author: CIRILLO, Judge: SPAETH, President Judge,

text:
    479 A.2d 1047
    Joseph P. SEMASEK v. Theresa A. SEMASEK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1984.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Granted Nov. 28, 1984.

      Clayton T. Hyman, Allentown, for appellant.
    Anthony J. Urban, Assistant Public Defender, Mahanoy City, for appellee.
    Before SPAETH, President Judge, and CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Schuylkill County, entered June 7, 1982, awarding rehabilitative alimony and the partial payment of counsel fees to appellant and granting the equitable distribution of all marital property between the parties. The court dismissed the appellant’s application for alimony pendente lite. The appellant Theresa A. Semasek requests either modification or remanding of the order, claiming that the hearing court abused its discretion in its findings. We disagree with the appellant’s position and affirm the order of the hearing court.

On August 5, 1980, the appellee Joseph P. Semasek instituted an action under the New Divorce Code, alleging that his marriage was irretrievably broken and that he and his wife had lived separate and apart for a period exceeding three years. The appellant filed an answer and a counterclaim seeking child support, custody, counsel fees, alimony, alimony pendente lite and equitable distribution of marital property.

The matter was assigned to a master, who, after having conducted extensive hearings, recommended that a divorce be granted. The master filed a supplemental report addressing the economic issues.

On May 5, 1981, the divorce decree was entered, to which there was no appeal. Both parties, however, filed exceptions to the additional report of the master. The court subsequently reviewed the record, and on June 7, 1982, the Honorable James E. Lavelle issued an order, equitably distributing marital property and awarding alimony. Marital property was distributed by allocating 56 percent to the appellee and 44 percent to the appellant. The court awarded alimony to the appellant in an amount equal to any money expended by her for education, not to exceed $2,750 annually for three years. Additionally, the appellee was directed to pay one half of the appellant’s counsel and expert witness fees. The court dismissed the appellant’s application for alimony pendente lite. This appeal followed.

In determining the propriety of property distribution and of alimony, we use the abuse of discretion standard of review. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion.

The appellant’s first contention on appeal is that the court erred in classifying three diamond rings given to her by her husband during the marriage as marital property to be equitably distributed. The appellant asserts that such property falls within the “gift” exception of the Divorce Code. We disagree.

Section 401(e) defines marital property as “all property acquired by either party during the marriage”. The “gift” exception excludes:

Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.

The hearing court, in the instant matter, determined that the jewelry was not a “gift” within the meaning of the statute as intended by the legislature.

In reviewing these provisions, we note that the hearing court should evaluate the facts of the case, giving consideration to the source of funds with which the gift was purchased, the intent of the donor as to the use of the property, the status of the marriage at the time of the transfer, and any agreements regarding the exclusion of the item from marital property. See O’Neill v. O’Neill, 600 S.W.2d 493 (Ky.App.1980). In this case, the hearing court found that the jewelry had been purchased by the appellee with money from his salary, which is certainly a marital asset. When the money was exchanged for the purchased items, the marital property assumed a different form, but remained marital property to be included in equitable distribution. This reasoning in classifying the jewelry as marital property does not constitute an abuse of discretion, and will not be disturbed on appeal.

The appellant next contends that several factual findings, specifically the valuation of the appellant’s diamond rings and of two parcels of realty, were arbitrary and unsupported by the record. The appellant additionally asserts that the court made conflicting findings as to her banking transactions and an erroneous finding that the appellant still holds assets in excess of $75,000 which she appropriated in 1979.

Section 401(d)(8) of the Divorce Code requires that the court consider the value of property set apart to each party in making a determination as to equitable distribution. Since there is no specific method of valuing assets, the court must exercise its discretion, relying upon the estimates and inventories submitted by both parties, records of purchase prices, and appraisals. From evaluating this evidence, the court makes its findings of fact. Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). See Jost v. Jost, 89 Wis.2d 533, 279 N.W.2d 202 (1979).

The appellant submitted her diamond rings to the master, indicating that she would accept $35,000 credit in exchange for returning the rings to the appellee. The appellee testified that the purchase price of the rings was $35,000. Both parties agreed to an appraisal to be arranged by the master, who discovered that the rings were costume jewelry. Upon close examination of the jewelry, the appellee asserted that the rings held by the master were not the ones he had purchased. In resolving this issue that had become one of credibility, the master made a specific finding that this jewelry had a value of $15,000 based upon an estimate of carat worth. Thereafter, this finding was accepted by the hearing court.

Similarly, the court placed values upon real property of the parties by considering testimony, records of purchase prices and, in some instances, expert appraisal reports. These valuations amply supported by the record will not be disturbed on appeal.

As to appellant’s banking transactions, we find that the hearing court scrutinized the numerous bank statements to ascertain as accurately as possible the funds remaining in the accounts. Since the appellant herself conducted these transactions, any conflicts in the court’s findings spring from her failure to fully disclose all necessary information. Further, the appellant’s allegation that the court should not have considered the funds appropriated by her from joint accounts is without merit. The intentional dissipation of marital assets by one party does not preclude its status as marital property in equitable distribution. It is the duty of the court to “issue other orders which are necessary to protect the interest of the parties and may grant such other relief or remedy as equity and justice require ...” 23 P.S. § 401(c). It is undisputed that the appellant appropriated funds of over $75,000 from the joint banks accounts. Since these funds are marital property to be equitably distributed, the court is warranted in having included them as such in its calculations.

The appellant additionally contends that the division of marital property is inequitable. Guidelines for the equitable distribution of marital property are set forth in Section 401(d) of the New Divorce Code which provides:

In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

As the record indicates, the hearing court found that the parties were married for eighteen years and that neither had been previously married. Two boys born of the marriage are each over eighteen years and are not pursuing higher education.

At the time of the hearing, the appellant was 44 years of age and in good health. The appellant, a high school graduate, had been employed as a bookkeeper and clerk until 1960, at which time she forfeited her employment to become a housewife, mother, and homemaker. In doing so, the appellant made substantial non-monetary contributions to the marriage and to the purchase and accumulation of jointly held assets. She also assisted in a secretarial and clerical capacity in her husband’s law practice, which attests to her employability and future earning potential.

The appellee, 45 years of age, is a self-employed attorney in private practice, a part-time member of the Schuylkill County Public Defender’s Office and the operator of a private detective agency. His gross earnings from his practice have declined from $53,525.76 in 1977 to $37,314.84 in 1980.

The appellee obtained his law degree from the University of Maryland prior to his marriage, but was required to return one year to complete his Bachelor’s Degree to qualify for admission into the Pennsylvania Bar. During that year, both parties were employed.

In reviewing the record as found by the hearing court in light of the provisions of the Divorce Code, we find that the distribution of marital property was indeed equitable. The hearing court painstakingly applied the relevant factors enumerated in section 401(d) to the facts at hand, ultimately granting 56 percent of the property to the appellee and 44 percent to the appellant.

We note that there is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions. The concept of equitable distribution is not an equal division of marital property. In Platek v. Platek, this court stated:

[T]he essence of the concept of an equitable division is that “after considering all relevant factors” the court may “deem just” a division that awards one of the parties more than half, perhaps the lion’s share of the property.

309 Pa.Super. 16, 454 A.2d 1059 (1982).

Accordingly, the order of equitable distribution in this case is not an abuse of discretion.

The appellant also alleges that the hearing court abused its discretion in framing its award for rehabilitative alimony, basing its decision upon dissipated assets and failing to consider the factors enumerated in Section 501(b) of the Divorce Code. We disagree with this contention.

In determining whether an award of alimony is to be granted, the hearing court must apply the facts of the case to the threshold requirements set forth in section 501(a):

(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.

Subsection (b) provides guidelines by which the court may determine along with any other relevant considerations, the necessity, nature, amount, duration, and manner of payment of alimony. The relevant factors are:

(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

To construe this statute so as to effectuate economic justice between the parties, 23 P.S. § 102(a)(6), the hearing court must apply it in a nonmechanical fashion. Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). The provisions are to be read in conjunction with each other and with the intent and purposes of the Divorce Act as a whole. Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982). An award of alimony is not to reward one party and to punish the other, but rather to insure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment are met. While there is a right to alimony in some instances, there is a responsibility on the part of the person requesting and accepting alimony to contribute to his or her own economic well-being. Accordingly, the Divorce Code includes a provision addressing the duration of such an award.

Subsection (c) provides:

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

In light of the aforementioned considerations, it becomes the duty of the hearing court to grant or to deny an award of alimony and to set forth the reasons for having so ruled. 23 P.S. § 501(d).

