author: KELLY, Judge: TAMILIA, Judge,

text:
    539 A.2d 424
    Brenda SHUTTER, Appellant, v. Thomas V. REILLY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1987.
    Filed March 14, 1988.

      Chere Winnek Shawer, Indiana, for appellant.
    Before BROSKY, TAMILIA and KELLY, JJ.
   KELLY, Judge:

Appellant/mother raises this appeal from a trial court order granting appellee/father’s petition to modify (reduce) his child support obligation. Appellant alleges the trial court erred by failing to use the appropriate county support guidelines in fashioning its award, and in excluding from the list of appellant’s expenses mortgage, utility and automobile payments.' We agree with appellant that the trial court erred in both instances. Accordingly, we vacate the order of support and remand this matter to the trial court for recomputation of the support award in accord both with the county guidelines and the formula set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

FACTS AND PROCEDURE

Appellant, Brenda L. Shutter, and the appellee, Thomas Y. Reilly, were married in 1971 and divorced in 1984. Two children were born during the marriage; appellant retained custody of both children upon divorce. Appellee originally paid $1,000.00 monthly in child support pursuant to a property settlement agreement incorporated into the divorce decree.

This support provision was modified on March 12, 1986 pursuant to a consent order; appellee’s monthly obligation was reduced to $500.00. That monthly amount was scheduled to increase to $600.00 commencing July 1987, and to $700.00 in January 1989.

One of the two children moved in with appellee sometime in the autumn of 1986. Appellee then filed, in November 1986, a petition for modification (reduction) of child support payments based upon this changed circumstance of the children’s living arrangements. A hearing on the petition was held before the Domestic Relations officer on December 16, 1986, and an order was issued on December 18, 1986; this order reduced appellee’s support obligation by one-half to $250.00 monthly. Appellant appealed this order and requested a hearing before the court. Pa.R.C.P. 1910.-11(f). The hearing was held on January 13,1987; the court issued its order on February 13, 1987 affirming the previously modified support order of $250.00 monthly. The court rather simplistically based its affirmance in part on the fact that appellant was supporting one child rather than both children. This appeal from that order was timely filed.

Appellant contends: (1) the trial court abused its discretion in setting the award of support without considering and making reference to the support guidelines of Indiana County; and (2) the court erred in refusing to consider the cost of housing, utilities and transportation as part of the necessary and reasonable expenses of raising a child. We agree with appellant with respect to both contentions and, therefore, we vacate the order of support, and remand to the trial court for proceedings consistent with this opinion.

I.

A.

At the outset, we note that there were material changes in circumstances which would justify modifying the support order. In a petition to modify a support order, the petitioner carries the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support order. Palmatier v. MacCartney, 365 Pa.Super. 300, 529 A.2d 518 (1987); Koller v. Koller, 333 Pa.Super. 54, 57, 481 A.2d 1218, 1220 (1984) (citing Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981)). The trial court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate whether the petitioner did or did not meet the burden of proof as to changed circumstances. Koller, supra, 333 Pa.Superior Ct. at 57-58, 481 A.2d at 1220; Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). We agree with the trial court that appellee established a sufficient change in circumstances by reason of the fact that his son had moved in with him. Thus, reconsideration of the support order was appropriate. We note that appellant introduced evidence to demonstrate that her circumstances had also changed in that her household expenses had increased since entry of the consent order.

B.

We agree with appellant that the trial court abused its discretion in entering a modification of the support order based upon the established change in circumstances without referring on the record to the support guidelines promulgated by Indiana County. These guidelines, effective January 6, 1986, were formulated in response to 23 Pa.C.S.A. § 4322, which provides:

§ 4322. Support guidelines
The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.

Although our standard of review is such that we will not overturn a child support order unless the court abused its discretion in fashioning the award, such abuse will be found where there is insufficient evidence to sustain the award or where the law is overridden or misapplied. Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). The support guidelines are to be considered both in entering the original support order, and in entering a modified order. Palmatier v. MacCartney, supra; Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 513 A.2d 448 (1986). The guidelines are to be consulted by the court so that the suggested amount of support is, at a minimum, given due consideration and so there may be uniformity of awards for persons similarly situated. In this case, the trial court clearly failed to apply the law embodied in Section 4322. This was error.

The dissent states that: “If the Order appears well considered, fair and nonconfiscatory, it should stand, notwithstanding a failure of the trial court to refer to the guidelines on the record.” (At 434). We find that viewpoint to be misguided; the statute is clearly worded as a mandatory provision (e.g. “The courts ... shall develop____the guidelines shall be based ... The guidelines shall place primary emphasis ...”). If we were to follow the dissent’s suggested analysis, we would essentially render the statute a nullity. We would allow courts to ignore the very guidelines they are mandated to promulgate. This we decline to do. Rather, we presume, as is our duty, that the legislature intended the statute to be given its full effect. See 1 Pa.C.S.A. § 1922(2).

Accordingly, we must remand the case for appropriate calculation of the support needs of appellant’s custodial child, and entry of a new support order. Reitmeyer, supra; see also Forry v. Forry, 359 Pa.Super. 602, 519 A.2d 516 (1986); Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986).

C.

Appellant relies in part upon the case Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), in support of her contention that the amount awarded to her was inadequate. Appellant’s analysis is correct. The interplay of the application of both Melzer and the county guidelines promulgated pursuant to Section 4322 has recently engendered some discussion among bench and bar, as the dissent notes. Initially, we reiterate that:

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), a plurality of our Supreme Court, per Justice Larsen, established guidelines for the calculation of child support awards. Id., 505 Pa. at 472-75, 480 A.2d at 996.
* * # * sfc *
However, a majority of the Court eschewed strict mechanical formulas and endorsed a flexible approach in these areas. Id., 505 Pa. at 477-78, 480 A.2d at 999 (Flaherty and Hutchinson, JJ. concurring).
A majority of the Court did agree that each parent’s support obligation should be determined based upon the reasonable needs of the children and the parent’s reasonable expenses and earning capacities. The members of the Court differed over whether these criteria should be applied via a mathematical formula or whether we should trust in the judgment and discretion of our trial courts. In interpreting Melzer, the Superior Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majority’s admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. DeLuca, 353 Pa.Super. 622, 625, 510 A.2d 1239, 1241 (1986); Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986).

DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987). (Emphasis added). Thus, the Melzer formula must be calculated in each support case and referred to by the court if it decides to deviate therefrom.

Section 4322 was promulgated after Melzer but it has not superseded Melzer. This Court has commented that “the considerations set forth in the statute are precisely those which Melzer held that the courts of common pleas must use in formulating support orders.” Reitmeyer, supra, 355 Pa.Superior Ct. at 325 n. 3, 513 A.2d at 452 n. 3. Moreover, Section 4322 has been called a legislative endorsement of the Melzer approach. Ryan v. DeLong, 371 Pa.Super. 248, 251, 538 A.2d 1, 2 (1987) (Section 4322 “requires an individualized determination____ These were the very concerns of the Melzer court.” 371 Pa.Superior Ct. at 252, 538 A.2d at 3 (but note: county guidelines not consistent with Melzer are presumptively invalid).

The dissent states that our holding conflicts with Ryan. We find no conflict but only accord between ourselves and the Ryan panel. We conclude that Ryan, supra, when read in conjunction with Palmatier, supra, Reitmeyer, supra and DeWalt, supra, mandates that both Melzer and the county guidelines be considered by courts fashioning support awards. Thus, on remand, the court is to follow a two-part analysis; first, the county guidelines which were promulgated pursuant to Section 4322 and are consistent with Melzer must be considered in order to assure basic uniformity of the award with awards for other “persons similarly situated;” second, the amount suggested by the guidelines must also be compared to the individualized Melzer formula so that the court finally awards an amount tailored to the parties’ individual circumstances. 42 Pa.C.S.A. § 4322; Melzer, supra.

Thus, both Melzer’s formula and the county support guidelines consistent with Melzer are to be considered in entering the original support order, and in entering any subsequent modification. Accord Ryan, supra; Reitmey er, supra. As the court failed to utilize either the county guidelines or Melzer, it erred.

II.

A.

Appellant’s second contention is that the trial court erred in refusing to include a one-third share of the cost of housing, utilities, and transportation as necessary and reasonable expenses in raising appellant’s custodial child. We agree the court erred in its support calculation and further note that the court failed to even refer to the Melzer formula in its calculation of appellee’s support obligation.

