author: CIRILLO, President Judge:

text:
    548 A.2d 604
    COMMONWEALTH of Pennsylvania v. Robert BRICKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Filed Sept. 26, 1988.

      Lawrence J. O’Toole, Jr., North Versailles, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and JOHNSON, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Allegheny County. We affirm.

Appellant, Robert Bricker, was arrested and charged with one count of criminal homicide. His case was consolidated for trial with co-defendants Thomas Skelton, James Griffin, Samuel Rende, and James Watson, but was subsequently severed by court order. Following a jury trial, Bricker was adjudged guilty of first-degree murder, and was sentenced to life imprisonment. He filed post-verdict motions which were untimely in contravention of Pa.R.Crim.P. 1123(a). Consequently, Bricker’s appeal from the judgment of sentence was quashed sua sponte. Bricker filed a petition under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541-9551 (Purdon 1982) (amended 1988). The petition was granted and Bricker’s appellate rights were reinstated nunc pro tunc. Bricker then filed a new notice of appeal.

In a 1987 memorandum, a panel of this court affirmed the 1986 trial court judgment of sentence. The Pennsylvania Supreme Court subsequently granted allocatur, vacated this court’s affirmance of the judgment of sentence, and remanded the case to this court for further proceedings. 518 Pa. 68, 540 A.2d 932. Pursuant to our supreme court’s order, we now consider on remand the issue of whether the trial court erred in admitting the testimony of Commonwealth witness Charles Rossi in light of Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985).

Bricker was charged for his complicity in the December 14, 1978 killing of Norman McGregor. The events leading to McGregor’s murder began in March of 1978. At that time, as a result of growing animosity between Thomas Skelton and McGregor, Skelton decided to have McGregor killed. Skelton made his plans known to Samuel Rende who, on Skelton’s behalf, told Charles Kellington of the scheme. Kellington, in turn, discussed the killing with James Griffin and Gerald Walls. These men offered Brick-er’s name for the job. Griffin quoted Kellington a price of $10,000.

Skelton agreed to pay that amount, and gave Kellington an initial payment of $2,500. Skelton also supplied Kellington with McGregor’s physical description, residence and job locations, and personal “hang-outs.” Kellington subsequently gave Griffin the $2,500. In addition, he related the information regarding McGregor to Griffin and Walls. Walls, in turn, supplied Bricker with that information.

In July of 1978, Charles Rossi agreed to assist in the killing at Bricker’s request. Bricker gave Rossi the inf ormation on McGregor, and told him that they would split the money he was to be paid for the job.

Approximately one week later, Bricker brought in James Watson to assist with the killing. At that time, he instructed Watson and Rossi to find and kill McGregor.

Bricker, Watson, and Rossi alternated in stakeouts for several weeks, waiting for an opportunity to kill McGregor. This included an incident where Watson shot James “Smitty” Smith, whom Watson mistakenly believed to be McGregor. The shooting prompted Bricker, who had not had any contact with Kellington to this point, to agree to deal directly with him on the condition that he, Bricker, receive an additional $2,500 up front. Through Kellington, Skelton paid Bricker that $2,500, and then paid the final $2,500 payment due on the contract. Kellington then personally guided Bricker on a tour of McGregor’s “hang-outs.”

For several more weeks, Bricker, Watson, and Rossi attempted, unsuccessfully, to kill McGregor. Finally, on December 14, 1978, Bricker told Rossi that Watson had killed McGregor. Rossi was paid $800, and later received an additional $1,000 from Bricker.

At trial, direct examination of the Commonwealth’s witness, Charles Rossi, revealed Rossi’s long history of incarceration. It was then disclosed that Rossi had been acquainted with Bricker for nineteen years. The relevant testimony is as follows:

A. ... I served 11 months for larceny of a car in Whitehill, Pennsylvania when I was about 2IV2 years old. And in 1943 I received 70 years, some of them concurrent. Some sentences were concurrent and some were consecutive 10 year sentences, and they accumulated to be 30 years in the West Virginia Penitentiary for sticking up a gambling establishment in Wheeling, West Virginia. And I served about 15 years there.
Q. Of that sentence you served 15 years?
A. About 15 years, that’s correct.
Q. Okay.
A. And then a couple of years after that I got found guilty of First Degree Murder of a bookie. I received life there.
Q. And were you the individual that had actually engaged in the killing of that bookie?
A. No, I was not.
Q. And you were convicted as an accomplice?
A. As an accomplice under the Felony Statute.
Q. And so that you were, as an accomplice, found guilty of First Degree Murder?
A. Yes, I was.
Q. Do you know what your sentence was?
A. I received a life sentence.
Q. And how much time did you actually serve?
A. I served about 15V2 years.
Q. You were then paroled?
A. Yes.
Q. Okay. Now, at the time you first became involved in the McGregor matter, you were not in prison I take it?
A. No, I was out then.
Q. Okay.
A. Yes, I was on parole.
Q. And you had served prior to that time — you had served a total of how many years in prison? Not your sentence but the time that you actually served.
A. About 31 years.

Later in his testimony, Rossi admitted knowing Gerald Walls and James Watson. Rossi was then questioned about his acquaintance with Bricker:

Q. Now, let’s just take July of 1978. Did you know Robert Bricker, the defendant seated at counsel table, in July of 1978?
A. I did.
Q. And for how long a period of time had you known him?
MR. O’TOOLE: Your Honor, may we approach the bench?
THE COURT: Yes, sir.

Appellant’s counsel objected, at which time there was a side bar discussion. The trial judge overruled the objection and the testimony of Rossi resumed:

Q. You say that as of July of 1978 you knew Robert Bricker?
A. That is true.
Q. Just tell us in terms of months or years how long had you known Mr. Bricker?
A. Around 19 years.
Q. At that time?
A. Yes.
Q. Okay.
A. No, wait a minute. Wait a minute. Let me think now. Yes, that’s correct. Around 19 years.
Q. All right. And is that Robert Bricker the same individual who is seated at counsel table here today in the tan coat with his attorney?
A. It is.

Bricker asserts that this testimony could have led the jury to infer that the two men had met while in prison, thus improperly alluding to the fact that Bricker had a history of prior criminal activity. Based on this contention, Bricker claims he is entitled to a new trial.

It is undisputed in this Commonwealth that “the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge.” Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981); Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972); Commonwealth v. Zabala, 303 Pa.Super. 72, 79, 449 A.2d 583, 587 (1982). Any reference to a defendant’s prior criminal activity is improper and generally inadmissible, unless the evidence revealed assists in proving motive, intent, absence of mistake or accident, a common scheme or design linking two or more crimes so related that the evidence in one tends to prove the other, or the identity of the accused through a logical connection between the crimes so that proof of one will naturally lead to the belief that both crimes were committed by the same person. Commonwealth v. Banks, 513 Pa. 318, 349-50, 521 A.2d 1, 17 (1987), cert. den., — U.S. —, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Green, 351 Pa.Super. 170, 176, 505 A.2d 321, 324 (1986), alloc. den., 513 Pa. 633, 520 A.2d 1384 (1987); Commonwealth v. Shirey, 333 Pa.Super. 85, 122-23, 481 A.2d 1314, 1334 (1984). Moreover, the Pennsylvania Supreme Court has held that it will recognize additional exceptions if the probative value of evidence outweighs any potential prejudicial effect upon the jury. Banks, 513 Pa. at 350, 521 A.2d at 17.

Admission of testimony from which a jury could infer past criminal conduct by defendant ordinarily constitutes reversible error. As our supreme court explained in Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972):

The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more liable to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus [effectively] to strip him of the presumption of innocence.

448 Pa. at 182, 292 A.2d at 375 (quoting Commonwealth v. Trowery, 211 Pa.Super. 171, 173-174, 235 A.2d 171, 172 (1967)). The court went on to explain that, recognizing the prejudicial effect of such evidence, “there is no justification for indirectly allowing the introduction of prior criminal activity by reference to photographs of the accused.” 448 Pa. at 182, 292 A.2d at 375. However, reversal is not warranted unless the record indicates that prejudice resulted from the remark. Commonwealth v. Allen, 448 Pa. at 181, 292 A.2d at 375 (1972); Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). The testimonial reference can be found prejudicial only if it conveys to the jury, either expressly or by reasonable implication, the fact that defendant committed a prior criminal offense. Commonwealth v. Dooley, 332 Pa.Super. 227, 481 A.2d 336 (1984). “[T]he controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Allen, 448 Pa. at 181, 292 A.2d at 375, see also Maute, 336 Pa.Super. at 403, 485 A.2d at 1143; Commonwealth v. Gaerttner, 335 Pa.Super. 203, 219, 484 A.2d 92, 106 (1984); Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 134 (1984); Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983). Moreover, the determination of whether the evidence is admissible is left to the discretion of the trial court, and an appellate court should not reverse absent an abuse of discretion. Banks, 513 Pa. at 350, 521 A.2d at 17; Green, 351 Pa.Super. at 176-77, 505 A.2d at 324.

In Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), a separate case involving the same individuals as this appeal, Commonwealth witness Rossi testified in essentially the same manner as in the instant case. He testified as to his own criminal record and the time he served in prison. The assistant district attorney then asked Rossi the following question: "Have you known Mr. Brieker for a substantial period of time?” As in the instant case, Rossi responded, "About 20 years.” Defense counsel objected to this testimony on the basis of improper reference to prior criminal conduct, and also on the basis of prosecutorial misconduct. A plurality of the Pennsylvania Supreme Court found that Rossi’s statement that he knew Brieker for twenty years showed that he knew Brieker while in prison, and that a jury could reasonably have inferred that Brieker had been in prison. Id., 506 Pa. at 583, 487 A.2d at 352 (per Zappala, J., with one Justice concurring and two Justices concurring in the result).

During the trial in that case, the prosecutor continually exhibited flagrant misconduct. Based on the prosecutor’s transgressions, Justice Zappala, with Chief Justice Nix concurring, stated: “[Repeated instances of misconduct permeated the entire proceeding so as to effectively deny ... [Bricker] a fair trial.” Id., 506 Pa. at 588, 487 A.2d at 354. Justice Larsen concurred in the result reached by Justice Zappala, and Justice Hutchinson concurred in the result because the record was inadequate for effective appellate review. Three justices dissented. The case was therefore reversed and remanded for a new trial. We find no clear majority decision on the specific issue before us, and therefore we cannot find Bricker, supra, controlling. See Commonwealth v. Scott, 279 Pa.Super. 8, 420 A.2d 717 (1980) (plurality opinions do not automatically have precedential value).

Allen, supra, is the seminal decision on the issue of testimonial references which may suggest prior unrelated criminal activity on the part of the accused. There, the appellant claimed that reversible error was committed when, over timely objection, the trial court permitted several of the Commonwealth’s witnesses to make references to the fact that the police had shown photographs of the appellant to the alleged eyewitnesses. Allen claimed this allowed the jury to infer that he had a prior criminal record. The court stated: “Certainly, the constant mention of photographs during direct examination permitted the jury to infer that the appellant had a prior criminal record.” 448 Pa. at 182-83, 292 A.2d at 376. Our supreme court concluded that since there was no reasonable explanation as to how the police obtained photographs of the appellant other than through his prior criminal activity, the appellant had been prejudiced and a new trial was warranted. Id., 448 Pa. at 182-83, 292 A.2d at 376.

In Commonwealth v. Jackson, 263 Pa.Super. 183, 397 A.2d 807 (1979), we applied Allen. There, Jackson contended that a Commonwealth witness improperly referred to pictures which appeared on the station house bulletin board as recently as the morning after the robbery. Although the pictures were never identified as “mug shots,” this court found a “sufficient nexus between the pictures and a police source to warrant a reasonable inference of prior criminal activity.” Jackson, 263 Pa.Super. at 185, 397 A.2d at 808. However, in Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983), our supreme court held that where there is no indication that the photographs were “mugshots” or that they came from police files, it is not error for a witness to testify that he identified a defendant from photographs shown to him by police. In Reiss, the victim testified that he went with a police investigator to police headquarters. While there, the investigator showed the witness a packet of photographs, from which the witness picked out defendant’s picture. The court stated:

Defendant would have us believe that the fact that his picture was in the possession of the police, without any explanation as to how it was obtained, would cause the jury to infer prior criminal conduct. We disagree. The jury could easily have believed that the police had photographs of individuals who had no criminal records, for example, the jury could have inferred that the photographs came from a neutral source; or the jury may not even have questioned the source of the photographs. To hold that the jury drew the inference that defendant had engaged in prior criminal activity on these facts alone would be an unreasonable and unsubstantiated conclusion.

Reiss, 503 Pa. at 50, 468 A.2d at 453 (emphasis ours).

Allen and Reiss are not easily reconcilable; factually, they are only slightly dissimilar. The instant case, however, can be distinguished from both cases. First, unlike Allen and Reiss, we are not here concerned with references to photographs or “mug shots,” which, in this court’s opinion, are more likely to raise the inference of prior criminal activity than a witness testifying as to his own criminal activity, and then testifying that he knew the defendant. Further, there certainly are reasonable explanations for Rossi’s and Bricker’s acquaintance, other than that Bricker had also spent time in prison. Rossi testified that he went to jail in 1943, and served “[ajbout 15 years” until 1958. Rossi was then jailed “a couple of years after that” for an additional fifteen and one-half years. Rossi testified that he knew several of the people involved in the conspiracy, including Kellington, Griffin, Walls, and Watson, as well as Bricker. Rossi stated that when he was first contacted by Bricker regarding the McGregor matter in July of 1978, he had known Bricker for “[ajround 19 years.” The jury could have reasonably and easily inferred that Rossi and Bricker met during the period of time between Rossi’s prison terms, or through a mutual acquaintance. Rossi never stated that he met Bricker while in prison. Moreover, Rossi never alluded to Bricker ever being in jail or ever being involved in criminal activity whatsoever. Rossi plainly and simply admitted that he himself had been in jail, and acknowledged that he had been acquainted with Bricker for nineteen years. The testimony elicited from Commonwealth witness Rossi regarding his time in jail, followed by his testimony that he knew appellant Bricker, did not indicate to the jury that Bricker had a criminal record.

In Commonwealth v. Green, 815 Pa.Super. 564, 462 A.2d 736 (1983), the defendant's sister testified that the defendant had been sent to a “group home,” and had “got in some trouble.” The witness also made other testimonial references to prior criminal conduct of the defendant. The court found that these references indicated to the jury that the defendant had a prior criminal record. This testimony is much more susceptible to the inference of prior criminal activity than is Rossi’s in the instant case. Unlike the witness in Green, Rossi’s only reference to Bricker was that he knew him for nineteen years.

However, assuming arguendo that the jury could infer from the testimony that Bricker had also been incarcerated, and that Bricker was therefore prejudiced, we would not find reversible error. Where this court is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless. Commonwealth v. Maxwell, 505 Pa. 152, 166, 477 A.2d 1309, 1316-17 (1984), cert. den., 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 application den., 469 U.S. 1070, 105 S.Ct. 561, 83 L.Ed.2d 502 reh. den., 472 U.S. 1033, 105 S.Ct. 3516, 87 L.Ed.2d 644 (1985); Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 93 (1982); Commonwealth v. Story, 476 Pa. 391, 409-11, 383 A.2d 155, 164-65 (1978).

The Pennsylvania Supreme Court has held that “an error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Commonwealth v. Story, 476 Pa. at 412, 383 A.2d at 166, citing Commonwealth v. Davis, 452 Pa. 171, 178-79, 305 A.2d 715, 719 (1973); accord, Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1058, 31 L.Ed.2d 340 (1972). The overwhelming evidence test requires that a reviewing court first determine “whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt.” Story, 476 Pa. at 413, 383 A.2d at 166. If the court finds the evidence of guilt is overwhelming, it then decides if “the error was so insignificant by comparison that it could not have contributed to the verdict.” Id., 476 Pa. at 413, 383 A.2d at 166. If “honest, fair minded jurors might very well have brought in [a] not guilty verdict[ ],” an error cannot be harmless on the basis of overwhelming evidence. Davis, 452 Pa. at 181, 305 A.2d at 721, quoting Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 705 (1967).

In Story, our supreme court emphasized that the untainted evidence examined must be uncontradicted in order to find harmless error based on overwhelming evidence of guilt. Unless the evidence is uncontradicted, a fair minded juror may well choose to credit the defendant’s testimony, rather than the Commonwealth’s evidence. 476 Pa. at 415-16, 383 A.2d at 167. See Commonwealth v. Henderson, 456 Pa. 234, 317 A.2d 288 (1974) (error held not harmless under overwhelming evidence test where there was evidence which contradicted defendant’s guilt). The court went on to note that the determination of whether an error is harmless based on overwhelming evidence of guilt is closely tied to the facts of the particular case, thus requiring examination of the entire record. Story, 476 Pa. at 413 n. 24, 383 A.2d at 166, n. 24.

In summary, then, the court must answer each of the following questions affirmatively before concluding that the error was harmless under the overwhelming evidence test:

(1) does the untainted evidence, when examined independently, overwhelmingly establish the defendant’s guilt?

