author: KELLY, Judge:

text:
    649 A.2d 680
    Alexander TERLETSKY, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. (Two Cases) Alexander TERLETSKY and Marina Terletsky, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. (Two Cases) Alexander TERLETSKY, Appellee, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellants. Alexander TERLETSKY and Marina Terletsky, Appellees, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1994.
    Filed Oct. 25, 1994.

      Leonidas N. Koletas, Philadelphia, for Terletsky.
    Daniel J. Ryan, Jr., Philadelphia, for Prudential.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal and cross-appeal, we must determine whether the trial court’s findings of fact are adequately supported by evidence. In addition, we are asked to determine whether the trial court properly concluded that appellee, Prudential Property and Casualty Insurance Company, acted in bad faith in partially disputing payment of appellant’s, Alexander Terletsky’s, uninsured motorist claim. We hold that the trial court’s factual findings have adequate support in the evidence. We further hold that appellee had a rational basis for disputing appellant’s claim; thus, the trial court’s determination of bad faith was improper. Accordingly, we reverse.

The relevant facts and procedural history are as follows. On March 5, 1989, appellants, Alexander and Marina Terletsky (the Terletskys) were involved in a motor vehicle accident with uninsured motorist, Michael Brown. The police report of the accident indicated that no injuries were sustained. Following the accident, the Terletskys filed uninsured motorist claims against their carrier, appellee, Prudential Property and Casualty Insurance Company (Prudential). In addition, Michael Brown filed a liability claim against Prudential which was assigned to the same claims adjuster as the Terletskys’ uninsured motorist claims. On September 5, 1989, Prudential settled Michael Brown’s liability claim for $2,000.00 and a waiver of subrogation rights. On September 27, 1989, in connection with the investigation of the accident and in an attempt to resolve medical questions relating to the Terletskys, Prudential requested independent medical examinations at Penn Diagnostic Center of both Marina and Alexander Terletsky. Counsel for the Terletskys refused the request. However, the Terletskys’ counsel proposed an alternative plan for the examinations which was subsequently rejected by Prudential.

As of December, 1989, the Terletskys had submitted to Prudential $5,600.00 in medical bills for the treatment of Marina Terletsky’s alleged injuries and $9,100.00 in medical bills for the treatment of Alexander Terletsky. Alexander Terletsky did not sustain a wage loss in his employment as an engineer. Marina Terletsky sustained, but did not claim, a few days wage loss as a paralegal.

The Terletskys demanded settlement of their uninsured motorist claims on December 14, 1989, in the amount of their policy limits. The Terletskys’ policy provided $100,000.00/ $300,000.00 coverage which allowed $100,000.00 of uninsured motorist coverage for each of the two cars they owned and $300,000.00 per accident. Also, on December 14, 1989, the Terletskys demanded arbitration of their claim disputes pursuant to the arbitration clause in their policy. The clause provided that arbitration could be invoked when the insurer and insured could not reach an agreement.

The neutral arbitrator for the arbitration panel was selected in June, 1990. Prudential then petitioned the arbitrators to compel the independent medical examinations of the Terletskys. On July 6, 1990, the arbitrators ordered the independent medical examinations; however, on July 19, 1990, the Terletskys sought reconsideration. After hearing arguments on September 19, 1990, the arbitrators again ordered that the Terletskys submit to the independent medical examinations as well as provide Prudential with statements under oath. Consequently, the independent medical examinations took place on October 3, 1990.

On October 17, 1990, Prudential offered $40,000.00 for the bodily injury claim of Alexander Terletsky and $17,500.00 for the bodily injury claim of Marina Terletsky. In response, counsel for the Terletskys indicated that he would “not blink” at any offer below $100,000.00 for each claimant.

An arbitration hearing was held on December 27, 1990, at which Alexander Terletsky testified. The hearing on Marina Terletsky’s claim, however, was continued for the purpose of receiving the videotaped testimony of the Terletskys’ orthopedist. In connection with the December 27, 1990 hearing, Prudential’s house counsel, Anna Pace, interviewed Michael Brown by telephone. Michael Brown agreed to accept a subpoena and testify before the arbitrators on behalf of Prudential; however, he never received the subpoena and he never testified. Following the hearings, Anna Pace spoke with Prudential’s arbitrator regarding the status of the arbitration awards.

On January 22, 1991, the arbitrators awarded Alexander Terletsky the amount of $125,000.00 for his uninsured motorist claim with the following caveat:

The Award is governed by the coverage available, that is to say, if the coverage is less than the amount of the Award, the claimant may only receive the amount of the coverage.

Arbitration Award of Alexander Terletsky, January 22, 1991.

Subsequently, Prudential decided to appeal the award of the arbitrators. On February 7, 1991, Prudential’s claims representative for the case, Laurie Trythall, instructed Prudential’s house counsel to appeal the award on the grounds that the Terletskys policy provided for only $100,000.00 liability and “stacking” was not permitted. The appeal was based on Chartan v. Chubb Corp., 725 F.Supp. 849 (E.D.Pa.1989) (Chartan I ). However, Prudential’s corporate counsel, Clayton W. Boulware, had advised management that “stacking” was now permitted in Pennsylvania. The “Boulware memo” stated in part:

Act 6 and recent Court decisions have effectively attenuated the Chartan holding; so much so that UM and UIM coverages are not capped at the maximum single policy liability limit.
❖ * * * * *
It can be reasonably concluded that an insured retains his or her right to stack uninsured and underinsured coverages, even if that stack amount exceeds the maximum single policy liability limit[]

Memorandum of Clayton W. Boulware, January 8, 1991.

On February 20, 1991, Prudential, represented by outside counsel, filed a petition to modify the award of the arbitrators. The petition did not refer to the stacking issue, but stated that the award of the arbitrators was deficient in form. Prudential requested that the award to Alexander Terletsky be reduced to $100,000.00. A hearing on the request for modification was scheduled for July 12, 1991.

Between February and June of 1991, Prudential paid Marina Terletsky $125,000.00 in satisfaction of the arbitration award in her favor and paid Alexander Terletsky $100,000.00 of the $125,000.00 award in his favor. Subsequently, in June of 1991, Prudential paid Alexander Terletsky the $25,000.00 outstanding on his arbitration award. Thereafter, the hearing on the request for modification of the arbitration award was cancelled.

On February 22, 1991, Alexander Terletsky filed a complaint against Prudential which alleged that Prudential had acted in bad faith during the handling of his uninsured motorist claim. Additionally, on November 12, 1991, the Terletskys jointly filed a complaint against Prudential which alleged that Prudential had acted in bad faith during the handling of Marina Terletsky’s uninsured motorist claim. The complainants sought damages pursuant to 42 Pa.C.S.A. § 8371. The actions were consolidated for trial and heard by arbitrators of the Philadelphia Court of Common Pleas on August 17, 1992. An appeal was taken from the arbitrator’s award.

A four day non-jury trial was held before the trial court from February 18, 1993 to February 23, 1993. The trial court found in favor of Alexander Terletsky on April 2, 1993, and concluded as a matter of law that Prudential had acted in bad faith with respect to the handling of Alexander Terletsky’s uninsured motorist claim. The trial court found that the bad faith commenced on or about February 6, 1991 and ended in mid-July when Prudential satisfied all claims and cancelled the petition to modify the arbitration award. For the bad faith claim, the trial court awarded Alexander Terletsky $15,000.00 in counsel fees for services in connection with the proceedings. The trial court, however, did not award punitive damages. Further, the trial court found in favor of Prudential on Marina Terletsky’s bad faith claim and issued extensive findings of fact and conclusions of law. Following the award, the Terletskys and Prudential filed motions for post-trial relief. Prudential filed post-trial motions seeking judgment notwithstanding the verdict. The Terletskys filed post-trial motions requesting additional findings of fact and alleging error on the part of the trial court in not awarding punitive damages. Additionally, the Terletskys filed an objection to Prudential’s post-trial motions. The trial court issued its opinion on January 19, 1994 which incorporated its original findings of fact and conclusions of law. The trial court denied all post-trial motions. This timely appeal and cross-appeal followed.

On appeal, the Terletskys present the following issues for our review:

1. WAS JUDGE CAESAR CORRECT IN NOT CONSIDERING PLAINTIFFS’ REQUEST FOR ADDITIONAL FINDINGS OF FACT, THEREBY NOT TAKING INTO ACCOUNT ALL OF THE EVIDENCE AGAINST DEFENDANT PRIOR TO ENTERING JUDGMENT.
2. DID THE TRIAL COURT HOLD PLAINTIFFS TO AN INORDINATELY HIGH BURDEN OF PROOF TO OBTAIN PUNITIVE DAMAGES?
3. IS ALEXANDER TERLETSKY ENTITLED TO PUNITIVE DAMAGES PURSUANT TO JUDGE CAESAR’S REASONING IN HIS CONCLUSIONS OF LAW?
4. WAS ALEXANDER TERLETSKY ENTITLED TO PUNITIVE DAMAGES FOR DEFENDANT, PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY’S INSISTENCE ON AN UNNECESSARY INDEPENDENT MEDICAL EXAMINATION?
5. WERE PLAINTIFFS ALEXANDER AND MARINA TERLETSKY ENTITLED TO PUNITIVE DAMAGES AS A RESULT OF DEFENDANT, PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY REQUESTING SWORN STATEMENTS WHICH WERE NOT USED IN THE EVALUATION OF PLAINTIFFS’ CLAIMS?
6. WERE THE EXCEPTIONALLY LOW OFFERS MADE TO PLAINTIFFS PRIOR TO THE UNINSURED MOTORIST ARBITRATION ALSO INDICATIVE OF DEFENDANT’S BAD FAITH REQUIRING A PUNITIVE DAMAGE AWARD IN FAVOR OF ALEXANDER AND MARINA TERLETSKY?
7. WAS ANNA C. PACE, ESQUIRE’S INTERFERENCE WITH THE DELIBERATIONS OF ALEXANDER TERLETSKY’S CLAIM BAD FAITH?
8. WAS A CONFLICT OF INTEREST CREATED BY DEFENDANT, PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY’S ALLOWING THE SAME ADJUSTER TO HANDLE BOTH MICHAEL BROWN’S THIRD-PARTY CLAIM AND PLAINTIFFS’ UNINSURED MOTORIST CLAIMS INDICATIVE OF BAD FAITH?
9. WAS THE TRIAL COURT’S DENIAL OF PLAINTIFFS’ PRELIMINARY OBJECTIONS TO DEFENDANT’S POST-TRIAL MOTIONS INCORRECT?

