author: WIEAND, Judge:

text:
    478 A.2d 1384
    COMMONWEALTH of Pennsylvania v. Carol Gwendolyn COWARD, a/k/a Carol Gwendolyn Gantz, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed July 27, 1984.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   WIEAND, Judge:

If a woman is the recipient of a food voucher issued for the sole purpose of enabling her to obtain supplemental foods for her children, does she commit theft by failure to make required disposition when she sells the food voucher to a stranger for cash? We conclude that proof of these facts was sufficient to sustain a conviction and affirm the judgment of sentence.

Carol Gwendolyn Coward, a/k/a Carol Gwendolyn Gantz, was a participant in the federally funded WIC program designed to provide dietary supplements for needy children and pregnant women. The program was funded by the United States Department of Agriculture and administered by the Pennsylvania Department of Health. Ms. Coward applied for benefits in late 1979; in order to qualify, she was required to sign a participation agreement by the terms of which she promised to use coupons issued to her in accordance with the department’s rules and regulations. These rules provided, inter alia, that food vouchers could not be sold for cash. Thereafter, Ms. Coward received monthly vouchers, issued by the Department of Health in Lancaster, which listed the foods for which she could negotiate them. At the time of issuance, she was required to affix her signature; when she purchased food, she was required to again endorse the voucher, this time in the presence of the merchant. The vouchers were thus negotiated in a manner similar to that in which traveler’s checks are negotiated. By surrendering the properly endorsed voucher, the merchant was then able to obtain reimbursement from WIC funds. On May 19, 1981, Ms. Coward sold a voucher, worth thirty dollars, for the sum of twenty dollars. The purchaser was an informant, and the sale was observed by the police. Following jury trial, she was found guilty of theft by failing to make required disposition in violation of 18 Pa.C.S. § 3927. A motion in arrest of judgment was denied, and appellant was directed to pay a fine of $25.00 and make restitution; she was placed on probation for a period of one year.

The provisions of 18 Pa.C.S. § 3927(a) are as follows:

§ 3927. Theft by failure to make required disposition of funds received
(a) Offense defined. — A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

This section is based upon section 223.8 of the Model Penal Code and replaces the fraudulent conversion and embezzlement sections of the Penal Code of June 24, 1939, P.L. 872 (repealed and replaced effective June 6, 1973). The Commonwealth, in order to prove a violation of this section, must prove the existence of four elements as follows: (1) obtaining the property of another; (2) subject to an agreement or known legal obligation to make specified payments or other disposition thereof; (3) intentional dealing with the property so received as the defendant’s own; and (4) failure to make the required disposition. Commonwealth v. Ohle, 503 Pa. 566, 581, 470 A.2d 61, 69 (1983); Commonwealth v. Fritz, 323 Pa.Super. 488, 493, 470 A.2d 1364, 1366 (1983); Commonwealth v. Wetmore, 301 Pa.Super. 370, 375, 447 A.2d 1012, 1015 (1982); Commonwealth v. Shapiro, 275 Pa.Super. 28, 32-33, 418 A.2d 594, 596-597 (1980) (Opinion by Price, J. in support of affirmance); Commonwealth v. Austin, 258 Pa.Super. 461, 466, 393 A.2d 36, 38 (1978); Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-1095 (1976).

Appellant contends that the evidence failed to establish that she disposed of the voucher in violation of a known obligation to make some other disposition thereof. There is no merit in this contention. The agreement signed by appellant contained a provision which required her to use vouchers solely for the purchase of WIC approved foods and another which warned against the sale of vouchers. Willful misuse of food vouchers, it provided, could lead to removal from the program and criminal prosecution. Because appellant signed the agreement, a jury could infer that she had knowledge of the uses which she was required to make of WIC food vouchers.

A more difficult issue is whether appellant, in failing to use the food voucher for its required purpose, was disposing of the “property of another.” Despite a contrary suggestion by the drafters of the Model Penal Code, the traditional rule in Pennsylvania that a person cannot be guilty of converting his or her own property has continued. See: Commonwealth v. Austin, supra 258 Pa.Super. at 466-467, 393 A.2d at 39; Commonwealth v. Bartello, 225 Pa.Super. 277, 280, 301 A.2d 885, 887 (1973); Commonwealth v. Yocum, 211 Pa.Super. 17, 20, 234 A.2d 43, 45 (1967); Commonwealth v. Stahl, 183 Pa.Super. 49, 52, 127 A.2d 786, 787 (1956); Commonwealth v. Cavanaugh, 159 Pa.Super. 113, 116, 46 A.2d 579, 581 (1946); Commonwealth v. Schuster, 158 Pa.Super. 164, 167, 44 A.2d 303, 305-306 (1945). See: Commonwealth v. Jett, 230 Pa.Super. 373, 326 A.2d 508 (1974); W. LaFave & A. Scott, Handbook on Criminal Law 648 (1972); 3 Wharton’s Criminal Law § 419 at 439 (14th ed. 1980).

Thus, in Austin, this Court reversed a section 3927 conviction where a home improvement contractor had received advance money on a contract and had ceased to perform his contract, having spent less than half of the advance money for materials. We held that although defendant’s acts of failing to perform and keeping the advance money may have constituted a breach of contract, the defendant did not “fraudulently take the money of another.” Id. 258 Pa.Super. at 468, 393 A.2d at 39. Accord: Commonwealth v. Bartello, supra. Austin continued the rule which had been established in cases decided under the Penal Code that a defendant could not properly be convicted of an embezzlement-type crime where both possession and title of property had passed to the defendant prior to the alleged conversion.

In the instant case, however, appellant had received an equivalent of money which was to be used for the sole purpose of purchasing specific food supplements for other persons, i.e., her children. Because the food vouchers were not intended to be used for her own benefit, appellant occupied a position comparable to that of a guardian or trustee. Such a person can be convicted of an embezzlement-type offense if he or she misappropriates funds for a use inconsistent with the purpose for which the funds are held. See: Commonwealth v. Levi, 44 Pa.Super. 253 (1910) (trustee); Commonwealth v. Kaufman, 9 Pa.Super. 310 (1899) (guardian); 5 P.L.E. Embezzlement and Related Offenses § 5. See also: State v. Magee, 201 Kan. 566, 441 P.2d 863 (1968); 3 Wharton’s Criminal Law § 412, supra. Because appellant held the vouchers for the use and benefit of others, she could be convicted of a violation of 18 Pa.C.S. § 3927 if she failed to use the vouchers for their intended purpose, i.e., to purchase specific foods for her children. See and compare: Commonwealth v. Shapiro, supra (defendant accepted orders and advance payments for plaques and stone monuments to be purchased from a third party and failed to apply money to that purpose); Commonwealth v. Crafton, supra (defendant, a travel agent, accepted payments for a group trip to Las Vegas for purpose of reserving and paying for travel and accommodations and failed to use money for that purpose); Commonwealth v. Bhojwani, 242 Pa.Super. 406, 364 A.2d 335 (1976) (defendant accepted orders and advance payments for clothing to be purchased from “partner” in Hong Kong and failed to use money for that purpose).