In the instant matter, the court granted alimony to the appellant limited to educational expenses incurred by her for a period of three years, not to exceed $2750 yearly. The court reasoned that such an award was appropriate in light of the appellant’s expressed desire to resume her education, the substantial marital assets in her possession, and her clerical skills and overall employability. Although the court did not numerically proceed through the fourteen factors of 501(b) which the appellant alleged as an abuse of discretion, the court did grant due consideration to those appropriate to the facts. Additionally, the court noted that the appellant failed to submit any plan of training which might have been implemented to assist her in her employment, and that the appellant had neither sought employment nor academic training from the date of separation in 1977. We find that the hearing court did not abuse its discretion in awarding limited alimony, but implemented an award that demonstrates statutory compliance as well as perception of human tendencies.

The appellant further contends that the hearing court should have awarded her alimony pendente lite and full payment of counsel fees. Section 401(b) of the Code provides in pertinent part:

... The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

The court is, therefore, permitted to make such awards in its discretion, whenever it deems that the awards are necessary for either spouse to maintain or to defend a divorce action. Remick v. Remick, supra; Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981); Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976). The court makes this determination by examining the size of the moving party’s estate, the value of counsel’s services, and the ability to pay. In situations in which the spouse is financially independent, the purpose of the award is not served and should not be granted.

In the instant matter, both the master and the hearing court concluded that the appellant’s claim for alimony pendente lite was inappropriate. During the period pending the divorce, the appellant had the principal and the income from marital assets in excess of $94,000 and rental income from jointly held properties. The appellee paid the heat, electric, telephone, and taxes on her residence and further contributed $100 weekly. Accordingly, we find that the award of partial counsel fees and the denial of alimony pendente lite do not constitute an abuse of discretion on the part of the hearing court.

For all of the above reasons, we affirm the order of the hearing court.

Order affirmed.

SPAETH, President Judge, filed a dissenting opinion.

SPAETH, President Judge,

dissenting:

I am unable to agree with the majority’s decision affirming the orders of the trial court. I am of the view that several of appellant’s arguments have merit and that the orders of the trial court should be reversed and the case remanded for further proceedings. Specifically, I agree with appellant that interspousal gifts are within the exclusion from marital property for "[pjroperty acquired by gift, bequest, devise or descent except for the increase in value during the marriage,” 23 P.S. § 401(e)(3); that with respect to the valuation of several items of marital property, the trial court abused its discretion; and that the trial court erred in purportedly distributing to her marital assets that no longer existed, and further erred in then relying on this purported distribution in determining her entitlement to alimony, counsel fees and costs, and alimony pendente lite.

-1-

The issue regarding interspousal gifts concerns three rings that appellee gave appellant. The majority holds that whether an interspousal gift comes within the gift exclusion is to be determined by the particular facts of the case, with consideration given to the source of the funds, the intent of the donor, the status of the marriage, and any agreement to exclude the item from marital property. The majority then goes on to hold that the trial court did not abuse its discretion in reasoning that the money used to purchase the three rings came from appellee’s salary, which was marital property, and merely changed form when it was used to purchase the rings, which remained marital property. This reasoning does not persuade me.

The statute provides that “[property acquired by gift” is to be excluded from marital property. 23 P.S. § 401(e)(3). What could be clearer? “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). See Sorbello v. Sorbello, 21 D. & C.3d 187 (Cumberland Co.1981). Nor is this clarity obscured by any other provision in the statute. To the contrary, it is sharpened. For excluding interspousal gifts from marital property is consistent with the purposes of the statute. Consider in particular Section 401(e)(2), which excludes from marital property “[pjroperty excluded by valid agreement of the parties entered into before, during or after the marriage.” A gift from one spouse to another is analogous to an agreement between the parties that the property be excluded from marital property. Under the reasoning of the trial court, which is approved by the majority, inter-spousal gifts will virtually never come within the gift exclusion because interspousal gifts are virtually always purchased with funds that are marital property. This result is contrary to both the language and the intent of the statute. See In re Marriage of Severns, 93 Ill.App.3d 122, 48 Ill.Dec. 713, 416 N.E.2d 1235 (1981) (statutory exclusion for gifts includes interspousal gifts; donee did not meet burden of proving gift by clear and convincing evidence). Cf. Burgess v. Burgess, 277 S.C. 283, 286 S.E.2d 142 (1982) (interspousal gift is subject to equitable division where statute provides for settlement of all equitable rights of parties as to all “real and personal property of the marriage”).

I should hold that in determining whether an interspousal transfer is a gift, the only relevant issue is the intent of the transferor, which must be determined by consideration of the transferor’s expressed intent as well as the circumstances surrounding the transfer. Under Section 401(f) the presumption is that property acquired during the marriage is marital property, with the spouse claiming that the property is excluded able to overcome the presumption by showing that the property was acquired by gift. Cf. Chambers v. Chambers, 406 Pa. 50, 176 A.2d 673 (1962) (common law presumption that gift is intended may be overcome by evidence that conveyance was not intended as gift). In this case, there is no dispute that appellee’s transfer to appellant of the three rings at issue was intended to be a gift. The rings were personal in nature; they were not designed for use by both spouses, as for example a household appliance might be; and there was no testimony that they were purchased as an investment. Cf. O’Neill v. O’Neill, 600 S.W.2d 493 (Ky.App.1980) (husband testified that jewelry was purchased as an investment). Rather, appellee testified that he bought the rings for appellant because “she never got an engagement ring.” N.T. February 5, 1981, at 41. Given the undisputed evidence that appellee intended the transfer of the rings to be a gift to appellant, I should hold that appellant has established that the rings are not marital property, except for the increase in value, if any, during the marriage. Cf. Chambers v. Chambers, supra (common law presumption that gift is intended when husband purchases or transfers property in name of wife did not arise where undisputed facts regarding the purpose of the transfer negated any presumption of gift).

-2-

Appellant argues that the trial court abused its discretion in valuing three assets that it held were marital property: the three rings just discussed; the Kline Township property; and the Pottsville office. I agree with appellant.

(a)

As I have explained, I believe the trial court erred in holding that the rings were marital property. However, even though the rings should have been excluded from marital property as a gift (except for the increase in value, if any, during the marriage), the issue of their valuation must still be considered. This is so because appellant’s possession of the rings is relevant to the issue of what division of the marital property would be equitable, since in equitably distributing the marital property, the court must consider, inter alia, the “estate ... of each of the parties,” 23 P.S. § 401(d)(3), and “[t]he economic circumstances of each party at the time the division of the property is to become effective,” id. at § 401(d)(10).

The trial court accepted the master’s valuation of $15,000 for the three rings, and awarded the rings to appellant. Appellant argues that the trial court abused its discretion in accepting the master’s valuation because there is no support for it in the record.

Appellee testified that over the course of the marriage he purchased three diamond rings for appellant, and that he estimated the value of the three rings to be $35,000. N.T. February 5, 1981, at 12, 41. Appellant brought three rings to the March 18, 1981, hearing and testified that they were the ones appellee had bought her. N.T. March 18, 1981, at 23. Appellant and appellee then agreed that the master should have the rings appraised. Id. at 23-24. During the lunch break, the master received a cursory appraisal from a jeweler, who stated that the rings were costume jewelry. Id. at 50. The record does not indicate any agreement by the parties to accept this appraisal in place of a formal appraisal. Later in the day, appellee testified that the rings that appellant had given to the master were not the ones he had given appellant during the marriage. Id. at 94, 98. In his report at page 14 the master found that appellant had received from appellee three diamond rings that resembled the rings appellant had submitted, and that the value of the three rings was $15,000 ($8,000 for the multi-carat solitaire ring at $4,000 per carat, $3,000 for the wedding band with diamonds, and $4,000 for another solitaire ring). The master did not explain how he arrived at this valuation. The trial court in its opinion at page 22 states: “We accept the valuation of $15,000 placed upon [the rings] by the Master, since the Court has not had an opportunity to view them.”

I agree with appellant that there is no support in the record for this valuation. Apparently, the master determined that the rings that appellee gave to appellant resembled the rings that appellant had brought to the hearing and that the rings actually given did contain diamonds. The master was entitled to make this determination on the basis of an assessment of the parties’ credibility. However, nothing in the record supports the valuation placed on the rings by the master. While apparently the master did not find credible appellee’s testimony that the rings were worth $35,000, there is no indication of why or how the master arrived at the $15,000 valuation. I should therefore hold that the trial court abused its discretion in accepting the master’s valuation. Cf. F.W. Woolworth Co. Tax Assessment Case, 426 Pa. 583, 235 A.2d 793 (1967) (court is not an expert appraiser and can act only upon credible and competent evidence presented to it); Avins v. Commonwealth, 379 Pa. 202, 108 A.2d 788 (1954) (court may not disregard evidence as to property values and substitute its own ideas; court’s view of property does not qualify it to make its own independent appraisal; purpose of view is to enable trier of fact to comprehend and weigh the testimony).

(b)

The trial court awarded two parcels of land in Kline Township, totalling 8.8 acres, to appellee. The court valued the property at $10,000, stating in Finding of Fact 56 that the property is subject to sewage and drainage limitations that seriously affect its market value. Appellant argues that the $10,000 valuation is without support in the record.