The Terletskys’ Brief at 4-5.

Prudential raises the following issues in its cross-appeal:

1. WAS NOT THE LOWER COURT’S VERDICT AGAINST THE WEIGHT OF THE EVIDENCE?
2. IS NOT THE LOWER COURT’S VERDICT CONTRARY TO THE LAW?
3. DID NOT THE LOWER COURT ERR IN FAILING TO CONSIDER THE UNREBUTTED TESTIMONY OF ANNA PACE, WILLIAM SWARTZ, THOMAS SARNESE AND JOSEPH CUNNINGHAM ON THE ISSUE OF DEFENDANT PRUPAC’S REASONABLENESS IN RELYING ON THE CHARTAN DECISION AND OTHER CASES HOLDING THAT AN INSURED WAS NOT PERMITTED TO STACK UNINSURED MOTORIST COVERAGE LIMITS ABOVE THE LIABILITY LIMITS?
4. DID NOT THE LOWER COURT ERR IN FAILING TO CONSIDER THE TESTIMONY OF PRUPAC WITNESSES THAT THEY OBTAINED AN OPINION FROM OUTSIDE COUNSEL THAT THEY HAD A .LEGAL BASIS FOR DISPUTING PAYMENT OF THE $25,000 AS:
(a) STACKING WAS NOT RAISED BY PLAINTIFFS AT THE UNDERLYING UNINSURED MOTORIST HEARING, AND
(b) THE $125,000 AWARD EXCEEDED THE POLICY LIMITS AND STACKING WAS A DEBATABLE ISSUE AT THAT TIME UNDER PENNSYLVANIA LAW?
5. DID NOT THE LOWER COURT ERR IN FAILING TO CONSIDER THE UNREBUTTED TESTIMONY OF PRUPAC WITNESSES THAT PRUPAC’S CORPORATE COUNSEL, THE AUTHOR OF THE BOULWARE MEMO, OPINED TO A PRUPAC CLAIM REPRESENTATIVE (THOMAS SARNESE) THAT A VALID ARGUMENT WAS AVAILABLE AGAINST STACKING AS THE TERLETSKY CLAIM AROSE PRIOR TO THE ENACTMENT OF ACT 6 AND THE MEMO ADDRESSED CASES ARISING AFTER THE PASSAGE OF ACT 6?
6. DID NOT THE LOWER COURT ERR IN FINDING THAT PRUPAC ACTED IN BAD FAITH AFTER FEBRUARY 7, 1991 BECAUSE PLAINTIFF ALEXANDER TERLETSKY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT:
(a) PRUPAC DID NOT HAVE A REASONABLE BASIS FOR PARTIALLY DISPUTING PAYMENT OF THE ARBITRATION AWARD
(b) PRUPAC RECKLESSLY DISREGARDED ITS ALLEGED LACK OF A REASONABLE BASIS FOR NON-PAYMENT OF $25,000 FOR APPROXIMATELY SIX (6) MONTHS?
7. DID NOT THE LOWER COURT ERR IN FINDING THAT PRUPAC’S POSITION REGARDING PAYMENT OF THE $25,000 “TOOK ON THE CHARACTER OF A VENDETTA” AS THERE WAS NO EVIDENCE TO SUPPORT SUCH A FINDING FOR THE TIME PERIOD SUBSEQUENT TO FEBRUARY 7, 1991?
8. DID NOT THE LOWER COURT ERR IN ITS FINDINGS OF FACT, NOS. 16(a), (b), (c) and (d) WHICH WERE INCOMPLETE AND NOT REPRESENTATIVE OF THE ENTIRE RECORD AND IGNORED BINDING UNREBUTTED CREDIBLE EVIDENCE INTRODUCED BY PLAINTIFFS’ COUNSEL ON CROSS-EXAMINATION OF PRUPAC WITNESSES WHICH SHOWED THE PRUPAC’S DECISION-MAKING AND CONDUCT IN DISPUTING THE $25,000 WAS NOT RECKLESS?
9. WAS NOT PRUPAC ENTITLED TO A NON-SUIT AS PLAINTIFFS FAILED TO PROVE BAD FAITH BY CLEAR AND CONVINCING EVIDENCE?
10. DID NOT THE LOWER COURT ERR IN ADMITTING EVIDENCE RELATING TO PRUDENTIAL’S ACTIONS AND CONDUCT WHICH OCCURRED PRIOR TO JULY 1, 1990, THE DATE ON WHICH THE BAD FAITH STATUTE BECAME EFFECTIVE?
11. DID NOT THE LOWER COURT ERR IN AWARDING PLAINTIFFS’ COUNSEL $15,000 FOR ATTORNEYS FEES WHERE MUCH OF HIS PREPARATION AND TRIAL TIME WAS SPENT ON ISSUES UNRELATED TO PRUPAC’S ALLEGED BAD FAITH CONDUCT SUBSEQUENT TO FEBRUARY 7, 1991 AND THE FEE AWARD SHOULD HAVE BEEN PRO-RATED?
12. DID NOT THE LOWER COURT ERR IN AWARDING ANY COUNSEL FEES AS THERE WAS NO EVIDENCE THAT PLAINTIFFS ENTERED INTO ANY FEE AGREEMENT FOR THIS BAD FAITH SUIT?

Prudential’s Brief at 1-4.

As the Terletskys and Prudential have raised similar issues on appeal, we will review them together. Initially, we consider the trial court’s findings of fact. The Terletskys and Prudential both contend that the trial court erred in its factual findings. We note the following standard in addressing these claims:

The role of an appellate court in reviewing findings of fact is to determine whether the findings are supported by competent evidence and whether the trial court committed error in the application of the law; the findings of a trial court in a nonjury case must be given the same weight and effect on appeal as the verdict of a jury, and those findings will not be disturbed on appeal absent errors of law or unsupported by competent evidence in the record. Porter v. Katas, 409 Pa.Super. 159, 597 A.2d 709 (1991). The test is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992).

American States Insurance Company v. Maryland Casualty Company, 427 Pa.Super. 170, 192, 628 A.2d 880, 891 (1993). Further, “[i]t is well-established that decisions regarding the weight and the credibility of testimony are within the province of the trier of fact and will not be disturbed upon our cold review of the record.” Id. (citing Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 595 A.2d 1211 (1991); In Re New 12th Ward Republican Club, 412 Pa.Super. 255, 603 A.2d 205 (1992)). Moreover, as a fact finder, it is a judge’s prerogative to believe part of a witness’ testimony and find him mistaken as to the other part. Miller v. C.P. Centers Inc., 334 Pa.Super. 623, 629, 483 A.2d 912, 915 (1984) (citing Walker v. Martin, 214 Pa.Super. 287, 257 A.2d 619 (1969)).

The Terletskys assert that the trial court erred in not considering their request for additional findings of fact, thereby not taking into account all of the evidence against Prudential prior to entering judgment. Specifically, the Terletskys maintain that the trial court should have found that no basis existed for the independent medical examination or the sworn statements, that the independent medical examination was simply a cost-cutting measure, that Anna Pace interfered with the arbitration deliberation process and that it was a conflict of interest to use the same claims adjuster to defend the third-party claims of Michael Brown and the uninsured motorist claims of the Terletskys. We disagree.

The trial court’s findings of fact are adequately supported by competent evidence. First, witness testimony indicates that a legitimate medical basis existed for the independent medical examinations. There were conflicting doctor’s opinions with regard to the injuries of Alexander Terletsky (N.T. February 18, 1993 at 93), and there was a specific question as to Alexander Terletsky’s back injury. (N.T. February 19, 1993 at 96). Further, questions existed as to the medical treatments of Marina Terletsky. (Id. at 27-28). Next, there is no evidence to suggest that the sworn statements requested by Prudential lacked basis. On the contrary, evidence indicates that although a summary of the statements was sufficient for review by management, the statements were expected to be reviewed for the uninsured motorist claims. (Id. at 97-98).

Additionally, there is no indication that Anna Pace interfered with the deliberation process. Anna Pace stated that she had spoken with the arbitrator and that he had informed her of the status of the arbitration awards. Although Anna Pace may have been given specific information regarding the arbitration award status (N.T. February 22, 1993 at 164) (Plaintiffs Exhibit 22), there is no evidence that she interfered with or influenced the deliberations of the arbitrators.

Finally, the evidence does not support a conflict of interest on the part of the claims adjuster. The adjuster was handling both the Terletskys’ uninsured motorist claims and Michael Brown’s liability claim; however, there is no evidence that claims adjuster performed her duties in a manner which was partial toward Michael Brown. In contrast, Michael Brown’s claim against the Terletskys was settled for a relatively nominal amount of money. Further, there is no indication that the claims adjuster attempted to extract testimony from Michael Brown that was detrimental to the Terletskys in exchange for a generous settlement of his claim against the Terletskys. Moreover, the trial court judge was unconcerned with the fact that the claims adjuster was handling both claims. See Hudock v. Donegal Mutual Insurance Company, 438 Pa. 272, 264 A.2d 668 (1970) (while insurance adjuster had a duty to his principal, the insurance company, to perform whatever tasks assigned to him, such duty did not serve to create a contractual obligation between the adjuster and the insured).

In its cross-appeal, Prudential argues that the trial court erred in its findings of fact 16(a), (b), (c) and (d) because those facts were incomplete and not representative of the entire record and ignored unrebutted credible evidence which showed that Prudential’s conduct in disputing the $25,000.00 was not reckless. We disagree.

Initially, we note that the trial court’s findings of fact 16(a), (b), (c) and (d) are well supported by evidence. However, Prudential has failed to include any evidentiary support for its contention that these findings are incomplete and not representative of the record. Thus, Prudential has contravened the Pennsylvania Rule of Appellate Procedure 2119. See Dalton v. Dalton, 409 Pa.Super. 258, 597 A.2d 1192 (1991) (appellant fails to develop any argument; we will not conjecture any theory absent appellant’s consideration of this issue); Giant Markets v. Sigma, 313 Pa.Super. 115, 459 A.2d 765 (1983) (where argument is not carried forward in the brief, it will not be considered). Hence, this issue is deemed waived. Therefore, we conclude that the trial court’s factual findings are supported by competent evidence and will not be disturbed.

