, appellant asserts that his right to be free from double jeopardy would be violated if he were to stand trial on the remaining charges.

The rule that all charges resulting from the same criminal episode should be consolidated at one trial or the compulsory joinder rule has come to be known as the Campana rule. Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). (Campana II). The rule is a necessary corollary to the principal purpose of the Double Jeopardy Clause, that is, to prevent “repeated attempts to convict an individual of an alleged offense” through a series of prosecutions. Commonwealth v. Campana, 452 Pa. 233, 241-2, 304 A.2d 432, 435-6, vacated and remanded 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973).

While § 110 of 18 Pa.C.S.A. is not mandated by either the Federal or Pennsylvania constitutional protections against double jeopardy, it does statutorily extend that protection. Appellant asserts violations of both the Federal Constitution and of § 110 in the introduction and conclusion of his argument. However, he poses his argument only in terms of a statutory violation. Nevertheless, we find, in accordance with traditional constitutional analysis, that there is no double jeopardy violation in prosecuting appellant for resisting arrest, aggravated assault, and driving under the influence. Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) the focus is on the proof necessary to prove the statutory elements of each offense. Simply stated, there is no violation if “each statute requires proof of an additional fact which the other does not[.]” Commonwealth v. Hoburn, 335 Pa.Super. 536, 548, 485 A.2d 24, 30 (1984).

The three crimes of resisting arrest, aggravated assault, and driving under the influence do indeed require proof of elements not required under the summary citations to which appellant entered pleas of guilty, disorderly conduct and criminal mischief. Thus, these prosecutions are not barred by the double jeopardy clause.

As for appellant’s contention that a violation of § 110 of the Crimes Code would ensue should he be made to stand trial, we conclude that it would be unfair, improper, and contrary to prior case law to so find in this situation. While represented by counsel, and after the holding of all charges for court, appellant himself chose to plead guilty to the “already-held” summary offenses. By this action, appellant voluntarily waived any future challenge to § 110. As the court said in Commonwealth v. Bartley, 262 Pa.Super. 390, 396, 396 A.2d 810, 813 (1979),

[sjection 110 is intended to prevent harassment by the prosecution; it is not intended to afford a defendant with a procedural expedient to avoid a prosecution.

In Bartley the defendant entered a plea of guilty to operating a vehicle without a license, and waived Reckless Driving and a DWI charge to court. By his choice to proceed with separate court proceedings, appellant abandoned any subsequent § 110 claim.

So also in this case.

Order affirmed. Case remanded for trial. Jurisdiction relinquished.

McEWEN and HANDLER, JJ., file concurring statements.

McEWEN, Judge,

concurring:

While I join in the majority rationale and conclusion that appellant waived any challenge to Section 110 of the Crimes Code, I also share the view of the learned hearing judge that the decisions of our Supreme Court in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), and of this Court in Commonwealth v. Kresge, 317 Pa.Super. 405, 464 A.2d 384 (1983), require that the motion for dismissal be denied.

HANDLER, Senior Judge,

concurring:

I join with Judge Cercone and Judge McEwen in affirming the order of the lower court and although I agree with the rationale of Judge Cercone, I also agree with the concurring statement of Judge McEwen that the decisions of our Supreme Court in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983) and of this Court in Commonwealth v. Kresge, 464 Pa.Super. 384, 464 A.2d 384 (1983), require that the motion for dismissal be denied.

      . 18 Pa.C.S.A. §§ 5503, 3304, 5104, 2702 and 75 Pa.C.S.A. § 3731.

      . The denial of a motion to dismiss based upon double jeopardy is generally immediately appealable despite the interlocutory aspects of such an order. Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979).

      . 18 Pa.C.S.A. § 110, in relevant part, reads:
      Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution if for:
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;

      . Although it may be argued that two separate criminal incidents gave rise to the instant charges, thereby removing the protection of § 110 from the aggravated assault and resisting arrest charges, our disposition of this case does not require that this determination be made. While the DWI charge arose from the early incident which prompted the filing of the two summaries and would still be protected by § 110, our finding of waiver would preserve the DWI prosecution. Thus, the result would be the same.