(2) is the untainted evidence uncontradicted?

(3) is the error, when compared to the overwhelming evidence of guilt, so insignificant that it could not have contributed to the verdict?

A thorough review of the record reveals that several key witnesses offered testimony that was extremely damaging to Bricker. Charles Rossi depicted Bricker’s activities throughout all stages of the scheme to kill McGregor. Rossi’s involvement came about when he was contacted by Bricker regarding the “contract killing.” Bricker, described by Rossi as “the set up man,” was “the man that has been given the job of picking out who he is going to get to do the contract murder. And he is also the man who is collecting the money from whoever is putting out the contract.” According to Rossi, Bricker monitored the payments, timing, and strategy for the “job.” Bricker also supplied Rossi with commentary of the actual attempts, including how he “layed out” at McGregor’s house, interpreted to mean “[l]ay for him near the house in trying to kill him.” In the months and years following the “hit,” Bricker described the killing to Rossi. Referring to Bricker, Rossi stated that “[i]t was his contract killing____ He told me who the victim was, Norman McGregor.” And, finally, "... it was Mr. Bricker’s job. It was his contract.”

The testimony of Charles Kellington further linked Brick-er to the events leading to McGregor’s killing. During the early stages of the plan, Bricker accidently shot another man while attempting to kill McGregor. Kellington testified that Bricker admitted doing that shooting, and told Kellington that he “blew him off of the bar stool.” Later on in his testimony, Kellington described a phone conversation between himself and Bricker that had transpired after McGregor had been killed:

Q: You got a phone call from who?
A: Mr. Bricker.
Q: Okay. He told you what?
A: That he did it. It is done.
Q: He told you — he referred to his having killed Norman McGregor?
A: Yes.
Q: And what else did he say?
A: He said: Get the rest of my money.

After Kellington had paid Bricker the remaining fee, Brick-er spoke to him about the actual event: “He says [sic] he is laying there and the guy came home and he shot him. And he was running to his car or something and the light came on and he shot him some more.” Witness Gerald Walls, another party in the conspiracy, also testified to Bricker’s involvement in the killing. Wall recounted the conversation he had with Bricker when Bricker told him of McGregor’s death:

A: ... And Bricker said: I finally caught that guy. And I looked at him and I said: Oh, really? And he said: Yes. And he said: We had to shoot him several times to get him down.
And then he related that the guy pulled up to his house, shot him in the side. They made two shots, one hit him in the side or something. And then the guy was screaming and running to the doorway to the house. And I believe somebody turned on the light and the guy hollered: Turn out the damn light. And this was the final shot, the third shot, I believe, that killed him. Q: And was this related to you by Bricker on this occasion?
A: Yes, sir.

Upon review of the entire record, it becomes overwhelmingly clear that, at the very least, Bricker had a key role in procuring the killing, and at worst he was, in fact, the trigger man. As the events were described, many of the witnesses spoke of Bricker’s involvement. Moreover, Brick-er offered no evidence to controvert the witnesses’ testimony. Thus, when compared to the rest of the testimony, Rossi’s comments regarding his own time in prison and his acquaintance with Bricker become extremely insignificant. Bricker’s guilt was established by the damaging and uncontradicted testimony of several witnesses, not by his alleged association with Rossi.

In Green, also, we note that despite the witness’ testimony that the defendant had been in trouble before and had been in a group home, the testimonial reference error was held harmless in light of the overwhelming evidence of the defendant’s guilt. Green, supra, 315 Pa.Superior Ct. at 576-77, 462 A.2d at 742 (citing Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979)). As Story and Green illustrate, where the evidence of guilt is otherwise overwhelming, a brief and oblique reference to a defendant’s prior criminal history may constitute only harmless error. Thus, had we determined that Rossi’s testimony was improperly admitted, we would find that error harmless.

Judgment of sentence affirmed.

      . We note the view of the three dissenting justices:
      There is no basis for the assertion that the prosecutor inferred that appellant had served time in prison for prior crimes. The prosecutor merely introduced evidence that one of the defense witnesses, Rossi, who had known appellant for 20 years, had been in prison for various periods during those 20 years. The mere fact that appellant knew someone who had been imprisoned is not evidence that appellant too had served time, and it is unreasonable to assume that only persons with records of criminal convictions could be acquainted with individuals who had served time in prison.

        Id., 506 Pa. at 591, 487 A.2d at 355.


source: Caselaw Access Project

author: BECK, Judge: CIRILLO, President Judge,

license: Public Domain

text:
    548 A.2d 611
    Mary Louise CUNNINGHAM, Appellee, v. Reese A. CUNNINGHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1988.
    Filed Sept. 29, 1988. .

      John B. Wise, Pittsburgh, for appellant.
    Robert Petrosky, Kittanning, for appellee.
    Before CIRILLO, President Judge, BECK and POPOVICH, JJ:
   BECK, Judge:

Reese and Mary Louise Cunningham were divorced after almost forty years of marriage. Extensive hearings were held before a master in divorce, who filed a report with his recommendations as to equitable distribution and alimony. Following review of the exceptions filed by Mr. Cunningham, the trial court issued an award of equitable distribution and alimony which Mr. Cunningham now challenges on appeal. We consider the issues he raises seriatim.

The standard by which we review an award of alimony and equitable distribution of marital property is abuse of discretion; unless the trial court has abused its discretion, we will not disturb its decision. Vajda v. Vajda, 337 Pa.Super. 573, 579, 487 A.2d 409, 412 (1985). We find that the trial court did not abuse its discretion and we affirm.

Mr. Cunningham first claims that the trial court erred in adopting the master’s finding that he had an income of $2,000 per month. Mr. Cunningham’s most recent income tax return showed a gross annual income of over $24,000, or approximately $2,000 per month. He claimed over $17,000 in deduction and depletion allowances. Mr. Cunningham challenges the trial court’s refusal to deduct any of the $17,000 he claimed in depreciation and depletion expenses from his gross income in arriving at an estimate of his disposable income.

It is well established that depreciation and depletion expenses, permitted under federal income tax law without proof of actual loss, will not automatically be deducted from gross income for purposes of determining awards of alimony and equitable distribution. In determining the financial responsibilities of the parties to a dissolving marriage, the court looks to the actual disposable income of the parties:

[T]hat income must reflect actual available financial resources and not the oft-time fictional financial picture which develops as the result of depreciation deductions taken against ... income as permitted by the federal income tax laws. Otherwise put, “cash flow” ought to be considered and not federally taxed income.

Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 568-69, 429 A.2d 665, 668-69 (1981) (citations omitted). Accord, Flory v. Flory, 364 Pa.Super. 67, 527 A.2d 155 (1987); Parkinson v. Parkinson, 354 Pa.Super. 419, 512 A.2d 20 (1986).

Depreciation and depletion expenses should be deducted from gross income only where they reflect an actual reduction in the personal income of the party claiming the deductions, such as where, e.g., he or she actually expends funds to replace worn equipment or purchase new reserves. This is not the case here. Mr. Cunningham does not claim on appeal, nor did he claim below, that he in fact spent any of his $24,000 income to replace worn equipment or purchase new coal reserves. To the contrary, the couple’s daughter, an accountant who prepared a financial analysis of the Cunninghams’ coal company based on Mr. Cunningham’s 1984 income tax return, testified that the depreciation and depletion claimed by her father did not represent any actual expenditures on his part.

Second, Mr. Cunningham claims that the trial court erred in refusing to consider the testimony given at the October 31, 1986 hearing on his Petition for Reduction of Alimony Pendente Lite in determining its distribution of marital property and final award of alimony. This hearing was held after the master had closed his hearings and issued his recommendation to the trial court, but before the trial court issued its final order. Mr. Cunningham claims that testimony given at the October 31, 1986 hearing established that his income for the first seven months of 1986 was considerably lower than had been reported in earlier financial information filed with the court. Additionally, he claims that testimony at that hearing established that the rental income his wife was receiving had increased from $175 per month to $190 per month.

As to Mr. Cunningham’s income, the trial court did in fact consider his claim of decreased income in 1986. Even before Mr. Cunningham gave this testimony at the October 81 hearing, he had included this information in the Memorandum he filed with the master prior to the master’s rendering his report. The court found that Mr. Cunningham’s claims of reduced income were simply not credible, and adopted an income figure based on his 1984 income tax report. We will not disturb this determination of credibility on appeal.

The trial court did, however, refuse to consider the testimony given at the October 81 hearing regarding Mrs. Cunningham’s increased rental income, on the ground that such evidence was outside the record. See Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825 (1985). The trial court erred in so concluding, as the transcript of the October 31 hearing on Mr. Cunningham’s petition for a reduction in alimony was in fact part of the official record in this action. We find that the trial court was correct on other grounds, however, and so affirm.