Next, we address the trial court’s finding of bad faith. The Terletskys claim that the trial court failed to include additional acts of bad faith in making its determination. Prudential, however, avers that the trial court’s initial finding of bad faith was erroneous.

We recognize that there is no common law remedy in Pennsylvania for bad faith on the part of insurers. D ’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 507, 431 A.2d 966, 970 (1981); Romano v. Nationwide Mutual Fire Ins. Co., 435 Pa.Super. 545, 552, 646 A.2d 1228, 1232 (1994). However, the Pennsylvania Legislature has created a statutory remedy in 42 Pa.C.S.A. § 8371 which became effective on July 1, 1990. The statute provides that:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S.A. § 8371. In the insurance context, the term bad faith has acquired a particular meaning:

Insurance. “Bad faith” on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (ie., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.
Black’s Law Dictionary 139 (6th ed. 1990) (citations omitted).

Rottmund v. Continental Assurance Company, 813 F.Supp. 1104, 1108-09 (E.D.Pa.1992); Coyne v. Allstate Insurance Company, 771 F.Supp. 673, 677-78 (E.D.Pa.1991). Further, bad faith must be proven by clear and convincing evidence and not merely insinuated. Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 472, 134 A.2d 223, 229 (1957); Hall v. Brown, 363 Pa.Super. 415, 420, 526 A.2d 413, 416 (1987), appeal denied, 522 Pa. 624, 564 A.2d 916 (1989); United States Fire Insurance Company v. Royal Insurance Company, 759 F.2d 306, 309 (3d Cir.1985). Finally, to recover under a claim of bad faith, the plaintiff must show that the defendant did not have a reasonable basis for denying benefits under the policy and that defendant knew or recklessly disregarded its lack of reasonable basis in denying the claim. American Franklin Life Insurance Company v. Galati, 776 F.Supp. 1054, 1064 (E.D.Pa.1991); see also D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, supra.

The Terletskys allege that Prudential’s low settlement offers prior to the uninsured motorist arbitration were indicative of bad faith. We disagree.

Prudential offered Marina Terletsky $17,500.00 in settlement of her uninsured motorist claim. Additionally, Alexander Terletsky was offered $40,000.00 in settlement of his uninsured motorist claim. (N.T. February 19, 1993 at 48). Prudential’s offers were reasonably based, thus they did not constitute bad faith. Prudential took into account many factors in determining the offers. (N.T. February 18, 1993 at 66). For example, Prudential considered medical questions that existed with regard to the Terletskys’ claims. The diagnosis of Marina Terletsky’s “frozen shoulder” was unclear (N.T. February 19, 1993 at 120), and there was a question as to whether she sustained a soft tissue injury. (Id. at 119-20). Additionally, there were conflicting reports as to the severity of her injuries. (Id. at 67-68). Neither Marina nor Alexander Terletsky claimed a wage loss as a result of the accident (N.T. February 18, 1993 at 143), and the police report of the accident did not indicate that any passengers had been injured. (Id. at 130). Finally, the minor damage to the car during the accident suggested that the passengers had not received serious injuries. (Id. at 155).

In addition, Prudential assessed the liability of each driver before making an offer. (N.T. February 19, 1993 at 61). See Day v. State Farm Mutual Insurance Company, 261 Pa.Super. 216, 396 A.2d 3 (1978) (Uninsured Motorist Act was intended to provide recovery by an insured only those damages which he would have received had the uninsured motorist maintained liability insurance). The location of the damage to the cars, for example, entered into the liability evaluation because it indicated that Michael Brown had successfully completed his turn before the impact. (Id. at 58). The probable liability of each driver was set at fifty-fifty (Id. at 61); therefore, the offers made to the Terletskys were fifty percent lower than the value of the case. (Id. at 62). Finally, Prudential determined that Michael Brown was a credible witness and, thus, his testimony was also considered in reaching a settlement offer. Consequently, Prudential’s initial settlement offers to the Terletskys had a reasonable basis. Accordingly, we conclude that the offers were not indicative of bad faith.

On cross-appeal, Prudential contends that the trial court’s finding of bad faith was against the weight of the evidence. We agree.

Our scope of review on a weight of evidence claim is limited. We will respect the trial court’s finding with regard to credibility of the evidence unless it can be shown that the determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence. Gemini Equipment v. Pennsy Supply, supra, 407 Pa.Super. at 413, 595 A.2d at 1215 (citations omitted). We address Prudential’s claim mindful of this standard.

To recover under a claim of bad faith, the Terletskys were required to show that Prudential lacked a reasonable basis for partially denying payment of the arbitration award and that Prudential recklessly disregarded a lack of reasonable basis in denying the payment. Prudential’s actions, however, were reasonably based. Prudential was justified in relying on Chartan v. Chubb Corp., supra, in disputing the remaining portion of the arbitration award. At the time of the Terletskys’ accident, Pennsylvania law regarding the “stacking” issue was unsettled. Similarly, federal courts interpreting Pennsylvania law could not reach an agreement on the issue. In Chartan v. Chubb Corp., supra, the federal court held that an insured could not “stack” uninsured motorist coverage in an amount that exceeds the insured’s liability coverage. Id. Prudential’s claims manager, William Swartz, stated that Prudential had adopted this philosophy on every claim it handled, thus, it would not pay claims or awards above the bodily injury limit of the policy. (N.T. February 19, 1993 at 135-36). Further, Swartz admitted that although he was familiar with the cases that followed Chartan v. Chubb Corp., supra, he was also aware of federal cases that disagreed with its holding. (Id. at 130-31). However, he testified that he was unaware of any Pennsylvania Superior Court or Pennsylvania Supreme Court cases that addressed this specific stacking issue. (Id.) Therefore, he believed that Prudential had a reasonable basis for partially disputing payment and filing a petition to modify the arbitration award. (Id. at 138).

Additionally, the Boulware memo does not indicate that Prudential’s actions lacked a reasonable basis. In the memo, Clayton Boulware, Prudential’s general corporate counsel, advised Prudential -with regard to the Terletskys uninsured motorist claims that stacking was permitted. (Memorandum of Clayton Boulware, January 8, 1991). However, the memo discussed the state of the law as it existed after the enactment of Act 6. (Id.) Anna Pace reviewed the memo and later determined that an appealable issue existed because the Terletskys’ claim was made prior to the enactment of Act 6, thus the reasoning in the Boulware memo would not apply. (Id.)

Moreover, Prudential’s actions were reasonably based because Prudential obtained advice of outside counsel with regard to the Terletskys’ claims. Prudential claims representative, Trythall, and Prudential claims manager, Swartz, both consulted outside counsel about the issue of “stacking” in Pennsylvania. (N.T. February 18, 1993 at 110; N.T. February 19, 1993 at 138). Outside counsel Joseph Cunningham testified that he had advised Prudential as to the case law relating to “stacking” (N.T. February 22, 1993 at 24), and stated that at the time of Terletskys’ claim, he believed that the law in Pennsylvania regarding “stacking” of uninsured motorist claims was in flux and that various companies were relying on the Chartan decision. (Id. at 220). Therefore, we conclude that Prudential had a reasonable basis for disputing a portion of Alexander Terletsky’s arbitration award. Thus, the Terletskys have not proven that Prudential acted in bad faith. Hence, the Terletskys are not entitled to damages under the “bad faith” statute 42 Pa.C.S.A. § 8371.

Consequently, due to our disposition of the bad faith claim, we need not address the Terletskys’ claims with regard to punitive damages. Additionally, we need not consider Prudential’s claims on cross appeal relating to the imposition of counsel fees and the retroactive application of the bad faith statute. Accordingly, we reverse the trial court’s finding of bad faith.

Order reversed.

CAVANAUGH, J., concurs in the result.

      . The Terletskys’ counsel offered an alternative plan on October 25, 1989 under which he would choose one of three physicians who were named by Prudential but were not associated with Penn Diagnostic Center. N.T. February 19, 1993 at 38.

      . The arbitration provision provided as follows:
      Arbitration
      Whether the insured is legally entitled to recover damages, and the actual amount we’ll pay under this part, will be determined by agreement between the insured person and us. If no agreement can be reached, upon written demand of either party, the matter will be submitted for arbitration according to the rules of the American Arbitration Association. Both we and the insured person agree to be bound by the decision of the arbitrators.
      Terletskys’ Insurance Policy at 21.

      . The arbitrators also awarded Marina Terletsky $125,000.00 for her uninsured motorist claim.

      . "Stacking is where a claimant adds all available policies together to create a greater pool in order to satisfy his actual damages.” 12A Couch on Insurance 2d § 45:651 at 207 (1981). It "permits the total amount of uninsured motorist coverage provided for all vehicles listed in an insurance policy to be applied to the damages resulting from an accident involving only one of the vehicles.” Rhody v. State Farm Mut. Ins. Co., 771 F.2d 1416, 1418 (10th Cir.1985).

        West American Insurance Company v. Park, 933 F.2d 1236, 1237 n. 1 (3rd Cir.1991).

      . Chartan v. Chubb Corp., 725 F.Supp. 849 (E.D.Pa.1989) (Chartan I), held that in an uninsured motorist claim, the insured could recover no more than the liability limits that the insured had purchased to protect a single individual. Id.

      . Act 6, which refers to an omnibus act that includes 75 Pa.C.S.A. § 1738 which authorizes “stacking,” did not become effective until July 1, 1990.

      . The Terletskys’ sought damages under the “bad faith” statute which allows the court to award interest, punitive damages and counsel fees upon a finding of bad faith on the part of the insurer. 42 Pa.C.S.A. § 8371.

      . The Terletskys argue that the trial court erred in denying their objections to Prudential’s post-trial motions. Specifically, the Terletskys maintain that Prudential’s post-trial motion brief was not filed in a timely manner, thus the court abused its discretion in failing to dismiss Prudential’s post-trial motions. However, when a trial court elects to hear untimely post-trial motions and addresses the alleged error on the merits, we are bound to review the merits. Bilec v. Auburn & Associates, Inc. Pension Trust, 403 Pa.Super. 176, 181 n. 2, 588 A.2d 538, 540 n. 2 (1991) (citing Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989); Donegel Mutual Insurance Co. v. State Farm, 377 Pa.Super. 171, 546 A.2d 1212 (1988)).