      . With regard to statutory provisions the waiver, need only be voluntary. Commonwealth v. Mallon, 279 Pa.Super. 350, 421 A.2d 234 (1980).

      . The trial court decided this case by concluding that the Supreme Court’s holding in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983) mandates that appellant’s motion to dismiss be denied. The Beatty decision held that disposition of summary offenses in a traffic matter prior to trial of a misdemeanor or felony arising from the same criminal incident did not violate § 110 since the summary traffic offense was within the original jurisdiction of the district justice. See also Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340 (1983). Cf. Commonwealth v. Kresge, 317 Pa.Super. 405, 464 A.2d 384 (1983) (Beatty decision extended to summary game law violation and misdemeanor violation of firearms act situation). Our finding of appellant’s waiver renders it unnecessary for us to decide whether Beatty controls in this case.


text:
    492 A.2d 448
    COMMONWEALTH of Pennsylvania v. David W. FROST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed May 3, 1985.
    James T. Rague, III, Wellsboro, for appellant.
    James E. Carlson, District Attorney, Wellsboro, for Com. appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This is an appeal from the imposition of a sentence of incarceration following a guilty plea to a charge of driving under the influence. The question presented is whether an individual who has successfully completed a period of Accelerated Rehabilitative Disposition arising out of an arrest under Section 3731 of the Motor Vehicle Code of 1976, 75 Pa. C.S.A. § 3731, (hereinafter referred to as “old drunk driving law”), may be sentenced as a second offender under Section 3731, 75 Pa.C.S. § 3731 Supp.1984., (hereinafter referred to as “new drunk driving law.”), as it was amended in 1982. We hold that he may not.

On March 2, 1979, David Frost was accepted into the Accelerated Rehabilitative Disposition (hereinafter referred to as “ARD”) program for a charge under Section 3731 of the old drunk driving law. He successfully completed the program and the charge was dismissed. On November 14, 1983, Frost entered a plea of guilty to a charge of driving under the influence in violation of Section 3731(a)(1) and (4) of the new drunk driving law. At the time of sentencing, the judge construed Section 3731(e)(2) of the new drunk driving law as requiring individuals who had successfully completed a period of ARD under the old drunk driving law to be treated as second offenders for sentencing purposes. Therefore, he indicated that a term of incarceration for a period of at least thirty days was mandated by Section 3731(e)(l)(ii) of the new law. Frost was accordingly sentenced to thirty days to twelve months in the Tioga County Jail. Frost filed a motion to modify sentence which was denied and dismissed on February 15, 1984, and this appeal followed.

On appeal, Frost argues as he did at the time of sentencing, that the lower court misconstrued the provisions of the new drunk driving law. The first applicable provision of the new law is Section 3731(e)(l)(ii) which requires a mandatory minimum term of imprisonment of not less than thirty days “if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.” The question which must be resolved is whether acceptance of ARD under the old drunk driving law should be considered a conviction within the meaning of subparagraph (e)(l)(ii). The sentencing judge and the Commonwealth have taken the position that it must be so considered due to the language of Section 3731(e)(2) of the new law which provides:

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

In support of its position, the Commonwealth has cited Commonwealth, Department of Transportation v. McDevitt, 57 Pa.Cmwlth. 589, 427 A.2d 280 (1981), which addressed the question of whether acceptance of ARD can be considered a conviction for purposes of classifying motorists as habitual offenders under Section 1542 of the Vehicle Code, 75 Pa.C.S. § 1542, Section 1542(c) of the Vehicle Code provides that an acceptance of ARD for any of the offenses enumerated in Subsection (b) of that section shall be considered an offense for purposes of applying the statute. In McDevitt, the appellant had been accepted into the ARD program after two arrests for three of the offenses enumerated in Section 1542(b). Based upon those offenses, the Department of Transportation determined that the appellant was an habitual offender within the meaning of Section 1542 of the Vehicle Code. On Appeal to the Court of Common Pleas of Bucks County, the court found that those offenses could not be considered convictions within the meaning of the habitual offender statute. The Department appealed to the Commonwealth Court which held that offenses resulting in acceptance of ARD could be considered convictions for purposes of the habitual offender statute. 75 Pa.C.S. § 1542.