The respective roles of the master and the trial court in a divorce proceeding in which a master is used are set forth in Pa.R.Civ.P. 1920.55. This rule provides for a master to hear evidence and file his report and recommendations. The parties can then file exceptions to the master’s report, after which “the court shall hear argument on the exceptions and enter an appropriate final decree.” Pa. R.Civ.P. 1920.55(c) (Purdon 1987). This system suggests that, at least in counties in which no new hearing is held before the trial court, the trial court is limited to the evidence presented before the master. While the trial court is obliged to conduct a complete and independent review of the evidence when ruling on exceptions, Rollman v. Rollman, 280 Pa.Super. 399, 421 A.2d 755 (1980), its scope of review, like that of this court, is limited to the evidence received by the master.

Mr. Cunningham next claims that the trial court erred in the valuations it placed on certain properties included in the award of equitable distribution. We disagree. A review of the record reveals that the master’s valuations, adopted by the trial court, were based on the testimony of the parties and their experts. We find that the trial court did not abuse its discretion in this regard.

Mr. Cunningham also claims that the trial court erred in failing to include in its assessment of Mrs. Cunningham’s current financial status various payments she may have received during the marriage (e.g., proceeds from the sale of jointly-owned property, mortgage payments, etc.). The trial court found that the payments in question were received during the course of the marriage and were presumably properly disbursed during the course of the marriage. The trial court did not abuse its discretion in finding that Mrs. Cunningham could not be charged with current possession of these assets.

Finally, Mr. Cunningham contends that the trial court erred in refusing to include contempt sanctions against Mrs. Cunningham in its order of equitable distribution and alimony. During the pendency of these proceedings, on November 18, 1986, Mrs. Cunningham was found to be in contempt of court for having violated an earlier court order. The violation consisted of subletting her part of the marital residence and permitting the tenants to use marital property. A hearing on sanctions was scheduled for January 2, 1987, but was cancelled. No further hearing was ever held or scheduled.

Mr. Cunningham then raised the issue of failure to impose sanctions for the contempt in the “Application for Reconsideration” that he filed with the trial court on May 22, 1987. Mr. Cunningham argues that the trial court “denied” his request for sanctions when it crossed out language in the proposed order he attached to his application for reconsideration that would have scheduled a date and time for a hearing on sanctions.

We find that this issue is not properly before this court and therefore refuse to consider its merits. The first time Mr. Cunningham raised this issue was in his application for reconsideration, filed after the trial court entered its final order on April 30, 1987. The procedure employed by Mr. Cunningham was improper and did not effectively present the issue to the trial court. Pa.R.Civ.P. 1920.55(c) prohibits the filing of post-trial motions in situations such as this, where the trial court did not hold a de novo hearing on exceptions, but merely reviewed evidence admitted before the master in determining its final order. Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986). Since this issue was never properly before the trial court, nor is it addressed in the order appealed to this court, we do not consider it.

Order affirmed.

CIRILLO, President Judge, files dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully disagree with the majority on the issue of the determination of Mr. Cunningham’s net disposable income as it relates to the inclusion of one hundred percent of the depreciation deduction and depletion allowance shown on his 1984 federal tax return. While the court did not necessarily err in using the 1984 return as the primary basis for its determination of Mr. Cunningham’s income or earning capacity, the fact remains that the reasons given for the court’s determination of Mr. Cunningham’s net income are not legally adequate. I agree with appellant that the arbitrary inclusion of one hundred per cent of these deductions unfairly impacted upon the equitable distribution order and the alimony award.

I question whether the master, and hence the court, had enough information to make the necessary assessment of Mr. Cunningham’s true financial situation. A review of the record indicates that specific data that would have aided the master and the trial court in assessing Mr. Cunningham's true financial situation was not before the court. The lack of such data and the resulting hazy financial picture should not accrue to the benefit of either party at the expense of the other. This court traditionally takes with a grain of salt a divorcing breadwinner’s claim of his “pathetic financial plight,” Commonwealth v. Miller, 202 Pa.Super. 573, 578, 198 A.2d 378, 375 (1964), and has long recognized that some husbands approach the divorce process with something less than total financial candor. Williams v. Williams, 175 Pa.Super. 409, 412, 104 A.2d 499, 501 (1954). Nevertheless, the lack of concrete information does not excuse the feeble analysis indulged in by the trial court in support of its determination.

To say, as the trial court did, that “[t]he income of Defendant is, indeed, extremely difficult to ascertain,” that “[t]he evidence presented at the Master’s hearing regarding Defendant’s income was quite vague and inconclusive,” and that “[t]he Court agrees with the Master that the term “business expense” [of which Mr. Cunningham had claimed a “substantial amount” on the one income and expense statement filed] is entirely too broad and vague to be useful in determining Defendant’s true income,” and then to conclude that a monthly income of $2,000.00 was “reasonable under the existing circumstances” is not grounded in sound legal reasoning. The only financial data cited by the court was an admitted monthly income of $1135.00, a 1984 net profit of $6188.52 and the depreciation and depletion deductions for the same year of $17,997.00. Beyond the statement that “depreciation and depletion are accounting terms which may not reflect Defendant’s actual expenditures in a given year,” the trial court gave no justification for including all of both allowable deductions. It appears to have focused on Mr. Cunningham’s “actual expendable income” to the exclusion of other considerations.

It is manifestly unreasonable to presume that, because there is no evidence that actual contemporaneous expenditures were made in the year the depreciation and depletion were claimed, that the amount of those deductions can fairly be attributed to disposable income. To reason as the trial court did here would mean that, if the monies represented by depreciation and depletion allowances were not spent in the same year they are claimed, those monies are then available for figuring support, alimony and equitable distribution. There is no requirement that the allowances made for replacing equipment and acquiring new income-producing resources be spent for those ends in the same year the deductions are taken. To the contrary, these deductions are allowed to make certain that businesses can set aside monies to make these expenditures as needed in the future. The fact that, by virtue of these deductions, Mr. Cunningham, a sole proprietor, may indeed have realized more net income than was reflected on his 1984 return does not translate into the conclusion that all of this net income is available for alimony or should be considered for equitable distribution purposes. It is not equitable to force a businessman to spend monies set aside for replacement of the tools and raw materials of his business in making alimony payments, nor is it equitable to reduce his share of marital assets because he has such funds available for the business.

Some portion of these monies must be viewed as business assets, allocated to the replacement of worn out equipment and exhausted natural resources, regardless of the form of the business. Mrs. Cunningham has no right to alimony drawn from, or to equitable distribution of, the business assets or funds; her rights are only with regard to those available to Mr. Cunningham personally, after the business has been taken into account. It must be remembered that it is the business which supports them both. Its continued existence is crucial to Mr. Cunningham’s ability to earn income and, not coincidentally, to his ability to pay the alimony awarded.

The trial court erred as a matter of law in limiting its determination of Mr. Cunningham’s net income to the factors it recites and in failing to take into account the other factors identified by our case law as important to this determination. For example, in Commonwealth ex rel. Maier v. Maier, 274 Pa.Super. 580, 418 A.2d 558 (1980), we recognized that only the portion of depreciation representing monies actually available to the defendant for his personal use should be taken into account when making a support award. Id., 274 Pa.Superior Ct. at 585, 418 A.2d at 561. In Commonwealth v. Miller, supra, we stated:

In ascertaining the earning capacity of a defendant, the net income ordinarily should not be increased by the entire amount of depreciation claimed in the tax return but by a part of it as determined from all the circumstances including the amount of depreciation claimed and the property depreciated.

Id. 202 Pa.Super. at 577, 198 A.2d at 375. In the case of real estate, for example, depreciation is more likely to represent truly available cash since real estate does not wear out to the point of needing to be replaced in order to maintain the viability of the investment. It generally increases in value, and depreciation allows an owner to maintain and improve the property, thereby insuring its market value, and to recover, over time, the investment capital. In Mr. Cunningham’s case, however, it is equipment essential to his business that is being depreciated and the deductions allowed are more fairly viewed as going to the eventual replacement of that equipment. See Lyday v. Lyday, 360 Pa.Super. 16, 519 A.2d 967 (1986) and cases cited therein. Similarly, a portion of the depletion allowance may be justifiably excluded from Mr. Cunningham’s net income. When his current coal reserves have been completely mined, he must be in a position to purchase new land or coal rights.

