author: BECK, Judge:

text:
    580 A.2d 13
    Nancy L. BUCCINO, Appellee, v. Michael A. BUCCINO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Filed Aug. 23, 1990.
    Reargument Denied Oct. 11, 1990.

      Robert J. Murphy, Scranton, for appellant.
    George E. Clark, Scranton, for appellee.
    Before MONTEMURO, BECK and FORD ELLIOTT, JJ.
   BECK, Judge:

This case involves an issue which, although frequently litigated in federal courts, is rarely a subject for disposition in state courts. The issue is whether various liabilities imposed upon a former spouse in connection with a divorce decree are dischargeable in bankruptcy. Resolution of this issue depends on whether the disputed liability is in the nature of alimony or support or arises instead solely from the division of marital assets.

Pursuant to the Bankruptcy Code, support obligations, unlike debts for property settlements, are not subject to discharge in bankruptcy. The trial court concluded that the obligations at issue here were in the nature of support and consequently not dischargeable. Following careful consideration of the record and a thorough review of both federal bankruptcy law and state domestic relations law, we agree and affirm.

The facts and procedural history underlying the instant appeal are as follows. The parties were married in 1979. At that time appellant Michael Buccino (“husband”) was attending dentistry school in Chicago. While husband attended dental school, Nancy Buccino (“wife”) supported the family. When husband graduated in 1982, the parties moved to Pennsylvania. Wife continued working until the birth of the couple’s only child in 1984.

Shortly after the birth of their son, the parties began to experience marital difficulties. The trial court heard testimony regarding an extramarital affair by the husband, which the court apparently credited. As a result of the disharmony, wife and child eventually left the marital residence to live with her parents in Falmouth, Massachusetts. The separation which followed was unfortunately acrimonious and involved several bitter fights over custody of the child, who at the time was two years old. A divorce decree was entered in Susquehanna County in November, 1986. Among the divorce court’s findings were the following: 1) wife had made substantial financial contributions to husband’s career development and potential earning capacity (see footnote 3, supra); 2) wife’s parents had made generous contributions to the couple including gifts totalling $7,500 and loans for the purchase of a mobile home and car totally $27,300; 3) at the time of the entry of the decree, wife had a temporary job as a seasonal restaurant worker earning $225 a week, $125 of which went towards child care; 4) also at the time of the decree, husband had moved to Indiana to obtain a graduate degree in pediatric dentistry, where he earned $19,000 a year as a dental resident; and finally, 5) husband had “appropriated” the mobile marital home and moved it to Indiana for his own use.

The trial court’s order was not separated into discrete subsections dealing with custody, child support, division of marital assets and debts, and alimony. Instead the order as a whole addressed each party’s rights and obligations resulting from the dissolution of the marriage. Therefore, in narrative form, the trial court recognized that husband would not be in a position to pay alimony to wife while attending school on a limited income. Consequently, the court awarded alimony to wife in the amount of $200 per week for five years, commencing when husband completed “his present schooling”. Further, recognizing that “[husband] will enjoy the opportunity of an excellent future income”, the trial court ordered husband to pay wife one-half of the value of the gifts from her parents, i.e., $3750. In addition, the court ordered husband to pay to wife one-half the amount of equity in the mobile home, representing one-half the amount already paid back to wife’s parents on the loan, i.e., $9,400. Finally, husband was liable to wife for one-half the value of his IRA and retirement plan. No exceptions were filed and no appeals were taken from this order.