      . In response to a question regarding her conversation with the arbitrator, Anna Pace stated:
      I recall having spoken to Mr. Parks [and] he advised me that the award as to Alexander Terletsky had been made and was final and he told me the amount, and that the award as to Marina Terletsky was still pending, that deliberations were still under way.
      N.T. February 22, 1993 at 145.

      . The trial court’s findings of fact 16(a), (b), (c) and (d) are as follows:

        16. a. On February 7, 1991, claims representative Trythall instructed Prudential's house counsel to "appeal.” The alleged ground for “appeal” was that the policy provided for $100,000.00 liability for claimant and “stacking” was not permitted, as held in Chartan v. Chubb Corp., 725 F.Supp. 849 (E.D.Pa.1989) (Chartan I). (P2). Trythall took this position notwithstanding that house counsel, Anna Pace, advised her on that same day that “Corporate advised we will no longer argue Chartran [sic] issue.”
      b. Under date of January 8, 1991, corporate counsel for Prudential, Clayton W. Boulware, Esquire, had advised management, that
      Act 6 and recent Court decisions have effectively attenuated the Chartan holding; so much so that UM and UIM coverages are not capped at the maximum single policy liability limit.
      * Sj! * Si? * *
      It can be reasonably concluded that an insured retains his or her right to stack uninsured and underinsured coverages, even if that stacked amount exceeds the maximum single policy liability limit.
      c. In a log note dated February 14, 1991, Trythall states that Ms. Pace "wants to know if we want to appeal, told her I already advised her we do. She [is] arguing Boulware’s memo on ‘Chartran’ [sic] issue states we shouldn’t. Advised [supervisor spoke with] Boulware and he said it applied to post-Act 6, can argue Chartran [sic] if we [want]. [Spoke with claims unit manager] Spiro, he’ll discuss [with] John Gordon.”
      d. On February 20, 1991, Defendants, by their outside counsel, filed a petition to modify the award of the Arbitrators as # 91001752-16-2 in Bucks County. The petition and accompanying Memorandum of Law made no reference to the stacking issue, but merely stated that the award of the arbitrators was "deficient in form,” and requested that the award to Alexander be reduced to $100,000.00. A hearing was scheduled for July 12, 1991.
      Trial Court's Findings of Fact, April 2, 1993 at 8-9.

      . The trial court’s findings of fact 16(a), (b), (c) and (d) are supported by testimony and exhibits. (N.T. February 22, 1993 at 123-25) (Plaintiff's Exhibits 2, 3 and 18).

      . Prudential states that the evidence for its argument is “set forth above.” (Prudential’s Brief at 30). However, Pennsylvania Rules of Appellate Procedure require:
      (d) Synopsis of Evidence. When the finding of, or the refusal to find, a fact is argued, the argument must contain a synopsis of all the evidence on the point, with a reference to the place in the record where the evidence may be found.

        Pa.R.A.P. 2119(d). Prudential’s argument, therefore, does not conform to the Pennsylvania Rules of Appellate Procedure.

      . The Terletskys also contend that Prudential’s bad faith was evidenced by Anna Pace’s interference with the arbitrators’ deliberation and the claims adjuster’s conflict of interest in handling both the Terletskys uninsured motorist claims and Michael Brown’s liability claim. However, we have previously stated that these claims are unsupported by the evidence. Thus, these claims cannot support an allegation of bad faith.

      . Prudential also maintains that it is entitled to a non-suit because the Terletskys failed to prove bad faith by clear and convincing evidence. We disagree.
      A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff’s evidence. Storm v. Golden, 371 Pa.Super. 368, 373, 538 A.2d 61, 63 (1988), appeal denied, 524 Pa. 630, 574 A.2d 71 (1990) (citing Francioni v. Gibsonia Truck Corporation, 472 Pa. 362, 372 A.2d 736 (1977)).
      A judgment of nonsuit is properly entered only if the factfinder, viewing the evidence and all reasonable inferences from the evidence in the light most favorable to the plaintiff, could not reasonably conclude that the elements of a cause of action have been established. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

        American States Insurance Company v. Maryland Casualty Company, supra, 427 Pa.Super. at 187, 628 A.2d at 889 (citing Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983)).
      Here, Prudential withheld partial payment of Alexander Terletsky’s arbitration award. Further, Prudential’s grounds for withholding the award were contrary to the advice of management. (Plaintiff’s Exhibit 3). Thus, Prudential's refusal to pay the entire award could be viewed as unfounded. Therefore, in viewing the evidence in the light most favorable to the Terletskys, we conclude that the Terletskys established the elements of a bad faith cause of action. Hence, the trial court did not err in failing to grant a non-suit.

      . Additionally, Prudential asserts that the trial court erred in finding that Prudential’s position regarding the disputed payment took on the character of a vendetta. We agree.
      Prudential’s actions were reasonably based, thus, the Terletskys did not show that Prudential acted in bad faith. Therefore, we conclude that the evidence does not support a finding of a vendetta on the part of Prudential.

      . Prudential also claims that the trial court’s verdict was contrary to law. However, Prudential has failed to develop its arguments, thus, this issue is waived pursuant to Pa.R.A.P. § 2119. See Dalton v. Dalton, supra.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    649 A.2d 691
    Teresa S. PAULONE, Appellant (at 1427) v. Daniel J. PAULONE, Appellant (at 1461).
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1994.
    Filed Nov. 4, 1994.

      Robert Raphael, Pittsburgh, for Teresa Paulone.
    H. Reginald Belden, Jr., Greensburg, for Daniel Paulone.

      Before DEL SOLE, FORD ELLIOTT, and MONTGOMERY, JJ.
   FORD ELLIOTT, Judge:

Before us are cross-appeals from an order of the Court of Common Pleas of Westmoreland County directing equitable distribution of marital property. The parties’ principal dissatisfaction with the trial court’s order centers upon Husband’s pension plan and profit sharing plan. For the reasons set forth herein, we must reverse and remand.

Husband and Wife were married on June 18, 1980, and separated on or about September 15, 1989. A complaint in divorce was filed by Wife on August 14, 1990. The action was bifurcated and a decree in divorce was entered on August 26, 1992. No children were born of this marriage. Husband is self-employed in a family-owned and operated lumber and home building business. Wife is employed as a teacher. A Master’s hearing was conducted on July 15, 1992. In his report filed January 14, 1993, the Master recommended that the assets of the marital estate be divided on an equal basis. Both parties filed exceptions to the report. A hearing was held on July 16,1993, by the trial court for clarification on the issue of Husband’s pension. The trial court adopted the Master’s report and recommendation with the exception of the valuation of the pension and profit sharing plans and entered an order dated July 28, 1993. Subsequently, an amended order was entered on August 17,1993, to correct a typographical error. These timely appeals followed.

On appeal both parties challenge the exercise of the trial court’s discretion in its handling of Husband’s pension and profit sharing plans. Wife challenges the method of valuation utilized by the trial court, and Husband disputes the method of distribution.

Before addressing the issues presented, we note that in reviewing challenges to an order of equitable distribution, the trial court’s decision will stand unless the court abused its discretion in formulating the order. Endy v. Endy, 412 Pa.Super. 398, 403, 603 A.2d 641, 643 (1992). We have stated that an abuse of discretion is not found lightly, but upon a showing of clear and convincing evidence. Miller v. Miller, 421 Pa.Super. 23, 27, 617 A.2d 375, 377 (1992). Under the abuse of discretion standard, the appellate court does not usurp the trial court’s duty as factfinder. Id. An abuse of discretion will be found by this court if the trial court failed to follow proper legal procedures or misapplied the law. Liciardello v. Liciardello, 391 Pa.Super. 219, 221-22, 570 A.2d 1062, 1063 (1990).

Accepting the parameters of our review, we turn first to the issue presented by Wife. Wife argues that the trial court abused its discretion by applying a coverture fraction to Husband’s pension and profit sharing plans which resulted in an unfair and unequitable valuation of the marital component on the plans. The thrust of Wife’s claim is that because Husband’s plans are defined contribution plans, the use of a coverture fraction is not required for determining the marital portion for equitable distribution.

Pension plans are generally of two basic types: the defined contribution plan and the defined benefit plan. Recently, in Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993), our supreme court discussed the two types of pension plans.

A defined benefit plan is one in which the employer promises a certain benefit; a defined contribution plan is one in which the employer promises a certain contribution.
In a defined benefit plan, the benefit which is promised is calculated by a formula defined in the pension plan provisions. The employer pays a specified benefit at retirement. In some defined benefit plans, the employee contributes nothing; in others, the benefits are based, in part, on what the employee contributes. The employer’s contribution to the plan, however, varies from year to year based on the amount which is needed at any particular time to pay the benefits which are due. Individual accounts of each employee’s contribution, if any, are maintained, but these accounts do not specify an employer contribution.
In a defined contribution plan, however, individual accounts specify not only the employee’s contribution, but the employer’s as well. The benefits to be paid in the defined contribution plan, however, unlike those in the defined benefit plan, are not fixed, for they depend upon the performance of investments which are made with the contributions.

Id. at 396 n. 1, 633 A.2d at 590 n. 1. Because of the distinct nature of each of these plans, their method of valuation is different as well. As one commentator has explained:

Valuing the defined contribution plan
Defined contribution plans are similar to savings accounts, in the sense that the value of each individual account is indicated by current account statements. The [marital portion subject to equitable distribution] in the employee’s retirement account is equal to the value of the account at the date of separation. Valuation becomes a matter of reviewing the latest account statement furnished to the employee by the plan administrator. For example, if the parties separate on January 1, and the latest account statement dated January 1 lists the fair market value of the employee’s account as $20,000, that figure is the value of the account for the purpose of disposing of the retirement interest. When separation occurs after the most recent statement, the fair market value of the account can be approximated by determining what additional investments were made on behalf of the account and computing increases, or decreases, in the account. Further information from the plan administrator should be available to make an acceptably accurate determination in this instance.
Valuing the defined benefit plan
It is the defined benefit plan which raises significant valuation problems. Unlike the defined contribution plan, there is no individual account statement which provides the parties with the value of the plan at regular intervals. All we know is that if the employee stays alive and on the job until retirement, he will be entitled to receive a specified monthly payment for the balance of his life.
Defined benefit plans are valued by actuarially determining their present value. ... The calculation of a present value requires discounting for mortality, based upon group annuity mortality tables, discounting for interest, and discounting for the probability that the employee will remain with the company to retirement age. All of the various factors can be considered by the actuary in determining the present value of the plan.