It may be that the $2000 per month attributed to Mr. Cunningham is reasonable; it may even be that it is too little notwithstanding the fact that there appears to be some evidence that Mr. Cunningham’s business was experiencing a decline which began after the parties’ separation. As we stated in Commonwealth ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1976), “[tjhis Court has been careful to scrutinize an alleged decrease in salary or earnings where a defendant is in business for himself.” Id. However, the trial court’s determination cannot stand based on this record. I agree with appellant that the court proceeded to make its determination without sufficient facts and without taking into account all of the pertinent factors. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super 93, 380 A.2d 398 (1977) (failure to inquire into business interests and transactions resulted in not properly evaluating all factors necessary to determine reasonableness of support order); Parkinson v. Parkinson, 354 Pa.Super. 419, 512 A.2d 20 (1986) (court should consider the full nature and extent of financial situation).

We have recognized that “income must reflect the actual available financial resources and not the ofttime fictional financial picture which develops as the result of depreciation deductions taken ... as permitted by the federal income tax laws.” Lyday, supra 360 Pa.Super. at 22, 519 A.2d at 970. It is just as much an endorsement of a “fictional financial picture” to disregard one hundred per cent of depreciation and depletion as it is to allow them one hundred per cent. In every case, the true income lies somewhere in between.

In conclusion, I believe that the trial court erred in determining Mr. Cunningham’s net income and that this error may have negatively impacted upon the equitable distribution order and the alimony award. I would remand for a corrected determination of Mr. Cunningham’s disposable income and, if necessary, a corresponding adjustment in the equitable distribution scheme and the alimony award. Further, in doing so, I would advise Mr. Cunningham that it serves the best interests of both parties for him to make available the information the court needs to make its determination and fashion appropriate relief. I would encourage him to provide past tax returns, business expense information, data on how much of the money represented by these deductions is being held aside and how much is, or will be, needed to replace equipment and to acquire new coal reserves in the future so that he can continue to operate what is and has been a viable business. As this court has previously recognized,

Although depreciation must not be treated as an expense, neither can it be treated in the same category as net profit. If, for the purpose of complying with a court order, a man is compelled to expend or exhaust his capital, without opportunity to maintain and preserve that which makes his business possible, it will eventually work to the detriment of both the parties.

Williams, supra 175 Pa.Super. at 413, 104 A.2d 499.

      . As to the dissent’s claim that deduction from gross income is permitted where a business owner does not actually spend monies allocated for depreciation but merely sets them aside for future replacement of worn equipment and replenishment of reserves, we are aware of no case that so holds. To the extent that such funds remained personally available to the business owner, they would still be a part of his or her disposable income, and therefore not properly deductible from income for purposes of determining alimony or equitable distribution. Commonwealth ex rel. Maier v. Maier, 274 Pa.Super. 580, 418 A.2d 558 (1980). In any event, Mr. Cunningham presented no evidence at trial, nor does he claim on appeal, that he in fact set aside any monies for future replacement of equipment or reserves.

      . While in some cases a long delay between the master’s hearing and the trial court’s review may render the testimony given before the master stale and therefore require new hearings, see Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), such is not the case here.


author: PER CURIAM:

text:
    548 A.2d 617
    COMMONWEALTH of Pennsylvania, Appellee, v. Carl GRUBER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1988.
    Filed Oct. 4, 1988.
    John A. Bacharach, Pittsburgh, for appellant.

      Robert L. Eberhart, Deputy District Attorney, Pittsburgh, for Com.
    Before ROWLEY, DEL SOLE  and MONTGOMERY, JJ.

      Judge Del Sole did not participate in the decision of this case.

   PER CURIAM:

This direct appeal follows the non-jury trial at which the appellant was found guilty of driving under the influence and various drug related offenses. The appellant’s timely filed post-verdict motions were denied by the trial court and he was sentenced to forty-eight hours incarceration, two consecutive periods of probation of five years, a concurrent term of two years probation, fined, and instructed to attend Alcohol Safe Driving School. The sole issue raised herein is whether the trial court erred in imposing consecutive five year terms of probation for possession with intent to deliver marihuana and possession with intent to deliver hashish. The appellant argues those charges merge for sentencing purposes. For the reasons which follow, we are constrained to agree.

The crux of the appellant’s argument is that marihuana and hashish are both derived from the hemp plant and that hashish falls within the definition of marihuana as set forth in the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter the Act). See, 35 P.S. § 780-102(b). He concludes, therefore, that he has been sentenced twice for the same offense — possessing, with the intent to deliver, marihuana. In rejecting the appellant’s argument, the trial court acknowledged that both marihuana and hashish were derivatives of the hemp plant but concluded that the substances were nevertheless not identical. The trial court reasoned that hashish is a purified extract of the hemp plant which is considerably more potent and concentrated than marihuana. The trial court relied on this Court’s en banc decision in Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) to support its conclusion that the offenses did not merge. After an exhaustive review of the common law doctrine of merger, the Williams Court held that “separate punishments may be imposed for a single, indivisible act where the act includes conduct proscribed by separate statutes each of which seek to prevent a substantially different harm or evil.” Id., 344 Pa.Superior Ct. at 143, 496 A.2d at 50.

Instantly, the appellant was charged in separate counts with two violations of 35 P.S. § 780-113(a)(30). Thus, to be guilty of the offenses, the appellant was required to possess with the intent to deliver, controlled substances. Marihuana is identified as a Schedule I Controlled Substance. 35 P.S. § 780-104(l)(iv). Hashish is not named individually or listed in any of the various Schedules of controlled substances. The act defines marihuana as:

consisting] of all forms, species and/or varieties of the genus Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt derivative, mixture, or preparation of such plant, its seeds or resin; but shall not include tetrahydrocannabinols, the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, cake, or the sterilized seed of such plant which is incapable of germination.

35 P.S. § 780-102(b). (Emphasis supplied).

Despite the fact that hashish is not specifically defined by the Act, the appellant asserts that there is no dispute that it is a form of marihuana, as the latter is defined by the Act. Research reveals that this precise question has not yet been addressed by the appellate Courts of this Commonwealth and neither party is able to cite authority for their respective position. We note here that the appellant stipulated, during trial, to the admission of the Crime Lab report concerning the analysis of the substances found on him at the time of his arrest. The report identified four (4) foil wrapped cubes of compressed vegetable material revealing the presence of “mari[h]uana constituents ... in the form of hashish.” Although the Crime Lab report was read into the record by the prosecuting attorney, the contents of the record were not transcribed by the court reporter. Additionally, the report has not been included in the original record certified to this Court. As a result, we may not consider it despite the fact that the Commonwealth has appended a copy of it to their brief. See, Pa.R.A.P. 1921.

Although the issue raised herein is a novel question to the appellate Courts of the Commonwealth, we are guided by the following authorities. We begin our analysis by recalling that the Pennsylvania Supreme Court has recognized that hashish is derived from the marihuana plant. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972). In United States v. Cimoli, 10 M.J. 516 (USAFCMR 1979), a military court of review concluded that hashish is a concentrated form of marihuana which, by weight, normally contains a higher percentage of the active ingredient tetrahydrocannabinol, than is present in processed marihuana.

More recently, in Soutor v. State, 342 N.W.2d 175 (Minn. App.1984), the Minnesota Court of Appeals addressed the very question raised herein by the appellant. There the Court held, inter alia, “that the resinous form of mari[h]uana, known as hashish, is included in the statutory definition of Minn.Stat. § 152.01, subd. 9____” Id. at 177. The Minnesota statute at issue read as follows: “Mari[h]uana means all parts of the plant of any species of the genus cannabis ... the resin extracted from any part of such plant; and every compound, manufacturer, salt derivative, mixture, or preparation of such plant, its seeds or resin — ” Id. Compare, Romack v. State, 446 N.E.2d 1346 (Ind.App. 4 Dist.,1983) (Indiana Code 35-48-1-1 defining marihuana specifically includes hashish and hash oil); People v. Magoon, 645 P.2d 286 (Colo.App., 1982) (the drugs hashish and marihuana are sufficiently distinguished by statute to establish their separateness as dangerous drugs inasmuch as the general assembly designated “cannabis” and “cannabis concentrate” as separate substances, defining hashish as a synonym of cannabis concentrate and excluded the term hashish from the definition of cannabis or marihuana). Lastly, Bernheim writes: “A far more potent cannabis preparation is obtained by scraping the resin containing [tetrahydrocannabinol] from the leaves of the cultivated plants and pressing this sticky substance into blocks. It is known as hashish____” David Bernheim, Defense of Narcotics Cases, § 7.19[1] (1972 & Supp 1988).