About six months following the entry of the divorce decree, husband filed a bankruptcy petition with the United States Bankruptcy Court in the Southern District of Indiana. His petition listed wife as a creditor and sought discharge of the liabilities imposed by the divorce decree. Wife sought relief from the bankruptcy court’s automatic stay by filing a motion in bankruptcy court. This motion also requested that wife be permitted to proceed with a state court action to have the state court determine the dischargeability of husband’s debts to her pursuant to the divorce. The bankruptcy court granted wife’s motion and abstained from deciding the dischargeability of the marital obligations in order to allow the Susquehanna County court to rule on the issue. On October 6, 1989, the Susquehanna County court, Judge Donald O’Malley presiding, held a hearing on whether the obligations imposed by the divorce decree were dischargeable in bankruptcy. On October 23, 1989, the court issued an order finding that the debts in question were necessary for the support and maintenance of wife and the couple’s minor child and therefore were not subject to discharge in bankruptcy. It is from this determination that husband appeals.

On appeal, husband asserts two claims of error. First, and most importantly, he argues that the trial court erroneously found that the debts in question were in the nature of support or alimony and therefore not dischargeable under federal bankruptcy law. Second, he claims that the trial court erred in hearing testimony regarding appellant’s present financial circumstances rather than limiting evidence to that which existed at the time the divorce decree was entered.

As a threshold matter, we note that bankruptcy courts and state courts exercise concurrent jurisdiction over the question of whether a particular obligation is discharge-able under section 523(a)(5) of the bankruptcy code. On this basis the bankruptcy court granted wife’s motion in the instant case to allow the state court to proceed with the determination of this issue. Consistent with the concept of concurrent jurisdiction is the application of collateral estoppel on the state court’s judgment regarding the discharge-ability of the debt. Thus, assuming dischargeability has been fully and fairly litigated in the state court, the debtor is barred from relitigating the issue in bankruptcy court. In fact, the Indiana bankruptcy court which transferred the instant issue to Pennsylvania recognized that our judgment on dischargeability would be binding on it.

While state and federal courts share jurisdiction to decide thé matter of dischargeability under § 523(a)(5), it is also clear that the law which a state or a federal court must apply in making its determination is federal bankruptcy law, not state law. This principle is far easier to state than it is to apply. On the one hand, it is a provision of the federal bankruptcy statute which the courts are being asked to interpret. However, as has been noted by numerous courts, there is no federal domestic relations law nor could Congress have intended to transform the bankruptcy court into a federal divorce forum. Further, it was the state court which formulated the original marital obligations and these determinations obviously were made pursuant to state law. It would be impossible to disregard state domestic relations law in determining the nature of an obligation the very existence of which is dependent on state law.

What has emerged is an amalgam of federal bankruptcy law and state domestic relations principles. In assessing the nature of the underlying marital obligation at issue, courts will look to the intent, form, characteristics and purposes served by the imposed marital debt. Often but not always these features of the debt can be judged only on the basis of state matrimonial law. However, the characterization of the debt under state domestic relations law will not necessarily dispose of the dischargeability issue. Both the language of the statute (section 523(a)(5)) and the countless federal bankruptcy cases interpreting it dictate that a court eschew a rigid application of state law labels in favor of a search for the substance and function of the obligation involved. Moreover, this search must be conducted with an eye toward the purposes underlying the bankruptcy code and the exception to discharge created by § 523(a)(5).

Section 523(a)(5) of the Bankruptcy Code provides that: (a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— ******
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.

This section maintains a distinction historically recognized in bankruptcy law, i.e., that support obligations owed to a spouse, former spouse or child are not subject to discharge in bankruptcy because public policy recognizes the overriding need to ensure necessary financial support for the divorced spouse and children of a debtor who would otherwise be entitled to a general discharge in bankruptcy. Although the bankruptcy code in general attempts to offer the debtor a “fresh start”, countervailing policies demand that marital obligations providing support remain exempt from discharge lest the bankruptcy laws create more societal problems than they solve.

Thus, in determining whether specific obligations are excepted from discharge in bankruptcy, courts are admonished to balance two competing policies. One is the fresh start principle which is basic to bankruptcy law. The other is the clear “Congressional policy of giving first priority to the adequate financial maintenance of a debtor’s children and ex-spouse, above all consideration to the debtor’s ‘fresh start’ ”. In re Schmiel, 94 B.R. at 377. Given the tenacity of the alimony and support exception, its historical roots and underlying social policy, we agree with the Schmiel court that the rights of former spouses and of children should be “liberally protect[ed]” against discharge in bankruptcy.