Hardie, Pay Now or Later: Alternatives in the Disposition of Retirement Benefits on Divorce, 53 Cal. St. B.J. 106 (1978) (footnotes omitted) (parenthetical added).

Wife argues on appeal that because no present value calculation is necessary for the valuation of a defined contribution plan, then no coverture fraction calculation need be applied to such a benefit. In effect, the value of the marital portion of the plan account is readily ascertainable by simply reviewing the account for the dates and amounts of the contributions.

As to the valuation of the pension benefits involved in the instant case, we agree with Wife that the use of a coverture fraction is unnecessary and unfairly reduces the portion of the pension which should be available for distribution. However, we will not go so far as to direct that the use of the coverture fraction is inapplicable to all defined contribution plans.

We begin our analysis by stating that an exhaustive review of the case law in this Commonwealth reveals that the vast majority of reported decisions deal with the valuation and distribution of defined benefit pension plans, and the coverture fraction calculations are an important part of the analysis in these decisions. The numerator of the coverture fraction represents the number of years the parties were married, and the denominator represents the number of years the employee/spouse participated in the plan. Katzenberger v. Katzenberger, 409 Pa.Super. 10, 597 A.2d 636 (1991), affirmed, 534 Pa. 419, 683 A.2d 602 (1993), relied upon by the trial court, is one such example.

While the coverture fraction is an essential component of this formula for determining marital portion of the defined benefit plan, it is not an essential factor in the valuation process itself. The coverture fraction is merely a way to calculate what portion of a pension adjusted to present value is attributable to the marriage. See: Berrington, supra; Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990); Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988); DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987).

As set out earlier, because a defined contribution plan is very similar to a savings account with valuation readily determinable, the marital portion of that valuation may also be readily ascertainable without resort to a percentage calculation. If upon reviewing the account records the value of the plan at both the date of marriage and date of separation is apparent, then the marital portion of the pension account is easily established. It is the difference between the two. This valuation would include all contributions made during the marriage as well as any increases in value of all contributions made both marital and non-marital. Moreover, no separate determination of increase in value of the pre-marital portion is required. Following this valuation of the marital portion of the defined contribution plan the only additional calculations left for the court would be to determine the distributive share of the pension and its increase in value from date of separation to date of distribution.

Turning to the case at hand, because the valuation of husband’s defined contribution plans appears readily ascertamable, the application of the coverture fraction is unnecessary. Therefore, we must vacate the order of the trial court and remand for recalculation of the marital share of the plans.

Our decision today focuses on the particular pension and profit sharing plans before this court and precludes the use of a coverture fraction calculation for this plan. However, we will not at this time extend our holding to include all defined contribution plans. The valuation of any pension plan must depend upon the characteristics of the individual plan. To the extent that there are defined contribution plans, which accounts will not show specific account balances for the years of marriage, then it may well be that a coverture fraction may have to be utilized in determining the percentage of the account balance which is attributable to the marriage. We also note that there may be instances where a coverture fraction need not be applied to a defined benefit plan. Specifically, in the instance where the coverture fraction represents one hundred percent. Accordingly, we leave it to the discretion of the trial court whether such a calculation is necessary in any given case. The use of a coverture fraction has nothing to do with the valuation of a pension plan itself. Rather, its sole purpose is to determine what part of the value of the plan is attributable to the years of marriage and hence marital property subject to equitable distribution. However, if this marital portion is clear from the records of the plan itself, the use of the coverture fraction is unnecessary and potentially unfair to either the employee or non-employee spouse.

The issue presented by Husband on appeal challenges the method of distribution utilized by the trial court of Husband’s pension plans. Husband contends that the trial court erred in utilizing the immediate offset method rather than the deferred distribution method for distribution of funds in the pension and profit sharing plans.

Retirement benefits may be distributed by either an immediate offset method which divides the benefits at the time of the equitable distribution proceeding or the deferred distribution method which allows the court to reserve jurisdiction over the benefits until they mature or enter pay status. See Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), regarding discussion of two methods as they apply to a defined benefit plan.

The reasons why one method may be preferred over another have been set out as follows:

Deferred distribution ... is the preferred method of distribution for unvested retirement benefits, since the risks of nonreceipt of the benefits are shared by the parties. Deferred distribution may also be the method of choice where the parties have insufficient assets to effect an immediate distribution____
Immediate offset is sometimes preferable because it ends the relationship between the parties and can be utilized where the parties have sufficient assets to make an exchange. The immediate offset method involves an immediate distribution of the retirement benefits by way of a set-off for the present value of the benefits. The present value is an estimate of the current worth of the future payments ....

Wilder, Family Law Practice & Procedure, (3d ed. 1993) § 23-3 at 266 (footnotes omitted).

Because we are dealing instantly with a defined contribution plan where valuation is not a factor, the only consideration before the court as to method of distribution is whether there are sufficient assets available to make an adequate division of marital property. Husband argues that he has insufficient liquid assets to satisfy Wife’s marital portion of the pension plans. He argues that a deferred distribution of the funds is the better method or, in the alternative, that the trial court should order an immediate rollover from IRA funds and pension and profit sharing funds to Wife.

The court appears to have recognized Husband’s difficulties with liquidity of assets when it states as follows: “The Court is further aware that said adjustment will be a relatively large amount but the Court will try to accommodate the ability of the defendant to pay said amount.” Trial court opinion, 7/28/93 at 9. Because we are vacating the order of the trial court as to the valuation of the pension and profit sharing plans and remanding for a recalculation of the marital share, we leave to the trial court on remand to determine anew what method of distribution is now appropriate.

Reversed and remanded for proceedings consistent with this opinion.

      . The present value of the pension benefit or employee benefit is estimated to be .the amount of monies the employee would take in return for giving up his right to an unknown number of future payments. This amount is discounted by actuarial calculations reflecting contingencies that could affect future pay outs, with such discounts being given for mortality, inflation, interest, probability of continued employment and probability of vesting.
      Skoloff, How to Evaluate and Distribute Employee Benefits in Divorce, NAT’L. L.J. 25 (February 13, 1984).

      . We direct the trial court’s attention to the following matter. At the July 16, 1993 hearing, it appears that both counsel agreed to the value of each plan using a valuation date of January 31, 1991. Deducted from that value were three months of post-separation contributions made by husband in 1989. Our concern centers on the fact that no mention is made of a deduction of any 1990 post-separation contributions. Since our decision today requires a remand for a complete revaluation, we leave this matter to the court’s consideration and the parties’ explanation on remand.


author: JOHNSON, Judge: OLSZEWSKI, Judge,

text:
    649 A.2d 695
    COMMONWEALTH of Pennsylvania v. Tammy Lou KENDALL, Appellant. COMMONWEALTH of Pennsylvania v. Natalie L. PECK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1994.
    Filed Nov. 1, 1994.

      Lorenzo W. Tijerian, Arlington, VA, for appellants.
    James M. Schall, Dist. Atty., McConnellsburg, for the Com., appellee.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

Tammy Lou Kendall and Natalie L. Peck, drivers of two separate vehicles, were each stopped at the same field sobriety checkpoint (the checkpoint). Subsequently, Kendall and Peek were found guilty of driving under the influence of alcohol (DUI). Kendall was also convicted of possessing marijuana. Both Kendall and Peck challenge the constitutionality of the checkpoint. In addition, Kendall asserts that the marijuana found following a search of her purse should have been suppressed. We affirm the judgments of sentence for the DUI convictions, but we reverse Kendall’s judgment of sentence for the marijuana conviction and remand the matter for further proceedings.

The facts can be summarized as follows: On July 11, 1992, the police in Fulton County, Pennsylvania, set up the check - point which they operated between the hours of midnight and 3:00 a.m. All cars passing through the checkpoint during this time were stopped, except for those passing through between approximately 12:30 and 12:45 when operation of the checkpoint was suspended due to rain. Further, cars were not stopped during the set up and removal of the checkpoint. The checkpoint site was chosen by the State Police and the Pennsylvania Department of Transportation based on traffic analyses of alcohol-related accidents. In accordance with administrative procedures, the police issued a news release indicating generally where and when the checkpoint would be set up. Warning signs were posted approaching the checkpoint location, and the area was illuminated by lights and flares. As cars were stopped at the checkpoint, an officer asked each driver for his or her license and registration, and, if any violation of the Motor Vehicle Code was detected, the driver was detained for further investigation.

At 2:50 a.m., Trooper Maynard Gray observed Peck approach the checkpoint at a very slow rate of speed.' Upon requesting Peck’s license, Trooper Gray detected an odor of alcohol. He then had Peck perform several field sobriety tests, which she failed. After her arrest for DUI, Peck admitted that she had been drinking. Subsequently, a blood alcohol test showed Peck’s blood alcohol level to be .201%. An officer later stopped Kendall at the checkpoint and arrested her when she, too, failed the field sobriety tests. Trooper Stephen Shelley then searched Kendall’s purse before transporting her to the hospital for blood alcohol tests, and he discovered two marijuana roaches inside a small change purse. As a result, she was also charged with possession of marijuana.

Prior to trial, Kendall and Peck filed motions to suppress which were denied. Following a bench trial, the court found Kendall and Peck guilty of DUI, and further found Kendall guilty of possession of marijuana. Their post-trial motions were filed and denied. Thereafter, the trial court sentenced both Kendall and Peck to a term of imprisonment of 48 hours to 23 months for their DUI convictions, and ordered that they each pay a $400 fine. In addition, Kendall received a suspended sentence and 30 days’ probation for the possession charge. These appeals followed and, by stipulation, were consolidated for our review.

On appeal, Kendall and Peck acknowledge the legality of sobriety checkpoints conducted in a non-arbitrary fashion. They argue, however, that the police officers conducting this checkpoint violated their Fourth and Fourteenth Amendment right to privacy by allowing some cars to pass through the checkpoint unstopped, in violation of the predetermined administrative procedures. Kendall further argues that the marijuana discovered during the search of her purse should have been suppressed as the result of an illegal search.

We note that when reviewing the denial of a motion to suppress, we “determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we will consider the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Brundidge, 533 Pa. 167, 170, 620 A.2d 1115, 1116 (1993) (citation omitted).