As previously discussed, hashish is not specifically included on any of the schedules of controlled substances of the Act. Also, hashish is not separately defined by the Act. As a result, we are constrained to agree with the appellant that hashish falls within the statutory definition of marihuana. Thus, his conviction for possession of hashish with intent to deliver merged for sentencing purposes with his conviction for possession of marihuana with intent to deliver. As an appellate court we may amend the appellant’s sentence directly. Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982).

Accordingly, the judgment of sentence at CC 8612042A, Count 4, is vacated. In all other respects, the judgment of sentence is affirmed.

DEL SOLE, J., did not participate in the decision of this case.


author: CAVANAUGH, Judge:

text:
    548 A.2d 619
    Willard J. WESCOAT, Jr. and Susan G. Wescoat v. NORTHWEST SAVINGS ASSOCIATION and Security of America Life Insurance Company. Appeal of NORTHWEST SAVINGS ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued June 8, 1988.
    Filed Oct. 6, 1988.

      Ann H. Gamble, Titusville, for appellants.
    R. Charles Thomas, Meadville, for Wescoat, appellees.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether the statute dealing with comparative negligence, 42 Pa.C.S. § 7102, applies to a negligence action where the defendant allegedly failed to procure an insurance policy for the plaintiff and failed to notify the plaintiff that the insurance was not obtained.

The evidence established that in 1978 the plaintiffs below, and appellees herein, Williard J. Wescoat, Jr. and Susan G. Wescoat, applied to the defendant, Northwest Savings Association (Northwest), for a mortgage loan on a residential property that they were acquiring. In connection with the processing of the loan, the plaintiffs were asked if they wished to have the loan covered by credit life insurance and disability insurance and they indicated that they did. Pursuant to their request, Northwest prepared an application for insurance and submitted it to the Security of America Life Insurance Company (Security). Northwest maintained a group policy with Security in which mortgage borrowers could participate if they qualified. Robert C. Holquist, a vice-president and local manager of Northwest, was also an agent of Security and Northwest made available to borrowers life and disability insurance only through Security.

The application for insurance indicated that the husband plaintiff, Willard J. Wescoat, Jr., who would be an insured under the disability policy, had a knee injury in 1963 and listed a Dr. Fan of Titusville as the attending physician. Based on this information, Security forwarded to Dr. Fan a form to obtain an attending physician’s statement. Dr. Fan did not respond and again Security requested the information. When it still obtained no response, Security wrote to the plaintiffs in August, 1978, that the file was closed and no insurance would be issued. Northwest wrote a similar letter in September, 1978. The only fact issue essentially disputed in the court below was whether this information was actually received by the plaintiffs who denied having received such notifications.

In November, 1981, Mr. Wescoat again injured his left knee as a result of which he was disabled, at least partially. The plaintiffs advised Northwest of the injury and requested that the monthly payments on the mortgage be made by Security during the husband’s disability. Upon discovering that they had no insurance, the plaintiffs brought an action against Northwest and Security in both trespass and assumpsit to recover the amounts that they would have been entitled to had the insurance been in place. Appellants on appeal do not here dispute the legal propriety of pursuing a cause of action sounding in negligence under the present circumstances.

Trial was held before Walker, J. and a jury. At the conclusion a compulsory non-suit was entered in favor of the defendant, Security, and a compulsory non-suit was entered on the plaintiffs’ assumpsit claim against Northwest. The negligence claim against Northwest was submitted to the jury on the basis of comparative negligence and a verdict was returned in the amount of $15,000.00, the amount of mortgage payments that would have been due over the five year period. The court molded the verdict to reduce it by the premiums that would have been paid for the insurance. The jury found the plaintiffs and the defendant Northwest each fifty percent causally negligent and the verdict was reduced by one-half.

Northwest filed motions for new trial and judgment non obstante veredicto asserting that it was error to submit the case to the jury on a comparative negligence basis. Following denial of its motions, it has appealed to this court.

On appeal, Northwest Savings Association contends that 42 Pa.C.S. § 7102(a) does not apply. It argues that the doctrine of contributory negligence is applicable to this factual situation and that as a result the plaintiffs would be barred from recovery against it since their own negligence contributed to their loss. We find this argument to be persuasive. Judge Tamilia noted in McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 484-5, 530 A.2d 462, 464 (1987): “A review of the Comparative Act reveals the Act is aimed only at 'all actions brought to recover damages for negligence’ (42 Pa.C.S.A. § 7102(a)).” We pointed out that the legislature could have included other conduct which was not negligent, but it did not. While the Act is limited to conduct considered negligent, it encompasses all such conduct, only if it results in damage to person or property.

The Supreme Court in Elder v. Orluck, 511 Pa. 402, 416, 515 A.2d 517, 524 (1986) discussed the Act in question stating:

The Pennsylvania Comparative Negligence Act replaced the harsh common law doctrine of 'contributory negligence’ under which a plaintiff whose own negligence, however slight, contributed to the happening of the accident in a proximate way, was barred from recovery. A plaintiff who was found to be 1% causally negligent could not recover from a defendant who was 99% at fault. Modern notions of fault and liability impelled the Legislature to cast aside the stern common law rule in favor of comparative negligence principles. The comparative doctrine adopted by the legislature provides a more reasonable approach to issues of liability and insures that an injured plaintiff will recover against a negligent defendant or defendants even though plaintiffs negligence contributed to the accident in an equal or lesser way. The injured victim’s recovery is reduced to the extent of his negligence. (Emphasis added)

The statute does not apply to all actions for negligence, but only to those resulting in death or injury to person or property. Clearly, the plaintiffs suffered no injury to their person. We are also of the opinion that they suffered no damage to their property. There was no tortious episode that caused damage to their tangible property, real or personal, and we hold that such is required to bring the provisions of the Act into play. Given the absence of a discrete tortious event the comparison of contributing acts of negligence in circumstances such as the present would be but unwieldy speculation. The object of- all statutory construction is to ascertain the intent of the legislature. See Statutory Construction Act, 1 Pa.C.S. § 1921. The legislature in referring to “injury to person or property” referred to property in the sense of tangible property. The degree of negligence can be allocated among tortfeasors only where destruction or damage to such property has taken place. It is readily possible to allocate the comparative negligence among the parties if an automobile is damaged or damage is inflicted to real estate. In the case before us, the plaintiffs suffered no damage to their property. Their complaint is that they thought they had a contract of insurance, but none had been obtained for them.

The court below reasoned that the plaintiffs’ pocketbook had suffered a loss since they could not receive reimbursement from a non-existent insurance policy. This is not the type of injury to property referred to in the Act. Most of the reported cases involve injury to persons rather than damage to property. See McMeekin v. Harry M. Stevens, Inc., supra, plaintiff was injured when a chair upon which she was sitting collapsed; Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986) plaintiff was injured when she attempted to rescue a person involved in an automobile accident; Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1985) a worker suffered the loss of an eye allegedly due to the defendant’s negligence while the plaintiff was a business invitee on the defendant’s premises and we held that the principle of comparative negligence applied to causes of action arising after September 7, 1976, the effective date of the Act notwithstanding when the case was tried; Harka v. Nabati, 337 Pa.Super. 617, 487 A.2d 432 (1985) plaintiff suffered injuries when she was walking along a road and was struck by a roll of chain link fencing that fell from a truck. She subsequently died as a result of the injuries; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665 (1981) a pedestrian was injured twice in one week by falling in the same area of a sidewalk. In all of these cases there were personal injuries suffered by the plaintiff and then the comparative negligence of the parties involved could readily be allocated.

The case of Werner v. Quality Service Oil Company, 337 Pa.Super. 264, 486 A.2d 1009 (1984) involved destruction of property owned as tenants by the entireties. In that case the owners of a mobile home required the services of an oil burner repairman who worked on the furnace. Notwithstanding that the furnace was visibily leaking oil after repairs were made, the homeowners turned the furnace on. A fire broke out which destroyed the home and its contents. The case clearly involved destruction of tangible property and the Act applied. In the case before us there was no damage to property in the ordinary sense. The only case in point is Fuller v. Grossman, 20 Crawford L.J. 90 (1987) which involved an issue almost identical to the case before us. In Fuller an insurance policy protected the owner of real estate and the bank which had a financial interest in the property as mortgagee. The policy was sent to the bank and to the real estate owner and indicated that only the real estate was covered and not the contents. The loan agreement required coverage on the contents. A fire occurred and, in the absence of coverage for the contents, the owner of the building sued his insurance agent who failed to procure an appropriate policy and the bank which failed to note the deficiencies in the policy. The action sounded partially in negligence and the case was submitted to the jury on a comparative negligence issue. The bank argued that the Comparative Negligence Act was not applicable in this situation and the jury should have been charged on contributory negligence which would have been a complete bar to recovery. The court stated at 20 Crawford County L.J. 93:

The defendant’s argument was based on the fact that the comparative negligence statute, 42 Pa.C.S. 7102(a) refers to ‘damages for negligence resulting in death or injury to person or property.’ Our research has uncovered no appellate court decisions relating to this issue, but we held that the term ‘property’ included a plaintiff’s pocketbook and thus, there was an injury to their property if the jury determined that there was negligence.