Basic to the resolution of the dischargeability of a particular marital obligation is the concept that the substance and function of the debt will control rather than its form or appellation. Both the statutory language and case law make this approach abundantly clear. Section 523(a)(5)(B) (quoted above) states that the designation of a liability in a divorce decree or settlement agreement as “alimony, maintenance, or support” will not bar it from discharge “unless [it] is actually in the nature of alimony, maintenance, or support’’, (emphasis added). Conversely, if a specific obligation in connection with a divorce is labelled property division or “equitable distribution”, such designation will not preclude a finding that the debt is, in fact, in the nature of alimony or support and, consequently, not dischargeable. See In re Shine, 802 F.2d 583 (1st Cir.1986); In re Singer, 787 F.2d 1033 (6th Cir.1986); In re Calhoun, 715 F.2d 1103 (6th Cir.1983); In re Messnick, 104 B.R. 89, 93 (Bankr.E.D. Wisc.1989); In re Jenkins, supra; In re Schmiel, supra.

Universally, the difficulty in distinguishing between marital obligations which are in the nature of support and those which are purely divisions of property stems from two problems. First, in an ordinary case, “very often the parties have no intent to differentiate between an alimony debt and a property settlement and will view both as financial obligations arising from the separation or divorce.” In re Alloway, 37 B.R. at 425. Therefore, bankruptcy courts often are faced with ascertaining the nature of an underlying obligation the legal consequences of which were never contemplated by the parties. Second, and even more importantly, the evolution of domestic relations law has made it increasingly difficult to distinguish between alimony (or support) and property distribution. Frequently, courts will resolve all economic issues arising from a divorce simultaneously and invariably will adjust alimony awards depending on the nature and amount of marital assets available for distribution. Therefore, it has been observed that property division often achieves the same goal as alimony, i.e., support, and that the current trend is to favor greater allocations of property in lieu of long-term alimony awards.

Although the foregoing offers some guidance regarding the fundamental principles governing our inquiry in the instant appeal, our research has revealed no clear and consistent test for determining whether a marital obligation is actually in the nature of support or if it is strictly a result of the division of property. Federal bankruptcy courts have developed several, often divergent, approaches to the issue. In the following discussion, we have attempted to isolate those factors which are common to the vast majority of cases which have confronted the issue of dischargeability under § 523(a)(5). Further, we endeavor to give effect to the underlying Congressional intent to protect support obligations from discharge in bankruptcy.

Despite the competing policies at stake here and notwithstanding the admitted difficulty in distinguishing between property division and support obligations, several criteria for deciding the issue do exist. By far the most important two concerns are: 1) the intentions of the parties and/or the divorce court at the time the obligation was formed; and 2) the effect and function of the obligation imposed. Obviously, the resolution of these two questions often will entail analysis of similar factors. Yec, as one bankruptcy court correctly noted, the reason that the intent of the parties or court could not be wholly dispositive of the dischargeability issue is that it would cede to them what is at heart a federal bankruptcy issue. Therefore, although all courts agree that intent is relevant in deciding the nature of the obligation for bankruptcy purposes, the fundamental inquiry is whether the obligations have the effect of providing necessary support such that a discharge in bankruptcy would contravene the public policy reflected in § 523(a)(5). “The bankruptcy inquiry ... is to determine the function of the debt. To the extent the obligation serves the financial purpose behind alimony (or support or maintenance) it is nondischargeable, whatever it is called. To the extent the debt is to divide property irrespective of financial need, it is dischargeable.” In re Jenkins, 94 B.R. at 360.