In view of appellant’s agreement, both her ownership and use of the food vouchers were restricted. She could not properly negotiate the voucher for her own benefit. Negotiation was proper only when done in accordance with and for the purposes recited in her WIC agreement. Evidence that she sold the voucher for cash to a stranger was sufficient to sustain a conviction for theft by failing to make proper disposition thereof.

The judgment of sentence is affirmed.

      . See: Model Penal Code § 206.4 comment (Tent.Draft No. 2, 1954).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    478 A.2d 1387
    COMMONWEALTH of Pennsylvania ex rel. Sheryl B. BANKS v. David BANKS. Appeal of Sheryl B. BANKS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1983.
    Filed July 27, 1984.

      Warren L. Soffian, Philadelphia, for appellant.
    Samuel B. Brenner, Philadelphia, for appellee.
    Before HESTER, CAVANAUGH and BROSKY, JJ.
   HESTER, Judge:

Appellant, Sheryl B. Banks, and appellee, David Banks, were married on November 5, 1967. One child, Amy, was born of the marriage and resides with appellant. The parties were divorced from the bonds of matrimony in November, 1977.

On April 13, 1977, the parties agreed that appellee was to pay $125.00 per week for the support of Amy. An Order of Court was entered pursuant to this agreement. On December 6, 1977, appellee filed a Petition to Reduce the support payments and appellant responded with a Petition for Increased Payments, a Petition for Attachment and a Petition to Reduce Arrearages to Judgment.

Following a hearing on February 5, 1979, the court granted appellee’s petition and reduced child support payments from $125.00 to $75.00 per week. Appellant appeals from that order. This appeal is before us for the second time.

In Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980), this Court concluded that the lower court abused its discretion in granting appellee’s Petition to Reduce the support payments. The lower court there erred in placing the burden of proof on appellant and in issuing an order unsupported by the evidence. Despite our holding in Banks, supra, we did not determine the amount of support that was justified under the circumstances. Instead, due to the inadequacy of the record, we remanded for a further hearing to be conducted according to the principles discussed therein “and in the further expectation that if another appeal is taken, we shall have the benefit of an opinion in which the lower court evaluates such conflicts as the evidence may present, and explains how it reached its conclusion.” Id., 275 Pa.Superior Ct. at 450, 418 A.2d at 1376.

On October 19, 1981, a hearing was conducted by the lower court pursuant to our remand. The parties agreed, with the lower court’s reluctant approval, to have the matter resolved primarily from the record established at the first hearing on February 5, 1979. They proceeded, however, to take further limited testimony from both parties concerning appellee’s 1977 federal income tax return.

In accordance with this Court’s request for an explanation of its findings on remand, the lower court set forth the following bases for again granting appellee’s Petition to Reduce support payments:

1) Appellee’s income decreased from a gross annual salary of $17,000.00 in 1977 to $10,185.97 net in 1978;
2) Appellee’s weekly living expenses were $354.13;
3) Appellee’s bank deposits totaling $16,000.00 from October, 1977 to October, 1978 were made possible from accumulated earnings and $3,000.00 borrowed from his father; therefore, part of his living expenses were satisfied from this loan and earnings other than the most recent annual income;
4) Appellee’s Keogh Plan amounted to $8,800.00, and was made possible from earnings accumulated in 1975 and 1976;
5) Appellee’s two, four-day vacation trips in 1977 were not as expensive as appellant intimated; the combined cost was between $750.00 and $950.00;
6) Appellant was unemployed when the first support order was filed on April 13, 1977; however, at the hearing on appellee’s Petition to Reduce, she was working part-time and earning a net weekly salary of $81.00;
7) In August, 1978, appellant sold her share of the parties’ marital residence to appellee for $18,000.00 (funds which appellee borrowed from his father);
8) Appellant’s monthly expense list for the parties’ daughter, totaling $900.00, was not credible.

In Banks, supra, this Court concluded that appellee had not met his burden of proof. We did not accept as satisfactory appellee’s explanation that his Keogh Plan was funded from other accounts or loans, and the hearing on remand along with the lower court’s statement of reasons did not erase the nebulous explanation offered.

Moreover, we noted in Banks, supra, the careful scrutiny that must be employed in evaluating appellee’s allegation of reduced income due to his self-employment and earning of income on a commission basis. See Commonwealth ex rel. Naselsky v. Naselsky, 199 Pa.Super. 270, 184 A.2d 288 (1962). Employment under such circumstances renders a determination of actual income quite onerous. Although the lower court indicated in its memorandum following the hearing on remand that the total cost of appellee’s vacations to Nassau and the Bahamas was relatively insignificant, no satisfactory explanation was given why the alleged reduction in income was contradicted by the “disproportionately higher bank deposits”, the growth of the Keogh retirement plan and the rental of a summer residence. We recognize that the lower court noted borrowed funds from appellee’s father and the accumulation of earnings from prior years as the sources for bank deposits, the retirement plan and the summer home; however, no bank statements reflecting the accumulation of earnings or written evidence of the loan were presented at the hearing on remand. Additionally, appellee presented no commission statements or accountant's report that may have better explained the discrepancy between income and deposits. We are aware, of course, that appellee presented his 1977 income tax return on remand; nevertheless, we do not believe that satisfied his burden. As we noted in Banks, supra, income tax returns are not infallible devices for measuring earning capacity, particularly where the income-earner is self-employed. Commonwealth v. Miller, 202 Pa.Super. 573, 198 A.2d 373 (1964).

We continue to maintain that appellee did not meet his burden of proof. In doing so, we are not interfering with the lower court’s fact-finding authority. As we noted in our earlier Banks opinion, our scope of review is limited to the clear-abuse-of-discretion standard. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976). We found earlier, as we find again here, that the lower court abused its discretion. The lower court did not properly evaluate the evidence and arrive at the correct result. It is evident that the court neglected to look beyond the earnings as they were presented by appellee; it erred in choosing not to consider points of cross-examination, appel-lee’s investments and his standard of living.

We reverse that portion of the order of October 27, 1981, which found sufficient evidence justifying a reduction. It is not necessary to remand for a further evidentiary hearing in light of the parties’ desire to primarily rely upon the original record on the issue of reduction. Furthermore, appellee does not have sufficient, additional evidence to sustain a reduction.

We reinstate the order of April 13, 1977, retroactive to February 5, 1979, the original date of reduction. In Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974), an order dated June 29, 1973 was entered by the trial court awarding $90.00 per week in support for a minor child and $60.00 per week in support for the plaintiff-wife. At the conclusion of a hearing conducted one month later, the trial court continued the ninety-dollar child support but revoked the June 29th order to the extent it provided for spousal support. On the wife’s appeal from the order revoking spousal support, we reversed and reinstated the entire June 29th order, retroactive to the revocation date.

