author: KELLY, Judge:

text:
    579 A.2d 1328
    Robert D. ZOLLARS, Appellant, v. Dolores A. ZOLLARS, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 5, 1990.
    Filed Aug. 28, 1990.

      Joseph P. Martone, Erie, for appellant.
    Michael L. Carr, Erie, for appellee.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   KELLY, Judge:

Robert D. Zollars appeals from an order distributing marital property. He specifically takes issue with the valuation of his pension and with the trial court’s decision to award Dolores 60 percent of the marital property. We affirm the portion of the order granting Dolores 60 percent of the marital property and the valuation of his pension, but reverse as to the manner of distribution.

Robert and Dolores married in June 1959. Robert filed a complaint in divorcé in June 1984 and moved from the marital home in November 1984. The parties’ children are both emancipated and self-supporting.

Robert has been employed by the U.S. Postal Service since September 1959. His position pays approximately $29,000 annually with regular cost of living increases and provides excellent medical coverage and a comfortable, vested retirement plan which matures in 1992.

Dolores was a homemaker since the birth of her first child in 1960 until April 1984. At that time she took a position in a small office with a salary of $15,700 a year but which provided no pension or health plan. Neither Dolores nor Robert are eligible for social security at this time.

After a hearing the master determined, and the trial court agreed, that Robert “has substantial economic advantages over Mrs. Zollars and that those advantages will continue.” (Tr. Ct. Opinion at 11). Accordingly, the trial court awarded Dolores 60 percent of the marital property.

The marital property was composed primarily of the marital home and Robert’s postal pension with only a few thousand dollars attributable to personal property and repayment of some small loan balances.

Exceptions were filed to the master’s report and subsequently an appeal was filed prematurely on May 25, 1989 prior to entry of the decree of divorce. That appeal was quashed. The divorce decree was finally entered on November 13, 1989 under a bifurcated proceeding. Robert then filed this timely appeal on December 7, 1989.

The sole issues raised on appeal are:

A. DID NOT THE COURT ERR IN VALUING APPELLANT’S PENSION?
B. DID NOT THE COURT ERR IN AWARDING TO APPELLEE 60 PERCENT OF MARITAL PROPERTY?

(Appellant’s brief at 6).

Prior to considering Robert’s claims of error, we reiterate the applicable standard of review.

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); King. v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Moreover, “an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Sergi, supra, 351 Pa.Super. at 591, 506 A.2d at 930, citing Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d), and the avowed objectives of the Divorce Code, that is, to “effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.” 23 P.S. § 102(a)(6).

Hutnik v. Hutnik, 369 Pa.Super. 263, 266-7, 535 A.2d 151, 152 (1987); Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990).

With this standard in mind, we first address Robert’s dissatisfaction with Dolores’ award of 60 percent of the marital property. We find no abuse of discretion in this award. Our review of the records and transcripts lead us to the same conclusion as that of the master and the trial court. Robert has far greater income, security and benefits available to him than any that may be available to Dolores presently or in the remainder of her working years. Malseed v. Malseed, 388 Pa.Super. 214, 565 A.2d 453 (1989). Accordingly, we find no abuse of discretion in the award.

Robert’s remaining issue is more problematical. Any portion of Robert’s pension attributable to the period from when he was hired through the time of separation is unquestionably marital property. Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990); Hunsinger v. Hunsinger, 381 Pa.Super. 453, 554 A.2d 89 (1989); Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). The problem here, as in many divorce situations, is how the court is to divide assets that are, as yet, not in the physical possession or control of the parties.

The two primary methods of distribution utilized in this Commonwealth are the immediate offset and deferred distribution. Immediate offset, simply stated, involves reducing all marital property to a present value and then distributing the assets between the parties in accordance with the percentages determined by the court. This is only workable when such present value can be determined and when the assets are sufficient to allow for payments necessary between the parties. Liciardello, 570 A.2d at 1065; Hutnik, 535 A.2d at 154.

In the case before us the two largest marital assets are the marital residence with equity in the amount of $52,104 as of the hearing and Robert’s pension plan. Robert has claimed that the present value of his pension as of separation was $54,825.60. Robert bases this on figures computed using the tables of the Pension Benefit Guarantee Corporation. These tables were designed for use when the employer or other pension guarantor has gone out of business, and no further growth is anticipated. This is not the case with Robert’s pension which continues to grow and which will be supplemented by regular cost of living increases. Growth of the marital contribution is marital property. Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987); Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). The master and trial court both rejected the figure proposed by Robert in favor of the more reasonable amount proposed by appellee’s expert of $176,-689. While the mathematical processes can be disputed, the common sense cannot.

Under the figure proposed by Robert, Dolores would receive 60 percent of the present value of $54,825 or $32,-895. Present value is the amount one would accept now to give up the right to a guaranteed stream of payments for an unknown period of time in the future. In this case, Robert’s retirement matures in 1992 and Dolores will then begin to receive payments of approximately $735.56 a month or roughly $8826.76 per annum plus increases for cost of living twice yearly, which will continue until she dies. A fifty year old woman in good health with a long life ahead of her, no retirement plan and insufficient income to save would hardly choose to forgo the security of a life-long income, for a comparatively small lump sum distribution of $32,895 that is only the equivalent of less than four years’ retirement benefits at present rates. We find the trial court’s decision to accept the present value of the expert pension appraiser to be fair and reasonable.

Having determined the present value of the pension, Dolores’ share would amount to $106,013. It is clear that there are not sufficient marital assets for that amount of money to be paid to Dolores even subtracting the amount of the equity in the house which is due to Robert.