In order to establish the intent and function of the marital obligation in question, bankruptcy courts have identified various factors which are relevant in determining the true nature of the debt. Several courts have formulated checklists of factors, none of which is intended to be all-inclusive. Factors most often cited in the case law are: the label given to the obligation in the underlying instrument; the express terms of the obligation; the form and placement of the debt in the original agreement or decree; whether the debt terminates on the occurrence of death, remarriage, etc.; the economic disparity between the parties; the length of the marriage; whether there are minor children in the care of the creditor spouse; whether the support award would have been adequate absent the liability in question; the intention of the court to provide support to the creditor spouse or children; the age, employability and educational levels of the parties; the language of the decree and the inferences which can be drawn therefrom; whether the creditor spouse suffered an economic disadvantage as a result of the marriage; whether the debts are payable directly to the former spouse; the circumstances leading to the dissolution of the marriage; and the financial resources, actual or potential, of each spouse. See In re Alloway, 37 B.R. at 425 and cases cited therein; see also In re Wisniewski, 109 B.R. at 931 n. 2. Clearly, each of the above-cited factors will not be applicable in every case. Nor can we quantify with any precision the weight to be assigned to a given factor in a particular case. These factors serve only as guideposts in making the judgment on a case-by-case basis.

In the instant appeal there are four marital obligations at issue: 1) $200 per week for five years; 2) $3,750 representing one-half of the value of gifts to the parties by wife’s parents; 3) $4,800 representing one-half of a pension fund in the name of husband; and 4) $9,400 representing one-half of the amount paid by the parties to acquire a mobile home which the husband possessed from the time the parties were separated. All the obligations were payable directly to wife. In his bankruptcy petition, husband seeks discharge of all four debts.

Certainly, husband’s assertion that the $200 per week five year obligation is dischargeable in bankruptcy need not detain us long. This debt has all the indicia of alimony and support. In awarding this payment to wife the trial court stated: “Due to the fact that Dr. Buccino has a limited income while he is attending school, it is impossible to impose an award of alimony at the present time. However, at the completion of the [husband’s] schooling, he is liable for payments of $200.00 per week to [wife] for a period of five years, until [wife] becomes accustomed to her present circumstances.” Trial Court’ Op. at 4, November 21, 1986.

The plain language of the court’s decree indicated that it was delaying the start of alimony until such time as husband’s income could increase. The award involved periodic payments for a fixed duration which were intended by the court to support wife for a length of time the court deemed appropriate to adjust economically to the end of her marriage. This is not a situation wherein the nature of the award is in any way ambiguous, thereby requiring us to delve beneath labels to ascertain the true substance of the obligation. In order to accept appellant’s argument that this debt is not barred from discharge in bankruptcy, we would have to conclude that the trial court intended to leave wife here with no alimony award whatsoever. This improbable conclusion flies in the face of logic and equity.

The remaining three obligations are not subject to quite as cursory resolution. Neither the express language, label nor form of these debts allow us readily to ascertain their true nature. Therefore, our inquiry is directed towards determining whether these debts were intended to create a support obligation and whether they functioned as support.

Our review of the record in the instant case, including the testimony given at the hearing held on October 6, 1989 on the dischargeability issue, convinces us that the debts in question served the purpose of alimony, i.e., they were to function as support for the creditor spouse. Our conclusion is based on several factors. In the instant case, it is clear that the trial court was motivated by a desire to ensure minimal financial support to wife. The financial resources of husband, both present and future, far exceeded those of the wife. The court noted that husband had a professional degree from which he was likely to reap substantial monetary return in the future. Husband had appropriated the parties’ mobile home and therefore had a residence on which he could rely, owing, in part, to the generosity of wife’s parents. He was pursuing an advanced degree which the court noted would further maximize his earning potential. The court also observed that husband had come into the marriage virtually penniless and had obtained his degree while living on the income generated by wife. In contrast, wife had no professional degree. At the time the decree was entered, husband was undeniably on the threshold of a substantial increase in earning capacity, while wife was supporting herself and her child as a restaurant worker and housekeeper. Wife also had custody of the couple’s small child for whom she spent a disproportionate share of her income on child care. The court-ordered amount of child support barely covered what the court found to be wife’s weekly child care expenses. Wife had no separate residence of her own and, instead, lived with her parents on whose financial and child-care help she often depended. Whatever resources she brought to the marriage were used to support herself and her then-husband while he achieved his dental degree. There were virtually no assets in the marital estate to be distributed. In fact, in its opinion finding the disputed debts nondischargeable, the trial court found wife’s need for support “compelling”.