Specifically, the court reviewed the evidence presented by appellant, as follows:

In seeking to show what [sic] the monthly cost of providing for their daughter had changed, plaintiff presented testimony as to the daughter’s one-third contribution to all of the general housekeeping expenses such as; the mortgage on the family home (R. 19), the electric bill (R. 19-20), the gas bill (R. 20), the phone bill (R. 20), water and sewer bill (R. 20), homeowners insurance (R. 20), automobile insurance (R. 20), gas for the car (R. 21), car repair expenses (R. 22) and taxes (R. 24). These expenses were added to sums expended by the plaintiff on items such as; doctors and psychiatrist bills (R. 22), medical bills (R. 23), clothing (R. 23), food (R. 23), house repairs (R. 23), legal fees (R. 23), piano lessons (R. 23), lunch money (R. 24), and girl scout dues (R. 24) to reach a monthly total of seven hundred and ninety-five dollars and eighty-four cents ($795.84), an increase of five hundred and seventy-five dollars and eighty four cents ($575.84) over the prior order issued on March 12, 1986. Thus, the monthly amount sought by plaintiff, in accordance with the concept that child support is an equal obligation of mother and father, Roberts v. Bockin, 315 Pa.Super. 52, 461 A.2d 630 (1983); is three hundred and ninety-seven dollars and forty-two cents ($397.42).

(Trial Ct.Op. at 3-4). However, the trial judge concluded:

This Court does not agree with plaintiffs inflated amount which is partially due to her attempt to attribute everyday unavoidable bills and payments which would have been incurred absent the presence of the daughter. Items such as mortgages, taxes, car insurance, and gas and repairs for the car are just not natural or reasonable expenses incurred in the raising of a ten year old child.

(Trial Ct.Op. at 4). (Emphasis added).

The law regarding what constitutes appropriate child support is clear:

The purpose of child support is to promote the best interest of the child; the associated legal obligation of parents is to provide for the reasonable expenses of raising the child. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Indeed, parents have a duty to support their minor children even if it causes them some hardship. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). The cost of raising children is a function of several factors including custom, the children’s needs and the parents’ financial status. Melzer v. Witsberger, 505 Pa. at 471, 480 A.2d at 995. It is intended to provide for more than bare necessities. Id., 505 Pa. at 471, 480 A.2d 996.

Sutliff v. Sutliff, 515 Pa. 393, 402, 528 A.2d 1318, 1322 (1987). Reasonable expenses are not limited to the bare necessities of life but extend to articles which are reasonably necessary for the proper and suitable maintenance of the child in view of his social station in life and in view of his parents’ station in life. Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 481 A.2d 1358 (1984); see also Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982); Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981).

B.

Among the bare necessities of a child’s life is a home. The trial court here excluded from its consideration the fact that appellant’s mortgage payments secure a home for her child. We are aware that the mortgage payments also secure a home for the appellant, but the trial court erred when it based its decision upon the determination that the mortgage “would have been incurred absent the presence of the daughter.” The trial court was not called upon to speculate as to what appellant’s lifestyle would or would not be if she did not have custody of her child. The court need only determine what constitutes the bare necessities and the reasonable expenses appellant incurs because she does have custody of that child. Sutliff, supra.

We hold that a portion of reasonable mortgage payments are necessary expenditures for the support of a child, as would be a portion of reasonable rental payments under other circumstances. See Shapera v. Levitt, 260 Pa.Super. 447, 394 A.2d 1011 (1978) (a support order necessarily includes a reasonable amount for the maintenance of the child’s home); accord Commonwealth ex rel. Turner v. Turner, 192 Pa.Super. 502, 161 A.2d 922 (1960) (merely paying monthly rental and no more constituted insufficient child support). Similarly, property taxes, insurance costs, and utility fees are merely the necessary and inescapable costs of maintaining that household and providing a sufficiently safe home for a child; they are not unreasonable, luxurious or unnatural expenses. See e.g. Hartley v. Hartley, 364 Pa.Super. 430, 528 A.2d 233 (1987) (responsibility for payment of property taxes to be raised in trial court when contemplating modification of support order). The proportion of these expenses that should be allocated to the child’s reasonable needs will, of course, depend upon the county guideline formulas, as well as the sound discretion of the trial court. DeWalt, supra.

C.

Likewise, some portion of the costs of maintaining an automobile may also be considered part of the necessary and reasonable expense of raising a child. A safe, efficient, private means of transportation is ordinarily needed to ensure that a child can get to school, to extracurricular activities, to the doctor and .the dentist. While a car may primarily serve the parent, the service it provides the child cannot be ignored when examining the necessary and reasonable expenses involved in child-rearing and the child’s appropriate standard of living.

CONCLUSION

Accordingly, we hold that the trial court erred both in limiting consideration of appellant’s legitimate expenses associated with raising her child, and in computing the amount of appellee’s support obligation without reference to the Melzer formula and the applicable county support guidelines. Melzer, supra; DeWalt, supra; 23 Pa.C.S.A. § 4322.

Order vacated; case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

TAMILIA, J. files concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

While I concur in the result reached by the majority, I respectfully dissent because of the heavy reliance the majority would place on the county guidelines pursuant to 23 Pa.C.S.A. § 4322, Support Guidelines. The majority introduces a conflicting view with that of Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987), which holds that guidelines may not be used in a presumptive fashion. In that Opinion, Cirillo, P.J., states:

Melzer adopted a flexible, individualized approach for support cases. Use of the formula forces trial judges to quantify the reasonable needs of the parties involved. It also enables courts to deal with each case in an individualized manner. At the same time, the strictures of the formula insure that similarly situated persons will be treated similarly. This approach is known as “cost sharing.” See Cassetty, The Parental Child-Support Obligation (1983).
If trial courts simply plug the parties’ situation into a support grid, they ignore the requirements of Melzer. To insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children the calculated Melzer formula must be in the record.
Failure to adhere to the flexible and individualized approach of Melzer is inconsistent with the policies statutorily mandated in § 4322. Individuals have a right to have their situation subjected to particularized scrutiny by a court. They should not be namelessly plugged into a chart based upon assumptions no one understands.

Id., 371 Pa.Superior Ct. at 253-254, 538 A.2d at 3-4.

Here, the majority would require the application of the guidelines despite a full justification of the support Order through the time honored standards of need and ability to pay and application of the formula suggested by Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

The history of adjudication in domestic relation support cases prohibited formulas or standardized Orders and in each case there was a requirement that the facts be thoroughly evaluated and a determination be made based upon the individual factors relating to that case. The purpose of a support Order is to determine and secure an allowance for a child which is reasonable and proper for his comfortable support and maintenance, having in view the property income and caring capacity or ability of the parents and the condition or station in life of the parties. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Guidelines became prevalent out of a perceived need to avoid wide disparity in similar cases where the relevant factors were virtually the same. They were not meant to be a substitute for individual evaluation; deviation from the historic standard by unthinking or automatic application of the guidelines at an intersecting point on the petitioner/respondent income grid is not permissible. The automatic imposition of the guidelines creates a presumptive Order and ignores precedent and the teachings of Melzer, supra. Melzer was a response to the need to bring order and organization as to how the traditional principles interact and how they should be applied to arrive at an appropriate support Order. If the Order appears well considered, fair and nonconfiscatory, it should stand, notwithstanding a failure of the trial court to refer to the guidelines on the record. Similarly, an Order that is clearly within the guidelines may be disapproved if it appears to be unfair and confiscatory. A careful interpretation of 23 Pa.C.S.A. § 4322, Support Guidelines, reveals as much. This statutory provision supplements but does not supplant the traditional legal basis upon which support is based. Conway, supra. While the Melzer formula covers all relevant ground, support guidelines do not.

The concern I have with the majority position, reversing in part for failure to consider the guidelines, is the reading which may be taken by the trial courts and Bar that the guidelines control. This will increase the tendency for automatic imposition of Orders thereby denying due process of law in reaching a fair and reasonable Order by considering all relevant factors necessary to imposition of a support Order. With the heavy volume of family cases, and the pressure to move them quickly, we must guard against procedures and concepts which will deny due process. The same problems were faced in the criminal justice system and resolved without denial of due process; no less is expected of family cases. In the context of a criminal case, the sentencing guidelines have been considered just guidelines, and we have been reluctant to reverse the trial court when the sentence fulfilled the requirement of the entire sentencing code, even though the guidelines were not adhered to.

      . The court must first determine the reasonable needs of the child and then the respective abilities of the parents to support their children. DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); see also Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975). We note that the court made no findings as to the needs of the child, or as to the parties’ respective incomes and earning capacities.

      . That the trial court engaged in speculation is apparent from an examination of the record. There is no evidence present on the record to suggest that appellant’s home is unduly luxurious in light of her station in life or the needs of her child. For instance, had appellant purchased a property after the divorce which was beyond her means, the trial court’s determination would not be mere speculation and our holding might be different.

      . While we do not wish to imply that it is necessary for every child to live in a mortgaged home, we do note that a child’s station in life is dependent to some degree upon where he or she lives. Where parents, prior to divorce, are financially capable of maintaining a mortgaged home, their child enjoys a relatively secure station in life. All too often divorce destroys this economic security when the home is sold; thus the child’s station in life is reduced. See L. Weitzman, The Divorce Revolution (1985). We see no reason to reduce appellant or her child’s station in life by excluding a portion of the mortgage payments from court consideration. Stump, supra; Shank, supra; Dunbar, supra.