A careful reading of McDevitt and Section 1542 of the Vehicle Code reveals that the instant case is distinguishable. The sole similarity lies in the fact that Section 1542 specifically provides that an acceptance of ARD shall be considered an offense for purposes of the statute. The major difference is that the appellant in that case had been accepted into the ARD program after the effective date of Section 1542. In addition, that section explicitly provides that only those offenses committed after the effective date of the statute may be considered. See Pa.C.S. § 1542(a). The thrust of the Commonwealth Court’s holding was that the word “offense” as used in Section 1542(c) is the equivalent of “conviction”.

In the instant case, Frost was accepted into the ARD program under the old drunk driving law which contained no provision relating to acceptance of ARD. We are, therefore, faced with an entirely different issue from that addressed by the Commonwealth Court in McDevitt. The question we must resolve is whether Section 3731(e)(2) of the Vehicle Code, which became effective on January 14, 1983, is applicable to acceptances of ARD which occurred before the effective date of the amendment.

Our construction of the statute in question is guided by the principle that “the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). In ascertaining the intention of the legislature in a case such as this where the statute is not explicit as to the particular issue, we may consider a variety of factors, including the former law. 1 Pa.C.S. § 1921(c). Having considered various factors, we have determined that the legislature did not intend an ARD under the old drunk driving law to be considered a prior conviction for the purpose of applying the mandatory sentencing provisions of Section 3731(e)(1). Therefore, Section 3731(e)(2) of the new law is applicable only to acceptances of ARD after the effective date of the amendment.

Our holding is supported in part by the content of the old drunk driving law. As it was enacted originally, Section 3731, contained no provisions relating to ARD. In fact, before the new drunk driving law became effective in 1983, there was no requirement that the courts of common pleas establish ARD programs for those charged with violations of Section 3731. Although many counties had established ARD programs, it was left to the discretion of the district attorneys to determine whether the program would be available to those charged under Section 3731. See Pa.R. Crim.Pro. Nos. 175-185 and Comments thereto. The district attorneys lost that discretion by virtue of Section 8 of the Act of December 15, 1982, P.L. 1268, No. 289, in which the legislature specifically directed the courts of common pleas to establish and implement ARD programs for those charged with violations of Section 3731. See 75 Pa.C.S. § 1552.

Although it was not required before the effective date of the new drunk driving law, there were counties in which ARD was available to those charged with drunk driving under the old law. Therefore, it is necessary to compare the procedure which was followed in those cases with the procedure which has necessarily been followed since the new law became effective. Under the old drunk driving law, acceptance of ARD was accomplished in accordance with Pa.R.Crim.P. Nos. 175-185 Rule 178 is of particular importance in the instant case because it governs the procedure to be followed at the hearing on the motion for ARD. It provides that the defendant must be asked on the record whether he understands that acceptance into and satisfactory completion of the ARD program offers him an opportunity to earn a dismissal of the pending charges. In accordance with that rule, defendants charged with drunk driving, as well as those charged with other offenses, were told that if they successfully completed the ARD program, the charges would be dismissed and would be of no further consequence.

The sentencing provisions contained in Section 3731(e) of the new law have necessitated a change in the procedure which is followed at the ARD hearing. Defendants who accept ARD for drunk driving are now told that an ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years. Therefore, defendants who have accepted ARD since the effective date of the new drunk driving law have been given notice of the possible consequences of their acceptance. Those who accepted ARD under the old law were given no such notice.

Based upon all of the foregoing, we hold that Section 3731(e)(2) applies only to acceptances of ARD since January 14, 1983, and therefore, an acceptance of ARD which occurred before that date cannot be considered a conviction for purposes of applying the sentencing provisions of Section 3731(e)(1).

Our holding applies only to Section 3731(e)(1) and (2) as it relates to acceptance of ARD. It is not intended to alter the holding of a panel of this Court in Commonwealth v. Grady, 337 Pa.Superior Ct. 174, 486 A.2d 962 (1984), wherein it was held that Section 3731(e)(l)(ii) is constitutional as it applies to convictions under the old drunk driving law.