On the other hand, Dolores, who has solely owned the marital residence since 1985, does not have the funds to pay Robert at this time for his share in the equity in the home. The trial court attempted to deal with this dilemma without forcing the sale of Dolores’ home by computing a formula which would reduce Dolores’ pension entitlement to accommodate Robert’s equity entitlement. The problem with the formula is that it combined a deferred distribution with an offset based on present value figures of the gross amount of all marital assets. This was attempted previously in King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984), and found to be inappropriate. Additionally, the reduction of the pension payment was to continue permanently — possibly long past the time when Robert will be fully compensated for his equity share. Accordingly, we reverse the order of equitable distribution so far as the formula used.

We are in agreement that a deferred distribution of the pension is in the best interest of both parties — it provides old age security for both Robert and Dolores and does not require Robert make payment of a large sum of money that it would seem difficult or even impossible for him to acquire. Also, the computation of a present value of the pension is purely conjecture, as all the future increases cannot be known at this time. The cases do not mandate, however, that each item of marital property be distributed in the same way or paid in the same way or at the same time. The equity in the house is actually known and undisputed. The court could easily order that Dolores pay Robert his equity share at some time in the future in installments when her income increases, such as when she begins to receive her share of the pension in 1992, independent of her receipts from his pension. Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990). This would solve the problem without creating hardship on either Robert or Dolores in the interim as it would merely maintain their current situations until the funds become available and assures that Dolores pays no more than the equity in the house to Robert.

This alternate payment plan could be accomplished in several ways. Dolores could be required to take out a mortgage in the amount owed Robert. This would have the advantages of allowing Robert to receive a lump sum payment and requiring no further court supervision or involvement. If for any reason Dolores could not secure a mortgage thru conventional sources, Robert could, in effect, become a mortgagee with Dolores making the appropriate interest and principal payments to him. A third option might be yearly payments on the principal for 5 years with interest computed on the unpaid balance. The court might even consider a slight reduction in the percentage of the pension awarded Dolores based on a future value determination of the money due Robert. This, though, would be the least desirable method for the same reasons that a present value distribution of the pension is undesirable. The peculiar circumstances of each case will determine the best means of making these distributions when the parties are without present means. We agree with the master and the trial court that Dolores need not lose her home when the means to pay Robert his equity share will be available within the foreseeable future. The trial court, within the few limits of the case law in this area, is free to be both flexible and creative in establishing an equitable payment plan now or may maintain jurisdiction until the pension begins to determine the amount, duration, and manner of the payments to Robert.

Accordingly, we remand the case to the trial court for final determination of the manner in which Robert is to be paid. The pension shall remain under the deferred distribution, as ordered, without the offset for the home equity.

Based on the foregoing, the order of the trial court is reversed and the case is remanded for action in accordance with this decision. Jurisdiction is relinquished.

      . See N.T. 108-9; Troyan, "Pension Evaluation and Equitable Distribution,” 10 Family Law Reporter No. 4, Monograph No. 1, Nov. 22, 1983.

      . Skoloff, "How to Evaluate and Distribute Employee Benefits in a Divorce." The National Law Journal, at 25 (February 13, 1984).

      . Based on $1,556 X “/m = $1225.93 X .60 = $735.56

      . $176,689 X .60 = $106,013.

      . $52,103.96 X .40 = $20,842.

      .
      Years of marriage at Dolores’ pension share less
      separation (26) x Robert’s equity share
      years of service (33) present value of all marital property

        X monthly pension or 26/b x 82,482.01 X gross monthly pension 176,689.00


source: Caselaw Access Project

author: HESTER, Judge.

license: Public Domain

text:
    579 A.2d 1332
    Gina WILLIAMS, Appellant, v. Bryant TUCK and Professional Paramedics and Randy Cone, Joy Goines and Travelers Insurance Company.
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Decided Sept. 18, 1990.

      Don S. Ginsburg, Philadelphia, for appellant.
    Laura W. Helbling, Media, for Travelers Ins., appellee.
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HESTER, Judge.

This is an appeal by Gina Williams from the October 19, 1989 order granting the preliminary objections of appellee, Travelers Insurance Company, to appellant’s claim against it for attorney’s fees. Appellant instituted this action against appellee to recover first party benefits and attorney’s fees under the Motor Vehicle Financial Responsibility Law (“MVFRL”). Appellee’s obligation to pay first party medical benefits arises due to its status as an insurance company assignee to the Assigned Claims Plan. This appeal followed the trial court’s grant of preliminary objections to appellant’s claim for attorney’s fees. We affirm, concluding that the trial court was correct in determining that appellant is not entitled to attorney’s fees under section 1798(b) of the MVFRL.

Appellant instituted this action against appellee alleging that she was uninsured and that appellee is required to pay her basic loss and uninsured motorist benefits under the Assigned Claims Plan as a result of its status as an assigned insurer under that plan. In the trial court and on appeal, appellant rests her claim for attorney’s fees solely on section 1798 of the MVFRL which provides in relevant part as follows:

§ 1798. Attorney fees and costs
(a) Basis for reasonable fee. — No attorney’s fee for representing a claimant in connection with a claim for first party benefits provided under Subchapter B (relating to motor vehicle liability insurance first party benefits) or a claim for catastrophic loss benefits under Subchapter F (relating to Catastrophic Loss Trust Fund) shall be calculated, determined or paid on a contingent fee basis, nor shall any attorney’s fees be deducted from the benefits enumerated in this subsection which are otherwise due such claimant. An attorney may charge a claimant a reasonable fee based upon actual time expended.
(b) Unreasonable refusal to pay benefits. — In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the benefits enumerated in subsection (a) when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended.

(Emphasis added).

The trial court concluded that since the insurer in this instance was the insurer designated to pay first party benefits pursuant to the Pennsylvania Assigned Claims Plan, 75 Pa.C.S. §§ 1751-57, it was not an “insurer” under section 1798(b) and that the attorney’s fees of appellant-claimant were not recoverable under that section. It based this conclusion on the fact that appellee and appellant had no insurer-insured relationship. We agree.