      . In support of our holding, we note Pa.RX.P. 1910.26 provides a form which courts may use in assessing support obligations. That form includes space for detailing a spouse’s expenses. The form specifically identifies mortgage and utility payments, taxes, insurance and automobile payments among the expenses the court may consider when computing a person’s support obligations. Thus, we find support in that rule for our holding that those expenses are appropriate considerations when computing child support obligations.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    539 A.2d 431
    Frank ALTIMARO and Theresa Altimaro, Appellants, v. Phillip BOHN v. MELLON BANK, N.A.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1987.
    Filed March 18, 1988.

      James R. Cooney, Pittsburgh, for appellants.
    Jeffrey T. Barbour, Pittsburgh, for Mellon, appellee.
    Before ROWLEY, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County ruling that the execution of judgment involving an ERISA plan exempted the plan from garnishment by the appellants/Frank and Theresa Altimaro. We affirm.

The facts, as they appear of record, reveal that on April 21, 1981, the appellants confessed judgment against Phillip Bohn/appellee, an employee of Mellon Bank, in the amount of $30,000. Thereafter, the appellants initiated execution proceedings, and, pursuant thereto, interrogatories were served upon Mellon Bank/garnishee. In response, Mellon answered that the appellee was a member of the “Mellon Bank Profit Sharing & Savings Plan”, and, as such, the appellee’s benefits under the plan were not subject to garnishment.

After the interrogatories and answers thereto were placed at issue, but prior to trial, counsel for both parties agreed to submit the matter as a case stated. The Administrative Judge entered an appropriate order assigning the case to a judge for disposition. Thereafter, the judge presiding over the case entered an opinion and order holding that “the Mellon Plan is not formally labeled a pension plan but the effect of the Plan is to provide retirement benefits for the defendants appellee] and, as such, comes within ERISA.” As a result, the appellants were denied the right to garnish the $6,000 held by Mellon in Bohn’s account. This appeal ensued.

The initial issue which we need to address relates to whether Mellon’s “Profit Sharing and Savings Plan” is a “pension plan” under ERISA, for, if it is, garnishment proceedings by the creditors/appellants are precluded under the pre-emptive authority of ERISA.

As stated most recently by a panel of this Court: “[T]he question whether a certain state action is preempted by federal law is one of congressional intent. ‘ “The purpose of Congress is the ultimate touchstone.” ’ ”

Engle v. West Penn Power Co., 366 Pa.Super. 104, 107, 530 A.2d 913, 915 (1987) (Citation omitted).

The starting point for our analysis is the language of the statute itself. See Northwest Airlines, Inc. v. Roemer, 603 F.Supp. 7, 9 (D.Minn.1984). Accordingly, the relevant provisions which we need to examine include 29 U.S.C. §§ 1056(d)(1) and 1144(a), as well as the companion tax provisions to ERISA in the Internal Revenue Code, 26 U.S.C. § 401(a)(13).

Section 1056(d)(1) reads:

Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.

Similarly, Section 401(a)(13) of the Internal Revenue Code provides in relevant part that:

A trust shall not constitute a qualified trust under this section unless plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.

Immunity from assignment and alienation in the above context includes immunity from garnishment and attachment. See Treasury Regulations, 41 Fed.Reg. § 56334. Lastly, as for the pertinence of Section 514 of ERISA to the case at bar, it provides that ERISA “supercede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a).

As to the interpretation and application of the aforecited statutes and regulations to the case at hand, such rests on the undisputed record before this Court, a portion of which has already been recited earlier and, therefore, need not be repeated. Of relevance, however, is the fact that the appellants concede, in the parties’ joint Statement of Agreed Upon Facts at point 3, that:

In response to a second set of Garnishee Interrogatories MELLON averred:
A determination has been made by the Internal Revenue Service that the Mellon Bank Profit Sharing and Savings Plan is a qualified plan under Section 401(a)(13) of the Internal Revenue Code. Under Section 401(a)(13) of the Internal Revenue Code benefits under a qualified plan may not be anticipated, assigned (either at law or equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process. See also Reg. § 1.401(a)-(13)(b).

Since the March 22, 1985, filing of the Statement of Agreed Upon Facts, nothing has occurred to revoke or modify the determination of the Internal Revenue Service (IRS). Also, it is undisputed that Mellon’s “Profit Sharing and Savings Plan” contains a nonassignment clause at Section 11.1; it reads:

Nonassignment. Except to the extent provided in Section 7.3, no benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge and any attempt to do so shall be void; nor shall any benefit be in any manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled to such benefit or to executive attachment or other judicial process of whatsoever character; and in the event that any member, former Member or Beneficiary becomes bankrupt or attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any benefit, then such benefit shall cease and terminate, and the Committee shall hold or apply the same to or for the benefit of such Member, former Member or Beneficiary, his spouse, children or other dependents, or any of them, in such manner and in such proportions as the Committee shall deem proper.

Notwithstanding the preceding, and the apparent compliance with ERISA’s requirements attendant to securing federal preemptive status, the appellants argue that Mellon’s “Profit Sharing and Savings Plan” is not a “pension” plan.

Under ERISA § 4021, a plan is considered “covered” if it has met each of the requirements of the Internal Revenue Code § 401(a), 26 U.S.C. § 401(a), or it must be or have “been determined by the Secretary of the Treasury” to be a plan described in that section. See Donley v. Mutual of America, 655 F.Supp. 271, 272-73 (W.D.Mich.1987).

Title 29, § 1202(c) makes applicable to ERISA treasury-regulations prescribed under 26 U.S.C. §§ 410(a), 411, 412, none of which the appellants allege Mellon violated in the present case. See Reklau v. Merchants Nat. Corp., 808 F.2d 628, 630 (7th Cir.1986), cert. denied, 107 S.Ct. 2180 (1987). In fact, the appellants do not dispute the fact that the Mellon Plan received an affirmative determination from the IRS regarding its qualified status. Cf. Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 918 (2nd Cir.1987) (“Because the IRS is one of the agencies charged with administering ERISA, its interpretations of the statute are entitled to great deference.” (Citations omitted)).

Albeit the Plan does not defer the entire contribution made by Mellon to a participant until s/he is disabled, retired or severed from employment, the alternative requirement under ERISA’s § 4021 was met, i.e., the Plan had been determined by the Secretary of the Treasury to be a “qualified” plan under section 401(a) of Title 26. Thus, the Plan is considered to come within the purview of ERISA and, therefore, not subject to attachment. See McQueen v. Salida Coca-Cola Bottling Co., 652 F.Supp. 1471, 1472 (D.Colo.1987) (“[T]he existence of a ‘plan’ is a prerequisite to jurisdiction under ERISA.” (Citation omitted)). Similar results have occurred in precluding a non-family third party creditor from garnishing benefits derived from a pension plan which is governed by ERISA. See, e.g., Tenneco, Inc. v. First Virginia Bank of Tidewater, 698 F.2d 688, 689-90 (4th Cir.1983); General Motors Corp. v. Buha, 623 F.2d 455, 462 (6th Cir.1980); Northwest Airlines, Inc. v. Roemer, supra, 603 F.Supp. at 11; Commercial Mortgage Insurance Inc. v. Citizens National Bank of Dallas, 526 F.Supp. 510, 520 (N.D.Tex.1981); Helmsley-Spear, Inc. v. Winter, 426 N.Y.S.2d 778, 74 A.D.2d 195, 199 (1980), aff'd 52 N.Y.2d 984, 438 N.Y.S.2d 79, 419 N.E.2d 1078 (1981); Christ Hospital v. Greenwald, 82 Ill.App.3d 1024, 38 Ill.Dec. 469, 403 N.E.2d 700 (1980); Ward v. Ward, 164 N.J.Super. 354, 396 A.2d 365 (1978). To the same effect, see Commonwealth ex rel. Magrini v. Magrini, 263 Pa.Super. 366, 398 A.2d 179 (1979), wherein this Court concluded that an ERISA qualified pension plan was not immune from attachment to pay for the support of a participant’s family. However, as is germane to the case at bar, this Court commented in dictum that:

Were this an ordinary attachment or garnishment, e.g. where the beneficiary owed money to a judgment creditor, we would have no problem in accepting appellant’s argument as the correct course we should follow[, i.e., since the pension plan conforms to the requirements of ERISA (29 U.S.C. § 1056) and the Internal Revenue Code (26 U.S.C. § 401 et seq.), the attachment of Mr. Magrini’s pension could not stand].

Id., 263 Pa.Superior Ct. at 372, 398 A.2d at 182.

Based on the preceding, and because we find that Mellon’s Plan is a “qualified” pension plan under federal law, we have no reservations in upholding the actions of the court below in denying the appellants’ garnishment efforts in regard to Bohn’s pension benefits.

Order affirmed.

      . Employee Retirement Income Security Act. 29 U.S.C. § 1001 et seq.