The June 29th order in Roviello, supra, was reinstated due to our holding that the lower court utilized an improper means to revoke it in part. On the other hand, the April 13th order here is reinstated on grounds of abuse of discretion. These dissimilarities, however, do not preclude our reliance on Roviello for the purpose of reinstating the April 13th order, retroactive to the original date of reduction.

The Roviello court did not discuss the retroactive effect of its order; presumably, it was not at issue. Irrespective of the absence of analysis, we are of the opinion that Roviello correctly reinstated the order retroactively. It would be anomalous here to reinstate the order of April 13, 1977 prospectively. To do so would reward appellee for the lower court’s error which has persisted for more than five years.

Although not directly applicable, as it addressed the retroactivity of a lower court support order to the date of filing the complaint, the policies discussed by this Court in Shovlin v. Shovlin, 318 Pa.Super. 673, 465 A.2d 673 (1983), are of assistance. As in Shovlin, we find no justification for reinstating the April 13th order prospectively. Similarly, we note that non-retroactivity unduly harms appellant who has demonstrated her continuing entitlement to child support as set forth in the April 13th order. Non-retroac-tivity would penalize her for the typical delay of judicial proceedings.

Appellant urges us to set arrearages and to establish a repayment schedule for payment of same. Although we are aware that support was reduced on February 5, 1979, we are unaware of the moment appellee began paying the reduced amount or whether he regularly paid the reduced amount thereafter. Therefore, the lower court must set arrearages.

Also, without information regarding appellee’s ability to pay the substantial arrearages, we are not equipped to design an equitable payment schedule. It may be that appellee’s financial resources permit a lump sum payment of arrearages or justify installment payments over a period of time. We leave this determination to the lower court. If the lower court is compelled to establish installment payments, we direct it to set the monthly amount with more emphasis on appellant’s immediate need for total arrearages than on appellee’s ability to pay. In doing so, the lower court shall be mindful of our holding that appellee did not produce evidence justifying a reduction. The lower court shall not employ its belief that a reduction was in order when determining the term of payment of arrearages. Although arrearages are substantial, the payment term shall not be protracted and shall reflect the fact that appellee unlawfully used the arrearages for greater than five years.

Appellant’s petition for increase was similarly before the lower court. In Banks, supra, we did not rule on the lower court’s denial of the petition for increase. Instead, we instructed the lower court to also consider the petition for increase on remand. With the exception of testimony concerning appellee’s 1977 income tax return, the parties elected also to submit their cases on remand of the issue of increase as per the original trial. In light of the evidence adduced at both the original hearing and the hearing on remand, we see no basis for finding the lower court to have abused its discretion in denying the petition to increase. Commonwealth ex rel. McClelland v. McClelland, 303 Pa.Super. 540, 450 A.2d 58 (1982); Commonwealth ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 447 A.2d 617 (1982).

Order is reversed in part and affirmed in part. The original order of April 13, 1977, which set child support at $125.00 per week plus Blue Cross/Blue Shield coverage, is reinstated, retroactive to February 5, 1979. Case remanded solely for the purposes of setting arrearages and establishing an equitable method of payment thereof. Jurisdiction relinquished.

CAVANAUGH, J., notes his dissent.


author: WICKERSHAM, Judge:

text:
    479 A.2d 1
    COMMONWEALTH of Pennsylvania v. Thomas C. KNOX, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed July 27, 1984.

      John D. Kuhn, Gettysburg, for appellant.
    Roy Alan Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

The sole issue presented in this appeal is whether the calculation of 180 days under Pa.R.Crim.P. No. 1100 should commence with the filing of the first criminal complaint, rather than with the filing of the second complaint as determined by the lower court.

The circumstances pertinent to this issue were outlined by the parties in an “Agreed Statement of Record.” On March 2, 1982, Officer Brian Kluck filed a criminal complaint against appellant, Thomas Knox, charging appellant with driving under the influence, and driving on the right side of the roadway. A preliminary hearing was scheduled for March 30, 1982 in the office of Magistrate Donald Weaver. Appellant appeared at the hearing without counsel. Officer Kluck, however, failed to appear, request a continuance, or make any contact with the magistrate regarding his whereabouts. Magistrate Weaver dismissed the complaint because of Officer Kluck’s failure to appear.

On June 11, 1982, Officer Kluck filed a second complaint against appellant, charging him with driving under the influence. This charge arose out of the same incident as that cited in the first complaint.

On September 16, 1982, appellant filed an application for dismissal pursuant to Pa.R.Crim.P. No. 1100, alleging that the 180 day period should have commenced on March 2, 1982 (the date of the filing of the first complaint), and expired on August 29, 1982. By stipulation entered October 4, 1982, it was agreed that Officer Kluck would have testified that he failed to appear at the first preliminary hearing because he was investigating a report that someone was shooting dogs in his jurisdiction. He further stated that the delay in filing the second complaint was occasioned because he filed the case away and forgot about it until shortly before June 11,1982. On October 6, 1982, the lower court denied appellant’s application for dismissal.

On October 8, 1982, appellant was found guilty of driving under the influence after a non-jury trial. Post-trial motions were filed and subsequently denied. On January 17, 1983, appellant was placed on supervised probation for a period of one year and was ordered to pay a fine of $500.00. This appeal timely followed.

Appellant argues that the lower court erred in refusing to dismiss the complaint pursuant to Rule 1100. Specifically, appellant contends that the 180 day period should have been computed from the filing of the first complaint rather than from the filing of the second.

It is well settled that the 180-day period shall start running from the filing of the second complaint only if the following two-pronged test is satisfied: (1) the first complaint was properly dismissed; and (2) the record does not reflect an attempt by the prosecution to circumvent the requirements of Pa.R.Crim.P. 1100, Commonwealth v. Ardolino, [304] Pa.Superior Ct. [268], 450 A.2d 674 (1982); Commonwealth v. Sires, 284 Pa.Superior Ct. 50, 424 A.2d 1386 (1981); Commonwealth v. Navarro, [276] Pa.Superior Ct. [153], 419 A.2d 141 (1980), aff’d [499] Pa. [279], 453 A.2d 308, 309 (1982); Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979), aff’d 491 Pa. 151, 420 A.2d 385 (1980); Commonwealth v. Brennan, 264 Pa.Superior Ct. 206, 399 A.2d 739 (1979); Commonwealth v. Mumich, 239 Pa.Superior Ct. 209, [361] A.2d [359] (1976).

Commonwealth v. McClain, 325 Pa.Super. 29, 32, 472 A.2d 630, 631 (1984).

Instantly, appellant does not contend that the first complaint was improperly dismissed. See Brief for Appellant at 14. In any event, we feel it is clear that the magistrate properly dismissed the first complaint when the Commonwealth failed to present a prima facie case against appellant. Thus, the first prong of the test is met.

The instant case centers around the second prong of the enumerated test; that is, does the record reflect that the police officer’s actions were motivated by an intent to circumvent Rule 1100? We agree with the lower court that it does not.