Appellant introduced into evidence an expert appraisal of the Kline Township property, which valued the property at $29,880 for parcel 1 and $22,920 for parcel 2. Defendant’s Exhibit 4. In arriving at this valuation, the appraiser noted in the report that there was currently a ban on new sewer hook-ups and that because of this ban the property could not be subdivided, but the two existing lots would be allowed to hook-up to existing sewer lines. The appraiser concluded that therefore the best use for the property would be two residential building lots. This is the only evidence in the record regarding the valuation of the Kline Township property. Nevertheless, the court rejected this evidence and valued the property at $10,000, without giving any reason why it did not accept the expert appraisal. I should hold that the court abused its discretion. See F.W. Woolworth Co. Tax Assessment Case, supra (court cannot refuse to accept expert’s estimate of fair market value, when court finds expert to be competent and credible and there was no countervailing testimony); Avins v. Commonwealth, supra (court may not disregard evidence as to value and substitute its own idea). Cf. Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983) (record adequately supports master’s estimate of fair market rental value of $300 per month where appraisal report estimate of $200 did not include 132 acres that appellant farmed or $15,000 barn located on farm land).

The trial court awarded the Pottsville office to appellee and valued it at $35,000, Finding of Fact 47. Appellant again argues that this valuation is without support in the record.

Appellant testified that she thought the Pottsville property was worth about $45,000. N.T. March 18, 1981, at 15. Appellee testified as follows:

A. I think it’s worth more than $45,000. They say $35,000.
Q. This is your $35,000 for the Pottsville property.
A. I say it’s worth more than $45,000.
Id. at 96.

The court did not explain how it arrived at the $35,000 valuation. The only reference to $35,000 in the record is the above-quoted reference to some unknown “they.” Again, I should hold that the trial court abused its discretion in arriving at a valuation not supported by any competent evidence of record.

I recognize that the master, in the first instance, and the trial court thereafter, may sometimes be put in a difficult position. Under Section 401 the court has the obligation, upon request of either party, to determine what is marital property and to distribute it equitably. Under Section 401(d)(8) the court must consider the value of the property set aside to each party. The court can only do this if there is competent and credible evidence before it upon which to base a valuation. The parties have the primary obligation to present evidence that will enable the court to make a reasonable valuation, including expert appraisals where necessary. See Lavene v. Lavene, 148 N.J.Super. 267, 372 A.2d 629 (1977). Nevertheless, when the parties do not meet this obligation, the trial court still has the responsibility to distribute the property equitably. Cf. Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979) (in child custody proceeding each party bears burden of proving that an award of custody to that party would be in the child’s best interests; it is the responsibility of the trial court, if necessary, to develop the record itself). In order to fulfill this responsibility the master or the court should not hesitate to require the parties to present expert appraisals, or, if the parties’ proofs are inadequate, to appoint its own expert at the parties’ expense. See Lavene v. Lavene, supra. So long as the court has fulfilled its responsibility and based its valuation on competent and credible evidence of record, a party who has failed to produce countervailing evidence will not be heard to complain on appeal. Cf. Dean v. Dean, 87 Wis.2d 854, 275 N.W.2d 902 (1979) (court did not abuse its discretion in relying on allegedly out of date real estate valuation based on purchase price where appellant failed to produce countervailing expert testimony). But if, as here, the court’s valuation is not supported by competent and credible evidence of record, then the order of distribution must be reversed and the case remanded for further proceedings. Cf. Avins v. Commonwealth, supra (if after trying to determine the value of property in a condemnation action, the court is unable to come to a conclusion, the proper resolution is to order a new trial).

-3-

Appellant’s final argument is that the trial court erred in purportedly distributing to her marital assets that no longer existed; in relying on this purported distribution in determining appellant’s entitlement to alimony, counsel fees and costs; and in holding that appellant was not entitled to alimony pendente lite because, inter alia, during the pend-ency of the divorce proceedings she had the use of and income from the assets purportedly distributed to her by the order of equitable distribution.

The trial court made extensive findings of fact regarding appellant’s withdrawal of funds from the parties’ joint savings accounts from October of 1975 through June of 1977. The court traced the funds through various accounts and found that the total withdrawals amounted to $79,-403.96. Finding of Fact 86. The court also found that when the parties separated in October 1976, appellant withdrew $7,900 in cash and bonds with a face value of $8,000 from the parties’ safe deposit box. Finding of Fact 87. The court found that the value of the bonds as of the beginning of 1981 was approximately $9,600. The court further found that all of the funds withdrawn had remained in appellant’s possession “to the present time.” Finding of Fact 92; Trial Court Opinion at 26. In its order of equitable distribution, the court purported to distribute to appellant $96,903.96 ($79,403.96 + $7,900 + $9,600). Appellant argues that the court erred in basing its order of equitable distribution on assets that did not exist when the divorce complaint was filed or when the order of distribution was made. I agree.

“Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced” is excluded by Section 401(e)(5) from the definition of marital property subject to equitable distribution. Appellee filed the complaint in divorce on August 5, 1980. Nevertheless, the trial court included as marital property subject to equitable distribution the full amount of funds that appellant had withdrawn in 1977. Despite its careful tracing of the funds through June 1977, the court made no attempt to determine, either how the funds were used thereafter, or what amount of the funds remained in appellant’s possession. Appellant testified that she had used the funds to live on following the parties’ separation. See N.T. February 5, 1981, at 72; N.T. March 18, 1981, at 18, 21, 59; Defendant’s Exhibit 2. The court’s Finding of Fact 88 that appellee had paid $100 per week to appellant from the time of separation until May 4, 1981, as well as paying the heating bills, electric bills, telephone bills, and taxes on the marital premises, is not disputed. Nevertheless, the record does not support the court’s finding that the full amount of the funds withdrawn remained in appellant’s possession. Appellant submitted a detailed list of expenses that she had incurred in excess of the amounts paid to her by appellant, and the court made no finding that these expenses were unreasonable or that they were not actually incurred. Appellee presented evidence to establish only that some of the funds withdrawn remained in appellant’s possession as of August 5, 1980. See Plaintiff’s Exhibits 6-9, 15.

Since under Section 401(e)(5) only property disposed of for value and in good faith is excluded from the definition of marital property, to the extent that the funds were not disposed of by the time the complaint was filed, or to the extent that they were not disposed of for value and in good faith, the funds were marital property. Cf. Barriger v. Barriger, 514 S.W.2d 114 (Ky.1974) (trial court did not err in including $10,500 previously spent in parties’ net worth where husband dissipated funds by taking Caribbean cruise and losing over $8,000 gambling). I agree with the majority that the intentional dissipation of marital assets would not preclude the property from remaining marital property. See Majority Opinion at 1051. However, the trial court made no finding as to how the funds were used, but instead treated the full amount as marital property subject to equitable distribution. To the extent that appellant used the funds to provide for her own and her sons’ living expenses following the parties’ separation, the funds were not marital property subject to equitable distribution. Cf. In re Marriage of Sevon, 117 Ill.App.3d 313, 73 Ill.Dec. 41, 453 N.E.2d 866 (1983) (court rejects husband’s argument that wife dissipated marital assets; wife spent $24,000 for personal and household expenses after husband left home; wife earned $348 biweekly; wife listed expenses and court found them to be appropriate); Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087 (1981) (court reverses finding of dissipation where husband’s testimony that he used funds for family expenses and to support parties’ lifestyle was uncontradicted); Dean v. Dean, supra (no abuse of discretion in not including in marital estate amounts spent by husband on vacations during pendency of divorce so long as amounts were reasonable). I should hold that on remand the trial court must determine, through application of Section 401(e)(5) and further development of the record, the extent to which the funds withdrawn by appellant are marital property. See In re Marriage of Block, 110 Ill.App.3d 864, 65 Ill.Dec. 769, 441 N.E.2d 1283 (1982) (given meager evidence regarding use of funds and purposes of mortgage, court cannot agree that funds were dissipated and issue should be decided on remand on basis of more particular evidence).

This would not, however, complete the court’s inquiry. For in determining what distribution of marital property is equitable, a court must consider the parties’ dissipation of marital property, 23 P.S. § 401(d)(7), the value of the property set aside to each party, id. at § 401(d)(8), and the economic circumstances of each party at the time the division of property is to become effective, id. at § 401(d)(10). I should therefore further hold that on remand the court must consider appellant’s use of the funds after the complaint was filed. If after the complaint was filed, appellant used the funds to provide for her own and her sons’ living expenses, then the court should consider that fact in equitably distributing the marital property. Cf. Scherzer v. Scherzer, 136 N.J.Super. 397, 346 A.2d 434 (1975) (wife was not entitled to equitable distribution with respect to items that had become worthless since date of filing complaint where nothing in record suggests depletion was result of husband’s deliberate action). If, on the other hand, appellant dissipated some of the funds, then the court should consider that fact in equitably distributing the marital property.