We hold that Fuller v. Grossman, supra, does not set forth the law of Pennsylvania in its determination that a pecuniary loss resulting from a failure to procure insurance coverage is damage to property within the meaning of the Act. The court below in the instant case relied on Fuller v. Grossman, supra, in reaching its decision.

Since the comparative negligence statute does not apply in the matter before us, we must revert to the doctrine of contributory negligence which provides that the plaintiff is barred from recovery if his negligence contributed to the result. Brown v. Jones, 404 Pa. 513, 172 A.2d 831 (1961); Matteo v. Sharon Hill Lanes, Inc., 216 Pa.Super. 188, 263 A.2d 910 (1970); Rosa v. United States, 613 F.Supp. 469 (M.D.Pa.1985). While our Supreme Court in Elder v. Orluck, supra, held that the Pennsylvania Comparative Negligence Act replaces the doctrine of contributory negligence, it replaces it only where the Act applies. The law may not operate in a vacuum. Where the Comparative Negligence Act does not apply because there was no destruction or damage to property, then the doctrine of contributory negligence bars recovery if the plaintiffs negligence has contributed to his loss. In the instant case, the jury found that the plaintiff was negligent and accordingly he is barred from recovery of any nature.

Judgment reversed and complaint dismissed with prejudice.

      . The Pennsylvania Comparative Negligence Act, 42 Pa.C.S. § 7102, provides:
      § 7102. Comparative negligence (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. (Emphasis added).

      . The appellees’ complaint set forth the following allegations of negligence:
      20. That the damages incurred by the Plaintiffs hereinbefore described were caused by the negligence of the Defendant, Northwest Savings Association, and the Defendant, Security of America Life Insurance Company, in the following respects:
      a) In failing to properly process their application for credit disability insurance;
      b) In failing to notify the Plaintiffs that there was no credit disability insurance policy in effect after application had been made for the same;
      c) In failing to send to Dr. Fan a Physician’s Statement to be completed;
      d) In failing to issue a credit disability insurance policy to the Plaintiffs;
      e) In failing to make known to the Plaintiffs that no policy of credit life insurance was in effect until after November of 1981.

      . The Act inexactly refers to "negligence resulting in death or injury to person or property." Obviously, property may not be killed or injured and what the Act intended was a reference to destruction or damage to property. The Act was criticized in Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 479, 439 A.2d 674, 676 (1981):
      This statute was enacted without any meaningful legislative history. By two paragraphs the legislature changed the law of contributory negligence which had developed over centuries of jurisprudential history. In its haste to remedy criticism which had been leveled against the doctrine of contributory negligence, the legislature failed to address specifically the several problems which have arisen because of such an abrupt change.

      . The opinion in Fuller v. Grossman, supra, was authored by Walker, J. who was the trial judge in the court below in the instant case.


author: BROSKY, Judge:

text:
    548 A.2d 623
    EMLENTON AREA MUNICIPAL AUTHORITY v. Sidney L. MILES, Doing Business, as Miles Developing and Contracting, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1988.
    Filed Oct. 5, 1988.

      David B. Acker, District Attorney, Coudersport, for appellant.
    Jon M. King, Emlenton, for appellee.
    Before BROSKY, KELLY and HESTER, JJ.
   BROSKY, Judge:

This is an appeal from the Order of December 30, 1987, which permanently stayed arbitration of the disputes between the parties. Appellant now contend? that the trial court erred in finding that the contract between the parties required mutual agreement before any disputes arising from the contract could be submitted to arbitration.

Upon consideration of the record and the briefs of counsel, we now reverse and remand for further proceedings consistent with this Opinion.

On March 13, 1985, appellee Emlenton Area Municipal Authority (“Emlenton”) entered into a contract with appellant Sidney L. Miles, d/b/a Miles Developing and Contracting (“Miles”), wherein Miles was to construct a municipal waste water collection and treatment works in Venango and Clarion Counties, Pennsylvania. During the performance of the contract, certain disputes pertaining to the contract arose between the parties, causing them to assert claims for damages against one another.

On June 2, 1986, Miles, in an attempt to resolve his claims against Emlenton, filed a demand for arbitration with the American Arbitration Association. Emlenton responded on August 6, 1986, by filing an application for stay of arbitration proceedings with the Clarion County Court of Common Pleas.

With that matter still pending, Emlenton then filed, on May 4, 1987, an action at law in the same court, asserting its claims for damages against Miles and his surety, Fidelity and Deposit Company of Maryland. In response to the action at law, Miles filed, on June 5, 1987, an application to compel arbitration. The court entered an order that same day to stay the proceedings at law, pending resolution of the issue of the arbitrability of the dispute.

On October 1, 1987, an order was entered with respect to Miles’ claims against Emlenton, granting Emlenton’s application for a stay of arbitration; similarly, on October 7, 1987, an order was entered in Emlenton’s action at law against Miles, denying Miles’ application to compel arbitration. In both instances, the court held that those portions of the contract comprising the parties’ agreement to arbitrate, only provide for the submission of any dispute or disputes to arbitration upon the mutual consent of the parties to so submit, and that, in light of Emlenton’s opposition to arbitration of these disputes, Emlenton could not be compelled to submit to arbitration in either action.

Miles requested reconsideration in both cases, and reconsideration was expressly granted by the order of October 28, 1987. On December 30, 1987, however, the court entered a final order in equity in both actions, permanently staying arbitration. This timely consolidated appeal followed.

Appellant now argues that the trial court erred in finding that the agreement to arbitrate contained within the parties’ contract requires mutual consent for the submission of any particular dispute or disputes to arbitration, and maintains that the court’s narrow reading of the agreement precluding arbitration violates the liberal policy favoring arbitration, as well as the relevant rules of contractual interpretation and construction, expressed in Pennsylvania appellate law. Conversely, appellee maintains that Pennsylvania law requires strict construction of arbitration agreements, and that a party may be compelled to arbitrate a dispute only upon the finding of a clear, express, and unequivocal agreement to do so.

Our scope of review of an adjudication in equity is well established. The chancellor’s findings of fact have the force of a jury verdict, and are not to be disturbed where supported by competent evidence. Presbytery of Beaver-Butler of United Presbyterian Church in US. v. Middlesex Presbyterian Church, 507 Pa. 255, 267, 489 A.2d 1317, 1323 (1985), cert den. 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167; Sechler v. Sechler, 403 Pa. 1, 7, 169 A.2d 78, 80 (1961). However, the chancellor’s conclusions of law are always reviewable, as they are no more than his reasoning from the underlying facts. Presbytery of Beaver-Butler, supra; Sechler, supra; Village Beer and Beverage, Inc. v. Vernon D. Cox & Co., Inc., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984).

In the matter sub judice, the chancellor was called upon to determine whether the parties had agreed to submit any and all disputes to arbitration. Voluntary arbitration is purely a matter of contract, and, absent an express agreement between the parties to arbitrate their disputes, they cannot be compelled to arbitrate. Gaslin, Inc. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 139, 482 A.2d 1117, 1121 (1984). As such, it is for the court to determine whether an agreement to arbitrate exists, for the construction and interpretation of contracts is a question of law. Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 334, 473 A.2d 1005, 1008 (1984). As a question of law, therefore, the chancellor’s conclusion as to whether the parties have agreed to arbitrate, is reviewable by this Court.

Upon undertaking such review, we are confronted with two basic, and seemingly contradictory, propositions, as noted by the parties themselves: (1) arbitration agreements are to be strictly construed and not extended by implication; and (2) when parties have agreed to arbitrate in a clear and unmistakable manner, every reasonable effort should be made to favor the agreement, unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute. See Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 307, 308, 464 A.2d 1354, 1356, 1357 (1983); also see Lincoln University of the Comm. System of Higher Education v. Lincoln University Chapter of the American Assoc. of University Professors, 467 Pa. 112, 119-20, 354 A.2d 576, 581-82 (1976). Obviously, some tension may arise between the two propositions; in making every effort to favor the settlement of a dispute by arbitration, one must be careful not to extend the arbitration agreement by implication beyond the clear, express, and unequivocal intent of the parties as manifested by the writing itself. Hassler, supra.