The case at bar is similar to our recent decision in Commonwealth v. McClain, supra. In McClain, the charges against the defendant were dismissed following a preliminary hearing in which the Commonwealth failed to produce any witnesses and thus could not present a prima facie case. Nearly one year later, following the defendant’s arrest on unrelated charges, a second criminal complaint was filed. The defendant’s trial commenced approximately 103 days after the filing of the second complaint and approximately 480 days after the filing of the first. This court held that the record did not reflect an attempt by the Commonwealth to circumvent Rule 1100. “While there certainly was a lack of action by the Commonwealth subsequent to the filing of the first complaint, the record clearly shows that this inactivity was not motivated by prosecutorial misconduct.” Commonwealth v. McClain, supra, 325 Pa.Superior Ct. 34, 472 A.2d at 632.

Similarly, in the instant case, we find no improper motive on the part of the Commonwealth. The parties stipulated that Officer Kluck simply filed the case away and forgot about it until shortly before filing the second complaint. This does not establish an attempt by the Commonwealth to circumvent Rule 1100.

Since both prongs of the applicable test were met, the lower court properly computed the 180 day period from the date of filing of the second complaint.

Judgment of sentence affirmed.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 3731.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 3301.

      . Appellant states the issue as follows:
      Where a criminal complaint is filed on March 2, 1982 and is dismissed at the Preliminary Hearing because the arresting Officer fails to appear and a second complaint charging the same offense is filed June 11, 1982, 73 days after the Preliminary Hearing because the Officer forgot about the case, does the calculation of 180 days under Pennsylvania Rule of Criminal Procedure 1100 begin from the date of the filing of the first or second complaint?
      Brief for Appellant at 2.


text:
    479 A.2d 3
    FRANKLIN DECORATORS, INC., Appellant, v. Donna KALSON.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed July 27, 1984.

      W. Thomas Laffey, Jr., Pittsburgh, for appellant.
    Samuel J. Goldstein, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

If a creditor obtains two judgments of differing amounts against the same debtor on the same cause of action, does satisfaction of the smaller judgment effect a discharge of the larger judgment or is it merely a satisfaction pro tanto of the larger judgment? The trial court held that the larger judgment had been discharged by satisfaction of the smaller judgment. We affirm.

Franklin Decorators, Inc. commenced an action in as-sumpsit against Donna and Charles Kalson to recover the balance due on nine separate contracts to provide services and materials to Donna Kalson. While the assumpsit action was pending, Franklin Decorators caused judgment to be confessed against Donna Kalson pursuant to warrants of attorney contained in the nine separate contracts. In addition to the principal balance remaining due, the confessed judgment included interest at the rate of fifteen percent and counsel fees of ten percent. The assumpsit action subsequently resulted in a judgment for principal and interest at the legal rate. This judgment was paid in full, and the judgment was marked “satisfied in full.”

Donna Kalson then filed a petition to have the confessed judgment satisfied. An ex parte order directing satisfaction was reversed and remanded by this Court in Franklin Decorators, Inc. v. Kalson, 288 Pa.Super. 196, 431 A.2d 356 (1981), in order that the parties might establish a record pursuant to Pa.R.C.P. 2959. Thereafter, Franklin Decorators filed an answer, and, after depositions had been submitted, the court again ordered that the confessed judgment be satisfied. A second appeal followed.

“It is a well-settled and familiar rule that a single claim, arising either in contract or in tort, cannot be divided and made the subject of several suits; and if actions are brought for different parts of a single demand, a judgment on the merits in one is available as a bar to the other.” Saber v. Supplee-Wills-Jones Milk Co., 181 Pa.Super. 167, 169-170, 124 A.2d 620, 621 (1956), quoting Fields v. Philadelphia Rapid Transit Co., 273 Pa. 282, 284, 117 A. 59, 60 (1922). See also: Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1, 4-5, 10 A.2d 434, 435 (1940). The purpose of the rule is worthy. It is intended to protect persons from being twice vexed with suits growing out of a single cause of action. It also serves to prevent the business of the courts from being encumbered by multiple actions when one will suffice. 3 Std.Pa.Prac.2d § 18:1 (1981).

It is also well settled that a plaintiff is limited to one satisfaction for a single injury. Brown v. Pittsburgh, 409 Pa. 357, 362-363, 186 A.2d 399, 402 (1962); Seither v. Philad. Traction Co., 125 Pa. 397, 402, 17 A. 338, 338 (1889). See: Randall v. Fenton Storage Co., 121 Pa.Super. 62, 65, 182 A. 767, 768 (1936). See also: 14 Std.Pa.Prac.2d § 78:1 (1983).

Franklin Decorators was possessed of a single cause of action against Donna Kalson. Claims for interest and counsel fees were ancillary to and part of the substantive cause of action. Goldberg v. Goldberg, 306 Pa.Super. 504, 452 A.2d 838 (1982). When Franklin Decorators obtained two valid judgments on the same cause of action, it could elect which judgment to pursue to satisfaction. Randall v. Fenton Storage Co., supra, 121 Pa.Super. at 65-66, 182 A. at 768; Brennan v. Huber, 112 Pa.Super. 299, 171 A. 122 (1934). See: Bergen v. Lit Bros., 354 Pa. 535, 539, 47 A.2d 671, 673 (1946). But see: Strause v. Braunreuter, 14 Pa.Super. 125, 132 (1900). See also: Thomas’ Adm’r v. Maysville St. Ry. & Transfer Co., 136 Ky. 446, 448, 124 S.W. 398, 399 (1910); Bowen v. Iowa National Mutual Insurance Co., 270 N.C. 486, 496, 155 S.E.2d 238, 246 (1967). However, there could be but one enforcement proceeding and one satisfaction. The payment or satisfaction of either judgment satisfied the other, except as to costs. 49 C.J.S. Judgments § 575 (1947). See also: Grant v. Plotts, 17 Pa.D. & C. 408 (1930). A similar result is achieved where several judgments have been obtained on the same cause of action against the same defendant in different jurisdictions. See: 47 Am.Jur.2d Judgments § 917 (1969).

The satisfaction of a judgment is effective to satisfy all judgments obtained for the same cause of action even if the satisfied judgment is for a smaller amount. See: Bergen v. Lit Bros., supra; Randall v. Fenton Storage Co., supra; Brennan v. Huber, supra. See also: Thomas’ Adm’r v. Maysville St. Ry. & Transfer Co., supra; Larson v. Anderson, 108 Wash. 157, 182 P. 957 (1919). However, the creditor cannot be deprived of his right to elect to refuse satisfaction of the smaller amount. 49 C.J.S. Judgments § 575 (1947).

Although Franklin Decorators was able to obtain two valid judgments for the same cause of action against Donna Kalson, it was entitled to only one satisfaction. After the judgment obtained in the assumpsit action had been paid and satisfied, the debtor was entitled to satisfaction also of the judgment entered against her by confession. The trial court properly ordered the same satisfied upon payment of the costs.