      . ERISA § 4021, 29 U.S.C. § 1321 provides in pertinent part:
      § 1321. Coverage
      (a) Plans covered

        Except as provided in subsection (b) of this section, this section applies to any plan (including a successor plan) which, for a plan year—
      (1) is an employee pension benefit plan (as defined in paragraph (2) of section 1002 of this title) established or maintained—
      (A) by an employer engaged in commerce or in any industry or activity affecting commerce, or
      (B) by any employee organization, or organization representing employees, engaged in commerce or in any industry or activity affecting commerce, or
      (C) by both,
      which has, in practice, met the requirements of part I of subchapter D of chapter 1 of Title 26 (as in effect for the preceding 5 plan years of the plan) applicable to plans described in paragraph (2) for the preceding 5 plan years; or
      (2) is, or has been determined by the Secretary of the Treasury to be, a plan described in section 401(a) of Title 26, or which meets, or has been determined by the Secretary of the Treasury to meet, the requirements of section 404(a)(2) of Title 26.

      . Section 1202(c) of Title 29 provides:
      Regulations prescribed by the Secretary of the Treasury under sections 410(a), 411, and 412 of Title 26 (relating to minimum participation standards, minimum vesting standards, and minimum funding standards, respectively) shall also apply to the minimum participation, vesting, and funding standards set forth in parts 2 and 3 of subtitle B of subchapter 1 of this chapter. Except as otherwise expressly provided in this chapter, the Secretary of Labor shall not prescribe other regulations under such parts, or apply the regulations prescribed by the Secretary of the Treasury under sections 410(a), 411, 412 of Title 26 and applicable to the minimum participation, vesting, and funding standards under such parts in a manner inconsistent with the way such regulations apply under sections 410(a), 411, and 412 of Title 26.

      . Had there been no confirmation letter from the IRS granting “qualifying” status to Mellon’s Plan under § 401(a) of Title 26, this Court would not hesitate to find that the participant’s (Bohn’s) unfettered access to 25%-50% of the employer’s yearly contribution to the Plan, the percentage of which depended upon his years of service (see Plan ¶ 5.2), would render questionable the pre-emptive/anti-alienation cloak of ERISA. See Murphy v. Inexco Oil Co., 611 F.2d 570, 575 (5th Cir.1980); Foltz v. U.S. News & World Report, Inc., 627 F.Supp. 1143, 1164 (D.D.C.1986); see also Fraver v. North Carolina Farm Bureau Mut. Ins. Co., 801 F.2d 675 (4th Cir.1986); Matter of Rolfe, 34 B.R. 159 (Bankr.N.D.Ill.1983).


author: MONTGOMERY, Judge:

text:
    539 A.2d 434
    Herbert E. WRIGHT, Robert S. Wright, and Kenneth E. Wright, Appellants, v. NORTH AMERICAN LIFE ASSURANCE COMPANY, A Corporation, and Toner Insurance Consultants of Western Pennsylvania, Inc. t/d/b/a Coordinated Financial Services, and James Monteverde Individually and t/d/b/a Coordinated Financial Services, Appellees.
    Superior Court of Pennsylvania.
    Argued June 18, 1987.
    Filed March 14, 1988.

      John J. Braszo, Pittsburgh, for appellants.
    Patricia-Liptak McGrail, Pittsburgh, for North American, appellee.
    James W. Harvey, Pittsburgh, for Monteverde, appellee.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from a judgment entered in the lower court following an order granting summary judgment to the Defendant-Appellees. The action was filed by the Plaintiff-Appellants, seeking refunds of insurance premiums, as well as damages, in a dispute involving several insurance policies. Recovery was sought on several legal theories.

In Harris by Harris v. Easton Publishing Co., 335 Pa.Super. 141, 152, 483 A.2d 1377, 1382-83 (1984), our Court stated the following rules regarding the review of an appeal involving the question of the propriety of summary judgment:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the nonmoving party and any doubts must be resolved against the entry of judgment. Id. In doing so, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

In its order granting summary judgment, the lower court commented that there were no unresolved issues of fact because Plaintiffs had not filed any opposing affidavits. In the opinion which the lower court subsequently filed in this case, it again noted that Plaintiffs neither filed nor presented any counter-affidavits in opposition to affidavits presented by Defendants. In light of these pronouncements, it is appropriate that we point out that a party opposing a motion for summary judgment may file affidavits in opposition if desired, but the failure to file affidavits, depositions, or other materials in opposition to the moving party’s motion for summary judgment does not guarantee that the motion will be granted. Sustaining such a motion is only appropriate if there is no genuine issue of material fact, and the applicable law entitles the moving party to judgment. See Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971). Further, it should be pointed out that while the Appellants filed no counter-affidavits in the lower court in direct opposition to the motion for summary judgment, the record did contain the transcript of the deposition of Plaintiff-Appellant Kenneth E. Wright, and responses by Plaintiffs to interrogatories propounded by the Defendants, which provided testimony and responses in support of the Plaintiffs’ pleadings.

The record of the proceedings of the lower court shows that the Plaintiffs filed an initial Complaint, and later filed several Amended Complaints, as a result of preliminary objections and other pretrial proceedings in the lower court. As amended, the claims of the Plaintiffs were essentially that they purchased five life insurance policies from Defendant James Monteverde, in his capacity as agent for Defendant North American Life Assurance Company, between June and December, 1981. The Plaintiffs paid the premiums due on these policies for a period of almost two years. Such payments exceeded $39,000. Throughout that time, Defendant Monteverde maintained possession of the policies. The Plaintiffs asserted that on occasion over the next two years they requested physical possession of the policies. Upon finally receiving them, in July, 1983, they purportedly discovered that Monteverde had misrepresented the coverage and the schedule of premiums for the policies. They promptly cancelled the policies, within ten (10) days of the date they were initially received, returned them to the Defendant insurer, and sought a refund of the premiums they had paid. Following the denial of that request, they instituted the instant action, seeking a refund of premiums paid, as well as damages.

In essence, the Plaintiffs’ allegations were that their decision to purchase such North American Life Assurance Company policies were based upon false assurances, representations, and information from Mr. Monteverde, and that Plaintiffs relied upon such declarations. The other Defendants were also representatives of Defendant North American Life Assurance Company, and were allegedly involved in communications with the Plaintiffs regarding the policies. The Plaintiffs have proceeded on five theories of recovery: (1) breach of contract; (2) common law fraud, misrepresentation and deceit; (3) violation of the Unfair Insurance Practices Act (Act of July 22, 1974, P.L. 589, No. 205, § 1, et seq., 40 P.S. § 1171.1, et seq.); (4) violation of a right to a ten day period of examination for cancellation of the insurance contracts (see Act of November 5, 1981, P.L. 325, No. 116, § 1, 40 P.S. § 510c.); and (5) violation of the Unfair Trade Practices and Consumer Protection Law (Act of November 24, 1976, P.L. 1166, No. 260, § 1, et seq., 73 P.S. § 201-1 et seq.). Although the Plaintiffs assert on this appeal that they sought treble damages under the Unfair Trade Practices and Consumer Protection Law, we have found no reference to such a damage request set forth in their Complaint or Amended Complaints.

The lower court determined that the Plaintiffs had requested and paid for the life insurance coverage which they had received. Further, noting that the Plaintiffs had not made any complaint until their discovery that Defendant Monteverde had an amorous relationship with the estranged wife of one of the Plaintiffs, the court found that there was no issue of any material fact. The lower court’s opinion makes it evident that it reached the conclusion that the Plaintiffs were pursuing this action as a result of their unhappiness with the situation of Mr. Monteverde’s relationship with the spouse, rather than because of any problem regarding the insurance policies. Based upon such factors, the lower court found that no genuine issue of material fact existed, and that the Defendants were entitled to judgment as a matter of law. From our detailed review of the record, we are constrained to disagree with the conclusions of the lower court with regard to several of the Plaintiffs’ claims in this case.

Relying upon the Plaintiffs’ pleadings, the transcript of the deposition testimony of Plaintiff Kenneth Wright, and the Plaintiffs’ answers to interrogatories, it is evident that the Plaintiffs have advanced material factual allegations which are sufficient to preclude a grant of summary judgment. In essence, they maintain that Defendant Monteverde, on whom they relied, misrepresented the actual cost of the insurance policies to them, including the escalating schedule of premiums, and also misrepresented pertinent facts regarding coverage. Their reliance upon such misrepresentations was financially detrimental to them. It was also established in the record that when the policies were finally delivered to them in July, 1983, the Plaintiffs submitted cancellation notices and a request for refunds within ten days of such delivery. All such facts are important in the analysis of the various legal theories upon which the Plaintiffs sought to proceed in this case.

We first examine their reliance upon 40 P.S. § 510c. That statute provides:

No policy of individual life insurance or endowment insurance shall be delivered in the Commonwealth of Pennsylvania after January 1, 1982 unless it shall have prominently printed on the first page of such policy or attached thereto a notice stating in substance that the policyholder shall be permitted to return the policy within at least ten (10) days of its delivery and to have the premium paid refunded if after examination of the policy, the policyholder is not satisfied with it for any reason. If a policyholder pursuant to such notice, returns the policy to the insurer at its home or branch office or to the agent through whom it was purchased, it shall be void from the beginning and the parties shall be in the same position as if no policy had been issued.