In determining appellant’s entitlement to alimony, counsel fees and costs, the trial court relied, inter alia, on the fact that it had purportedly distributed “substantial marital property” to appellant. Conclusions of Law 10, 11. Since, as discussed above, the court’s order of equitable distribution was in error, I should also reverse its orders regarding alimony, counsel fees and costs, with instructions that on remand it should reconsider appellant’s entitlement to alimony, counsel fees and costs after it has properly distributed the marital property.

In determining appellant’s entitlement to alimony pendente lite, the trial court relied, inter alia, on the fact that since October 1976 appellant had had the use of and income from liquid marital assets in excess of $94,000. Since, as discussed above, the court erred in treating the full amount of the funds withdrawn as marital property still in appellant’s possession, I should reverse the order denying alimony pendente lite. Alimony pendente lite is awarded ancillary to the principal action in divorce and is intended to enable the dependent spouse to maintain or defend the principal action in divorce. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). The trial court could not properly determine appellant’s entitlement to alimony pendente lite on the basis of funds that she had in 1977, without determining the extent of the funds remaining in her possession in 1980, when the divorce complaint was filed. If on remand the court were to deny alimony pendente lite because appellant had sufficient funds remaining in 1980 to support herself and to pursue the divorce action, then it could not properly purport to distribute the funds so spent in its order of equitable distribution. To do so would be to distribute less property to appellant than the court apparently thought equitable considerations warranted merely because she had properly and reasonably used funds for her own support.

The orders of the trial court should be reversed and the case remanded for further proceedings in which, consistent with this opinion, the trial court would properly value the property at issue and properly determine an equitable distribution of the marital property and appellant’s entitlement to alimony, counsel fees and costs, and alimony pendente lite.

      . Act of April 2, 1980, P.L. 63, No. 26, § 201; 23 P.S. § 201(d).

      . At the time the order was entered, both children born of the marriage were emancipated adults. Therefore, the issues of child custody and support are moot.

      . The court notes that this decline is resultant from the appellant’s deliberate interference with the law practice. The appellant contends that this misconduct is inappropriately stated within the opinion under the equitable distribution heading, citing Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff’d, 498 Pa. 570, 449 A.2d 1378 (1982). We find its inclusion to be informational to account for the decline in appellee’s salary and to indicate the intentional dissipation of marital property by the appellant as set forth in Section 401(d)(7).

      . Hearings before the Pennsylvania House of Representatives 1979 Pa.Leg.J. 1959-1960.

      . The principle of ejusdem generis, codified at 1 Pa.C.S. § 1903(b), is not applicable to the construction of the term "gift” in Section 401(e)(3) because "gift” is not a general word preceded by more particular words. Moreover, the common element of the terms "gift, bequest, devise or descent" is not the source but the donative nature of the transfer.

      . There is also no allegation that the transfer was procured by fraud or undue influence.

      . I recognize that there is some uncertainty regarding the cut-off date for determining the increase in value "during the marriage.” In
        Sorbello v. Sorbello, supra, the court relied on Section 401(e)(4) in holding that the date of final separation controls. Since neither party has offered any argument on this issue and the trial court did not address it, I should leave it for the trial court to resolve, if necessary, on remánd.

      . The trial court accepted the master’s valuation of the rings but made its own valuation of the Kline Township property and the Pottsville office. The master did not attempt to value the real property because the parties had agreed, and the master recommended, that it be sold and the proceeds divided. N.T. August 20, 1981, at 60; Master’s Report at 16-24.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    479 A.2d 1061
    Frederick R. STORTI, Appellant, v. MINNESOTA MUTUAL LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 9, 1984.
    Filed July 27, 1984.

      Mark Ryan, Norristown, for appellant.
    William H. Bradbury, III, Norristown, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Frederick R. Storti has appealed from a declaratory judgment construing in favor of the insurer a group disability policy of insurance issued by Minnesota Mutual Life Insurance Company. After careful review, we affirm.

The provisions of Pa.R.C.P. 1601(a) require that in an action for declaratory judgment “[t]he practice and procedure shall follow, as nearly as may be, the rules governing the Action in Equity.” This Court, in Hertz v. Hertz, 302 Pa.Super. 259, 448 A.2d 626 (1982), interpreted the rule to require “an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R.C.P. 1518____” Id., 302 Pa.Superior Ct. at 261, 448 A.2d at 627. In the usual declaratory judgment proceeding, this Court will refuse to consider an issue which has not been preserved by the filing of exceptions to the order or decree entered by the trial court. In this case, however, the order from which the appeal was taken contained no findings of fact, no conclusions of law, and no language to suggest that the order was anything but a final order or that the parties were required to file exceptions to perfect a right of appeal. Where an order neither comports with the requirements of Pa.R.C.P. 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused. Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976); Barton v. Penco, 292 Pa.Super. 202, 204, 436 A.2d 1222, 1223 (1981); Greenwood Township v. Kefo, Inc., 52 Pa.Cmwlth. 367, 370, 416 A.2d 583, 584-585 (1980). The failure to file exceptions in the instant case, therefore, will not defeat appellate review.

The substantive issues involved in this action were well stated and correctly decided by the learned trial judge. We adopt the following portions of his opinion. “In January, 1975 Frederick B. Storti was issued an insurance certificate by Minnesota Mutual Life Insurance Co. (Minnesota) by which he was assured his mortgage payments would be paid should he become disabled. It was a group policy, with the master policy on file with the First Federal Savings & Loan Association of Lansdale, his mortgagee. The policy provided:

Such payments shall be subject to the maximum benefit period which is determined by the following schedule: Attained Age on Maximum Benefit
Date of Disability Period_
Under age 50 60 Months
50-54 24 Months
55-59 12 Months
60-64 6 Months

“Storti had earlier submitted an application, a photocopy of which was returned to him together with a certificate of insurance. The certificate described essential features of the insurance policy including the monthly benefit but failed to state the benefit periods set forth in the policy.

“In December, 1976[,] at age 51[,] Storti became disabled. Pursuant to the maximum benefit term of the policy[,] he received 24 months of benefits. In September, 1978 he was notified that benefits would end in December. He responded with a letter dated September 21, 1978 claiming benefits should continue for five years, or until 1981. Four days later on the 25th he wrote again, stating instead that benefits should continue until age 65 or until the loan was paid in full. Storti maintained this second position at trial, relying on the following language in the certificate:

TERMINATION AND REINSTATEMENT OF IN-SUR[AN]CE—
Your insurance under the policy shall terminate on the date (1) the loan is paid in full; (2) you voluntarily transfer all of your interest in the loan security; (3) the Policyholder absolutely assigns the mortgage loan requiring that the monthly mortgage payments be made to another creditor; (4) you attain your 65th birthday; (5) the policy is terminated.

“Reliance upon this clause is misplaced[,] as a cursory reading discloses; it concerns not benefits but the period of time during which the policy was to remain in force. Nevertheless, Storti claims defendant should be bound by the terms contained in the certificate, and therefore es-topped from limiting the benefit period since it did not appear in the certificate.

“An insured’s contract in a group policy includes the master policy as well as the certificate issued to a member of the group. Ozanich v. Metropolitan Life Ins[urance] Co., 119 Pa.Super. 52[, 56, 180 A. 67, 68] (1935). The group policy is the principal contract and the insured has no greater rights than provided in that policy. Brown v. Carngie[-]Illinois Steel Corp., 168 Pa.Super. 380[, 383, 77 A.2d 655, 656, aff’d, 368 Pa. 166, 81 A.2d 562] (1951). The present certificate provided that ‘[t]he benefits described in this certificate are subject in every respect to the policy which alone constitutes the agreement under which payments are made.’ This provision gave notice to plaintiff that the term ‘maximum benefit period’, mentioned but not defined in the certificate; would be set forth in its entirety by the group policy.”

This was not a case in which the certificate contained provisions contrary to the policy. Although the certificate did not contain a precise statement of the period during which the company would pay benefits, the language of the certificate did not mislead the holder. Rather, it directed the holder to the provisions of the policy which did contain a specific statement of benefits. We agree with the trial court that these circumstances did not constitute an estoppel or justify appellant’s attempt to translate a statement of the term or duration of coverage into a statement of benefits which the insurer would pay.

The order is affirmed.


author: WICKERSHAM, Judge: OLSZEWSKI, Judge,

text:
    479 A.2d 1063
    COMMONWEALTH of Pennsylvania v. Jeffrey Mel WEISMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Denied Jan. 16, 1985.

      Joshua D. Lock, Harrisburg, for appellant.
    Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Adams County.

In November of 1981, Gettysburg was the site of a coin show. Among those attending the show was a coin dealer from Baltimore named Richard Gross. Also attending the show was appellant, Jeffrey Weisman, who “whether by talent, training, calculation, computation, [or] prestadigitation [sic] ... had the ability to accurately and invariably predict the outcome of a coin toss.” Brief for Appellant at 4.