Order affirmed.


author: JOHNSON, Judge:

text:
    479 A.2d 5
    COMMONWEALTH of Pennsylvania v. Anthony Tyrone JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed July 27, 1984.

      Charles D. Younger, Assistant Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Following a counseled, negotiated plea bargain, appellant entered a plea of guilty to robbery and received a sentence of four to ten years imprisonment. In addition, appellant was ordered to make restitution and fined $500. In accordance with the terms of the plea bargain, counts charging criminal conspiracy, theft by unlawful taking, receiving stolen property and crime committed with a firearm were dismissed. A timely motion to withdraw the guilty plea was filed, along with a motion for modification of sentence. The trial court denied both motions. Appellant brings this appeal from the judgment of sentence following denial of his motions.

Appellant first contends that the failure of the court, during the plea colloquy, to denominate the range of possible fines to which appellant was exposed, renders his plea unknowing. We disagree. We note that the maximum fine which can be imposed on a first or second degree felony is $25,000. 18 Pa.C.S. § 1101(1). Appellant does not argue in his brief, nor did he contend at the evidentiary hearing, that had he known he was subject to a possible fine of $25,000, he would not have accepted the very favorable bargain which had been tendered. Rather, he seemingly argues that the mere failure to include information regarding fines in the colloquy renders the plea colloquy defective such that withdrawal of the plea is mandatory. This is not the law.

Commonwealth v. Weiss, 289 Pa.Super. 1, 482 A.2d 1020 (1981), cited to support appellant’s position, is inapposite. There, Judge HESTER affirmed an order denying post-conviction relief, with one member of the three-judge panel concurring in the result and the third judge filing a concurring opinion. Judge Hester did note, in passing, that where defendant had tendered a plea of guilty to three counts of burglary, it was error for the trial court to have only informed the defendant he could possibly be fined $25,000, rather than the aggregate $75,000. In Weiss, our court held that a deficiency of this nature, i.e., inaccurate statement of range of fines, does not alone require reversal absent a finding of ineffectiveness by trial counsel in failing to bring the defect to the court’s attention.

Nor do we find Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978) helpful to appellant. There, Justice (now Chief Justice) NIX, discussed the Comment to Pa.R.Crim.P. 319(a), which recommends that the judge receiving the plea ask questions to elicit information in six areas, including:

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

The Kulp court found the colloquy inadequate where the only part that addressed this subject was:

Q. [By the court to defendant]. Do you understand what the sentences could be?
A. Yes.

We are unaware of any case, nor has counsel directed us to one, which holds that a failure to include the permissible range of fines in an otherwise complete colloquy renders that proceeding so defective as to require that a motion to withdraw guilty plea after sentencing must be granted. We therefore reject appellant’s first contention.

As to appellant’s second, and only other contention, we find that President Judge Grant E. Wesner properly rejected appellant’s claim that a recantation of guilt following sentencing rises to the level of prejudice on the order of manifest injustice.

Accordingly, the judgment of sentence is affirmed.


author: MONTGOMERY, Judge:

text:
    479 A.2d 6
    HANKEY EXCAVATING COMPANY v. Mr. and Mrs. Paul TRAYLOR, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed July 27, 1984.

      Jerry B. Landis, Pittsburgh, for appellants.
    James A. Taylor, Butler, for appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Appellants, Mr. and Mrs. Traylor, file the instant appeal from an order of the lower court dismissing certain exceptions filed by the Appellants as untimely and entering judgment for the Appellee, Hankey Excavating Company. For the reasons explained below, we will remand this case for further proceedings.

The record shows that on December 17, 1979, the Appel-lee filed a complaint in assumpsit alleging that pursuant to an agreement, the Appellee had performed certain construction work for the Appellants on their property. The Appel-lee claimed it had not been fully paid and sought a recovery in the amount of $3,959.20. On April 11, 1980, the Appellants filed an answer and counterclaim, contesting liability and asserting that by reason of negligent and defective work allegedly done by the Appellee, the Appellants suffered losses in the amount of $14,000.00.

The case was initially tried before a board of arbitrators and, on July 8, 1980, the arbitrators entered an award in favor of the Appellee on both its claim and the Appellants’ counterclaim. A notice of appeal was filed by the Appellants on August 7, 1980. Thereafter the lower court fixed December 1, 1982 as the date for a non-jury trial. A copy of the court’s hearing order was allegedly sent by the Prothonotary, by regular mail, to the Appellants’ trial counsel, E. Larry Kovel. However, the Appellants have maintained that they never received a notice of the date of trial. A non-jury trial was held, as scheduled, on December 1, 1982, but the Appellants did not appear, and the lower court entered a decision in favor of the Appellee on both the complaint and counterclaim. Apparently due to their failure to appear, the court awarded the Appellee attorney fees and costs.

On December 30, 1982, the Appellants filed exceptions to the court’s decision, together with the appearance of Appellants’ current counsel. These exceptions recited that E. Larry Kovel, Appellants’ counsel of record at the time of the arbitration proceedings, had never been informed of the scheduling of the December 1, 1982 trial, was no longer associated with his former law firm, and could not be located in telephone directories or through the local bar association, the Disciplinary Board or the State Court Administrator’s Office. Appellants averred that they had a valid defense and counterclaim and asserted that a miscarriage of justice would result if they were denied the right to a trial in these circumstances.

The lower court, in an order dated January 3, 1983, dismissed the exceptions as being untimely filed. The court’s order merely noted that it appeared that notices of the December 1, 1982 decision had been sent to “defendants and their counsel under date of December 3, 1982.” It is clear that in entering its order, the lower court relied upon the docket entries, wherein it was stated: “December 3, 1982, Decision was mailed to [Appellee’s counsel] and E. Larry Kovel.” However, the lower court made no reference in its order to these docket entries which followed immediately after the entry just quoted:

“December 20, 1982, Copy of Decision was returned from E. Larry Kovel marked ‘Forwarding Order Expired’.”
“December 20, 1982, Copy of Decision was mailed to Defendants.”

As noted earlier, the Appellants’ exceptions were filed December 30,1982, within ten (10) days of the date that a copy of the December 2, 1982 decision was mailed to them by the Prothonotary, rather than only to their attorney, Mr. Kov-els.

We believe that the interests of justice require that the lower court conduct a more searching inquiry into the Appellants’ exceptions. The docket entries, standing alone, simply cannot allow one to reach any firm conclusions with regard to the significant notice issues presented. The actual date of the Appellants’ receipt of notice of the court’s trial decision is what is important. See Sarver v. North Side Deposit Bank, 289 Pa.Super. 472, 433 A.2d 902 (1981). Obviously, the proper resolution of the issues presented by the exceptions will be best made possible if the lower court conducts a hearing in this case. At such a proceeding, the court will have an opportunity to hear witnesses and consider any evidence presented, as well as the docket entries, in order to reach an informed decision concerning the notice questions presented. Because the lower court may, upon reconsideration, find that the Appellants’ exceptions were timely filed, or may even elect to allow the late filing of exceptions by the Appellants [See E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 381 A.2d 441 (1977) ], we will not retain jurisdiction in this case.