First, Kendall and Peck contend that the checkpoint in this case was unconstitutional because the police officers allegedly failed to stop all cars entering the checkpoint, as required by predetermined procedures. Thus, they claim that the resulting arrests were invalid, and any evidence gathered therefrom should be suppressed. Our supreme court has upheld the constitutionality of “systematic, non-discriminatory, non-arbitrary roadblocks.” Commonwealth v. Blouse, 531 Pa. 167, 173, 611 A.2d 1177, 1180 (1992); see also Commonwealth v. Myrtetus, 397 Pa.Super. 299, 580 A.2d 42 (1990). In Blouse, the court adopted guidelines for a constitutional roadblock:

First, the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection^] it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.

Blouse, 531 Pa. at 172, 611 A.2d at 1180, quoting Commonwealth v. Tarbert, 517 Pa. 277, 293, 535 A.2d 1035, 1043 (1987) (plurality). The court further held that “[sjubstantial compliance with the guidelines is all that is required to reduce the intrusiveness of the search to a constitutionally accepted level.” Id.

In the present case, Kendall and Peck maintain that “even though the State Police were to stop all vehicles that entered the checkpoint^ they] did not follow their prefixed standard and were allowed to exercise their own discretion.” This contention is meritless. First, the trial court found, and we agree, that the preliminary procedures of setting up the checkpoint were followed here. In an apparent effort to show that the checkpoint was operated in an arbitrary manner, the defense offered the testimony of several persons who stated that they passed through the checkpoint without being stopped. However, a review of the transcript reveals that all vehicles, except a state police cruiser, were stopped during the checkpoint’s operation. See Omnibus Pretrial Hearing, January 19, 1993, at 16, 29, 40. Defense evidence to the contrary need not be considered. Brundidge, supra.

Even if we were to consider defense evidence, we find that it can be reconciled with the officers’ testimony. As previously stated, cars were not stopped during the set up and removal of the checkpoint, and the operation was temporarily suspended due to rain. Reviewing the testimony of defense witnesses, we find it likely that they passed through the checkpoint during one of these periods when the checkpoint was not in operation. See N.T., supra, at 81, 58, 66, 68, 70 and 76.

From our examination of the record, we agree with the trial court that the officers conducted the checkpoint in a systematic, non-discriminatory and non-arbitrary manner. See Blouse, supra. Thus, we conclude that the trial court did not err in denying the suppression motions insofar as they challenge the validity of the checkpoint. Accordingly, we affirm Kendall’s and Peck’s judgments of sentence for their DUI convictions.

Next, Kendall asserts that Trooper Shelley’s search of her purse and discovery of the marijuana was an illegal search, and, therefore, the evidence should have been suppressed. At trial, Officer Shelley testified that prior to transporting Kendall to the hospital for blood tests, he informed her that he would have to search her purse for weapons. The officer further testified that upon opening the purse, he saw a package of cigarette rolling papers. Believing that the purse contained drugs, the officer continued to search the purse. He then opened a small change purse located within the larger handbag and, inside a pocket of the change purse, discovered a baggie which contained two marijuana roaches.

First, we agree that Kendall was validly arrested for DUI, and this fact clearly permitted a search for evidence relating to the DUI charge. See Commonwealth v. Macek, 218 Pa.Super. 124, 279 A.2d 772 (1971). Moreover, it is unreasonable to expect a police officer to place a suspect in his squad car for transport to another site without first taking reasonable measures to insure that the suspect is unarmed. Compare Commonwealth v. Davidson, 389 Pa.Super. 166, 174-75, 566 A.2d 897, 900-01 (1989), appeal denied, 525 Pa. 624, 578 A.2d 412 (1990). On that basis, the officer’s search of the purse for weapons was justified. However, after discovering that the purse contained no weapons, we can find no legitimate reason for the officer’s continued search of the purse and the opening of the change purse found therein.

Officer Shelley’s reason for continuing the search was that in his experience, “[he had] never met anyone that used the rolling paper for anything else besides marijuana.” N.T., supra, at 48. Consequently, he assumed that a further search of the purse, and the seizure of the marijuana therein, was justified. We can find no authority, however, under which cigarette paper, by itself, would be considered contraband or that the possession of such paper is a violation of the law. The conclusions drawn by Officer Shelley amounted to no more than a mere hunch that drugs would be found in the purse. Moreover, we fail to understand how the discovery of legal cigarette rolling paper justified the officer’s further search of the small change purse.

We are aware of cases in which it was found that a search incident to a lawful arrest required no further justification. See Commonwealth v. Guzman, 417 Pa.Super. 364, 612 A.2d 524 (1992), appeal denied, 535 Pa. 614, 629 A.2d 1377 (1993); Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986). These cases, however, are factually distinguishable from the present case. In Guzman, an informant told the police that the defendant would be delivering two kilos of cocaine to his apartment, and he gave the police a specific description of the defendant and the car he would be driving. When the defendant arrived, the officers observed that he and his car matched the description given by the informant. The officers also noted that he was carrying a satchel which was large enough to hold the two kilos of cocaine. The police then arrested the defendant and searched his satchel. Clearly, the police already had reliable information that the satchel defendant was carrying at the time of his arrest contained drugs. In Henry, an officer stopped the defendant for speeding. The defendant offered to pay the ticket and retrieved a box from his car. The officer, however, became suspicious when the defendant blocked his view of the box. Believing that the defendant had a gun, the officer grabbed him and opened the box. The officer observed drugs lying in plain view, arrested the defendant, and then conducted a further search of the box.

Neither of these decisions support the officer’s continued search of Kendall’s purse, nor does the Commonwealth cite to any other authority which would support the position that the continued search was incident to a lawful arrest. Here, the initial search of the purse was for weapons. However, the officer admitted that the reason he continued to search the purse was because he believed the purse contained drugs, not weapons. The officer never testified that he suspected the small change purse contained a weapon, nor did he have any reliable information to indicate the same. In addition, there is nothing in the record which suggests that a further search of the purse would have yielded additional evidence pertaining to the DUI charge. Further, the officer discovered the marijuana inside a pocket of a small change purse located within the handbag, not in plain view. Consequently, we will not extend the search incident to arrest exception to these circumstances.

Because the warrantless search of the change purse containing the marijuana roaches was not incident to the arrest for DUI, nor done to protect the officer, the evidence should have been suppressed. Accordingly, we reverse Kendall’s judgment of sentence for the possession of marijuana charge and remand the case for a new trial at which the Commonwealth cannot introduce the illegally seized evidence.

Judgments of sentence for DUI convictions AFFIRMED.

Judgement of sentence for possession of marijuana REVERSED and REMANDED for proceedings not inconsistent with this Opinion.

OLSZEWSKI, J. files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

I concur in the majority’s analysis of the checkpoint’s constitutionality, and its conclusion that both Kendall and Peck were properly arrested for DUI. I write separately to voice my disagreement with the majority’s decision to reverse Kendall’s conviction for possessing marijuana.

The majority holds that while the police officer could conduct a post-arrest search of Kendall, the scope of that search was limited to discovering weapons or further evidence relating to the DUI offense. Because the officer could not expect to find any such evidence in Kendall’s small change purse, the majority holds that this part of the search was unreasonable, and the marijuana cigarettes found in the change purse should be suppressed. The majority distinguishes two similar cases on their facts, and declines to extend the search incident to arrest exception to the present circumstances. Infra at 699.

We need not extend the search incident to arrest doctrine to the present circumstances, because it has already been extended for us by both the United States and Pennsylvania Supreme Courts. The U.S. Supreme Court provided the authoritative interpretation of the Fourth Amendment more than twenty years ago:

The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based upon probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973) (emphasis added). The search incident to arrest has thus become a carved-out exception to the Fourth Amendment.

Our Supreme Court, of course, can interpret Article I, Section 8 of the Pennsylvania Constitution to provide broader protections than the Fourth Amendment. See, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Our high court has chosen to interpret our Constitution’s search and seizure provision in an equivalent manner. See Commonwealth v. Holzer, 480 Pa. 93, 100-102 n. 5 and n. 6, 389 A.2d 101, 105-106 n. 5 and n. 6 (1978); Commonwealth v. Timko, 491 Pa. 32, 37 n. 3, 417 A.2d 620, 622 n. 3 (1980).

Timko involved a search of closed container in an automobile passenger compartment. Our high court held that the search was not incident to an arrest, and suppressed the evidence found in the container on the basis of federal automobile search cases which predated Robinson. Id. at 38, 417 A.2d at 623. This holding suggested the possibility that our Supreme Court might have intended to interpret Article I Section 8 of 0111” Constitution more broadly than the Fourth Amendment. We considered and rejected this possibility in Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986). We hewed instead to established precedent, holding that “a search incident to a lawful arrest requires no other justification in order to be valid under Article I, Section 8 of the Pennsylvania Constitution.” Id. at 315, 517 A.2d at 564.

More recently, we have considered our Supreme Court’s tacit approval of the Superior Court’s line of cases following federal precedent, thus implicitly retreating from Timko while reiterating the carved out nature of the search incident to arrest exception articulated in Robinson and Hemy. Commonwealth v. Mickell, 409 Pa.Super. 595, 607 n. 7, 598 A.2d 1003, 1009 n. 7 (1991) alloc. denied, 531 Pa. 638, 611 A.2d 711 (1992). Thus, our caselaw provides no suggestion that a search incident to arrest requires any more justification under Pennsylvania law than federal law.

Doubtless these and any particular search incident to arrest cases can be distinguished from the present case on their facts. But we need not reason by analogy and distinction when such a clear and authoritative rule has been laid out for us. I would presume that the Commonwealth cited no other authority in its brief because the exception is a bright-line standard which has been settled law for over twenty years. I believe that by limiting the scope of Kendall’s post-arrest search, the majority has engaged in precisely the sort of analysis foreclosed by the Supreme Court’s decision in Robinson. Because I believe that Robinson speaks clearly on this issue, and we are constrained to follow its authority, I cannot join this portion of the majority’s holding.

I respectfully dissent.

      . The Commonwealth’s brief cites to both Henry and Mickell, but does not expound on the categorical nature of the search incident to arrest exception as set forth in Robinson.


author: CIRILLO, Judge: DEL SOLE, Judge,

text:
    649 A.2d 701
    Dawn M. KLAHOLD v. Shawn A. KROH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1994.
    Filed Nov. 7, 1994.