Therefore, based on the foregoing it is plain that the economic realities facing the parties at the time of the divorce favor the inference that the obligations imposed here constituted necessary support for the wife. The lump-sum nature of the debt, by itself, does not defeat the contention that the debt was in the nature of support for purposes of bankruptcy nondischargeability. See In re Cox, 68 B.R. 307 (Bankr.M.D.Fla.1986) (lump-sum nature of payment not enough to establish dischargeability where there were minor children of the marriage shown to be in need of support and where obligation was imposed on debtor in connection with maintenance of marital home).

We reject appellant’s argument that the debt imposed on him to pay wife the equivalent of one-half the gifts acquired from her parents was strictly a division of ownership of property. We are persuaded that closer examination refutes this contention. Property division is based on each parties’ right to a fair share of the property accumulated during the marriage. In the instant case, there were few, if any, marital assets. The amount given to the couple by wife’s parents in the form of gifts did not constitute a tangible asset which the parties could fairly divide. It is apparent that the divorce court used the amount of the gifts not as a means of splitting marital property, but rather as a vehicle to provide equitable and necessary support to the dependant spouse. The “ownership” of the gifts was not a matter in dispute nor was it an item for distribution. In fact, the gift money apparently had been spent on various living expenses and was long gone. What remained was the court-imposed obligation of the husband to pay to wife an amount of money which would further provide her with reasonable support.

We hold that the form and amount of this additional support is far less significant than the function it was intended to perform. We find support for this conclusion in In re Hoover, 14 B.R. 592 (Bankr.N.D.Ohio 1981), in which the court resolved the dischargeability of an $11,600 promissory note from the husband to the wife. The Hoover court held that the debt was intended to provide for the “economic safety” of the creditor wife. Therefore, the bankruptcy court stated that it was irrelevant that the debt was structured as a property settlement or that its terms might so indicate. In Hoover, the court relied for its conclusion on factors similar to those which dictate the same result in this case. The court noted the parties disparate earning capacity, the husband’s superior employability, the husband’s history of success in business and the wife’s lack of comparable skills and resources. Based on these factors the court determined that the debt was not dischargeable owing to its support function.

In In re Sermersheim, 97 B.R. 885, 893 (Bankr.N.D.Ohio 1989), the bankruptcy court determined the dischargeability of credit card obligations for which husband had agreed to hold wife harmless. The obligation by husband had been assumed in a separation agreement under a provision entitled “Debts and Obligations”. Again, despite the nomenclature used and the form of the obligations, the bankruptcy court found that the wife’s income was insufficient to meet her expenses and that wife was dependent for financial assistance on family and friends. Accordingly the court found that husband’s payment of the credit card debts, while appearing to be the mere assumption of a marital liability, had the effect of providing necessary support and was excepted from discharge in bankruptcy. The same result is mandated here.

Similarly, appellant’s argument that the obligation representing half the value of the marital home was a pure distribution of a marital asset must fail. We have amply explored the record support for the conclusion that wife was unable to provide for herself and her child at the end of the marriage and, indeed, relied on her parents for the basic necessity of a home. In the meantime, husband had removed the mobile home which had been their marital residence, leaving wife with neither a home nor the wherewithal to replace it.