As noted earlier, the Plaintiffs sought a recovery of all insurance premiums paid from the 1981 inception date of the policies through July, 1988. Based upon the allegations in their Complaint and Amended Complaints, as well as in the deposition testimony of Plaintiff Kenneth Wright and the answers to interrogatories, it would appear that a genuine issue of material fact is presented as to whether the Plaintiffs first received copies of the insurance policies in issue on or about July 19, 1983. Further, a factual issue is established as to whether within ten days thereafter, they expressed dissatisfaction with the policies, and sought a refund of the premiums paid. Thus, there appears to be no justification in the record for the granting of summary judgment to Defendants with regard to Plaintiffs’ claims for refunds, based upon the foregoing statutory provision. Accordingly, the lower court erred in granting summary judgment as to that aspect of the Plaintiffs’ case.

The Plaintiffs also sought a refund of premiums by claims resting upon the provisions of the Pennsylvania Unfair Insurance Practices Act. Section 5 of that statute (40 P.S. § 1171.5) prohibits the making of any statement or sales presentation which misrepresents the benefits, advantages, conditions, or terms of any insurance policy. That prohibition would seem to have application to the claims of the Plaintiffs in this case. However, the provisions of this statute were not intended to confer a right of private action. Rather, the Unfair Insurance Practices Act vests enforcement powers in the Pennsylvania Insurance Commissioner. See D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981). Therefore, the Plaintiffs may not proceed in this case on any claim wherein standing is based upon the provisions of the Unfair Insurance Practices Act. However, it must be noted that merely because the practices of a defendant insurer may violate the provisions of that Act, a plaintiff is not precluded from pursuing civil remedies to remedy such conduct on other allowable grounds. See Nagle v. American Casualty Company, 317 Pa.Super. 164, 463 A.2d 1136 (1983). Accordingly, although the lower court was justified in granting summary judgment as to the claims of the Plaintiffs based upon the Unfair Insurance Practices Act, such a disposition would not operate to foreclose the Plaintiffs from seeking a refund remedy on other allowable legal theories.

The Plaintiffs also sought a refund and other relief under the provisions of the Unfair Trade Practices and Consumer Protection Law. Our Court has held that an insured may maintain a private cause of action under that law even though the allegations in his complaint fall within the purview of acts and practices prohibited by the Unfair Insurance Practices Act. Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986). Section 201-2(4)(xvii) of the Consumer Protection Law defines “unfair methods of competition” as including “engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xvii). Such general language is certainly broad enough to encompass the claims of unfair practices which have been asserted by Plaintiffs in this case. Our Supreme Court has determined that the Consumer Protection Law must be liberally construed, and that the section of the statute quoted above is a general antifraud provision, intended by the legislature to be a broad prohibition against a wide variety of unfair acts. Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974). With regard to the particular conduct of the Defendants which has been alleged in this action by the Plaintiffs, it can be said that Section 201-2(4)(xvii) would have coverage.

Section 201-9.2 (73 P.S. § 201-9.2) of the Consumer Protection Law authorizes a private action by an individual to remedy actions declared unlawful under the Act, and to recover actual and other damages. However, that statutory provision limits such a right to any person who purchases or leases goods or services primarily for “personal, family or household purposes”. In the instant case, based upon the facts of record, it appears that the Plaintiffs may have purchased the policies from Defendants for business purposes. However, the record is certainly not clear on that point, and the lower court could not have properly granted summary judgment, on the Consumer Protection Law claims, based upon a conclusion that the policies were purchased for business purposes. The lower court did not address that issue at all in its opinion. Thus, it is inappropriate that our Court reach any decision regarding whether or not the Plaintiffs may obtain any recovery under the Unfair Trade Practices and Consumer Protection Law, based solely on the issue of whether their purchases of insurance were primarily for personal, family or household purposes. Such questions may only be resolved after further proceedings in the lower court. At this stage of the proceedings, we must remand this case because the lower court should not have granted summary judgment against the Plaintiffs as to claims based upon the provisions of the Consumer Protection Law.

The Plaintiffs also sought a refund of the premiums they paid, on the basis of common law trespass claims of fraud, misrepresentation, and deceit. In the case of Pekular v. Eich, supra, our Court addressed the question of whether the enactment of the Unfair Insurance Practices Act precluded an insured from pursuing such a common law cause of action for fraud, in connection with improper conduct arising in the marketing of an insurance policy. In Pekular, it was held that an insured still retained the right to pursue such common law remedies, despite that legislative enactment. We therefore conclude that the lower court should not have granted summary judgment with respect to the Plaintiffs’ claims based upon common law fraud and misrepresentation theories.

Finally, we address the issue of whether summary judgment was properly granted as to the Plaintiffs’ claims of a purported breach of contract by the Defendants. While there was technically no specific contract breach asserted in this case, if a party can establish that he was induced to enter into a contract by fraud or misrepresentation, he can establish an entitlement to rescind the contract. See National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977). The deposition testimony of Plaintiff Kenneth Wright and the answers to interrogatories, together with the Plaintiffs’ pleadings, all raised material issues of fact as to whether fraud or misrepresentation by Defendant Monteverde occurred which induced them to enter into the insurance contracts at issue in this case. In light of these matters of record, we find that the lower court erred in granting summary judgment against the Plaintiffs on their contract claims.

The judgment of the lower court is affirmed only with regard to the granting of summary judgment as to the Plaintiff-Appellants’ claims based upon the Pennsylvania Unfair Insurance Practices Act. In all other respects, summary judgment should not have been granted, and the judgment of the lower court is reversed. The case is remanded for further proceedings in the lower court. Jurisdiction is relinquished.

      . See Pa.R.Civ.P. 1035(d) regarding the non-moving party’s obligation to show the existence of genuine issues for trial.


author: DEL SOLE, Judge: BROSKY, Judge, HOFFMAN, Judge,

text:
    539 A.2d 439
    COMMONWEALTH of Pennsylvania v. Daniel James PRESTIDGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1987.
    Filed March 7, 1988.

      Michael A. Filingo, Assistant Public Defender, Bangor, for appellant.

      Daniel G. Spengler, Assistant District Attorney, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from the judgment of sentence of May 22,1987, in which appellant was sentenced for two consecutive terms of one and one-half years to four years for two counts of Theft by Deception, 18 P.S. § 3922. Appellant raises four issues for our consideration in this appeal. Prior to addressing them, a brief recital of the facts is in order.

The Information charged that on August 18, 1986, Appellant obtained $6,000.00 from John Short. To secure the money, Appellant presented Mr. Short with a forged letter from Dr. John Oliver Nelson, in which Nelson guaranteed to repay the loan. On the same day Appellant obtained an additional $18,000.00 from Mr. Short, promising to invest the funds in the purchase of a home. He told Mr. Short that he intended to sell it quickly for an immediate profit and repay him his investment plus a split of the profit. Needless to say, no portion of the money was repaid.

This appeal involves a challenge to the legality of the sentence as well as the discretionary aspect of the sentence. The question of whether the two counts of theft should have merged for sentencing purposes, relates to the legal aspects. A two-pronged test for determining the merger of offenses has been adopted by our appellate courts:

[t]o determine whether merger should occur, a court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. When courts decide under the merger doctrine that two crimes “necessarily involve” one another, it does not always mean that all the elements of one crime are included in the other. It means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter, proof of one crime necessarily proves the other, so that they must be treated as the same offense. Commonwealth v. Williams, 344 Pa.Super. 108, 127, 496 A.2d 31, 40 [1985]
sit * * * * #
The test for merger, as stated above, is a “flexible fact-based tool for determining how many offenses against the Commonwealth have actually been committed____ (The) question of merger will often turn on an appraisal of the precise facts of the case.” Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 143, 496 A.2d at 50.

Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987).

Appellant contends that the two counts of Theft are each part of a single continuous act since the victim relied on the forged note, which attested to guarantee the loan, before giving him both sums of money. Appellant overlooks that the crucial factor herein is that he approached the victim on two separate occasions and received money both times. Of course the elements of both offenses are the same, however, the trial court did not err in refusing to merge the two counts of theft for sentencing purposes, as each was the result of a separate factual situation.

The second issue Appellant raises is whether the trial court erred when it included Appellant’s conviction for a Canadian robbery in the calculation of his prior record score. President Judge Williams used a prior record score of three (3) based upon this conviction. While there is no specific section of the Sentencing Code that controls this question directly, out-of-state offenses are included in determining a defendant’s prior record score, and are governed by application of Pennsylvania statutory offense classifications and definitions. It follows from this analysis, that a conviction rendered in a foreign country, especially one which enjoys a judicial system similar to ours, should also be included. Therefore the trial court did not err when it included Appellant’s Canadian conviction for robbery.