The order of the lower court is vacated, and this case is remanded for further proceedings and reconsideration consistent with this Opinion. Jurisdiction is not retained.

      . Pennsylvania Rule of Civil Procedure 1038(d) provides that in non-jury cases, exceptions must be filed within ten (10) days after notice of the filing of the court’s decision.

      . On this appeal, we cannot consider matters dehors the record, such as the copy of the envelope, purportedly from the lower court Pro-thonotary’s file, which Appellants attach to their brief to our Court, and which allegedly indicates a different mailing date than that listed in the docket entries.

      . Our decision should not be read to suggest a particular course of action to the lower court in dealing with the exceptions. It may or may not find them to be timely filed, may allow them to be filed late if good cause is shown, and will judge them on the merits in the event it decides that such consideration is appropriate. Both parties will retain all appeal rights thereafter.


author: PER CURIAM: WIEAND, Judge,

text:
    479 A.2d 8
    In re ADOPTION OF J.A.S. Appeal of R.M.S.
    Superior Court of Pennsylvania.
    Argued May 9, 1984.
    Filed July 27, 1984.

      Angela L. Martinez, Narberth, for appellant.
    Alfred J. Mattei, Media, for participating party.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from the denial of a petition for permission to file an appeal nunc pro tunc from an order terminating the parental rights of appellant R.M.S., the natural mother of J.A.S. This court, previously quashed appellant’s untimely appeal without prejudice to appellant’s right to petition the lower court for permission to appeal nunc pro tunc.

The lower court’s opinion correctly states that an appeal nunc pro tunc cannot be allowed in the absence of fraud or breakdown in the processes of the court. E.g., Dorney Park Coaster Company, Inc. v. Board of Commissioners of South Whitehall Township, 503 Pa. 67, 468 A.2d 462 (1983). Appellant’s petition for permission to appeal nunc pro tunc contained numerous specific allegations which, if proved, would have established that fraud or breakdown in the court’s processes caused her failure to file a timely appeal. However, the court below did not hold a hearing in order to make the necessary findings concerning appellant’s allegations.

Since we have no way to conduct a fact-finding proceeding ourselves, we shall vacate the order denying the petition, and remand for a hearing, which should be held as soon as possible. Because a number of appellant’s allegations involve the operation of the prothonotary’s office and conduct of its employees, a judge from outside the county should conduct the hearing.

Order vacated, and case remanded with instructions. Jurisdiction relinquished.

WIEAND, J., files a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. More than ten months expired without any attempt to file an appeal from the termination order which appellant now seeks to have reviewed. The child which was the subject of the termination order has been finally adopted. I would affirm the order refusing to allow an appeal nunc pro tunc from the order terminating appellant’s parental rights. The litigation has been concluded, and I would hold that appellant’s averments are inadequate to require that the proceedings now be reopened.

I also disagree with the majority’s holding that the judges of a judicial district must recuse themselves merely because an averment of misconduct in foiling appellant’s right of appeal has been directed against one or more employees of the prothonotary in the same judicial district.

      . Appellant points out that in In re H.E.W., 487 Pa. 637, 410 A.2d 793 (1980), our Supreme Court allowed an untimely appeal which did not involve fraud or breakdown in the processes of a court. Appellee responds that H.E.W. is distinguishable on its facts. We need not determine whether H.E.W. is distinguishable, now that the Supreme Court has re-established the absolute requirement of fraud or breakdown in the court’s processes in order to obtain permission to appeal nunc pro tunc. Domey Park Coaster Company, Inc. v. Board of Commissioners of South Whitehall Township, supra. This also eliminates the problems of determining the scope of Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), with its special exception for "nonnegligent" failure to file an appeal. See, e.g., Gallardy v.

        Ashcraft, 288 Pa.Super.Ct. 37, 430 A.2d 1201 (1981), appeal dismissed as improvidently granted, 497 Pa. 587, 442 A.2d 693 (1982).


text:
    479 A.2d 485
    Lisa H. (Keller) BEAMER, Appellant, v. Thomas Richard BEAMER.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed June 1, 1984.

      Grace D’Alo, Carlisle, for appellant.
    Ronald J. Hagarman, Gettysburg, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of Adams County dismissing, inter alia, appellant’s exceptions and appellant’s petition to open her divorce decree. We affirm in part and reverse in part.

Appellant is Lisa Keller, the ex-wife of appellee, Thomas Beamer. The parties were married in August 1973, and separated six years later. Appellant filed for divorce under the now repealed Divorce Law on June 27, 1980. She was permitted by order dated September 9, 1980, to proceed under the new Divorce Code, 23 P.S. § 101 et seq. Both parties filed inventories pursuant to Pa.R.C.P. 1920.33 and the court appointed a Master to take testimony on the disputed marital property, both personal and realty.

Two hearings were held before the Master in February 1981. The majority of the testimony concerned the realty, a house situated on approximately one acre of land in Menal-len Township, Adams County. Appellee contended that the realty was not marital property, but his property alone, acquired before the marriage; appellant took the opposite viewpoint. At the beginning of the first hearing, the parties entered into a stipulation concerning certain items of personal property and after some discussion, the Master surmised that the sole subject matter before him concerned the real estate. (N.T. Master’s Hearing, February 4, 1981, at 4-6). This realty was acquired by appellee, with some financial aid from his father, shortly before the marriage. Construction of the house was also begun before the marriage. After the marriage, construction of the house continued, and the parties lived in the house for about five years prior to separation. The real estate was at all times titled in the sole name of the appellee, while the three succeeding mortgage loans were taken in both parties’ names. The fair market value of the real estate at the time of the Master’s Hearing was found to be $59,500.00.

The Master filed his report on February 25, 1981. The report stated that the real estate distribution had been the sole matter before the Master, and therefore, he made no recommendations relating to the personal property. The Master recommended an equal distribution of the real estate, which resulted in a share of $10,182.42 for each party. Appellee filed exceptions to the Master’s report, but he eventually withdrew them. The parties were divorced on July 23, 1981, and on August 10, 1981, the lower court entered a decree adopting the Master’s recommendations, including the above distribution of the real estate, and ordered appellee to pay costs. An amendment to this order was entered three (3) days later, which provided that appellant’s interest in the real estate would cease upon payment to her of $10,182.42 by appellee. Judgment was entered on the order.