To resolve this tension, resort may be had to the rules of contractual construction. In construing a contract, the intention of the parties is paramount, and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Village Beer, supra, 327 Pa.Superior Ct. at p. 107, 475 A.2d at p. 121; Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963). Moreover, one part of a contract cannot be so interpreted as to annul another part, but, rather, the agreement must be interpreted as a whole, giving effect to all of its provisions. Village Beer, supra; Shehadi v. Northeastern Nat’l Bank of Pa., 474 Pa. 232, 236, 378 A.2d 304, 306 (1977). Where a contract may be interpreted in a manner giving effect to all provisions, that interpretation is preferred. Rothstein v. Jefferson Ice Mfg. Co., 137 Pa.Super. 298, 306, 9 A.2d 149 (1939). Finally, where an act or event mentioned in a contract is not expressly made a condition precedent, it will not be so construed absent the clear intent of the parties. Village Beer, supra; American Leasing v. Morrison Co., 308 Pa.Super. 318, 327, 454 A.2d 555, 559 (1982).

The relevant provisions of the parties’ contract, as determined by the court in equity, are as follows:

Standard General Conditions

Article 16 — Arbitration

16.1 All claims, disputes and other matters in question between Owner and Contractor arising out of, or relating to the Contract Documents or the breach thereof ... shall be decided by arbitration ...

Article 17 — Miscellaneous

17.4 The duties and obligations imposed by the General Conditions and the rights and remedies available to the parties hereto, ..., and all of the rights and remedies available to Owner and Engineer thereunder, shall be in addition to and shall not be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by law or contract, ...

Supplemental General Conditions

1. General

(a) The owner and Contractor agree that the following supplemental general provisions shall apply to the work to be performed under this contract and that such provisions shall supercede [sic] any conflicting provisions of this contract.
(c) The rights and remedies of the Owner provided for in these clauses are in addition to any other rights and remedies provided by law or under this Contract.

7. Remedies

Except as may be otherwise provided in this Contract, all claims, counter-claims, disputes and other matters in question between Owner and Contractor arising out of or relating to this agreement or the breach thereof will be decided by arbitration if the parties hereto mutually agree, or in a court of competent jurisdiction within the State in which the Owner is located.

(Emphasis supplied.)

In construing the above, the court relied heavily upon the language in Supplemental General Condition 1(a), stating that the Supplemental General Conditions are to supersede “any conflicting provisions” elsewhere in the contract. From 1(a), the court concluded that Supplemental General Condition 7, providing for arbitration only upon the mutual agreement of the parties to submit a dispute or disputes to arbitration, supersedes the mandatory arbitration provision in Article 16.1 of the Standard General Conditions, and precludes appellee from being compelled to arbitrate without its express consent.

Appellee further attempts to buttress the court’s interpretation with the language of Supplemental General Condition 1(c), and Article 17.4 of the Standard General Conditions, maintaining that these clauses clearly demonstrate that Article 16.1 is not to be construed as a limitation upon any “right or remedy” under the contract, and that the mutual consent provision of Paragraph 7, as a condition precedent to arbitration, is a right and remedy which cannot be annulled by Article 16.1.

Appellant maintains, however, that such a construction blatantly ignores Paragraph 7’s preface, “(E)xcept as may be otherwise provided in this Contract”. Appellant argues that the Supplemental General Conditions are a required part of this type of contract under federal law, not a bargained-for part of the agreement, and that the purpose of this preface is to permit the parties to provide elsewhere in the contract for dispute resolution by mandatory arbitration, should they choose to so provide; moreover, appellant continues, when the preface is taken into account, there is no conflict between Article 16.1 and Paragraph 7, and the supersession language of Paragraph 1(a) is not invoked.

Without addressing whether the Supplemental General Conditions are boilerplate requirements under federal law, we nonetheless conclude that appellant’s construction of these interrelating contractual provisions “ascribes the most reasonable, probable, and natural” intention of the parties.

Initially, the language of Article 16.1, providing for mandatory arbitration of all contractually-related disputes, has been used countless times in previous cases, and has already been held to be “the broadest conceivable language” from which it must be concluded that the parties intended “an unlimited arbitration clause.” See Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 548, 328 A.2d 498, 501 (1974); see also Wolf v. Baltimore, 250 Pa.Super. 230, 235, 378 A.2d 911, 913 (1977) and Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975). As it is always to be assumed that parties contract with knowledge of the existing law, see Harding v. Pa. Mut. Life Ins. Co., 171 Pa.Super. 236, 252, 90 A.2d 589, 597 (1952), aff'd 373 Pa. 270, 95 A.2d 221, cert. den. 346 U.S. 812, 74 S.Ct. 21, 98 L.Ed. 340 (1953), we must begin with the assumption that the parties did not include such a clause in ignorance of its implications.

Furthermore, we find merit to appellant’s argument that the preface to Paragraph 7, “(E)xcept as may be otherwise provided in this Contract” is rendered a nullity under the trial court’s construction of this contract. The phrase is of no effect unless it is construed as a mechanism by which the parties may elect to either: (1) eliminate the possibility of arbitration entirely, or (2) provide a more binding arbitration provision. Clearly and unambiguously, the parties have chosen to follow the latter course through the inclusion of Article 16.1. To construe the interrelationship of Article 16.1 and Paragraph 7 in the manner suggested by the trial court permits the “mutual agreement” language of Paragraph 7, at the least, to become a condition precedent to the operation of a clear mandatory arbitration provision in Article 16.1, and at the worst to annul not only Article 16.1, but Paragraph 7’s own preface. Either result flies in the face of accepted rules of construction, see Village Beer, supra; American Leasing, supra; Shehadi, supra. This is to say nothing of the sheer violation of common sense inherent in an interpretation which would permit a party to avoid a mandatory arbitration provision to which he has agreed, by refusing his consent to arbitration. Conversely, the construction suggested by appellant does not annul Paragraph 7, for the mutual agreement provision is expressly conditioned in the paragraph itself with the contingency that the parties might elect to “otherwise provide” elsewhere in the contract for dispute resolution.

Likewise, when the “mutual agreement” language is not read in a vacuum, but in the context of the entire paragraph, neither the supersession language of Paragraph 1(a), nor the prohibitions against limiting rights and remedies found in Article 17.4 and Paragraph 1(c), are even invoked. When the preface of Paragraph 7 is given effect, Paragraph 7 and Article 16.1 simply do not conflict, and Article 16.1 is not a prohibited limitation upon a remedy, for the remedy is, by its very terms, circumscribed and open to modification.

Finally, we are mindful of the policy of this Commonwealth favoring arbitration whenever arbitration is expressly provided for:

Settlement of disputes by arbitration are no longer deemed contrary to public policy. In fact, our statutes encourage arbitration and with our dockets crowded and in some jurisdictions congested arbitration is favored by the courts.
* sfc * * % !«;
Arbitration is not a makeshift or a subterfuge. It is not an excuse for delay or a fan for the cooling off of tempers. It is a solemn and serious undertaking for the attainment of justice and when parties engaged in a common enterprise agree to settle by arbitration all differences which may arise between them they are bound by their commitment as much as if they had entered into a stipulation in Court.
Borough of Ambridge, supra, 458 Pa. at p. 549, 328 A.2d at p. 500.

In light of the foregoing, we now reverse the order of December 30, 1987, which permanently stayed arbitration, and remand for arbitration proceedings. Jurisdiction is relinquished.

      . The surety is not a party to the current appeal.

      . Appellant also argues, for a substantial portion of his brief, that the Federal Arbitration Act (“FAA”) is applicable to the subject contract, as one involving a "transaction in commerce", and that the parties' agreement to arbitrate should therefore be construed in keeping with the liberal federal policy favoring resolution of disputes through arbitration.
      We are precluded, however, from passing upon the merits of appellant’s FAA argument. The determination as to whether a contract is one evidencing a transaction in or relating to interstate commerce, is a factual determination. Gavlik Construction Co. v. H.F. Campbell Co., 526 F.2d 777, 784 (3rd Cir.1975). Where the factfinder makes no findings as to whether the contract evidences a transaction in commerce, and does not state whether it is applying federal or state law to the arbitration issue, the absence of any findings precludes appellate consideration as to whether the FAA applies. Id., citing Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Commission, 387 F.2d 768, 772 (3rd Cir.1967).
      In the instant matter, appellant submitted a proposed finding of fact to the trial court, "(T)hat the contract involved in the instant controversy is a transaction which ‘involves commerce’ and is, therefore, subject to the provision of the Federal Arbitration Act.” The court did not adopt this finding, and was silent as to whether federal or state law was applied. Normally, we might remand for a specific finding of fact on this point, see Gavlik, supra. However, as we would reach the same result under either federal or state law, we do not find a need to remand. Id.