On November 21, 1981, appellant was demonstrating his unusual talent to a group of coin dealers. Mr. Gross was fascinated and he joined in with some other on-lookers who were wagering that appellant could not maintain his accurate predictions. Despite the odds and the laws of probability, and unfortunately for Mr. Gross, appellant continued to accurately predict the outcome of the coin tosses. Mr. Gross proceeded to lose $6,900.00 in less than three hours, despite the fact that he [Mr. Gross] usually provided the coins tossed and either tossed them himself or had some other disinterested person toss them.

Mr. Gross reported his misfortune to the local police, who responded by sending two state undercover officers to the coin show the following day. One officer occupied appellant, who was engaged in a repeat performance of his earlier activities, while the other attempted to discern the secret of appellant’s success. Again, the coins used and the person tossing it varied. What happened next was accurately described by the lower court: “The police lost six thousand ($6,000.00) dollars in forty-five (45) minutes without ascertaining anything of worth about [appellant’s] modus operandi. They did not leave the issue up in the air. They arrested [appellant] and recouped their money even more speedily than they had lost it.” Lower ct. op. at 2.

Appellant was charged with two counts of maintaining a gambling place, 18 Pa.C.S. § 5513(a)(1); one count of maintaining or setting up a gambling device, 18 Pa.C.S. § 5513(a)(1); and one count of theft by deception, 18 Pa.C.S. § 3922(a)(1). On May 4, 1982, appellant was tried before a jury, and was found guilty of maintaining or setting up a gambling device. Post-verdict motions were filed and denied, and appellant was sentenced to pay a fine of $7,500.00, costs, plus forfeit whatever money remained in custody of the state police, and 23 months probation.

In this timely appeal, appellant raises only one issue: Does a coin constitute a “device” which can be used for gambling purposes under 18 P.S. § 5513(a)([l]) of the Crimes Code?

Brief for Appellant at 3. We find that a coin does not constitute such a device, and therefore, we reverse.

18 Pa.C.S. § 5513(a)(1) states:

§ 5513. Gambling devices, gambling, etc.
(a) Offense defined. — A person is guilty of a misdemeanor of the first degree if he:
(1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards...

The only possible category in which to place appellant’s act under this section is “sets up” or “maintains” a “gambling device.”

Obviously, a coin cannot be a gambling device per se, under the standard of Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 194, 465 A.2d 973, 977 (1983). Coins are not “so intrinsically connected with gambling as to constitute [gambling] devices per se.” Nu-Ken Novelty, Inc. v. Heller, 220 Pa.Super. 431, 433, 288 A.2d 919, 920 (1972). In related areas, the mere act of playing cards for money is not a criminal offense. United States ex rel. Yates v. Rundle, 326 F.Supp. 344 (E.D.Pa.1971). Nor is a racing publication conveying information on horse races, though certainly useful to a gambler in placing his bets, a “device or apparatus for gambling.” Pennsylvania Publications, Inc. v. Pennsylvania Public Utility Commission, 349 Pa. 184, 36 A.2d 777 (1944).

Since we have held that a coin is not a gambling device, per se, we must now determine whether, under the facts of this case, the coin used by appellant could be classified as a “gambling device.” The three elements of gambling are consideration, an element of chance, and a reward. In re: Gaming Devices Seized at American Legion Post No. 109, 197 Pa.Super. 10, 176 A.2d 115 (1961). Although it could be argued that appellant’s ability to accurately predict the outcome of a coin toss was so unfailing as to remove any element of chance, appellant concedes for present purposes that he was engaged in gambling. Only if appellant maintained or set up a device to gamble, however, was he committing a crime under the statute.

The Crimes Code provides no definition of the word “device.” In the absence of such a definition, “device” shall be construed according to its common and approved usage. Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a). A court must construe the words of a statute according to their plain meaning. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). We agree with appellant that under the common and approved usage, the word “device” means a machine, gadget, apparatus, or the like. Common usage does not appear to include a coin.

Webster’s New Twentieth Century Dictionary, Unabridged 2nd Edition (1979), defines device as:

device, n. will, intention, opinion, division,
1. that which is formed by design; a thing devised; a plan; a scheme...
2. an underhanded scheme; a trick.
3. a mechanical contrivance for some purpose; an invention.
4. invention; faculty of devising [Archaic.] ...
5. anything fancifully conceived, as a picture, pattern, piece of embroidery, etc.
6. an emblem intended to represent a family, person, action, or quality, with a suitable motto: used in painting, sculpture, and heraldry.
7. the motto attached to or suited for such an emblem ....
8. the act or power of inventing or contriving. [Archaic.]
Syn. — contrivance, invention, design, scheme, project, stratagem, emblem, motto.

In the American Heritage Dictionary, New College Edition (1979), we find the following definition:

device n. 1. Something devised or constructed for a particular purpose; especially, a machine used to perform one or more relatively simple tasks. 2. An artistic contrivance in a literary work used to achieve a particular effect. 3. A plan or scheme, especially a malign one. 4. A decorative design, figure, or pattern, as one used in embroidery. 5. A graphic symbol or motto, especially in heraldry. 6. Archaic. The act, state, or power of devising. — leave to one’s own devices. To allow to do as one pleases.

In the other books we examined, such as Webster’s Dictionary of Synonyms, 1st Edition (1951) and Roget’s Thesaurus (1963), “device” is commonly found synonymous with “contrivance, gadget, contraption, implement, instrument, invention, artifice, and the like.” We do not feel that a coin can be a “device” under any of these definitions.

Although this precise issue has never been previously ruled upon in Pennsylvania, there has been case law which discusses the term “gambling device” in relation to coins. Found in dicta in the case of Rosen v. Superintendent of Police Le Strange, 120 Pa.Super. 59, 61, 181 A. 797, 798 (1935) is the following:

Money is not, ordinarily, itself, an instrumentality of gambling. It may be, as when men gamble on the toss of a coin. But usually it is the stake or profit of gambling, not an instrumentality, device or apparatus for gambling. Cards, dice, roulette wheels, slot machines, punch boards, certain kinds of boards or tables, lottery tickets, policy slips, “numbers” books and slips are among the common forms of gambling devices and apparatus.

The above language was cited with approval in Fairmount Engine Co. v. Montgomery County, 135 Pa.Super. 367, 5 A.2d 419 (1939). It was also cited in a New Jersey case, Pratico v. Rhodes, 32 N.J.Super. 178, 108 A.2d 97 (1954). Nevertheless, we .can find no modern (newer than 1939) Pennsylvania case law on the subject, nor has any been provided us by the parties. We note that the only case law directly supporting the proposition that a coin is a “device” when used in coin tossing for money, was dicta in two forfeiture cases, Rosen, supra and Fairmount Engine Co., supra, both of which are over forty-five years old and substantially predate the statute under which appellant was arrested and convicted. Upon consideration of the facts of this case and of the definitions of “device” as it is commonly used and understood, we do not feel that the term is broad enough to encompass a “coin.” In addition, we note that the burden is on the prosecution to demonstrate whether an object is a “device,” see Nu-Ken Novelty, Inc. v. Heller, supra, and that penal statutes are to be strictly construed. Statutory Construction Act of 1972, 1 Pa.C.S. § 1928(b).

In the absence of a specific statutory proscription, we do not feel that appellant can be punished for his somewhat amazing ability to predict the outcome of a coin toss.

Judgment of sentence is vacated and appellant is discharged.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s holding that a coin cannot constitute a “gambling device” under 18 Pa.C.S. Sec. 5513(a)(1).

To the extent that it can be used for purposes other than gambling, a coin is not a gambling device per se. However, under the facts of this case, we would classify the coin used by appellant as a “gambling device.”

We agree with the majority and with appellant that, under the common and approved usage, a “device” could signify a machine, a gadget, an apparatus, or the like. Webster’s New Twentieth Century Dictionary, Second Edition (1979), defines “gadget” as “any small object.” A coin is a small object. Appellant was gambling with that small object. It would follow that the coin was a device used for gambling.

I would affirm the judgment below.

      . Demurrers to the charges of theft by deception and maintaining a gambling place were sustained and these charges were dismissed.

      . Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S. § 1903(a).

      . Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S. § 1928(b).


author: WICKERSHAM, Judge:

text:
    479 A.2d 1066
    Sherry L. SENFT, a minor, by Terri R. SENFT and Robert C. Senft, Her Guardians v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Aug. 10, 1984.

      Joseph C. Korsak, York, for appellant.
    Donald Yost, York, for appellees.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

The minor plaintiff-appellee, Sherry L. Senft, by her parents and legal guardians, Terri R. and Robert C. Senft, commenced this action by filing a petition for medical benefits under a no-fault insurance policy issued by defendant-appellant Keystone Insurance Company.