The MVFRL requires that every insurer which issues motor vehicle liability insurance in Pennsylvania provide coverage for first party benefits to all insureds for specified losses resulting from injuries arising out of the maintenance or use of a motor vehicle. See 75 Pa.C.S. § 1711. Section 1713 of the MVFRL creates the following priority system to determine the source of first party benefits for a person who suffers injury arising out of the maintenance or use of a motor vehicle:

(1) For a named insured, the policy on which he is the named insured.
(2) For an insured, the policy covering the insured.
(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.
(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident____

270 Pa.C.S. § 1713.

Where an insurer fails to pay first party benefits required under this subchapter to an eligible claimant, attorneys fees may be recoverable under 75 Pa.C.S. § 1798.

In the event that a person who suffers an injury arising out of the use or maintenance of a motor vehicle is not covered by any policy of insurance under the scheme of priorities created by section 1713, first party benefits may be available to the injured claimant through the Assigned Claims Plan. See 75 Pa.C.S. § 1752. The benefits available under the Assigned Claims Plan include medical benefits up to a maximum of only $5,000, but do not include those benefits which otherwise are part of the mandatory first party benefit coverage such as income loss or accidental death benefits. 75 Pa.C.S. § 1753. Unlike those sections of the MVFRL governing first party benefits which arise under policies of motor vehicle liability insurance, the Assigned Claims Plan nowhere specifically provides for a claimant to recover attorney’s fees or interest in the event an assigned insurer has been found to have acted in an unreasonable manner.

We determine that when the provisions of the MVFRL are read as a whole, it is clear that the legislature did not intend by enacting section 1798 to provide for attorney’s fees against, insurers assigned to claims arising under the Assigned Claims Plan and which have no policy of insurance issued to the claimant.

Accordingly, we affirm the order dismissing appellant’s claims for attorney’s fees. Case is remanded. Jurisdiction relinquished.

      . We consider this a final, appealable order under the doctrine discussed in Praisner v. Stockner, 313 Pa.Super. 332, 459 A.2d 1255 (1983); see also Danko Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 128, 534 A.2d 1108, 1112 (1987).

      . Appellee and four other defendants were named in this action. Appellee instituted the action for personal injuries suffered during an automobile accident occurring on January 30, 1988. The other defendants are not parties to this appeal.

      . 75 Pa.C.S. § 1701, et seq.


author: CAVANAUGH, Judge:

text:
    580 A.2d 1
    BEECHWOOD COMMONS CONDOMINIUM ASSOCIATION v. BEECHWOOD COMMONS ASSOCIATES, LTD, Oreland Home Builders, Robert L. Wexler v. Irving SHAPIRO. Leonard J. DAVIS, Peter R. Davis and Robert Wexler, t/a Beechwood Commons Associates, Ltd. v. Irving SHAPIRO. Appeal of BEECHWOOD COMMONS ASSOCIATES, LTD. and Leonard J. Davis, Peter R. Davis and Robert Wexler t/a Beechwood Commons Associates, Ltd.
    Superior Court of Pennsylvania.
    Argued April 19, 1990.
    Filed Aug. 1, 1990.

      William C. McGovern, Philadelphia, for appellants.
    Edward A. Greenberg, Philadelphia, for Beechwood, appellee.
    Elizabeth M. McKenna, Philadelphia, for Irving Shapiro, appellee.
    Before CAVANAUGH, ROWLEY and HUDOCK, JJ.
   CAVANAUGH, Judge:

Beechwood Commons Associates, Ltd. and Leonard Davis (now deceased), Peter Davis, and Robert Wexler, the general partners of Beechwood Commons Associates (hereinafter referred to as “Beechwood” or “developer”) take this appeal from a judgment entered against them in the Court of Common Pleas of Philadelphia County following a jury verdict and denial of post-trial motions. The jury awarded damages to appellee Beechwood Commons Condominium Association (hereinafter referred to as “Association,” “Council,” or “condominium association”), which represents owners of condominiums developed and built by Beechwood and its general contractor, Oreland Home Builders (later renamed Robert Wexler Construction Company and referred to as “builder”). Beechwood’s partner, Robert Wexler, was Oreland’s/Wexler’s principal. The jury also returned a verdict of non-liability with respect to the project’s architect, Irving Shapiro, whom Beechwood had joined as a third-party defendant. This judgment represents consolidation of two actions brought by the condominium association against Beechwood; the first was docketed as April Term, 1982, No. 1782, the second as September Term, 1983, No. 3909. After a careful review of the record and the applicable law, we affirm.

Beechwood Commons is a condominium complex located at 21st and Arch Streets in Philadelphia. In 1980, Beechwood Commons Associates, Ltd. [Beechwood] began selling the various condominium units of Beechwood Commons. Each unit was sold pursuant to a form agreement of sale drafted and provided by Beechwood. During trial, those agreements of sale were referred to as the 1980 agreements. One specimen agreement was admitted and defendant-appellant Beechwood agreed that it was identical in all significant respects to the agreements of sale for all of the other condo units. The 1980 agreements contained an express warranty that the premises would be free from defective and non-conforming work for a period of one year and an express warranty that the premises would be constructed in accordance with the architect’s plans and specifications.

Shortly after purchase, problems with construction defects arose. Residents’ automobiles were sustaining paint damage caused by water passing through the brick, mortar, and concrete slab carport roofs. The architect, Mr. Shapiro, advised that the dripping water was leaching salts as it passed through the carport deck. Other minor construction problems were resolved and are not the subject of this lawsuit.