Thus matters stood for ten (10) months. Then two events occurred: the house was completely destroyed by a fire, and the Master grew impatient for appellee to pay his fee. On April 21, 1982, the Master petitioned the court to attach any insurance proceeds that appellee was to receive, and direct payment of such proceeds into the court. The court did so. Several days later, appellant, who by this point had acquired different counsel, filed a petition to open and an application for special relief. She argued that since the court had awarded her a one-half interest in the marital property, and since her ex-husband had not yet paid her any of her share, her interest in the real estate had not ceased, and therefore, she was entitled to one-half of the insurance proceeds, which exceeded the value set by the Master by a significant amount. She also raised an argument concerning the personal property which had been destroyed in the fire. The parties had orally agreed to divide the personal property equally between them. However, at appellee’s request, appellant left her share of the personalty in the residence in order to encourage a sale of the home. Unfortunately, the furniture was destroyed along with the house; therefore, appellant avers that she is entitled to one-half of the insurance proceeds attributable to the personal property-

The lower court responded by issuing a rule upon appel-lee to show cause why he should not be required to pay one-half interest in the proceeds to appellant. The matter eventually resulted in hearings on June 8, 1982, September 17, 1982, and November 8, 1982. The result of these hearings was, inter alia, a dismissal of the petition to open. The Prothonotary was ordered to release $10,182.42 of the insurance proceeds to appellant, the balance going to the mortgage-holder banks, the Master, the Prothonotary, and the appellee. Both parties excepted; these exceptions were dismissed on January 19, 1983. Appellant filed this timely appeal.

Appellant raises two issues before us:

I. If an insurance policy on marital property is issued in only one spouse’s name, can the unnamed spouse recover an equitable share of the proceeds paid on that policy for personalty that was destroyed by fire when:
a) The policy covering the personalty was purchased after the marriage for both parties’ benefit;
b) The policy premiums were paid for by both parties during the time they lived together;
c) There are other equitable reasons to allow the unnamed spouse to recover a share of the insurance proceeds on the personalty?
II. If an insurance policy on real marital property is issued in only one spouse’s name but both spouses pay the premiums on the policy can the unnamed spouse recover an equitable share of the proceeds paid on that policy for realty destroyed by fire when:
a) Lisa Keller was entitled to one-half of the share of realty considered to be marital property;
b) The matter of realty was litigated as part of a divorce proceeding;
c) There are other equitable reasons to allow the unnamed spouse to recover a share of the insurance proceeds on the realty?

Brief for Appellant at 2. We view the issues more simply: should appellant get any share of the insurance proceeds for either the personal property left in the house, or for the house itself?

In essence, this appeal presents the question of the extent to which a court can exercise its equitable powers under the Divorce Code to effect economic justice between the parties to a divorce. Due to the young age of our Divorce Code, there are few appellate cases on the equitable distribution section of the statute applicable to the present case. However, it has long been recognized by Pennsylvania courts that the door of equity is never closed. In re Gerlach’s Estate, 364 Pa. 207, 72 A.2d 271 (1950). In particular, the courts have recognized that divorce is a special form of action in which the state is an interested third party and that there exists a duty to ascertain all pertinent facts. Teriberry v. Teriberry, 210 Pa.Super. 54, 232 A.2d 201 (1967). A petition to open a divorce decree is equitable in nature, id., and is governed by equitable principles. Roach v. Roach, 275 Pa.Super. 320, 418 A.2d 742 (1980). Where equity requires that the decree be opened and additional testimony be taken, the court may, in its discretion, do so. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Deussing v. Deussing, 224 Pa.Super. 525, 307 A.2d 382 (1973). A petition to open a divorce decree for purposes of taking additional testimony is equitable in nature, and the court is obliged not only to review the record as a whole for legal error, but also to consider the record as a whole to determine the justice of the result. Id.

Under the new Code, the court has broad equitable powers to “protect the interests of the parties or to effectuate the purposes of this act,” and the court may “grant such other relief or remedy as equity and justice require.” 23 P.S. § 401(c). One of the purposes of the Code is to “[e]ffectuate economic justice between parties who are divorced or separated and ... insure a fair and just determination and settlement of their property rights.” 23 P.S. § 102(a)(6). Appellant argues that, given this purpose, the court has the power to open the decree and to readjust her monetary award to effect a just and equitable division of the marital property.

We do not agree that opening the divorce decree is the correct solution to appellant's personal property problems. However, under the circumstances of this case, we feel that given the court’s broad equitable powers, the imposition of a constructive trust on the insurance proceeds representing appellant’s interest in those proceeds, is necessary. Appellant testified that she had been asked by appellee to leave items of personal property in the marital home so that the house would present a better appearance to any prospective buyers, (N.T., June 8, 1982, at 5-6). She produced a substantial list of items that were left in the house. Appellee stipulated that the list was correct. (N.T., June 8, 1982, at 8). She testified that all of these items were acquired after the marriage. (N.T., June 8, 1982, at 11-12). This list contained items that were not included in the inventory she filed before the master’s hearing. Her testimony was corroborated by her father (N.T., June 8, 1982, at 36-38), and another witness (N.T., June 8, 1982, at 32-33).

Appellant testified that there was an oral agreement between the parties that the property remaining in the house would be split up in some equitable fashion after the house was sold. (N.T., June 8, 1982, at 4-5, 10-11, 17, 19, 21). Appellant’s witness testified that she was present during a discussion between appellant and her trial counsel concerning the personalty, and that appellant told her attorney that the parties could work out the remaining personalty on their own. (N.T., June 8, 1982, at 31-32, 35). Appellant’s trial counsel testified as to the same discussion. His memory of the event was basically that the Master’s hearing was to be spent on a discussion of the parties’ real estate and that personalty would not be in issue before the Master. (N.T., June 8, 1982, at 6-7). The only issue they were concerned about was appellant’s interest in the real estate, since it was that issue that was disputed. (N.T., September 17, 1982, at 9-10, 20). He asked appellant to draw up a list of her “assets and liabilities for the past three years” (N.T., September 17, 1982, at 10, 23-25). While both appellant and her witness testified that counsel had indicated to appellant before the Master’s hearing that it would require a lot of time to present evidence on the personalty and it would not be “worth it,” counsel did not recall the exact contents of the discussion. (N.T., September 17, 1982, at 26-27).

On direct examination, appellee said that there was no agreement, but admitted on cross-examination that appellant had left personal property in the house at his request. (N.T., June 8, 1982, at 51). He stated that no division had occurred because the parties could not agree (N.T., June 8, 1982, at 55), but conceded that at least some of the property had been acquired during the marriage (N.T., June 8, 1982, at 53). He also stated that the value of the items left in the house was greater than the value of those items that appellant took with her upon separation. (N.T., June 8, 1982, at 54).

After examining the record, we agree with the lower court’s findings of fact on June 8, 1982 that:

3. The matter of personal property except to the extent of the stipulations entered of record was not litigated.
4. The agreement of the parties as to the personal property not covered by stipulation was that the Petitioner would leave the items in the marital home and that at the sale thereof the parties would agree as to a final distribution of those items.