The accident which gave rise to the instant litigation occurred on July 12, 1979. On that date, Sherry Senft was a pedestrian who was struck by an automobile owned by one Luther Schwartz, a farmer. The vehicle involved in the accident, which occurred on Mr. Schwartz’s farm, was an unregistered 1966 Ford sedan, used exclusively on the farm.

Appellant denied coverage on the ground that the vehicle that struck the minor appellee was an “implement of husbandry” rather than a “motor vehicle,” as defined by the policy. The lower court disagreed, holding that the automobile was indeed a “motor vehicle” and that appellees were entitled to recover medical benefits from appellant. On March 18, 1983, the court en banc denied and dismissed appellant’s exceptions. This timely appeal followed.

Appellant presents us with the following issue:

I. Whether the Trial Court erred in finding that the vehicle was a ‘motor vehicle’ as defined in the Motor Vehicle Code and the No-Fault Act?
A. Whether the Trial Court erred in finding that [the] vehicle was not an implement of husbandry as defined in the Motor Vehicle Code?
B. Whether the Trial Court erred in finding that a determination by the Department of Transportation was necessary to make the vehicle an implement of husbandry as defined in the Motor Vehicle Code?

Brief for Appellant at 3.

Essentially, we are being called upon to determine whether appellees are entitled to recover no-fault medical benefits from appellant. The policy issued to appellees by appellant Keystone provides that Keystone will pay the medical expenses of an “eligible person” who is defined as “the named insured or any relative who sustains injury while occupying, or as a pedestrian struck by, any motor vehicle.” A “motor vehicle” is “any vehicle of a kind required to be registered under the Pennsylvania Vehicle Code.”

The Vehicle Code provides that a vehicle must be registered unless it meets the specifications of one of the enumerated exceptions. 75 Pa.C.S. § 1302(a). Appellant contends that the vehicle in question need not be registered pursuant to the exception set out in 75 Pa.C.S. § 1302(b)(2):

(b) Exceptions. — Subsection (a) [requiring registration] does not apply to the following:
(2) Any implement of husbandry or trailer determined by the department to be used exclusively for agricultural operations and only incidentally operated upon highways.
(ii) Vehicles exempt from registration under this paragraph shall be used exclusively upon a farm or farms owned or operated by the owner of the vehicle or upon highways between:
(A) Parts of one farm.
(B) Farms located not more than 25 miles apart.
(C) A farm and a place of business located within a radius of 25 miles from the farm for the purpose of buying or selling agricultural commodities or supplies or for the inspection, repair or servicing of the vehicle.

Appellant contends that this “implement of husbandry” exception applies to Mr. Schwartz’s Ford sedan. The Pennsylvania Code provides guidelines for determining whether a vehicle is an implement of husbandry. One category of implements of husbandry includes “[v]ehicles designed for operation upon highways but adapted for specialized use on the farm; such as trucks from which cabs or windshields have been removed for use in orchards.” 67 Pa.Code § 11.2(b)(2).

Instantly, the parties stipulated that the 1966 Ford sedan which struck the minor was

owned and then operated by Luther Schwartz of Littlestown, Pennsylvania. This vehicle had not been physically modified by Schwartz or any prior owner, and was the same type of vehicle available to the public through any Ford dealership, and was designed primarily for highway use. A photograph of same is attached. The vehicle was not registered. It was used by Schwartz on his farm properties, all of which adjoin each other and were located within a five mile radius. The vehicle was adapted and used by Schwartz exclusively for agricultural operations as a field service vehicle and was only incidentally operated upon highways between parts of his farm.

R.R. at XVI-A.

We agree with the lower court that the vehicle in question was not an implement of husbandry. While it is true that the owner used the vehicle exclusively on his farm, the Ford was designed primarily for highway use and was the same as any other vehicle of its make, year, and model available to the public. Furthermore, it had not been physically modified by Schwartz or any prior owner. Thus, the Ford does not comply with 67 Pa.Code § 11.2(b)(2), which requires substantial adaptions to be made to a vehicle designed for highway use before it can be categorized as an implement of husbandry.

We find that the vehicle in question does not meet the requirements of the “implement of husbandry” exception, nor any of the other exceptions enumerated in the Vehicle Code. Since the vehicle is not covered by any of the exceptions, it is of the type that is required to be registered pursuant to the Vehicle Code. Thus, it is a “motor vehicle” as defined by the Pennsylvania No Fault Motor Vehicle Insurance Act and by the policy of insurance issued by appellant.

Appellant contends that the court en banc erred in holding that a determination of the Department of Transportation was necessary to make the vehicle an implement of husbandry. We do not believe that the court en banc held that such a determination was necessary. See opinion of lower ct. en banc at 2-3. Rather, the court ruled that, assuming a department determination was not necessary, “the absence of such a determination here cannot lead us to conclude anything significant about the status of the vehicle in question.” Opinion of lower ct. en banc at 3. Thus, the court en banc never decided whether a department determination was necessary. We agree that, under the facts of this case, we need not decide this issue.

The court below properly made an independent decision as to the status of the vehicle in question. As heretofore discussed, we agree with the court’s finding that the vehicle is not the type which is exempt from the Vehicle Code’s registration requirement. Thus, the Ford is a “motor vehicle” as defined by the No-Fault Act and by the insurance policy issued by appellant. Therefore, the lower court properly found that appellant Keystone is liable for the medical expenses incurred by the appellees.

Order affirmed.

      . These definitions parallel the definitions of "victims” and “motor vehicle” provided by the No-Fault Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, art. I, § 103, 40 P.S. § 1009.103.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1. This was the applicable provision at the time of the accident. The general provision regarding registration of vehicles is now found at 75 Pa.C.S. § 1301, Act of June 17, 1976, P.L. 162, No. 81, § 1, as amended by Act of July 22, 1983, P.L. 122, No. 32, § 2.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1. This provision is now found at 75 Pa.C.S. § 1302(a)(2). Id., as amended by Act of July 20, 1979, P.L. 168, § 1; Act of February 15, 1980, P.L. 12, No. 8, § 1; Act of July 11, 1980, P.L. 550, No. 113, § 1; Act of October 10, 1980, P.L. 791, No. 147, § 2; Act of March 7, 1982, P.L. 152, No. 49, § 3; Act of June 23, 1982, P.L. 605, No. 171, § 2.

      . For an interesting discussion of prior cases that refine the definition of motor vehicle see Gallo v. J.C. Penney Casualty Insurance Company, 328 Pa.Super. 267, 476 A.2d 1322 (1984).


author: ROWLEY, Judge:

text:
    479 A.2d 1069
    COMMONWEALTH of Pennsylvania v. Richard PRESSLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1984.
    Filed Aug. 10, 1984.

      Orest Kowalchuk, Philadelphia, for appellant.
    Marvin D. Weintraub, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the trial court dismissing appellant’s exceptions to the denial of his petition to remit support arrearages. We vacate and remand.

Appellant and his wife separated in 1970. At that time he was ordered to pay $35.00 per week for the support of his wife and two children. A final decree of divorce was subsequently entered. The parties agreed in September, 1976 to amend the support order to require appellant to pay $10.00 per week support for each child and nothing for his ex-wife. Appellant contends that he lived in the vicinity of his ex-wife and children and following the amendment of the support order he began to make support payments directly to her rather than to the Domestic Relations Section of the Family Division of the Philadelphia County Court of Common Pleas.

In September, 1977, almost a year after the support order was amended and appellant began to pay support directly to his ex-wife, she applied for public assistance. At that time, she was required to execute an assignment of her right to receive support from appellant to the Commonwealth of Pennsylvania, Department of Public Welfare. However, according to appellant, he continued to make support payments directly to his ex-wife. In June, 1981, the Department of Public Welfare (DPW) filed a petition to hold appellant in contempt for failing to make the payments ordered in September, 1976. The DPW claimed appellant owed $8,265.00 in arrearages at that time. Through counsel, appellant apparently responded by filing a cross-petition to remit arrearages. This cross-petition has not been forwarded to us with the record in this case.

On November 23, 1981, the court held a hearing that was almost entirely devoted to oral argument by counsel. At the conclusion of the hearing, the court denied appellant’s motion to remit arrearages and granted that of DPW. The court concluded that, at the time of the hearing, appellant owed arrearages of $8,685.00 and ordered him to pay the arrearages at the rate of $10.00 per week until he could find employment. Also/ because appellant’s ex-wife is now living in Alabama, the court ordered that the duty to pay support was suspended. Exceptions were timely filed pursuant to Pa.R.C.P. No. 1910.12(e). See also Pa.R.C.P. No. 1910.19(b). The exceptions were denied and a final order entered on April 19, 1982. This appeal followed.