      Bruce A. Grove, Jr., Camp Hill, for appellant.
    Douglas P. France, York, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   CIRILLO, Judge:

Shawn A. Kroh (Father) appeals from an order of child support entered in the Court of Common Pleas of York County. We vacate the order and remand for a new hearing.

On January 27,1992, appellee Dawn M. Klahold (Mother) filed a complaint for child support against Father for the parties’ infant son, Jared Z.G. Klahold (Jared), born out-of-wedlock on December 29, 1991. Pa.R.C.P. 1910.26. The Honorable Michael J. Brillhart ordered Father and Mother to attend a support conference on February 24, 1992, before a Hearing Officer of the Domestic Relations Section. Pa.R.C.P. 1910.11. On that date, however, Father entered notice with the court denying paternity and requesting a jury trial on the issue. After approximately one and one-half years of discovery, Father filed an acknowledgment of paternity and waived his right to a jury trial. Judge Brillhart, by an order dated May 27, 1993, accepted Father’s acknowledgment of paternity and waiver. Judge Brillhart then rescheduled the support conference for July 23, 1993.

At the support conference, the Hearing Officer determined that Mother had a net earning capacity of $652.13 per month, while Father had a net earning capacity of $1,568.09 per month. Applying these figures to the Pennsylvania Support Guidelines, Pa.R.C.P. 1910.16-1 et seq., the Hearing Officer recommended that Father be ordered to pay $291.00 per month in child support for Jared, plus $22.00 per month in arrearages. Judge Brillhart adopted the Hearing Officer’s recommendations and entered a temporary order on the same date. The order was made effective January, 1992, the month in which Mother filed the underlying complaint for child support. Pa.R.C.P. 1910.17(a). Within 10 days of the entry of the order, Father filed exceptions to the order, Pa.R.C.P. 1910.12(e), and Judge Brillhart scheduled a hearing for November 1, 1993. On December 20, 1993, after the hearing, Judge Brillhart entered a final order, affirming the temporary order entered at the support conference. Father filed this timely appeal and presents three issues for our consideration:

(1) Is it an error of law and an abuse of discretion for a trial court to make a support action retroactive to the date of filing, where a contest of paternity was initiated at the same time as the filing, and where the earning capacity of the obligor was abnormally high at the earlier date?
(2) Is it an error of law and a manifest abuse of discretion for a trial court to enter a support order that is confiscatory to the extent of allocating 76 percent of an obligor’s net monthly income to child support, and which is entered absent any independent discussion of the court’s analysis of the specifics of the case, the earning capacity of the custodial parent, or the living expenses of the obligor?
(3) Is it an error of law and an abuse of discretion for the trial court to enter a support order that explicitly violates the provision of Pa.R.C.P. 1910.16-3, by departing upwards from the guidelines set forth therein by over 100 percent, when the court alleges no special or unique circumstances which justify doing so?

Our scope of review in child support cases is well settled. We will not disturb a child support order absent an abuse of discretion, resting upon clear and convincing evidence. Kelly v. Kelly, 430 Pa.Super. 31, 32-34, 633 A.2d 218, 219 (1993). An abuse of discretion occurs if insufficient evidence exists to sustain a support award, if the trial court overrides or misapplies existing law, or if the judgment exercised by the trial court is manifestly unreasonable. Id.

It is also well established that both parents are equally responsible for the support of their children. Id. (citing DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987)). While the guidelines largely base the amount of support on actual, monthly net income, Pa.R.C.P. 1910.16-5(b), the trial court may nevertheless view earning capacity as the primary focus in determining ability to pay support, at least where the question of a parent’s earning capacity is raised. Kelly, 430 Pa.Super. at 32-34, 633 A.2d at 219 (citing Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988); see also Perlberger v. Perlberger, 426 Pa.Super. 245, 626 A.2d 1186 (1993); Singleton v. Waties, 420 Pa.Super. 184, 616 A.2d 644 (1992).

Once monthly net income or earning capacity is determined, the trial court calculates the amount of child support to be awarded, based upon the support guidelines set forth in Pennsylvania Rule of Civil Procedure 1910.16. Although the use of the support guidelines, including the grids and the formula, supplants the requirement that the trial court place on the record its child support calculations, we still require that the trial court set forth on the record an explanation as to how it arrived at the figures regarding the parties’ net incomes and/or earning capacities. Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990).

In this case, the Hearing Officer and trial court attributed a net earning capacity to Father of $1,568.09 per month. At the November 1, 1993 hearing, the Hearing Officer stated that she based Father’s earning capacity solely upon Father’s employment with Super Rite Foods one year prior to the support conference, when Father earned $11.72 per hour. Father was terminated from that job in June of 1992 because of an altercation with a co-employee. Since that termination, Father’s hourly wage has not exceeded $5.25 per hour. Nonetheless, because of Father’s termination from Super Rite Foods, the Hearing Officer calculated Father’s earning capacity based on the wages that Father received from Super Rite Foods over one year prior to the support conference. At the November 1st hearing, the Hearing Officer testified that, “[Father] informed me ... [that] he was terminated for cause through fault of his own from Super Rite Foods. And, therefore, he was held to that earning capacity.” N.T. at 24-25.

In its opinion, the trial court based the earning capacity attributed to Father on the following subsection of Rule 1910.16-5 of the Pennsylvania Rules of Civil Procedure:

(c) Reduced or Fluctuating Income.
(1) Voluntary Reduction of Income. Where a party voluntarily assumes a lower paying job, there generally will be no recomputation of the support payment. A party ordinarily will not be relieved of a support obligation by voluntarily quitting work or by being fired for misconduct.

Pa.R.C.P. 1910.16 — 5(c)(1) (emphasis added to text of subsection (1)).

Because the amount of support may be based upon earning capacity, less reasonable living expenses, steps taken to reduce income for the purpose of avoiding or decreasing support are ineffective, insofar as diminishment of the support obligation is concerned. Grimes v. Grimes, 408 Pa.Super. 158, 159-63, 596 A.2d 240, 241-42 (1991). In line with this principle, this court has stated that:

a parent may not intentionally reduce his or her earnings and then use the reduction in earnings to obtain a reduction in the amount of support which that parent must provide for his or her children; ... (citations omitted). The rationale underlying these decisions is that a parent has a duty to his or her children and therefore a parent should not be permitted to evade that responsibility by deliberately reducing his or her income.

Roberts v. Bockin, 315 Pa.Super. 52, 55, 461 A.2d 630, 632 (1983); see also Grimes, supra; Coffey v. Coffey, 394 Pa.Super. 194, 575 A.2d 587 (1990).

Father concedes that he was terminated from Super Rite Foods approximately one year prior to the support hearing because of an altercation with a fellow employee. Although he earned $11.72 per hour at Super Rite Foods, since his termination from that job, he has not been able to secure employment with a wage in excess of $5.25 per hour. There is nothing in the record, however, to indicate that Father “deliberately reduced” his income to intentionally avoid his future child support obligation. Roberts, supra; Grimes supra; Coffey, supra.

Furthermore, we find that the hearing officer’s and trial court’s reliance on Rule 1910.16-5(c) is misplaced. The language of Rule 1910.16-5(c) seems clear that it only applies to cases where an initial support order has already been entered and, because of some kind of a voluntary reduction of income since the entry of the initial order, the obligor now seeks to have his or her support “obligation recomputat[ed].” Pa.R.C.P. 1910.16 — 5(c)(1). In fact, all of the cases citing new Rule 1910.16 — 5(c)(1), including one cited by the trial court, concern petitions to modify preexisting support orders, not cases, such as this, concerning the calculation of initial support orders. See Young v. Muthersbaugh, 415 Pa.Super. 591, 609 A.2d 1381 (1992); Paulus v. Paulus, 413 Pa.Super. 230, 604 A.2d 1103 (1992); Grimes, supra. The trial court even acknowledges this proposition in its opinion: “[B]efore being relieved of an [sic] prior earning capacity, the petitioning party must show that a reasonable effort was made to be reemployed at the best and highest wages.” Again, this case does not involve a preexisting support order and, therefore, Rule 1910.16-5(c)(1) is not applicable. We find, therefore, that the trial court erred in basing Father’s earning capacity solely on his job with Super Rite Foods.

We do not mean to suggest that a trial court is not permitted to run an individual’s earning capacity through the guidelines’ grids or formula to ascertain his or her support obligation. Kelly, supra. To the contrary, earning capacity will be used when a party willfully fails to obtain “appropriate” employment. Pa.R.C.P. 1910.16-5(c)(5). Factors which shall be considered in determining earning capacity are: age; education and/or training; health; work experience; earnings history, etc. Id.; Perlberger, 426 Pa.Super. at 281-83, 626 A.2d at 1206. In light of this standard, we vacate the existing support order and remand the case for a new hearing to calculate both Mother and Father’s actual incomes and/or earning capacities, and to apply those figures to the support guidelines.

Order vacated and case remanded for a new hearing consistent with this opinion. Jurisdiction relinquished.

ROWLEY, P.J., concurs in the result.

DEL SOLE, J., files a concurring and dissenting Opinion.

DEL SOLE, Judge,

concurring and dissenting.

While I agree with the result reached by my esteemed colleagues and the conclusion that Appellant did not deliberately reduce his income to avoid his obligation to support his child, I must dissent from the Majority’s interpretation of Rule 1910.16 — 5(c)(1) of the Pennsylvania Rules of Civil Procedure. The Majority opines that this Rule only applies “where an initial support order has already been entered and, because of some kind of a voluntary reduction of income since the entry of the initial order, the obligor now seeks to have his or her support ‘obligation recomputat[ed].’ ” This narrow rendering of 1910.16-5(c)(l) places too much emphasis on the term recomputation. Even if Rule 1910.16 — 5(c)(1) has only, thus far, been applied in cases where a party is seeking modification of a preexisting support order, that is no reason to preclude its application in cases where it is the first time that a support order is being entered.

Such reasoning implies that a person who already has a support order cannot voluntarily quit work to obtain a reduction in the support obligation; but, a person anticipating the entry of the initial support order, can wilfully obtain a lower paying job to deliberately reduce the obligor’s income without being held to the previous higher earning capacity. The Majority primarily relies upon section (1) of Rule 1910.16 — 5(c); however, the trial court cited section (5) of Rule 1910.16-5(c) as well. Section (c)(5) states, in part:

Income potential. Ordinarily, a party who wilfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity.