The essence of the carport roofing leak was a variance between the design submitted by the architect, Mr. Shapiro, as approved by Beechwood, and the design utilized by Mr. Wexler and his company in construction of the carport decks. Mr. Wexler testified that, in order to cut costs, he decided to omit a waterproof membrane which was part of the architect’s plans. Mr. Shapiro strenuously voiced his objections to Mr. Wexler, the partner with whom the Beechwood partnership, through its contract with Mr. Shapiro, had directed Mr. Shapiro to communicate. So strong were Mr. Shapiro’s objections to omitting the membrane from the design that he refused to alter his drawings to account for the new design.

After numerous meetings and contacts concerning the leaking carport roofs and other problems, the developer and the builder entered into a settlement agreement with the condominium association in October, 1982, several months after the association had filed suit against Beechwood and Oreland/Wexler. This agreement, referred to as the 1982 agreement or accord, stipulated that the developer and the builder would repair several problems, the most important of which were the leaking carport roof decks. The 1982 agreement released the developer and the builder from claims arising in the future, excluding claims relating to: structural soundness (not here at issue); any and all implied warranties arising out of construction of the condominium property; and any claims which individual unit owners had or may have had arising out of the construction of their individual units which were not the subject matter of the agreement. By its terms, the release was also inapplicable to the specific undertakings and obligations of appellant under the agreement until such time as the undertakings were met as .set forth.

The 1982 agreement also contained the following provision:

In the event that Beechwood, Wexler Construction, or Wexler fail to perform their undertakings enumerated in Sections 1 and 2 above [relating to the repairs which Beechwood and Wexler Construction undertook to complete], and Council obtains a final money judgment against them, or any of them ... Beechwood, Wexler Construction, and Wexler shall pay to Council the attorneys [sic] fees incurred by it in connection with obtaining such judgment. In the event Council fails to obtain said judgment after commencing an action, Council will pay to Beechwood, Wexler Construction and Wexler the attorney’s fees incurred by them in connection with defending any such action.

The developer and the builder performed some of the work required under the 1982 agreement, but they failed to correct the leaking carport roofs. In November of 1985, the condominium association filed a four-count complaint alleging breach of the express warranties contained in the 1980 agreements, breach of implied warranties, breach of the 1982 agreement and misrepresentation. Consolidation occurred shortly thereafter.

At trial, the condo association offered evidence that Beechwood breached the 1980 agreements insofar as the premises were not constructed in accordance with the architect’s plans and specifications and were not free of defective workmanship for a one-year period. The association also offered evidence that Beechwood breached the implied warranties that the premises would be fit for their intended uses and would be constructed in a reasonably good and workmanlike manner.

The latter implied warranties contained in the 1980 agreements were specifically preserved by the 1982 agreement. The former express warranties — at least as they related to the carport roofs and other problems addressed in the 1982 agreement — were preserved by language in the 1982 release which said that the release would not apply to the specific undertakings and obligations of Beechwood under the 1982 agreement until such time as those undertakings were completed. The association’s evidence consisted in part of testimony by Robert Wexler that he omitted the waterproof membrane called for by the architect’s plans and over the architect’s objections.

The condo association also offered evidence that Beechwood breached the 1982 agreement insofar as it failed to correct the problem of the leaking carport roofs. On the issue of damages, the association offered evidence that the cost of repair would be approximately $187,000.

Witnesses for Beechwood testified that Robert Wexler did not inform his partners, the Davises, that he was omitting the waterproof membrane, that the architect knew Mr. Wexler was omitting the membrane and took no corrective action, that members of the condominium association obstructed Beechwood’s efforts to perform under the 1982 agreement, and that the claimed damages were somewhat overstated.

At the close of evidence the trial judge bifurcated the jury instructions and deliberations. In the first phase, the jury was instructed to determine whether the 1982 agreement had the elements of an accord, that is, whether the agreement was based upon an honest dispute and was designed to supersede the 1980 agreements of sale. The jury was instructed to determine which agreement(s) governed and whether the governing agreement was breached.

After the jury’s verdict finding that the 1980 agreements governed and were breached, the court reconsidered its instructions — to which appellee had taken an exception— which told the jury that either but not both types of agreements (the agreements of sale as against the accord) governed relations between the parties. In the second part of jury deliberations, the court instructed the jury to determine whether the 1982 agreement was also breached and to render an award of damages on its findings of liability. The jury found a breach of the 1982 agreement. The jury found compensable damages of $150,000 and judgment was entered on the verdict.

After trial, plaintiff moved for and was awarded attorney’s fees pursuant to the 1982 agreement. Motions for judgment notwithstanding the verdict and a new trial were denied. An appeal was timely filed. However, appellant’s brief was not timely nor did appellant designate the contents of the reproduced record. We choose to decide the case on the merits; appellant’s brief was only two days late and appellee will suffer no prejudice from appellant’s failure to designate contents of the reproduced record since this court will rely on the original record.

First, Beechwood asks us to find that the trial court erred in not ruling as a matter of law that the settlement agreement of October 25, 1982 was an accord and satisfaction which extinguished the earlier (1980) agreements of sale. Appellee Association asks us to find that the trial court erred in not ruling as a matter of law that the settlement did not satisfy the requirements for accord and satisfaction; appellee then argues that in light of the jury’s verdict, the trial court’s error was harmless and we should therefore affirm.

Appellant had raised accord and satisfaction as a defense to appellee’s action for breach of warranties in the 1980 agreements. In order to establish accord and satisfaction, the party asserting the defense has the burden of proving the existence of a bona fide dispute concerning the parties’ obligations under the first agreement, which dispute is the basis for consideration for the making of the second agreement. Duryea v. Long, 191 Pa.Super. 511, 159 A.2d 259 (1960). Beechwood has focused on demonstrating the existence of a bona fide dispute giving rise to consideration to persuade this court that the 1982 agreement was an accord and satisfaction of its prior obligations.