We also agree with the court’s conclusion of law on the same day that:

2. Petitioner has waived her right to litigate the marital distribution of the personal property by not incorporating it into the divorce proceeding.
This is in keeping with 23 P.S. § 401(j) which states:
(j) Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b). All duties, rights, and claims accruing to either of said parties at any time heretofore in pursuance of the said marriage, shall cease____

However, under the particular circumstances of this case, we believe that the trial court may proceed at equity to determine the value of the personal property of appellant that was in the possession of appellee at the time of the fire. It is obvious that the parties agreed to a distribution of the personal property and, further, the record supports the finding that some of the appellant’s personal property was located in the home at the time of the fire. For the irretrievable loss of this property, appellee received insurance proceeds. To allow appellee to retain these proceeds would be unjust.

Therefore, we believe that the matter should be returned to the trial court for the purpose of determining the value of appellant’s personal property that was in the possession of appellee and destroyed by the fire. To that extent, appellant would be entitled to a recovery from the insurance proceeds representing the value of the property lost at the time of the fire.

Appellant also argues that equitable considerations require us to open the decree to “redistribute” the true value of the real estate. The Master determined that the value of the marital property, after deducting various amounts attributable to appellee’s separate property rights, was $20,364.85, and the lower court awarded appellant $10,182.42, or half, as her share. Appellant entered judgment on this order. After fire destroyed the property, it was discovered by appellant that the house was insured for about $20,000.00 more than the value set by the Master. Appellant requests half of this increased value, in addition to the $10,182.42 awarded her by the lower court.

We do not find appellant’s arguments as to the real estate as persuasive as her arguments concerning the personalty. The lower court made the following findings of fact and conclusion of law on June 8, 1982, with regard to the real estate:

FINDINGS OF FACT
1. The order of August 13, 1981, was a final order to which no exceptions were taken.
2. The matter of the real estate was finally litigated and the Petitioner to this matter and the Plaintiff in the case in chief is bound by the terms of that order.

CONCLUSION OF LAW

1. Petitioner is bound by the order of August 13, 1981. We must agree with the lower court that “[w]hen parties have had an opportunity to litigate a matter, they generally are not given repeated opportunities to do so again.” Lower ct. op., January 19, 1983, at 8-9. We have made an exception with regard to the unusual circumstances surrounding the personalty in this case. But unlike the personalty, the issue of the value of the real estate was fully and forcefully litigated. Both parties, appellant’s witness, and appellant’s trial counsel all testified that the focus of the Master’s hearing was whether the real estate was marital property. Appellant did not except to the amount of her distribution, which leads us to believe that she was satisfied with that amount. Had it not been for the fire and the resulting realization that the real estate was insured for $20,000.00 more than the court-determined value of the property, appellant would probably have never questioned the amount of the distribution.

While we agree that, given the 50/50 split of marital property by both the Master and the lower court, it seems unfair that appellee benefits to a large degree by the destruction of the house, while appellant does not. However, where it appears that counsel energetically litigated the question of the value of the marital property and appellant willingly accepted the division and amount that was determined to be her equitable portion, the fact that the house burned down and the insurer paid a greater amount, thus making the earlier determination seem inadequate, is not enough to reopen a decree. If appellee had sold the house in February 1982 for $72,000.00, appellant surely could not reopen the decree based on an unforeseen sales price. We see little difference between that situation and the instant case in which appellee obtained $72,000.00 of insurance proceeds due to an unforeseen fire.

We reverse the order of the lower court, but only in regard to the personal property, and we remand to the court below to (1) hold an evidentiary hearing to determine the extent of appellant’s personal property destroyed in the fire which the husband held and (2) impose a constructive trust on the insurance proceeds to that extent, in favor of appellant. In all other aspects the order of the lower court is affirmed.

Order reversed and remanded in part and affirmed in part. Jurisdiction is relinquished.

      . Appeilant filed a notice of election to retake her maiden name, Keller, in August 1981.

      . The personal property stipulated to at the February 4, 1981 Master’s Hearing consisted of the following: a wood stove, family room furniture, a stereo unit, a motorcycle, a 1973 Porsche, a set of dishes, silverware, ten pictures, a sewing machine, a vacuum cleaner, a coffee table, and end tables. These items were only a part of the total personal property owned by the parties at the time of the divorce proceedings.

      . Appellant testified that the value of the real estate was $58,000.00 (N.T., Master’s Hearing, February 4, 1981, at 28). Appellee testified that the value was $51,000.00 (N.T., Master’s Hearing, February 4, 1981, at 83). The lower court accepted the Master’s finding of $59,-500.00 value, based upon the testimony of the real estate broker hired to list the property for sale. (N.T., Master’s Hearing, February 4, 1981, at 107).

      . The figure of $10,182.42 was derived from computations by the Master as follows:
      $ 59,500.00 Value of real estate at time of hearing
      -23,609.11 Liens to be excluded
      - 7,735.78 Increase in value of appellee's interest prior to marriage
      - 7,982.18 Pre-marital improvements to property
      - 6,351.00 Gifts to appellee (by parents)
      + 6,542.92 Increase in value after marriage
      $ 20,364.85 Marital property
      $ 10,182.42 V2 share

      . Apparently, appellant took that request literally, because she drew up a list which contained only the items acquired in the last three years of her marriage (see footnote 2), and left out the major portion of the parties’ earlier-acquired marital property.

      . The home which the parties shared during their marriage was newly built and, with the exception of a few items, was entirely furnished with jointly owned property. All the rugs, curtains, appliances, and furniture were bought after the marriage. When appellant left the marital home, she took with her only those items of household furnishings she needed to minimally furnish her new apartment. Appellee asked her to leave as many items as possible because he was trying to sell the house and wanted it to look good for prospective buyers. She complied with his wishes with the understanding that if and when the home was sold they would divide the furnishings. There is nothing in the Master’s Report or the lower court's opinions to suggest that appellant had removed all the items of personal-property to which she felt she was entitled, as appellee contends. In point of fact, the only stipulation between the parties prior to the hearing which centered on the real estate was that each party would keep certain items already in their possession. Had appellant removed all the items that appellee suggests constitute half of the marital property, there hardly would have been over $26,000.00 worth of property left to insure.

      . The August 13, 1981 order provided that once appellee paid appellant $10,182.42 in full satisfaction of her marital share of the real estate, her interest in the realty would cease. We note that as of the dates of the fire and of the petition to open, appellee had paid appellant nothing. Arguably, her rights to the marital real estate had not been extinguished. However, we do not find that this fact compels a different conclusion. Also, we note that the appellee and the lower court rely on McDivitt v. Pymatuning Mutual Fire Insurance Co., 303 Pa.Super. 130, 449 A.2d 612 (1982), which holds that the proceeds of a fire insurance policy payable on property held in tenancy by the entireties is not due necessarily to both spouses when the policy was issued in the name of, and the premiums were paid by, only one spouse. Nevertheless, we distinguish McDivitt from the instant case since McDivitt did not involve the Divorce Code or the concept of marital property.