Accordingly, the judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, effective July 1, 1977.

      . ' Act of December 15, 1982, P.L. 1268, No. 289, § 9, effective January 14, 1983.


author: SPAETH, President Judge:

text:
    492 A.2d 707
    Rose Betty PACELLA v. Armand PACELLA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1984.
    Filed April 26, 1985.

      Joseph M. Wymard, Pittsburgh, for appellant.
    Regis J. McNally, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This is an appeal from an order granting alimony. Appellant argues that in fixing the amount of alimony, the trial court erred (1) in considering the earlier equitable distribution of property and appellant’s earning capacity rather than his salary, and (2) in awarding alimony of unlimited duration. We affirm.

Appellant and appellee were married on May 16, 1964. N.T. 11/16/81 at 52, 133. Appellant was employed by a mortgage company and appellee was employed as a waitress. N.T. 11/16/81 at 53, 154. Appellee had never received a high school diploma, and was a widow with a five year old child. Appellant subsequently adopted the child. Id. at 52, 133. After the parties married, appellant began his own mortgage brokerage business, id. at 134-135, and in February 1974 he formed the Mar-Val Mortgage Corporation, of which he was president and sole shareholder, using the family home as collateral. Id. at 74, 137-38. Within one year after the parties’ marriage, appellee, at appellant’s request, left her job so that she would be readily available to fulfill the many social engagements entailed in appellant’s business, and also, to reduce the parties’ income tax bracket. Id. at 54, 134. On February 8, 1976, the only child of the marriage was born. Id. at 55, 133. For most of the duration of the marriage, appellee was primarily a full-time homemaker, concerned with caring for appellant and the children. Occasionally she served as bookkeeper for appellant’s business or arranged business entertainment, but she did no work outside the home. During 1976 she attempted to obtain a real estate agent’s license, but although she completed the course, she failed the examination. Id. at 61-62.

On April 30, 1979, appellee filed for divorce, having petitioned for support four days earlier. (R. at 27, 1) She subsequently amended her complaint to request custody, equitable distribution, counsel fees, alimony pendente lite, and alimony. (R. at 19, 29, 49, 57, 58) The trial court ordered that appellant pay temporary support of $425 per month (R. at 4); this was later raised, after hearing, to $900. (R. at 12) On October 5, 1979, a master was appointed, and on April 3, June 2 and 3, and July 15, 1980, the master heard testimony. (R. at 40, 47, 48, 50) On July 17, 1980, the trial court, upon the master’s recommendation, ordered that appellant pay $1,400 per month as alimony pendente lite and support for the parties’ minor child. (R. at 21)

On May 4, 1981, appellant and appellee agreed out-of-court on an equitable property distribution. (R. at 59) On May 7, 1981, the trial court signed the divorce decree, and on August 14, 1981, ordered that appellee should have physical custody of the minor child. (R. at 63, 65) In November and December 1981 the court heard four days of testimony on appellee’s petition for alimony. By then, appellant had accumulated substantial arrearages on the court’s earlier orders directing him to pay alimony pendente lite and child support. On December 21, 1982, the trial court ordered that appellant pay decreasing amounts of alimony and child support, and that upon the child’s emancipation, he pay appellee alimony of $300 per month. (R. at 86) This appeal followed.

-1-

Appellant’s first argument is that in fixing the amount of alimony, the trial court erred in considering the earlier equitable distribution of property and appellant’s earning capacity rather than his salary. This argument is without merit.

Section 501 of the Divorce Code, provides in part:

(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

We have held that these provisions must be read together, and that therefore the enumerated “relevant factors” are relevant both to the determination under Section 501(a) of a party’s “reasonable needs,” and to the determination under Section 501(b) of the amount necessary to satisfy those needs. See Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984); Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982). We have also held that in enacting Section 501, the legislature intended “to provide for economic justice,” and that “[t]his goal requires that [the section] be applied in a nonmechanical manner,” for “[e]learly, the legislature intended that a reasonable and compassionate result be reached.” Geyer v. Geyer, 310 Pa.Super. 456, 463-64, 456 A.2d 1025, 1029 (1983). See also Hess v. Hess, supra; Bickley v. Bickley, supra. In reviewing the result reached, we will reverse the trial court’s award only for an abuse of discretion. See Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) (en banc); see also Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