Nevertheless, the existence of bona fides is not dispositive in this case. Assuming the existence of a bona fide dispute giving rise to consideration, the language of the 1982 agreement reflects no attempt by the parties to deem the 1980 agreements satisfied by the Beechwood’s promise in the 1982 accord to make the necessary repairs. Rather, the 1982 agreement plainly states that appellant would be released from its related obligations under the 1980 agreements only upon completed performance of its present undertakings to repair the roofs and other items.

In Nowicki Construction Co. v. Panar Corp., 342 Pa.Super. 8, 492 A.2d 36 (1985), our court delineated the distinction between an accord and satisfaction and a substituted contract, in which the parties do not intend to require performance in satisfaction for an obligation under the first agreement. “A substituted contract is a mode of extinguishing one obligation by another, that is, the acceptance of a new promise in satisfaction of a previously existing claim[,] while in the case of an accord and satisfaction it is not the new promise itself but the performance of the new promise that is accepted as a satisfaction.” Nowicki, 492 A.2d at 40 (quoting other cases). The party asserting a substituted contract has the burden of proving that the parties intended to discharge the earlier contract. Id. As we have already noted in footnote one, the jury did not believe that the parties intended the 1982 accord to be a substituted contract nor do we think that there was evidence in the case to support that result. The 1982 agreement is therefore properly classified as an accord executory.

Unlike a substituted contract — which is accepted as satisfaction of a pre-existing duty and bars revival of the pre-existing duty following a breach of the substituted contract — an accord executory does not itself operate as a discharge of the previous claim. Nowicki; Duryea v. Long, 191 Pa.Super. 511, 159 A.2d 259 (1960). Consequently, appellee was entitled to prove breach of the first agreements and the trial court acted properly in eventually letting the jury decide whether either or both types of agreements were breached.

Although it would have been preferable to have sent all of the liability issues to the jury at one time, we perceive no prejudice to appellant in the trial court’s subsequent amendment to correct its instructions. A motion for a new trial based upon the sufficiency of the jury charge will only be granted when the court determines that the charge in its entirety and against the background of the evidence was erroneous and might have prejudiced appellant. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988).

The trial court’s amendment of its instructions placed all of the proper questions before the jury and the charge was not erroneous. If anything, the trial court’s initial error in requiring the jury to find that only one agreement or type of agreement applied to the dispute was favorable to Beechwood since it gave the jury the impression that Beechwood’s liability was more limited than it might in fact have been.

Second, appellant seeks to vacate the lower court’s award of attorneys’ fees under the 1982 agreement, which makes specific allowance for such an award to the winning party in any litigation regarding the undertakings made by the parties in the 1982 agreement. Beechwood argues that if we decide, as we have, that a claim could be brought under warranties in the 1980 agreements, then there was no consideration for the 1982 accord and therefore appellee cannot collect attorneys’ fees thereunder.

This argument makes the same erroneous assumption as Beechwood’s first argument, namely, that the 1982 agreement either qualifies as an accord and satisfaction or is not an enforceable contract. We have found that the 1982 agreement was an accord executory which the jury determined that Beechwood breached, thereby failing to satisfy its obligations under the first agreement as well.

When an accord executory is breached by the obligor’s failure to perform, the law gives the obligee the choice of enforcing the original duty or any duty arising under the breached accord. Nowicki, 492 A.2d at 40. The obligee may plead in the alternative under Pennsylvania Rule of Civil Procedure 1020(c) and the obligee need not elect prior to verdict. See, Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977).

The thrust of appellant’s second argument is not that appellee was permitted to recover duplicative damages. Rather Beechwood is contending that the second agreement must be deemed to have failed for lack of consideration because Beechwood did not receive its anticipated benefit of being released from claims arising under the 1980 agreements. The fallacy of Beechwood’s argument is its presupposition that the 1982 accord was intended to release Beechwood from claims under the 1980 agreements merely because Beechwood promised to make the necessary repairs. As we have already demonstrated, appellant was to be released from claims under the 1980 agreements only upon performance of its obligations under the 1982 accord.

The consideration appellant was to receive for its promises in the 1982 accord was appellee’s promise of forbearance in bringing suit. In return for Beechwood’s promise to repair the leaking decks, the condominium association gave Beechwood an opportunity to make the necessary repairs rather than be subject to further legal action. Beechwood did receive the benefit of its bargain, that is, it was given a reasonable opportunity to make the needed repairs during which time the condominium association refrained from taking further legal action. It was appellee, the condominium association, which did not receive the benefit of its bargain, namely properly waterproofed decks. This is not a failure of consideration inherent in the agreement; rather, it is the direct result of Beechwood’s breach.

Beechwood also suggests that the jury, in determining that the 1980 agreements survived the 1982 accord, implicitly found that there was no bona fide dispute giving rise to the 1982 accord. As a result, according to Beechwood, the 1982 accord was not a valid contract. As we have already explained, the jury’s verdicts are more consistent with a finding that there was a bona fide dispute giving rise to the 1982 accord, but that the parties intended that Beechwood be released from claims arising under the 1980 agreements only upon its completed performance of its obligations under the 1982 accord.

Thus, appellant has failed to demonstrate that the court’s award of attorneys’ fees pursuant to the unambiguous language of the parties’ 1982 agreement was erroneous.

Third, Beechwood argues that the trial court erred in not instructing the jury that it could find the architect, Irving Shapiro, negligent in performing his supervisory duties under his contract by not notifying the other Beechwood partners that Mr. Wexler was ignoring the architect’s plans with respect to carport deck waterproofing.