Appellant’s third issue challenges the trial court’s imposition of sentence in the aggravated range. This contention concerns a discretionary aspect of sentencing. The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), however, this Court, sitting en banc, recently held that an appellant’s failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 519, 533 A.2d 134 at 138. Here, the Commonwealth has not objected to the Rule 2119(f) defect in appellant’s brief. Accordingly, the Commonwealth has waived any claim based on the absence of such a statement. We must therefore proceed to “determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court. Commonwealth v. Krum, supra (footnote omitted).

Specifically, Appellant claims that imposing sentence in the aggravated range was an abuse of discretion because the trial court only focused on the violation of trust between Appellant and Dr. Nelson, and the age of the victim, but hardly considered any of the mitigating circumstances. We find this to be a substantial question as to whether the sentencing court erroneously applied the guidelines, and therefore will review the question. Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987).

[A] sentencing judge may consider any legal factor in deciding whether a defendant should be sentenced within the aggravated range. Second, in order to be adequate, the sentencing judge’s reasons for sentencing within the aggravated range must reflect this consideration. Finally, the sentencing judge’s decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion.

Commonwealth v. Duffy, 341 Pa.Super. 217, 224, 491 A.2d 230, 233 (1985).

Keeping these principles in mind we turn to Appellant’s assertion that the trial court should not have sentenced him in the aggravated range. Our review of the Sentencing Transcript reveals the legal factors and elaborate reasons upon which President Judge Williams based Appellant’s sentence. Appellant’s assertion that the Judge simply “brushed aside” his poor educational background, poor family history, drug and alcohol problems, and the fact that this was a non-violent crime is totally meritless. The Judge’s decision to sentence Appellant in the aggravated range was one in which he balanced the needs of the community to be protected against crimes of this nature and Appellant’s need for rehabilitation. Since the sentence imposed herein is within the statutory limits, and is not manifestly excessive so as to inflict too severe a punishment, we can find no abuse of the trial court’s discretion. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982).

Finally, Appellant argues that the probation officer responsible for preparing his presentence report should have been in attendance at the sentencing proceedings so that he could be questioned regarding its contents. There is no merit to this contention. Appellant was presented with a presentence report prior to sentencing and was afforded the opportunity to contest any portion of the report with which he disagreed. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1976). Since he had the benefit of all the safeguards required to insure a fair sentencing, the presence of the preparer of the presentence report was superfluous.

Judgment of sentence affirmed.

BROSKY, J., files a concurring opinion.

HOFFMAN, J., files a concurring and dissenting opinion.

BROSKY, Judge,

concurring:

While I agree with the majority the judgment of sentence should be affirmed in this case, and I agree with the majority’s disposition of the first, second and fourth issues, I must take exception to the result reached with regard to the third issue raised by appellant.

Appellant’s third issue questions the propriety of the trial court having sentenced him in the aggravated range. As noted by the majority, this issue challenges a discretionary aspect of sentencing. While I agree with the majority’s view that we must determine whether there exists a substantial question requiring us to review the discretionary aspects of sentence, I disagree that the issue before us presents such a question. According to the majority, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), is inapplicable because appellant has not challenged the constitutionality of the Sentencing Guidelines. I do not agree. In Sessoms, the Pennsylvania Supreme Court declared the Sentencing Guidelines to be void ab initio. Thus, alleging that the sentence was improperly imposed in the aggravating range will not, by itself, raise a substantial question that the sentence is inappropriate under the sentencing code. I would, therefore, conclude that no substantial question exists regarding that aspect of the sentence. Consequently, I would decline review of the third issue raised by appellant, and would dismiss the appeal as to that issue alone.

HOFFMAN, Judge,

concurring and dissenting:

I concur in the majority’s disposition of the first, third, and fourth issues. I dissent, however, from its resolution of the second issue: I would hold that the lower court erred in employing a prior record score that included appellant’s robbery conviction in Canada. Accordingly, I would vacate the judgment of sentence and remand the case for resentencing.

Appellant contends that the lower court enhanced his sentence by relying on a prior record score that improperly reflected appellant’s robbery conviction in a foreign jurisdiction, namely Canada. In selecting the sentence to be imposed on a criminal defendant, a court “shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). One of the factors that a court must consider in fashioning the sentence is the prior record of the defendant. See 204 Pa.Code §§ 303.1-303.9, reprinted following 42 Pa.C.S.A. § 9721.

Under the Sentencing Guidelines, a defendant’s prior record is reflected in a numerical score, which is used to enhance the ranges of sentences applicable to a given offense. See id. §§ 303.2, 303.3, 303.7 to 303.9. A prior record score is derived by assigning points to certain previous convictions and adjudications of delinquency. See id. §§ 303.7, 303.8. Pursuant to the Sentencing Guidelines, a prior record score will include points for previous convictions in Pennsylvania as well as for out-of-state, federal, or former Pennsylvania offenses:

A prior out-of-state or Federal conviction or adjudication of delinquency under former Pennsylvania law, is scored as a conviction for the current Pennsylvania offense. When there is no current equivalent Pennsylvania offense, prior out-of-state or Federal convictions or adjudications of delinquency are scored as non-weapons misdemeanors.

Id. § 303.8(d).

In this case, the underlying issue is whether the term “out-of-state convictions” should be construed to encompass convictions occurring in foreign countries, in addition to those occurring in any of the other forty-nine states. It is axiomatic that penal laws must be strictly construed, see 1 Pa.C.S.A. § 1926, in favor of the defendant. See Commonwealth v. Darush, 256 Pa.Superior Ct. 344, 348, 389 A.2d 1156, 1158 (1978); Commonwealth v. Cunningham, 248 Pa.Superior Ct. 219, 222, 375 A.2d 66, 67 (1977). Moreover, any ambiguity concerning the ambit of a penal statute must be resolved against the Commonwealth. See Commonwealth v. Cluck, 252 Pa.Superior Ct. 228, 238, 381 A.2d 472, 477 (1977); Commonwealth v. Teada, 235 Pa.Superior Ct. 438, 444, 344 A.2d 682, 684 (1975) (allocatur denied). Importantly, the term “penal laws” covers a wide array of laws. As defined, for example, in the Pennsylvania Rules of Criminal Procedure, penal laws include

all statutes and embodiments of the common law which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.

Pa.R.Crim.P. 3(n).

Although the Rules’ definition of “penal laws” does not specifically list the Sentencing Guidelines, it is ‘plate glass clear’ that they fall under the rubric of penal laws. See Commonwealth v. Samuels, 516 Pa. 300, 302, 532 A.2d 404, 405 (1987). Ambiguities in the Guidelines, therefore, should be resolved in favor of the defendant. See Commonwealth v. Cluck, supra; Commonwealth v. Teada, supra. Thus, I would hold that the term “out-of-state convictions” as used in the Guidelines should be construed to include only convictions rendered by courts in the other forty-nine states of the United States and to exclude convictions occurring in foreign countries. For that reason, I would vacate the judgment of sentence and remand for resentencing.

      . We note that Appellant has not challenged the constitutionality of the sentencing guideline. Accordingly, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable.

      . I note that appellant has not challenged the constitutionality of the sentencing guidelines. Accordingly, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) does not apply to this issue.

      . In addition, I would disagree with the majority’s conclusion that we can take judicial notice that the criminal procedures used in Canada are similar to the procedural safeguards guaranteed by the United States Constitution.


author: CERCONE, Judge:

text:
    539 A.2d 444
    COMMONWEALTH of Pennsylvania, v. Deanndria PYETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 21, 1987.
    Filed March 23, 1988.

      Patricia M. Dugan, Philadelphia, for appellant.
    George S. Leone, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

After a trial by jury appellant, Deanndria Pyett, was convicted of third degree murder and possession of an instrument of crime. Timely post-trial motions were filed and denied by the court following a hearing. Appellant was sentenced to ten (10) to twenty-five (25) years incarceration. This appeal from the judgment of sentence followed.

Appellant raises two issues for our review: whether the trial court erred in allowing the prosecutor to cross-examine appellant with inculpatory statements allegedly made to the police by a person who was neither present nor testified at trial, and whether the sentence imposed upon appellant was an abuse of the trial court’s discretion.

Before turning to the merits of appellant’s first contention, we must determine if the issue is properly before us. Subsequent to trial, the court informed appellant of her right to file post-trial motions. Specifically, the court stated that the motions must be in writing and “must spell out with specificity the reasons why you are entitled to a new trial or a motion in arrest of judgment”, (emphasis added) Failing to heed the court’s directive, appellant filed “boilerplate” post-trial motions. Neither the docket entries filed with this court nor the notes of testimony adduced at the hearing on post-trial motions disclose that appellant requested or was granted permission by the court to file supplemental post-verdict motions. Yet, at the hearing on the motions, counsel for appellant revealed that she slipped a copy of the supplemental motions she wished to argue under the door of the judge’s chambers and the court entertained argument on those motions. In her statement of matters complained of on appeal pursuant to Pa.R.A.P., Rule 1925, 42 Pa.C.S.A. appellant briefed the issues contained in her supplemental post-trial motions. The issues were addressed in the opinion of the court below.