I think a more liberal construction of Rule 1910.16-5(c) is appropriate, and I would not limit its application as the Majority has today.

      . We note that the fact that Jared was born out-of-wedlock has no bearing on either parent’s child support obligations. Due process requires that such children be treated the same as children born during marriage. See Branch v. Jackson, 427 Pa.Super. 417, 629 A.2d 170 (1993) (citing 23 Pa.C.S.A. § 5102(a)).

      . Pa.R.C.P. 1910.16-2.

      . Pa.R.C.P. 1910.16-3.

      . In formulating the parties’ respective support obligations, in addition to the incomes/eaming potentials of the parties, the trial court must also take into consideration Father's preexisting support obligation in the amount of $30.00 per week to his son in Perry County, the fact that he is currently married and supports an infant bom of that marriage, and other applicable factors listed in the guidelines.

      . Because we vacate the support order and remand the case for a new hearing, we need not address Father’s remaining contentions on appeal.


author: WIEAND, Judge:

text:
    649 A.2d 705
    Jeffrey SCHMOYER, a minor by parents, Richard and Joan SCHMOYER and Richard and Joan Schmoyer, in their own right, Appellants, v. MEXICO FORGE, INCORPORATED, and Markley Farms Swim Club and Raymond Hale, Additional Defendant, v. ZENITH LABORATORIES, INC. Jeffrey SCHMOYER, a minor by parents, Richard and Joan SCHMOYER and Richard and Joan Schmoyer, in their own right v. MEXICO FORGE, INC., and General Recreation, Inc. and Markley Farms Swim Club. Appeal of MEXICO FORGE, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed Nov. 7, 1994.

      Peter C. Gardner, Philadelphia, for Schmoyer.
    Audrey L. Jacobsen, Philadelphia, for Mexico Forge.
    Warren F. Sperling, Philadelphia, for Hale.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

The sole issue now before this Court is whether the trial court erred when it entered a directed verdict in favor of the playmate of a minor plaintiff who suffered a broken leg while attempting to dismount from a rotating, playground Spin Around.

Jeffrey Schmoyer, the minor plaintiff, was injured in August, 1983, while attempting to dismount from a Spin Around affixed to a playground owned by the Markley Farms Swim Club. A Spin Around is a platform, similar to a carousel, which rotates when pushed manually and on which children can ride. The top of the platform contains steel bars which can be held by the persons who sit upon or push the carousel. As the Spin Around was rotating, Schmoyer moved to the edge and kicked out with his legs as if to dismount. His legs came into contact with Raymond Hale, who was standing nearby (and who may have been pushing, the Spin Around) and became wedged between Hale and the bars of the Spin Around. As a result, Schmoyer sustained a broken left leg. Schmoyer thereafter filed suit against Markley Farms Swim Club and Mexico Forge, Inc., the designer and manufacturer of the Spin Around; and Hale was joined as an additional defendant.

On the third day of trial by jury, a settlement was reached between Schmoyer and his parents, the party plaintiffs, and Markley Farms Swim Club, one of the defendants. Later, after all the evidence had been received, the learned trial judge entered directed verdicts in favor of Mexico Forge and Hale. Post-trial motions were denied. Schmoyer then filed an appeal from the verdict directed in favor of Mexico Forge; and Mexico Forge filed a cross-appeal in which it argued, inter alia, that if a new trial were ordered it should include Raymond Hale, in whose favor a directed verdict had been granted improperly by the trial court.

The Superior Court affirmed the order of the trial court which had directed a verdict in favor of Mexico Forge and held that Schmoyer’s action was barred by a twelve year statute of repose. Therefore, the Court did not address Mexico Forge’s cross-appeal. See: Schmoyer by Schmoyer v. Mexico Forge, Inc., 423 Pa.Super. 593, 621 A.2d 692 (1993). The Supreme Court granted allocatur and reversed. It held that, as a matter of policy, it would not apply the statute of repose to mass produced devices even if they did become improvements to real estate. Therefore, it remanded the matter to the Superior Court to decide Mexico Forge’s cross-appeal. See: Schmoyer by Schmoyer v. Mexico Forge, Inc., 538 Pa. 1, 645 A.2d 811 (1994). The sole issue now before us is whether the trial court erred in entering a directed verdict in favor of Hale.

A cause of action in negligence has four essential elements: (1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff; (2) a breach of that duty by the defendant; (3) a causal connection between the defendant’s conduct and the injury suffered by the plaintiff; and (4) actual loss or damage suffered by the plaintiff. See: Burman v. Golay & Co., Inc., 420 Pa.Super. 209, 213, 616 A.2d 657, 659 (1992), allocatur denied, 533 Pa. 648, 624 A.2d 108 (1993); Fennell v. Nationwide Mut. Fire Ins. Co., 412 Pa.Super. 534, 539, 603 A.2d 1064, 1067, allocatur denied, 533 Pa. 600, 617 A.2d 1274 (1992); Alumni Association, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Super. 596, 601, 535 A.2d 1095, 1098 (1987), affirmed, 524 Pa. 356, 572 A.2d 1209 (1990). The burden of proving the existence of negligence rests upon the party who has asserted it. Davis v. McDowell Nat’l Bank, 407 Pa. 209, 212, 180 A.2d 21, 23 (1962).

Although the question of negligence usually should be submitted to the jury, “where the facts leave no room for doubt, the judge may properly dispose of the issue without a jury.” Johnson by Johnson v. Walker, 376 Pa.Super. 302, 307, 545 A.2d 947, 950 (1988), allocatur denied, 522 Pa. 577, 559 A.2d 38 (1989). As the Superior Court stated in Farnese v. Southeastern Pennsylvania Transportation Authority, 338 Pa.Super. 130, 487 A.2d 887 (1989):

[Questions of negligence and causation are to be resolved by the jury, and not the judge[; however,] the question of the sufficiency of the evidence before presenting a question to the jury is clearly within the discretion of the trial judge. In fact, the trial court has a duty to prevent questions from going to the jury which would require it to reach a verdict based on conjecture, surmise, guess or speculation.

Id. at 135, 487 A.2d at 890. See: Morena v. South Hills Health System, 501 Pa. 634, 639, 462 A.2d 680, 683 (Prior to submitting issue of negligence to jury, trial court must consider whether as a matter of law plaintiff has produced sufficient evidence to meet burden of proof). See also: Caldwell v. Commonwealth, 120 Pa.Commw. 358, 362, 548 A.2d 1284, 1286 (1988) (“Where insufficient evidence exists to justify an inference of negligence and causation, the trial court may properly grant judgment in favor of the party against whom liability is sought.”). “If the evidence is such that no reasonably intelligent person would accept it as sufficient to establish the existence of a fact essential to negligence, it becomes the duty of the court to remove the issue from the jury, and to nonsuit the plaintiff, or to direct a verdict for the defendant, or to set aside the verdict once rendered.” W. Page Keeton, Prosser & Keeton on Torts at 236 (5th Edition, 1985) (footnote omitted).

The mere occurrence of an accident does not require a finding of negligence.

Nearly all human acts ... carry some recognizable but remote possibility of harm to another. No person so much rides a horse without some chance of a runaway, or drives a car without the risk of a broken steering gear or a heart attack. But these are not unreasonable risks. Those against which the actor is required to take precautions are those which society, in general, considers sufficiently great to demand preventive measures. No person can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded. An unprecedented frost or flood, the robbery of a customer in the parking lot of a bank, a child picking up a plank with a nail in it and dropping it on his foot, a pedestrian tripping on a slight imperfection in the sidewalk, a workman being struck by lightning, — all of these things have happened, and will occur again; but they may not be so likely to do so on any particular occasion as to make it necessary to burden the freedom of human action with precautions against them. Such events are, in a sense, “unavoidable accidents,” for which there is no liability.

W. Page Keeton, Prosser & Keeton on Torts at 170-171 (5th Edition, 1985) (footnotes omitted). The duty which is owed in any given situation depends primarily upon the relationship between the parties at the time of the injury. Alumni Association, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, supra 369 Pa.Super. at 601, 535 A.2d at 1098. Unless there is a special relationship between the defendant and the plaintiff, the only duty owed by the defendant to the plaintiff is the general duty imposed upon all persons not to expose others to risks of injury which are reasonably foreseeable. Id. See also: Burman v. Golay & Co., Inc., supra 420 Pa.Super. at 214, 616 A.2d at 659; Casey v. Geiger, 346 Pa.Super. 279, 290, 499 A.2d 606, 612 (1985), allocatur denied, 516 Pa. 638, 533 A.2d 710 (1988).

Since a special duty of care was not owed by Hale to Sehmoyer merely by virtue of their friendship, Hale may only be liable for negligence if his conduct was such that it exposed Sehmoyer to a reasonably foreseeable harm. Recreational activities engaged in by children often include situations in which injuries may occur. Absent evidence that the injury occurred because a playmate was acting in an unreasonable or dangerous manner, the playmate will not be found negligent for engaging in play. Johnson by Johnson v. Walker, supra. To allow otherwise would seriously curtail normal playtime activities among children. Id. The only evidence in the instant case was that Hale, at the time of Schmoyer’s injury, was standing in close proximity to the rotating Spin Around and may have been pushing it at some time before Sehmoyer extended his legs in an apparent attempt to jump from the Spin Around. There is no evidence that Sehmoyer gave warning of his sudden movement or that Hale should reasonably have anticipated the same. Therefore, there was no evidence from which a jury could have inferred that Hale had acted in a negligent or inappropriate manner in failing to move a greater distance from the Spin Around. The trial court, therefore, did not err when it entered a directed verdict in favor of Raymond Hale. See: Johnson v. Walker, supra (playmate not negligent where plaintiff was injured in normal course of recreational activity).

The order of the trial court directing a verdict in favor of Raymond Hale is affirmed. The order of the trial court directing a verdict in favor of Mexico Forge is reversed pursuant to order of the Supreme Court and the case is remanded for further proceedings consistent therewith.

      . Mexico Forge contends that several youngsters may have been "horsing around,” but there is no evidence that Hale was one of the youngsters who was “horsing around.”