Beechwood does not argue that the court’s instructions to the jury with regard to Beechwood’s action for breach of contract against Mr. Shapiro were inadequate. It only argues that the court should have submitted the issue of Mr. Shapiro’s negligence as well as his breach for the jury’s consideration.

At the outset, we note that there is a question as to whether the court’s instructions submitted the issue of Mr. Shapiro’s negligence or not. Assuming for the moment that the negligence issue was not submitted, the jury’s verdict on the breach of contract issue is conclusive upon the negligence issue as well.

Mr. Shapiro’s entire duty towards Beechwood derived from his contract with the partnership. Beechwood offered no other basis for Mr. Shapiro’s supposed negligence than his duties under the contract. In addition, the court instructed the jury that Mr. Shapiro had a duty to act reasonably in performing his contractual duties.

The jury found that Mr. Shapiro did not breach the contract. Therefore, we fail to see how the jury could possibly have found Mr. Shapiro negligent in performing under the contract, especially since the court did instruct the jury that Mr. Shapiro was obliged to act reasonably in fulfilling his obligations.

Since the jury found that Mr. Shapiro had not breached any duty owed towards Beechwood and had acted reasonably, the availability of a different measure of damages for negligence than for breach of contract is irrelevant. Any error on the court’s part in not explicitly submitting the issue of negligence to the jury was rendered harmless by the jury’s finding that Mr. Shapiro had not breached his contract or acted unreasonably in fulfilling his obligations.

Judgment affirmed.

      . Appellant relies on a release given by the Association in section 6.1 of the 1982 agreement to prove accord and satisfaction of the 1980 agreements. Section 6.2 of the 1982 agreement states that the release given “shall not apply to the specific undertakings and obligations of Beechwood, Wexler, Wexler Construction [and others] under this [1982] Agreement until such time as such undertakings are met as set forth herein.” Plainly, the parties intended not to release Beechwood from warranties made in its agreement of sale until performance was complete.
      This conclusion is, moreover, perfectly consistent with the jury’s findings. The jury, in finding that the 1980 agreements were still valid, necessarily felt that the parties did not intend for the 1982 accord to extinguish the 1980 agreements. Had the jury believed that the promise to repair, rather than the actual performance of repairs, was sufficient to satisfy the promisor’s duties under the 1980 agreements, it would have determined that the 1982 accord governed the case during its first round of deliberations.

      . It would be incorrect to call the 1982 agreement an accord and satisfaction since Beechwood breached the 1982 agreement, thereby failing to satisfy the terms of the 1980 agreement.

      . Such an argument would fail in any event since the damages awarded merely represented the cost of repairing the carport roofs properly. This amount reimburses the homeowners for what they expected — the benefit of their bargain — under either the 1980 agreement of sale or the 1982 settlement agreement. The 1982 agreement made attorneys’ fees recoverable for the winner (which could have been either party) in the event that suit was brought upon it. Appellees are deemed to have elected to recover on the 1982 agreement, as they are permitted to do under Nowicki.

      . In its argument, Beechwood draws the distinction between nonfeasance (failure to perform) and misfeasance (failure to perform properly) and denotes the latter a negligence issue. We note that the court’s charge explicitly submitted the misfeasance issue for the jury's consideration and therefore the charge was substantively correct.


author: TAMILIA, Judge.

text:
    580 A.2d 8
    COMMONWEALTH of Pennsylvania v. Michael E. ZORN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 9, 1990.
    Filed Aug. 17, 1990.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com.
    Before TAMILIA, JOHNSON and CERCONE, JJ;
   TAMILIA, Judge.

Appellant Michael E. Zorn appeals from judgment of sentence entered September 19, 1989, after appellant pled guilty to robbery, prohibited offensive weapon and possessing instruments of crime and was sentenced to a term of imprisonment of five to ten years on the robbery count. The charges arose out of the robbery of a gas station by appellant using a sawed-off shotgun. A guilty plea hearing was held on July 25, 1989, at the conclusion of which the district attorney indicated that she and appellant’s trial counsel had previously discussed the applicability of the mandatory sentence provision of 42 Pa.C.S. § 9712, and that she was giving notice of the Commonwealth’s intention to seek the mandatory sentence. Sentence was deferred until September 19, 1989 pending receipt of a presentence investigation.

On appeal, appellant argues trial counsel was ineffective for failing to file a motion to withdraw the guilty plea where there was no notice of the application of a mandatory sentence before the plea was entered.

A successful claim of counsel’s ineffectiveness must address three inquiries: (1) whether the underlying claim is of arguable merit; (2) whether counsel had any reasonable basis for his chosen course of conduct; and (3) whether the course of conduct worked to the client’s prejudice, i.e., had an adverse effect on the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). The law presumes that counsel is effective and the burden of establishing ineffective assistance is on the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Commonwealth v. Bruner, 388 Pa.Super. 82, 92, 564 A.2d 1277, 1287 (1989). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

The Supreme Court recently found the fact of a guilty plea to be of “vital significance.”

A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent; he acknowledges the existence of facts and intent; facts he acknowledges may or may not be within the powers of the Commonwealth to prove.

Commonwealth v. Ryan, 523 Pa. 547, 549, 568 A.2d 179, 181 (1990), quoting Commonwealth v. Anthony, 504 Pa. 551, 558, 475 A.2d 1303, 1307 (1984).

A person may attack a guilty plea after sentencing on three grounds: (1) the legality of the sentence; (2) the jurisdiction of the court; and (3) the voluntary, knowing and intelligent nature of the plea itself. Commonwealth v. Alston, 387 Pa.Super. 393, 564 A.2d 235 (1989). In the instant case, appellant filed a pro se petition for reconsideration of sentence which stated as grounds for relief:

Misrepresentation by counsel. Did not fully understand sentencing guidelines, misunderstand [sic] of charges. The charges were never explained to him by counsel.