Our review of the record and of the thorough opinion of the trial court discloses no abuse of discretion. Rather, we are persuaded that the trial court’s award was “reasonable and compassionate,” and was based upon the court’s careful consideration of each of the enumerated relevant factors. The court found, for example, that the parties had been married for 17 years (Section 501(b)(5)); that appellee was 43 years old at the time of the hearing and was healthy, but had no high school diploma (Section 501(b)(2), (9)); and that appellee had been a homemaker for most of the marriage (Section 501(b)(12)), although she had contributed to the social contacts upon which the appellant’s business depended (Section 501(b)(6)). See generally slip op. of tr. ct. at 3-14. The court also considered the earlier equitable distribution of property, but there was no error in this, for the Divorce Code required that it do so, both in determining that appellee has “reasonable needs,” and in determining the amount necessary to satisfy those needs. See 23 Pa.C.S. § 501(a)(1), (b)(10). Indeed, when a trial court did not consider this factor, we remanded to enable it to do so. See Geyer v. Geyer, supra.

Nor did the trial court err in considering appellant’s earning capacity rather than his salary, as a basis for calculating the appropriate amount of the award. The Divorce Code directs that a trial court “grant or withhold alimony according to the actual need and ability to pay of [ ] the parties____” in order to “effectuate economic justice between [the] parties[.]” 23 Pa.C.S. § 102(a)(6). While ordinarily this means that alimony should be based upon actual earnings, that is true only because ordinarily actual earnings accurately measure “ability to pay.” Moreover, in the context of support proceedings, we have held that earning capacity, rather than actual earnings, is the determinative factor in ascertaining a party’s ability to pay support, Commonwealth ex rel. Raitt v. Raitt, 203 Pa.Super. 226, 199 A.2d 512 (1964), and that a party may not deliberately reduce his level of income in order to reduce his support obligation, Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976); Commonwealth ex rel. McNulty v. McNulty, 226 Pa.Super. 247, 311 A.2d 701 (1973). Where we have found, in support cases, that actual earnings did not reflect earning capacity, we have approved the use by trial courts of a variety of means to arrive at earnings figures that accurately reflect a party’s real wealth. See e.g., Commonwealth ex rel. Maier v. Maier, 274 Pa.Super. 580, 418 A.2d 558 (1980) (where supporting spouse is sole stockholder of corporation and determines his own salary, court may pierce corporate veil and use corporate income as basis for determining earning capacity); Commonwealth v. Miller, 202 Pa.Super. 573, 198 A.2d 373 (1964) (where supporting spouse is self-employed, net income, as it appears on income tax forms, is not “infallible” measure of real wealth; court accordingly may add back portion of depreciation deduction in calculating amount of support owed); Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 189 A.2d 324 (1963) (in determining supporting spouse’s earning capacity, court should consider not only salary paid by wholly owned corporation, but all prerequisites provided by corporation.) As a matter of economic common sense, earning capacity is equally relevant whether the proceeding be for support, alimony pendente lite, or alimony after divorce. We have, in fact, recognized this and have held, applying support cases, that a trial court properly based an alimony award upon earning capacity, as evidenced by prior earnings, reasoning that a party may not choose to reduce his alimony obligation by accepting lower paid employment. See Bickley v. Bickley, supra 301 Pa.Super. at 407, 447 A.2d at 1031. We now further hold that where, as here, current or prior income does not accurately reflect earning capacity, a trial court may arrive at an appropriate alimony award by the same means as it calculates appropriate support orders.