The Commonwealth urges us to find that appellant has waived her right to argue on appeal that the lower court erred in allowing the Commonwealth, on cross-examination, to question her with inculpatory statements allegedly made to the police by a person who was neither present at trial nor appeared as a witness. The Commonwealth maintains this allegation was contained in appellant’s supplemental post-trial motions which the record reveals were filed without the court’s permission, and thus, not to be considered. See Pa.R.Crim.P., Rule 1123(a), 42 Pa.C.S.A. Appellant asserts that the trial court, by granting continuances of the hearing on post-trial motions due to the unavailability of transcripts, sanctioned the filing of supplemental motions even though appellant made no formal request on the record to do so. Further, appellant argues that a finding of waiver flies in the face of judicial economy as this court will likely be confronted with the issue that is waived in a Post Conviction Hearing Act (PCHA) petition. See 42 Pa.C.S.A. § 9541 et seq.

Our court has long held that assignments of error in the court below will not preserve any issue for appellate review, unless they state with specificity the issues complained of on appeal. See Commonwealth v. Holmes, 315 Pa.Super. 256, 259, 461 A.2d 1268, 1274 (1983) (en banc). Thus, appellant’s post-trial motions which were presented in “boilerplate” fashion would appear to be waived. However upon request to the court, a defendant may be granted leave to file additional reasons for a new trial or in arrest of judgment but this is a matter of discretion with the trial court. See Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974). In Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987) the court stated:

While a custom appears to have developed whereby counsel, in filing original and timely post-trial motions, reserves the right to file additional motions, nothing in the rules permits unilateral extension of time,' and in no event may supplemental motions be filed and heard nunc pro tunc unless filed in a reasonable time and with approval of the court.

Id., 365 Pa.Superior Ct. at 618, 530 A.2d at 482.

In the case before us, appellant did not seek leave of court to file additional post-trial motions. Appellant relies on entries in the quarter session file which denote the grant of continuance on the hearing for post-trial motions, due to the unavailability of transcripts, as the court’s acquiescence to the filing of supplemental post-trial motions. Appellant’s reliance on the quarter session notations as being equivalent to permission to file supplemental post-trial motions is misplaced under Sheaff, supra. Appellant further seeks support from the fact that the court heard argument on her supplemental motions. But, the court in Sheaff opined, “We hold that the supplemental post-verdict motions did not preserve the issues for review (whether filed or merely submitted) despite the fact that the court below addressed them on the merits”. Id., 365 Pa.Superior Ct. at 618-19, 530 A.2d at 482. Furthermore, we do not find persuasive appellant’s inclusion in her Rule 1925 statement the issues contained in her supplemental post-trial motions or the trial court’s discussion of the issue in its opinion. See Pa.R.A.P., Rule 1925, 42 Pa.C.S.A. In construing provisions of Rule 1925 requiring the filing of a statement of matters complained of with the lower court, an appellate court may not treat the statement of matters complained of as the equivalent of post-verdict motions. See Commonwealth v. Silver, 260 Pa.Super. 232, 393 A.2d 1239 (1978) aff'd 499 Pa. 228, 452 A.2d 1328 (1982). Also we decline appellant’s invitation to review the issue for the sake of judicial economy so that it will not reappear in a later PCHA appeal. To do this would make a mockery of the Rules of Criminal Procedure through which the wheels of justice turn in an orderly fashion. Accordingly, we find that appellant has waived the issue regarding her cross-examination with alleged inculpatory statements made by a person who was not present in court or a witness at trial.

Likewise, appellant has waived her second issue which challenges the discretion of the lower court in imposing sentence. In order to preserve a sentencing issue which challenges the harshness of a sentence, it must be raised in a motion to modify sentence. Failure to do so constitutes waiver. Commonwealth v. Boyce, 304 Pa.Super. 207, 450 A.2d 83 (1982). In her motion to modify sentence appellant avers that the sentence is cruel and unusual punishment and that it exceeds the sentencing guidelines. She does not assert that the court abused its discretion in sentencing. Hence, this issue is waived.

For the aforestated reasons, appellant’s judgment of sentence is affirmed.

      . We note that were we to review this allegation, we would find it to be without merit. Perusal of the guidelines, in light of the sentences imposed, indicates that on each charge, — third degree murder and possession of an instrument of crime — appellant was sentenced within the standard range of the guidelines.


author: OLSZEWSKI, Judge:

text:
    539 A.2d 446
    Sharon K. Vogelsong CREE and Shirley A. Vogelsong Hesse, Appellants, v. Charles D. HORN and H.C. Gabler, Inc., Appellees, v. Sharon Vogelsong CREE.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1988.
    Filed March 22, 1988.

      Gregory Martin, York, for appellants.
    Christian S. Erb, Jr., Harrisburg, for appellees.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This personal injury action arose from a motor vehicle accident which occurred on August 21, 1981. Appellant, Sharon K. Vogelsong Cree, was the driver of one of the vehicles in which her sister, appellant Shirley A. Vogelsong Hesse, was a passenger. After coming to a stop for a traffic signal, appellants’ car was hit from behind by a tractor-trailer driven by appellee, Charles D. Horn. Questions of negligence and contributory negligence were hotly contested at trial. Appellants’ contended that their vehicle was hit while they were stopped at a red traffic signal. Conversely, appellee claimed that appellants proceeded forward when the light turned green and then suddenly stopped. Another contested issue was the injuries, if any, suffered by appellants. It is this second issue which forms the basis of this appeal.

After hearing the testimony, the jury returned with a verdict in appellants’ favor. Specifically, in response to interrogatories the jury found that appellee was negligent, that his negligence was a substantial factor in causing the accident, and that appellants were not contributory negligent. On the issue of damages, the jury awarded each appellant the sum of $10,000 as “other damages.” No damages were awarded for appellants’ lost earnings and diminished future earning capacities. After the verdict was entered, appellants filed a timely motion for a new trial on the issue of damages. That motion was denied and this appeal followed wherein appellant raises four issues for our consideration:

I. Was the jury’s verdict regarding loss of earnings and impairment of earning capacity as to Sharon Vogelsong Cree, and the jury’s verdict as to the present and future impairment of earning capacity as to Shirley Vogelsong Cree, against the weight of the evidence presented at trial and in contradiction to all medical testimony in the case, including the testimony of appellees’ own medical experts, Dr. Davis and Dr. Patterson?
II. Were the total verdicts of the jury as to each appellant regarding damages sustained by each appellant as a result of this accident, against the weight of the evidence presented at trial, and contrary to the laws set forth by the honorable trial judge in his charge to the jury?
III. Did the court err in denying appellants’ motion in limine and permitting appellees’ counsel to argue to the jury that the injuries and damages sustained by appellants could not have been as severe as they were claiming, given the relatively minor extent of the property damage sustained by appellants’ vehicle in this accident, when there was no evidence from any expert in that regard?
IV. Did the court err in permitting the testimony of Lee Tinkey, R.N. to testify regarding various jobs available in the community, the duties of those jobs, the rates of pay of those jobs, when Ms. Tinkey testified that said information was obtained from various employers in the area, and therefore, such testimony was hearsay and did not fall within any exceptions to the hearsay rule.

Having considered these issues and determined that each is meritless, we affirm the judgment.

Appellants first assert that the verdict regarding the loss of earnings and earning capacity was against the weight of the evidence.

[T]he decision to either grant or deny a motion for a new trial [on the grounds that the verdict was against the weight of the evidence] is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion____ Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice____ A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.

Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 365, 508 A.2d 298, 301 (1986), allocatur denied, 514 Pa. 617, 521 A.2d 932 (1987), quoting, Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980) (other citations omitted).

Instantly, the evidence showed that immediately after the accident, appellants were taken to Holy Spirit Hospital where they were examined and then discharged. Three days later, on the following Monday morning, both girls started licensed practical nursing school. Their schooling was on a full-time basis for a continuous twelve-month period. An administrator from the nursing school testified at length as to the rigors of the nursing program and as to her observations of appellants; according to her testimony, appellant Shirley Hesse exhibited no physical limitations or problems. As to both appellants, no problems were documented by any of the instructors.

While the girls were attending nursing school, they were also employed on a part-time basis at a fast-food restaurant.

Both girls graduated nursing school on August 26, 1982. Within two weeks of graduation, both commenced working on a full-time basis at Holy Spirit Hospital as licensed practical nurses. Testimony presented by appellants’ supervisors established that both were conscientious, good workers. Neither supervisor identified any problems encountered by the girls.

This lawsuit commenced in September of 1983. That same month Shirley started missing some work and, four months later, resigned her position.