In the interests of fairness and judicial economy, this Court will view appellant’s petition as an attack on the voluntariness of the plea and address this claim on its merits.

To be valid, a plea of guilty must be voluntarily, knowingly and intelligently made by the defendant, i.e., “with an understanding of the nature of the charges against him, his right to a jury trial and an awareness of the consequences of his plea.” Commonwealth v. Enty, 442 Pa. 39, 40, 271 A.2d 926, 927 (1971), quoted in Commonwealth v. Khorey, 521 Pa. 1, 4, 555 A.2d 100, 104 (1989). It is now well established in Pennsylvania that a defendant seeking to withdraw his guilty plea after sentence has been imposed must demonstrate that a manifest injustice has occurred justifying withdrawal. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). In determining the validity of a plea, this Court will look at the totality of the circumstances surrounding the plea. Schultz, supra.

In attacking the validity of his guilty plea, appellant relies on the decisions of this Court in Commonwealth v. Reagan, 848 Pa.Super. 589, 502 A.2d 702 (1985) (en banc), and Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986). For the reasons given infra, we find these decisions distinguishable from the case at bar.

In Reagan, the defendant pled guilty to driving while under the influence of alcohol, 75 Pa.C.S. § 3731(a), and was sentenced under the recidivist provision of the statute because of an alleged prior conviction for driving while under the influence of alcohol. This Court noted the similarities between the sentencing provisions of the drunk driving law and the mandatory minimum sentencing statutes, 42 Pa.C.S. § 9712 et seq., and found the notice provisions of the mandatory minimum sentencing laws to be helpful in resolving the issue before it.

Appellant argues Reagan establishes the requirement of notice of a mandatory sentence prior to a guilty plea. While there is merit in that contention, we find it did not hold such a requirement was apposite to that case because the issue was not raised. In Reagan, the issue was posited in the form of a claim of error by the Commonwealth arising from the trial court’s refusal to apply the mandatory sentencing factor to the case since the recidivist nature of the offense was not alleged in the information. Following a finding that the trial court was in error in not applying the mandatory sentence to a recidivist, while not relevant to its decision, this Court distinguished a trial from a guilty plea in applying a notice requirement.

When a defendant pleads guilty rather than proceeds to trial, however, the defendant must be advised of the recidivist statute prior to entering his guilty plea. There is no dispute that a plea entered without knowledge of not only the maximum penalty which could be imposed, but also the minimum penalty which must be imposed, would not be a valid plea. Knowledge of the higher mandatory minimum sentence for repeat offenders may affect the defendant’s decision to plead guilty even though knowledge of the recidivist penalty would not affect a defendant’s defense for the crime charged. Therefore, although notice of the recidivist penalty is not required prior to trial, it is required prior to a guilty plea.

Id. 348 Pa.Super. at 594, 502 A.2d at 707 (emphasis added).

Leonhart, supra, on which appellant also relies, dealt with a guilty plea to a charge of involuntary deviate sexual intercourse with a person less than sixteen years of age. The defendant was then sentenced under the mandatory sentencing provision of 42 Pa.C.S. § 9718, Sentences for offenses against infant persons. The Leonhart Court noted it did not find any authority to support a requirement that notice of the penalty provisions of section 9718 be given to a defendant prior to sentencing. However, the court noted that in three other sections of the mandatory sentencing scheme, including section 9712, Sentences for offenses committed with firearms, at issue instantly, notice prior to sentencing was required for identical mandatory sentences of five years total confinement. By analogy, the Leonhart Court concluded notice was required in that case to conform to the requirement of a uniform and harmonious sentencing structure. The Court reviewed the Reagan decision and compared the similarities in both the recidivist provisions of 75 Pa.C.S. § 3731 and the notice provisions of the mandatory sentencing statutes, 42 Pa.C.S. §§ 9712, 9713, Sentences for offenses committed on public transportation, and 9714, Sentences for second and subsequent offenses, before concluding, “[w]ere we to hold Reagan applicable to the instant case, we note that the Commonwealth would have had to apprise appellant of its intention to proceed under section 9718 even before appellant’s plea had been entered of record at the plea proceeding.” Id. at 499 n. 10, 517 A.2d at 1347 n. 10. The date of the appellant’s resentencing in Leonhart, however, preceded our decision in Reagan, and therefore “the trial court was denied the benefit of its instruction”, id., and the Leonhart Court was similarly unable to apply it on appeal.

In a recent case involving the imposition of a mandatory sentence under section 9718, albeit a case involving a trial rather than a guilty plea, we stated:

[DJespite the fact that the Leonhart [358 Pa.Super. 494, 517 A.2d 1342 (1986)] panel spoke in more comprehensive terms than the issue presented to it, it did succinctly state that issue in the following language:
When a defendant enters a plea knowingly and voluntarily, it is assumed that he has weighed the alternatives of going to trial versus entering a plea. This includes consideration of the evidence which he knows or has reason to believe the prosecution has available and whether, based upon his assessment of that evidence relative to the elements of the crime(s) charged, the Commonwealth is able to meet its burden of proof at trial. Commonwealth v. Shaffer, [498 Pa. 342, 446 A.2d 591 (1982)].

Id. 358 Pa.Super. at 497, 517 A.2d at 1344.

A knowing and voluntary guilty plea must provide the opportunity to a defendant to assess his chances of obtaining a reduced sentence as opposed to going to trial. A defendant may well take his chances at trial rather than entering a guilty plea if he is made aware that entering a guilty plea will require imposition of a five-year mandatory minimum sentence by the court.

Commonwealth v. Crum, 380 Pa.Super. 280, 285, 551 A.2d 584, 589 (1988).