The present case clearly required that the trial court look beyond appellant’s salary to determine his ability to pay an alimony, award responsive to appellee’s needs. The court made the following findings. Appellant ended the active life of Mar-Val Corporation, of which he was president and sole shareholder, solely because he feared that appellee would receive a share of the corporation in the divorce proceedings. (Slip op. of tr. ct. at 7, N.T. 12/4/81 at 480) Appellant then continued his business activities without change as president of a new corporation, Golden Triangle, which was ostensibly owned by two nephews, to whom appellant referred as “employees.” Id. at 483. The transfer of business from Mar-Val to Golden Triangle took place in the summer of 1980, in the midst of the contested divorce proceedings. Id. 11/16/81 at 164. The new owners of Golden Triangle paid nothing to Mar-Val for the transfer of corporate “good will,” which was the principal asset of both corporations. (Slip op. of tr. ct. at 9) Appellant treated Golden Triangle’s funds as his own; received numerous no-interest loans from the corporation; had numerous personal expenses paid by the corporation; and, in general, so commingled corporate and personal funds as to render efforts to separate the two extremely difficult. (Slip op. of tr. ct. at 9-10; see, e.g., N.T. 11/18/81 at 256, 270-89; 12/4/81 at 460-66; R. at 83, Exhibit B, D) These findings are supported by the record, and in turn, support the trial court’s decision to use corporate income (with appropriate adjustments) rather than salary, as the basis upon which to calculate appellant’s “ability to pay” alimony.

-2-

Appellant also argues that the trial court erred in awarding appellee alimony of unlimited duration.

Prior to the enactment of the new Divorce Code in 1980, Pennsylvania was almost alone in not providing for an award of alimony following divorce. See L.Z. Gold-Bickin and J.A. Rounick, “The New Pennsylvania Divorce Code,” 25 Villanova L.Rev. 617 (1979-1980). See also Hess v. Hess, supra 327 Pa.Super. at 283-84, 475 A.2d at 798-99. Our Supreme Court summarized the pre-Code law of alimony as follows: “The Pennsylvania Divorce Law does not provide for alimony following any divorce from the bonds of matrimony, except in cases of insanity.” Stambaugh v. Stambaugh, 458 Pa. 147, 156, 329 A.2d 483, 488 (1974), (citations omitted). Section 501 of the new Divorce Code changed the law by providing that a “court may allow alimony” after divorce, upon satisfaction of the conditions set forth in the section. Stated generally, the conditions look to “rehabilitation,” that is, alimony is to be awarded for a sufficient period of time to enable the party receiving it to become self-supporting. See J.A. Rounick, 1 Pennsylvania Matrimonial Practice, 433-38 (1984) and cases ci, 3d therein. Where, however, rehabilitation is not possible, as may be the case by reason of age, health, or other circumstances, then the alimony may continue. Thus, Section 501(c) of the Divorce Code provides that the court “shall limit the duration” of an order awarding alimony, “[u]nless” the party seeking alimony will not be able “to provide for his or her reasonable needs through employment.” To quote the section in full:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor chidren, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.

23 Pa.C.S. § 501(c).

Section 501 thus reflects an attempt to accomplish two purposes, which may be inconsistent: that divorce should represent a final severing of the marital tie; but that the severance should “[e]ffectuate economic justice between [the] parties.” 23 Pa.C.S. § 102(a)(6). The sponsors of the section acknowledged the tension implicit in this attempt: "... there is a right to alimony,” they noted, “but there is also a responsibility on the part of the person[s] requesting alimony and accepting alimony to do everything in their power to contribute to their own economic well-being to the extent that is possible.” September 26, 1979 at HJ 1873L, quoted in Rounick, 1 Pennsylvania Matrimonial Practice, supra at 433. Recognizing this tension, we have held that “[i]n a determination of the duration of‘alimony, the factors of § 501(b) are brought to bear,” Hess v. Hess, supra 327 Pa.Super. at 290, 475 A.2d at 802, to which we now add that the trial court must also bring to bear the determination under Section 501(a) of the “reasonable needs” of the party seeking alimony.