Testimony also established that both girls were married on October 6, 1984. Shirley Hesse gave birth on March 3, 1985. Shirley has also been involved in aerobic exercise at a spa. Sharon testified that she has not worked anywhere from the time she resigned from the hospital in December of 1982 until February of 1986 when she started a part-time job at a gift shop.

Dr. Leland Patterson, M.D., opined that Sharon is able to work and there is no reason why Shirley should not be working. Dr. Patterson stated, however, that Sharon should work on a part-time basis and should refrain from heavy lifting at the present time. Another of appellee’s expert witnesses, Dr. Robert Davis, testified that both appellants had pre-existing psychological conditions which were aggravated by the accident and which required additional therapy before appellants could return to work in the nursing field.

Testimony presented by appellants was contrary. Sharon argued that she resigned from her position as a licensed practical nurse after two months because she was unable to perform the duties. Shirley stated that she was able to continue working at the hospital on a full- and part-time basis until March 1984 when she had to resign because of her injuries. Shirley has not worked since that time but would have considered returning to work if she was not physically disabled.

Appellants’ initial treating physician, Dr. Robert Kaneda, recalled that he diagnosed the injuries as cervical and lumbosacral sprains. Because appellants had not commenced their nursing positions at the time of this initial examination, however, Dr. Kaneda was unable to offer an opinion as to whether the injuries were disabling.

Another of appellants’ treating physicians, Dr. Douglas K. Sanderson, testified that Sharon suffers a “chronic multi-focal muscle strain with secondary peripheral nerve involvement,” and that her prognosis is “poor to guarded.” Dr. Sanderson also opined that “it is very very unlikely that she will ever be able to regain status as a hospital based, full-time licensed professional nurse.” In regard to Shirley, Dr. Sanderson testified that she demonstrated chronic neck and shoulder girdle strain, headaches, back strain, and a low-grade secondary ulnar nerve dysfunction. He opined that Shirley would be limited to a part-time sedentary job as a result of her injuries.

Also testifying on behalf of appellants was Dr. Michael Innes, a chiropractor, who testified that both appellants had sustained muscular skeletal injuries as a result of the accident, that their conditions were permanent, and that appellants were permanently disabled from working in the nursing field.

Finally, Dr. John M. Hume, a psychiatrist, testified that due to appellants’ present emotional states, neither could return to nursing.

On the basis of the medical testimony, appellants presented the testimony of Harold Kulman, a vocational expert who testified as to the past loss of earnings and future impairment of earning capacity sustained by each appellant. Mr. Kulman opined that each appellant was permanently disabled from performing work as licensed practical nurses and would be limited to part-time sedentary work. He estimated that Sharon’s lost earnings were $40,560 as the result of her disability. Mr. Kulman also estimated that impairment in the earning capacities of Sharon and Shirley were approximately $200,000 and $700,000 respectively.

Given the conflicting nature of the evidence, it cannot be said the trial court abused its discretion in concluding that the jury’s verdict was not contrary to the weight of the evidence. Despite the finding of negligence on appellee’s part for hitting appellants’ car, the jury clearly found that appellee’s actions had nothing to do with appellants’ alleged lost wages and diminished earning capacity. After reviewing the evidence, we are satisfied that a jury could have found that appellants’ post-accident conduct negated any claim that appellants suffered a loss of earnings and that their earning capacity was not impaired. Simply stated, the jury did not believe that appellants’ inability to work was caused by appellee’s negligent action. It was within the province of the jury to determine the credibility of the witnesses. Brodhead v. Brentwood Ornamental Iron Co., Inc., 435 Pa. 7, 11-12, 255 A.2d 120, 122 (1969). Because the record fully supports the determination that appellee’s negligence did not cause the alleged damages, we find nothing shocking in the verdict of the jury.

Continuing in their attack on the jury verdict, appellants also assert that the award of $10,000 to each appellant for noneconomic damages is insufficient, contradicts the evidence presented and, in generál, is against the weight of the evidence. Appellants argue forcefully that the monetary award fails to reflect the four years of pain and suffering which they have suffered.

Upon review of a challenge to the inadequacy of the damages, our standard is extremely narrow:

“Where the trial court grants a new trial on the ground of inadequacy the appellate courts will not interfere in the absence of a gross abuse of discretion.... When the trial court refuses relief against an allegedly inadequate verdict the appellate court will exercise even greater caution in reviewing its action.” Obviously, the function of determining whether a jury’s verdict is arbitrary and capricious lies with the trial court, and its decision will not be set aside in the absence of clear error of law or palpable abuse of discretion.

Bronchak v. Rebmann, 263 Pa.Super. 136, 140, 397 A.2d 438, 440 (1979) (emphasis in original), quoting, Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 420-21, 97 A.2d 816, 818 (1953).

We have reviewed the evidence and find no abuse of discretion by the trial court. In light of the testimony, the jury could have easily concluded that the noneconomic damages suffered by appellants was de miminis. See Carroll v. Pittsburgh Railways Co., 200 Pa.Super. 80, 85, 187 A.2d 293, 296 (1962). “The duty of assessing damages is within the province of the jury” and as trier of fact, they weigh the veracity and credibility of the witnesses and their testimony. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16, 22 (1985). See Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich Co., Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985). In light of the evidence and the above-stated principles, we cannot conclude that the jury’s verdict of $10,000 in noneconomic damages to each appellant was so unreasonable and inadequate as to warrant the grant of a new trial.

Appellants’ third claim challenges the use at trial of several photographs showing the extent of the damage to appellants’ car. This claim initially arose in a motion in limine whereby appellants sought to prevent appellee from presenting any evidence, comment, or argument regarding the severity of the injuries based upon the force of the collusion or damage to appellants’ car. That pretrial motion was denied. During their case-in-chief, appellants introduced into evidence several photographs of their vehicle, two of which showed the exterior damage to the car. Both parties were permitted to use the photographs, and appellants requested no cautionary instructions as to how the jury should view or consider the photographs. Appellants now contend that the relationship between the damage to the car and the physical injuries to appellants was not a matter within the common knowledge of a lay person. Hence, the trial court should have prevented appellee from using the photographs and commenting on the minor damage to the car absent expert testimony relating the property damage to the physical injuries.

Given the means by which this issue arose, we find that it affords no basis for relief. A party may not complain on appeal of an error which was of his or her making. See Sweener v. First Baptist Church, 516 Pa. 534, 540 n. 1, 533 A.2d 998, 1000 n. 1 (1987). Once appellants introduced the photographs into evidence, the door was opened for comment by the opposing party.

Nonetheless, we have closely examined appellants’ claim and find it meritless. We begin with the tenet of law that “ ‘questions concerning the admission of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion.’ ” Serhan v. Besteder, 347 Pa.Super. 11, 22-23, 500 A.2d 130, 136 (1985), quoting, Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 211, 478 A.2d 34, 38 (1984). “Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge, intelligence and experience of the jury.” Kubit v. Russ, 287 Pa.Super. 28, 35, 429 A.2d 703, 706 (1981). Against these standards we will test the trial court’s ruling.

It is not questioned that the photographs of appellants’ car were admissible evidence. Appellants claim, however, that the photographs could not be used to refute the alleged severity of the damages in the absence of testimony by an expert witness. We disagree. Our courts have long affirmed verdicts which were based upon a jury’s commonsense evaluation of conflicting evidence; minimal physical damage to a vehicle is merely one means by which the evidence is tested. See Brodhead v. Brentwood Ornamental Iron Co., Inc., 435 Pa. 7, 255 A.2d 120 (1969); Nitch v. Moon, 405 Pa. 474, 176 A.2d 627 (1961); Boyle v. Ward, 39 F.Supp. 545 (M.D.Pa.1941); Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 (1977). For this reason we conclude the court did not err in permitting appellee to comment on the evidence.

Finally, appellants assert that the court erred in permitting appellee’s witness, a registered nurse and rehabilitation specialist, to offer an opinion as to the availability of various jobs in the health-care field. Again, we disagree. The trial judge has broad discretion with regard to the admission of expert testimony. Mapp v. Dube, 330 Pa.Super. 284, 293, 479 A.2d 553, 557 (1984). Testimony as to the opportunities for employment are admissible if based upon personal knowledge. Id. Here, appellee’s witness stated that her job is to coordinate data, determine what jobs are available in the marketplace, and to locate jobs for individuals who are undergoing rehabilitation. Given the witness’s occupation as a rehabilitation specialist, her testimony was from personal knowledge of jobs which were available in the health-care industry. We find no abuse of discretion by the trial court in ruling that the testimony was admissible.

Judgment affirmed.

      . According to the record, judgment was not entered until after appellants filed a notice of appeal. Nonetheless, this appeal is properly before the Court. See Pa.R.App.P. 905(a) (“[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”). See McCormick v. Blue Cross of Western Pennsylvania, 360 Pa.Super. 210, 212, 520 A.2d 59, 60* (1987).

      . We note that because Shirley has had a child, she did not seek past lost earnings.

      . Appellants concede in their brief that the damage to the car was relatively minor.