Crum, then, illustrates both the overall precedential value of Reagan and Leonhart to section 9712 cases, as well as the true benchmark for determining whether a guilty plea was knowing and voluntary, i.e., the totality of the circumstances.

In determining whether to accept a guilty plea, at a minimum the judge should ask questions designed to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Comment, Pa.R.Crim.P. 319.

At the guilty plea hearing, appellant was informed of the above elements of his guilty plea (N.T., 7/25/89, pp. 2-8). Appellant was also informed prior to the plea colloquy that robbery is a first degree felony punishable by a maximum period of incarceration of ten to twenty years and possessing a prohibited offensive weapon and possessing instruments of crime were each punishable with incarceration up to two and one-half to five years. Determining appellant had entered the guilty plea voluntarily and knowingly, the court accepted the plea. In a crucial statement, for the purpose of this appeal, the district attorney then stated:

Your Honor, there has been a discussion with defense counsel about the fact that this is a mandatory five year case because of Title 4, Subsection 972 [sic], that mandate robbery cases where a gun is involved the sentence has to be five to ten years and because of that the defense would like a presentence and I think we will discuss that I guess at the sentencing but I am hereby giving notice that we do intend to seek the mandatory five years.

Id. at 13. This statement is neither refuted nor contested by appellant and must be taken to mean that appellant, through his counsel, had knowledge before, during and after the guilty plea of the Commonwealth’s intention to seek the mandatory sentence.

Upon receipt of the presentence investigation, the court held a sentencing hearing on September 19, 1989. At that hearing, defense counsel presented a summary of mitigating factors, noted the Commonwealth had filed notice of its intention to seek the mandatory five-year sentence, and requested “the Court impose no penalty greater than the minimum required under the law as it appears to me to be.” (N.T., 9/19/89, pp. 2-3.) Appellant was asked by the court if he had anything to say and he said no. The district attorney then stated she had mailed certified copies of the Commonwealth’s notice of intention to seek the mandatory sentence to defense counsel and appellant and had received return receipts for each. When the district attorney prepared to call two witnesses to testify as to appellant’s use of the gun in the robbery, defense counsel stated, although there was some question concerning use of the gun at the time of entry of the guilty plea, appellant was now “conceding that a gun was used in the commission of the crime.” Id. at 3-4.

As a final matter, this Court notes, as did the sentencing court, section 9712 specifically requires notice only prior to sentencing. The statute provides:

(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9712(b) (emphasis added).

We now find section 9712, however, as well as the other statutory mandatory sentencing provisions, requires notice to a defendant of its applicability prior to the entry of a guilty plea, not only prior to sentencing, (Commonwealth v. Schmuck, 385 Pa.Super. 617, 561 A.2d 1263 (1989) (statutes in a scheme concerning the same subject matter should be construed, whenever possible, as one harmonious component of the entire statutory structure)). It is evident these statutes were constructed as they would relate to a trial, as during trial, evidence might or might not be adduced to bring into play the mandatory sentencing requirement. As such, notice prior to trial of the mandatory sentence provision would be unnecessary and impractical, see Reagan, supra. A guilty plea, however, involves waiving of substantial rights and defenses and admits all relevant allegations to establish guilt, which must be proven at trial. A trial may not result in application of the mandatory sentence provision if sufficient evidence is not produced to sustain it, even though a subsequent hearing on the matter is reserved for sentencing. The legislature could not have intended that a guilty plea be accepted without providing a defendant with knowledge of the full consequences of a guilty plea as opposed to a trial. We, must now examine the totality of the circumstances in this case to determine whether a manifest injustice to appellant has occurred justifying withdrawal of his guilty plea. Schultz, supra; Shaffer, supra.

This Court’s examination of the record leads us to find appellant’s guilty plea was knowing and voluntary. Appellant’s counsel had notice of the Commonwealth’s intention to seek the mandatory minimum sentence in discussion with the district attorney prior to entry of appellant’s guilty plea. Moreover, both defense counsel and appellant received written notice of the Commonwealth’s intention prior to sentencing, as required statutorily. At sentencing, appellant conceded the Commonwealth’s ability to establish the applicability of section 9712, but informed the court he had, nothing else to say after his counsel cited mitigating factors and asked the court to limit the sentence to the mandatory minimum. Up until, that time the appellant was free to challenge the applicability of the mandatory sentence or even move to withdraw his guilty plea due to his unwillingness to accept the five years incarceration which he knew would accompany the plea. As he said nothing, the court then imposed a sentence “less than half the statutory maximum [appellant] knew he could receive prior to the offer and acceptance of his plea.” (Slip Op., Kelly, Robert J., 4/2/90, pp. 3-4.)

Based upon the totality of the circumstances, we find no manifest injustice occurred justifying withdrawal of appellant’s guilty plea, therefore, this claim is without merit, and counsel was not ineffective for failing to file a motion to withdraw the guilty plea. Durst, supra.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3701(a)(l)(i) or (ii).

      . Id., § 908.

      . Id., § 907(a).

      . No further penalty was imposed as to the second and third counts.

      . 42 Pa.C.S. §§ 9713; 9714; 9715; 9717; 9718; and 9719. We must caution, the application of this principle does not apply to the deadly weapons enhancement under the Sentencing Guidelines, 42 Pa.C.S. § 9721 (204 Pa.Code § 303.4). Under the guidelines, judges have discretion, whereas under the mandatory sentencing provisions they do not, and nowhere in the sentencing guidelines is notice required of the specific factors to be used. See Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986).

      . While Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), and Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985) (en banc), instruct us that the holding we promulgate with this case is the correct one, since this case is the first to deal with the precise issue on appeal, we hold that application of the principle announced here shall be prospective only.