Here we are satisfied that the trial court’s decision to award alimony of unlimited duration represents a proper application of Section 501 to the facts disclosed by the testimony. Appellee is a woman of limited education and employment skills. 23 Pa.C.S. § 501(b)(10). Because of the demands of caring for her family and helping appellant in his business, she has not been regularly employed since the first year of marriage. 23 Pa.C.S. § 501(b)(6), (12). The trial court found that she is capable of resuming work as a waitress, and therefore attributed to her an earning capacity of $500 per month. 23 Pa.C.S. § 501(b)(1). The court further found, however, that even with this income appellee can not, through appropriate employment, meet her “reasonable needs,” measured by the standard of living the couple had established during the marriage, 23 Pa.C.S. § 501(b)(8), and that she will not be able to do so for the indefinite future because of her lack of education, continuing child care responsibilities, advancing age, and inability to succeed at previous attempts to enhance her employability. See 23 Pa.C.S. § 501(b)(2), (6), (7), (9). Finally, the court found that appellee can not meet her needs through property she now has because of the “totally inequitable property division” to which, against advice of counsel, she agreed when appellant wrongfully withheld support payments. See 23 Pa.C.S. § 501(a)(1); (b)(10); Slip op. of tr. ct., 3/15/83, at 4. Given these findings, the trial court could reasonably conclude that appellee’s ability to provide for her “reasonable needs” through “appropriate employment” was “substantially diminished by reason of age, custody of minor children, or other compelling impediment to gainful employment.” 23 Pa.C.S. § 501(c). See Hodge v. Hodge, 337 Pa.Super. 151, 486 A.2d 951 (1984) (forty-four year old woman with three minor children and associate degree in medical technology entitled to long-term alimony under Section 501(c), considered in context of Section 501 as a whole); Eck v. Eck, 327 Pa.Super. 334, 340, 475 A.2d 825, 828 (1984) (lack of employment skills, lack of education, lack of experience, and age, among other factors, may constitute “compelling impediment[s] to gainful employment” for purposes of Section 501(c).) We therefore find no abuse of discretion by the trial court. Should appellee’s circumstances change, appellant may petition the court to modify its order. See 23 Pa.C.S. § 501(e); Hodge v. Hodge, supra.

AFFIRMED.

      . In calculating the alimony award, the trial court found that as a result of the property settlement the following property was available to each of the parties:
      WIFE (1) Money taken from joint account, December, 1978 $ 1,700 (2) Money received for Whitehall property 6,500 (3) Money received from property settlement 5,000 (4) Residence at 3130 Woodridge Drive, Whitehall 25,000 (5) Mobile home and lot at Moraine State Park, net value 11,000 (6) Household furnishings 5,000 TOTAL $54,200
      HUSBAND (1) Amount in joint savings accounts held Sept. 1978 $ 17,000 (2) Amount in Mar-Val Profit Sharing Account 28,000 (3) Amount received from Mar-Val after discontinuing business 11,540 (4) Residence, 3801 Brownsville Rd. Brentwood, net value 67,000 (5) House, 333 Euclid Ave. Glassport, net value 10,000 (6) Garage at 2020 Forbes Ave. net value 4,500 (7) Jewelry and coins 12,000 $150,040
      Slip op. of tr. ct. (3/15/83) at 5-6.

      . The trial court’s order provides in relevant part:
      1) Husband is found to be in contempt of this court’s order of July 17, 1980. He may purge himself of the contempt by complying with this order.
      2) Arrearages are set at $14,041.00.

        3) Beginning on July 1, 1983, and for the entire year of 1983, Husband shall pay Wife alimony and child support in the amount of $1,200.00 per month, plus $200.00 per month on the arrearages.
      Beginning on January 1, 1984, and for the entire year of 1984, Husband shall pay Wife alimony and child support in the amount of $1,000.00 per month, plus $400.00 per month on the arrearages.
      Beginning on January 1, 1985, and thereafter until the emancipation of Vincent, Husband shall pay Wife alimony and child support in the amount of $800.00 per month, plus $600.00 per month on the arrearages until they are fully paid.
      Upon Vincent’s emancipation, Husband shall pay Wife alimony in the amount of $300.00 per month.
      (R. at 86)
      Appellant does not contest either the trial court’s calculation of the arrearages or its finding of contempt.

      . Act of Apr. 2, 1980 P.L. 63, No. 26, 23 Pa.C.S. §§ 101-801.

      . The trial court noted that because the parties had agreed that marital misconduct would not be relevant for the purpose of determining alimony, it did not consider Section 501(b)(14). See Slip op. of tr. ct. at 3 n. 3.