In its opinion pursuant to Pa.R.A.P.1925, the trial court stated that it felt bound by this Court’s decision in Commonwealth of Pennsylvania, Department of Public Welfare v. Alvin, 278 Pa.Super. 64, 419 A.2d 1358 (1980). However, in that case, the ex-husband “was familiar with the required procedure” of making all support payments into court. Id., 278 Pa.Super. at 66, 419 A.2d at 1359. Indeed, the only payment which the ex-husband in Alvin did not make into court was a single $1,000.00 payment for which he sought credit against the arrearages. The record in the case before us does not disclose when, if ever, appellant was informed that he was required to make his payments under the support order to the Domestic Relations Section. Nor does it affirmatively appear that appellant was informed of the consequences of failing to make payment to the Domestic Relations Section, i.e., being forced to pay twice. Alvin is thus inapposite.

We also note that there is no indication in the record that appellant was notified of the assignment executed by his ex-wife. Nor was he informed of the effect of that assignment. Thus, Commonwealth v. Baldassari, 279 Pa.Super. 491, 421 A.2d 306 (1980), cited to us by appellee, is also distinguishable. In that case, the ex-husband had been notified that such an assignment had taken place and of its effect. The claim there pressed was that requiring payment into court for the benefit of DPW was in some way an infringement of the husband’s rights. In the instant case, appellant does not contest the propriety of the assignment. Rather, his claim is that failure to notify him of the assignment left him free to discharge his support obligation by tendering payment directly to his ex-spouse. Appellant relies upon the general rule stated in 3 P.L.E. Assignments § 32 at 179-180:

Generally, an assignment does not bind the debtor until notice is given to him; that is, until the debtor receives notice of the assignment, he may safely pay the assign- or---- [¶] The assignee must give notice of the assignment to the debtor to secure to himself against intervening rights and to prevent the extinguishment of the debt by payment to the obligee or promisee____
[¶] Between an assignee of a chose in action and the debtor, the rights of the parties are determined by the time that the debtor had notice, not by the time of the assignment. As assignee takes subject to all the defenses to which the interest was subject in the hands of the assignor, including the right of the debtor to set off any claim against the assignor [which accrued] before the notice of the assignment.

(Citations and footnotes omitted.)

Moreover, appellant was entitled to be sent notice of the change in beneficiary of the support order pursuant to Pa.R.C.P. No. 236. That rule states in pertinent part:

(a) The prothonotary shall immediately give written notice by ordinary mail of the entry of any order decree or judgment....
(b) The prothonotary shall note in the docket the giving of the notice....

In this case, the order of support was amended on September 7, 1977 to reflect that DPW was the beneficiary of the order of support. However, no notation was made on the docket showing that a Rule 236 notice was sent to appellant. Appellee’s argument that appellant received notice when the docket entry was made is therefore without merit. Under Rule 236, appellant was entitled to more than a docket entry. In the alternative, DPW was required, as assignee, to transmit to appellant “such notice as would put a reasonable man on inquiry.” 2 P.L.E. Assignments § 32 at 180.

[A] debtor is liable to the assignee if he has actual notice of the assignment or of facts which would reasonably impart knowledge of the change in the power to receive sums in satisfaction of the claim, even if the assignee has failed to give notice to the debtor.

Id. (Footnote omitted.)

There is no dispute that appellant knew nothing of the assignment.

Appellee also argues that such notice was not necessary. It argues that “under both Federal law and Pennsylvania’s Procedural Support Law [sic] direct support payments to the family are prohibited, and support payments must be made to the Domestic Relations Section of the court.” Brief for Appellee at 5. We disagree. The Federal statutes cited to us, 42 U.S.C.A. §§ 602(a)(26), 654(5) and 656, do not support appellee’s position. Those provisions do no more than impose upon the Commonwealth of Pennsylvania the responsibility for creating and administering a system in which it requires that (1) A.F.D.C. recipients assign their rights to support to the State and (2) the support payments be made not “to the family” but rather “to the State”. Federal law does not impose a requirement upon appellant that he deposit support payments into court.

Furthermore, at the time that this assignment was made, 42 Pa.C.S.A. § 6706(b) provided as follows:

An order of support of any person shall be made payable to the domestic relations section for transmission directly to the public body or public or private agency, whenever the care maintenance and assistance of such person is provided for by such public body or public or private agency.

The record transmitted to us in this case does not contain any of the ten orders relating to appellant’s support obligation apparently issued prior to the order appealed from. One docket entry contains the notation “Credit $35. paid direct. Pay ord. regularly.” However, the order itself is not in the record and there is no evidence of record which explains the notation. Nor is there any evidence of record that appellant was at any time apprised of the ineffectiveness of tendering support payments directly to his wife.

While we cannot, for the reasons set forth above, affirm the order, we likewise cannot direct the trial court to enter an order favorable to appellant. There is no evidence of record to indicate that appellant in fact paid his wife, thus extinguishing DPW’s claim. Appellant has attached to his brief a document purporting to be the affidavit of his ex-wife in which it is admitted by her that appellant made weekly $20.00 payments directly to her after September, 1976. This document was purportedly submitted to the trial court during the hearing on November 23, 1981. However, it was not made part of the record and we do not know if the document discussed at the hearing is the same as that appended to the brief.

The record includes documents from the Family Court of Jefferson County, Alabama, the new home of appellant’s ex-wife. These documents constitute an attempt by her to obtain support payments pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). 42 Pa.C.S.A. § 6741 et seq.; Code of Alabama, 1975, Art. 4, §§ 30-4-80 et seq. Appellant’s ex-spouse claims that she is owed $8,345.00 for the period after September, 1976. The trial court relied upon these documents in rejecting appellant’s claim. We believe, however, that such reliance may be misplaced. There is some obvious overlap of her claim and DPW’s claim. Moreover, the signature of appellant’s ex-wife appears nearly identical on both the purported affidavit discussed above and the Alabama URESA petition. The court should reexamine these documents and more carefully explain its reliance upon one or the other of them.

The trial court should, on remand, receive evidence on the questions of whether or not appellant was informed of the requirement that he pay into court, whether the support orders were drawn in accordance with 42 Pa.C.S.A. § 6706(b), and whether appellant actually paid his wife directly. Because the record before us is incomplete and because the trial court has not in the first instance passed upon these issues, we will not rule upon them. Should the court determine that appellant either was properly on notice that he was required to pay into court or that he in fact did not make the required payments to his wife from and after September, 1976, the court should enter an appropriate order. However, should the court determine that appellant was not properly on notice and that he did in fact pay the required amounts to his wife directly, he should receive an appropriate credit.

The order of November 23, 1981 is vacated and this case is remanded for further proceedings not inconsistent with this opinion.

Jurisdiction is not retained.

      . The trial court stated that the “record shows that payments were made directly to the Bureau of Accounts by” appellant. The record transmitted to us fails to support this finding. The record does contain the representation of counsel for DPW that appellant paid more than $6,000.00 "through the court”. However, even if this representation is correct, the mere fact that appellant deposited many of his payments into court does not show that he had been informed that use of this court-provided payment mechanism, was mandatory.

      . Appellant has attached as an exhibit to his brief copies of the docket entries relevant to this case. Appellee has not challenged the accuracy of this exhibit.

      . This provision has since been amended to read:
      An order of support of any person shall direct payment to be made payable to or payment to be made to the domestic relations section for transmission [to the proper recipient].
      42 Pa.C.S.A. § 6706 (Supp.1983-84).

      . See note 2, infra.


text:
    479 A.2d 1073
    COMMONWEALTH of Pennsylvania, Appellant v. William PROSDOCIMO.
    Superior Court of Pennsylvania.
    Argued April 11, 1984.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Denied Nov. 21, 1984.

      Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Gary B. Zimmerman, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal by the Commonwealth from an order of the trial-court granting appellee’s request for a writ of habeas corpus upon finding that the Commonwealth had failed to establish a prima facie case against him at a coroner’s inquest. For the reasons set forth below, we reverse the order of the trial court and remand this case for trial.

In cases of violent or suspicious death, a coroner’s inquest may be held in lieu of a preliminary hearing and the coroner or his properly authorized designee may act as committing magistrate or issuing authority. Commonwealth v. Lopinson, 427 Pa. 284, 291-292, 234 A.2d 552, 557-558 (1967), vacated on other grounds, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968). As at a preliminary hearing, the Commonwealth bears the burden of making a prima facie showing that a crime has been committed and that the accused is the person who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Commonwealth v. Beatty, 281 Pa.Super. 85, 421 A.2d 1159 (1980). See also Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 27 A.2d 705 (1942) (same burden on challenge to sufficiency of preliminary hearing evidence by habeas corpus petition).

This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, Common wealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976), but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Smith, 212 Pa.Super. 403, 244 A.2d 787 (1968).

Commonwealth v. Prado, 481 Pa. at 489, 393 A.2d at 10.

In its brief to this Court, the Commonwealth has accurately summarized the facts shown by the testimony produced at the inquest.

Throughout the four-year period preceding the June 14, 1979 slaying of Gary DeStefano, Gerald Walls and DeStefano worked together transporting drugs from Florida to the northern states. Among the individuals to whom Walls transported and sold drugs was the appellee[], William Prosdocimo. Approximately five days prior to DeStefano’s death, Prosdocimo placed an order with Walls requesting delivery of three to five hundred pounds of marijuana and fifty thousand or more methaquaalude tablets. However, unknown to Walls and DeStefano, Prosdocimo, together with Charles Kellington and Robert Bricker, contrived a plan whereby the three would “ripoff” the drugs from Walls at the time of delivery. The “rip off” was to entail “stealing], sticking Walls] up” or doing [“[w]hatever you had to do to get [the marijuana]”], including killing Walls. Prosdocimo indicated that once the marijuana was taken from Walls, it would be given to a Charles Bonasorte to sell.
Walls obtained approximately one hundred and fifty-eight pounds of marijuana and approximately ten thousand methaquaalude tablets in order to fill Prosdocimo’s order. Together with DeStefano, he packaged the marijuana in large plastic garbage bags in the trunk of DeStefano’s automobile, and the remainder of the marijuana as well as the [metha]quaalude tablets inside the car. Walls later telephoned Prosdocimo, informing him of the amount of drugs obtained and arranging a meeting place. At approximately 11:00 p.m. on June 14, 1979, Walls and DeStefano drove in the latter’s 1975 powder blue Cadillac to the predetermined meeting place in the Greenfield section of Pittsburgh. A short time later, Prosdocimo approached Walls and DeStefano and asked to see the marijuana. Walls proceeded to show the bags to Prosdocimo and then asked the latter if he had the money. Prosdocimo stated that he did not, and that the men would have to go to his house. Walls refused, but Prosdocimo persisted in his attempts to convince them to accompany him to the residence. Prosdocimo then walked around the corner and returned several minutes later, again insisting that the men go to his house. Following Walls’ repeated refusals, Prosdocimo suggested that they meet at “Butchie’s”, an after-hours club in the Market Square section of downtown Pittsburgh. Walls agreed, and he and DeStefano proceeded downtown. Prosdocimo returned to his home, where Kellington and Bricker, both of whom were armed, had been waiting. The men, still intending to “rip off” Walls, sent Kellington to Butchie’s Club, where Kellington was to attempt to engage Walls in conversation while Bricker removed the drugs from the DeStefano automobile. Kellington arrived at the bar and began conversing with Walls and DeStefano. Approximately fifteen minutes after Walls’ and DeStefano’s arrival at the club, the former directed DeStefano to check the car. As DeStefano approached the Cadillac, Bricker called him over to his vehicle. As DeStefano moved his head near the window, Bricker shot him and killed him, and then took the keys to the Cadillac. Approximately ten minutes after DeStefano left the club, Bricker phoned Kellington, informing him that DeStefano was gone and that he[, Bricker,] had the drugs. Kellington then left the club and met Bricker [who was driving] the DeStefano vehicle; the two drove the Cadillac to a parking lot located in the North Side section of the city and transferred the marijuana into Kellington’s Jeep. The two men then proceeded to the Chasmar Bar in the Hazelwood section of Pittsburgh, where they delivered the drugs to Charles Bonasorte.
2- The final pathological diagnosis as to the cause of death of Gary DeStefano revealed that the victim died as a result of two gunshot wounds to the left side of the face.

Brief for the Commonwealth at 5-8.

The Commonwealth has proceeded upon the theory that appellee is guilty of second degree murder, or felony murder, 18 Pa.C.S.A. § 2502(b) and (d), as an accomplice, 18 Pa.C.S.A. §§ 306(c), 901-903, in the slaying of Gary DeStefano. The Commonwealth argued to the trial court, as it argues here, that when Kellington and Bricker left Greenfield for downtown Pittsburgh, they still intended to use “whatever” force was necessary to obtain the marijuana. The Commonwealth contends that appellee participated in the agreement to “rip off” Walls and that the use of force by Bricker and Kellington was foreseeable. The Commonwealth also asserts that the evidence showed that the conspirators had in fact contemplated the use of force in Greenfield, that that part of the plan to obtain the drugs was not abandoned but only the located of the “rip off” was changed, and that Walls and DeStefano could not reasonably be expected to leave a car laden with thousands of dollars of drugs unguarded. The Commonwealth’s conclusion is that the threesome did in fact agree “to rob” Walls and DeStefano and are therefore equally culpable of felony murder.

The trial court disagreed. The court ruled that the killing “did not take place during the [perpetration] of a felony” as defined in § 2502(d). That provision requires that, for a homicide to be considered second degree murder, it must have been committed in furtherance of a “robbery, rape, [ ] deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.” Only the crime of robbery has any possible application in the instant case. The trial court went on to emphasize that portion of Kellington’s testimony in which he stated that the secondary plan formulated to effect the “rip off” downtown was to be carried out without any violence. Bricker was to have broken into DeStefano’s car while Walls and DeStefano were in the bar being kept occupied by Kellington. The court held that, when Bricker and Kellington left Greenfield, they abandoned the original plan “to rob” Walls and DeStefano, but planned only to steal from DeStefano’s unoccupied automobile, a “theft”. Because theft is not one of those offenses enumerated in § 2502(d), the court ruled that the Commonwealth had failed to establish that appellant could be held criminally responsible for felony-murder. The court thus directed that appellee’s petition for a writ of habeas corpus be granted and that the charge of criminal homicide be dismissed. The Commonwealth filed this timely appeal.

We agree with the Commonwealth that it carried its burden of proof by making a prima facie showing that appellant was an accomplice to a felony-murder. The “meetings”, both in Greenfield and downtown, were arranged by appellee and Kellington. Bricker acted at all times with appellee’s advice, encouragement, and direction. Kellington, testifying on behalf of the Commonwealth, stated that a drug “rip off” included “whatever you had to do to get” the drugs. Thus, the agreement among appellee, Bricker and Kellington was “open-ended”, transcending a multitude of different factual settings and legal constructions. They did not attempt to confine their actions to a single neat classification, be it “theft” or “robbery”. Rather, they intended to commit whatever crime or crimes were necessary to effectuate their ultimate objective of obtaining the drugs. Indeed, according to Kellington’s testimony before the coroner, both Kellington and Bricker were armed and, along with appellee, had anticipated killing Walls in Greenfield in order to get the marijuana from him. Perhaps most telling, there was testimony to support the inference that once Bricker noticed that DeStefano was approaching his Cadillac, Bricker found it necessary to lure the victim to Bricker’s car and pull the trigger on a .22-cali-ber pistol scant inches from DeStefano’s face in order to more easily gain access to the Cadillac and strip it of its cargo. The crime thus described by Kellington was in fact a felony-murder by Bricker. After a thorough examination of the record, we conclude that there is a prima facie showing, at least, that this crime was within the ambit of the agreement of Bricker, Kellington and appellee. Bricker and Kellington, with the assistance, agreement and planning of appellee, were at times prepared to do whatever was necessary, including physical force, to obtain possession of the marijuana. The mere opportunity or desire to acquire possession of the contraband without injury to Walls or DeStefano does not vitiate the reasonableness of this conclusion. Bricker’s actions in robbing DeStefano were thus in conformity with his agreement with Kellington and appellee and the shooting was done to facilitate the commission of that crime. See Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152 (1980); Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980).

The testimony given before the coroner provided reasonable grounds for the belief that appellee participated in and aided Bricker and Kellington in committing a robbery in the course of which Gary DeStefano was killed. The Commonwealth thus carried its burden of establishing probable cause to believe that appellee committed the offense with which he was charged. The trial court therefore erred in issuing the writ and dismissing the charge of criminal homicide.

For the foregoing reasons, the order of the trial court issuing a writ of habeas corpus and dismissing the charge of criminal homicide is reversed; the charge of criminal homicide is reinstated and this case is remanded for trial.

Jurisdiction is not retained.

      . Section 2502 states in pertinent part:
      § 2502. Murder.
      * * * * * *
      (b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
      * * * & * *
      (d) Definitions.
      * * * * * *
      “Perpetration of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

      . Sections 306 and 901 through 903 state in pertinent part:
      § 306. Liability for conduct of another; complicity.
      ******
      (c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
      (1) with the intent of promoting or facilitating the commission of the offense, he:
      (1) solicits such other person to commit it; or
      (ii) aids or agrees or attempts to aid such other person in planning or committing it; or
      (2) his conduct is expressly declared by law to establish his complicity.
      § 901. Criminal attempt.
      (a) Definition of attempt. — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.
      * * * * * *
      § 902. Criminal solicitation.
      (a) Definition of solicitation. — A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.
      ******
      § 903. Criminal conspiracy.
      (a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

      . Robbery is defined by 18 Pa.C.S.A. § 3701 as follows:
      § 3701. Robbery.
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (1) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of the first or second degree;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
      (v) physically takes or removes property from the person of another by force however slight.
      (2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.