Bankruptcy courts have consistently held that the assumption of mortgage debts by a debtor-spouse which enables the creditor-spouse to provide for or remain in the marital residence are not dischargeable in bankruptcy because they are in the nature of support, alimony or maintenance. See In re Sweeny, 99 B.R. 192 (Bankr.D.Conn.1989); In re Gianakas, 100 B.R. 787 (Bankr.W.D.Pa.1989); In re Coverdale, 65 B.R. 126 (Bankr.M.D.Fla.1986); In re Wright, 51 B.R. 630 (Bankr.S.D.Ohio 1985); In re Thomas, 21 B.R. 571 (Bankr.E.D.Pa.1982).

We see no substantive difference between these cases and the case at bar. When a debtor assumes obligations, the underlying function of which is to provide reasonable support for his former spouse and children, the actual form of the debt will not preclude a finding of exemption from discharge. We find that here the obligation imposed by the divorce court was in lieu of support for shelter which was needed by the creditor spouse as a result of the debtor’s appropriation of the marital home. In the view of this court the obligation here for the value of the marital home sufficiently resembles, in underlying rationale, the mortgage payments which bankruptcy courts almost uniformly have held are in the nature of support. We agree with the analysis of the bankruptcy court in In re Thomas, 21 B.R. at 574. In Thomas, the court found that the husband’s agreement to pay second and third mortgages on his former spouse’s home and to pay arrearages from a first mortgage was an obligation of support and therefore nondischargeable. The court there noted: “[I]t is reasonable to hold that the obligation to maintain and support a family includes an obligation to keep a roof over their heads.” Id. In another case similar to Thomas, a divorce decree provided for child support in one paragraph and in a separate section awarded the real estate to the wife. Along with the award of real estate was the provision that wife assume the first mortgage and husband assume the second and third mortgages on the home. The bankruptcy court rejected the husband’s argument that the latter debt assumptions were dischargeable in bankruptcy. There the court reasoned that, despite the form of the obligation, the debt was clearly in the nature of support because it served the function of providing shelter for the former spouse and children. In re Allshouse, 34 B.R. 512, 514 (Bankr.W.D.Pa. 1983); see also In re Gianakas, supra. Here the debtor’s actions deprived the creditor spouse of a necessary aspect of support, i.e., shelter. The trial court’s conclusion that he should pay her half the value of the home clearly was intended to and did function as support and as such we agree that the debt in connection with the home is nondischargeable.

We emphasize that the thrust of our inquiry into the dischargeability of the disputed debt is whether, in a particular case, the debt was created to perform a support function. This inquiry must occur case-by-case and must take into account all relevant economic and non-economic factors, including the living standards of the parties. See In re Lineberry, 55 B.R. 510, 517 (Bankr.W.D.Ky.1985). In the instant case the divorce court considered the support award in light of harsh economic realities facing the wife after divorce. However, an award need not furnish only the bare necessities of life in order to be exempt from discharge. The policy underlying the exemption stems from the recognition of the debtor’s duty to provide for the well-being of his or her family. Marital obligations consistent with that duty will constitute nondischargeable support even if, in a given case, they exceed what would be minimally necessary for the recipient’s survival.

Finally, we turn to the dischargeability of the obligation to pay wife half the value of the pension fund. At first glance, this debt appears to be more in the nature of a pure division of property. However, careful analysis persuades us that this debt was based on wife’s need for support and her evident lack of immediate financial resources. As such, the debt will not be discharged in bankruptcy.

Central to our resolution of the issue is the timing of the obligations imposed by the divorce decree. While the $200 a week alimony award and the debts for the gifts and the home were made payable by the court at the completion of husband’s graduate professional education, wife was entitled to half the value of the pension fund immediately upon separation. Therefore, the only award wife could use for necessary support upon the entry of the decree was the $4,800 owed her as her share of the retirement fund. Bankruptcy courts uniformly will consider whether, at the time the decree was entered, support would have been inadequate without the obligation in question. See, e.g., In re Messnick, 104 B.R. at 94; In re Lineberry, 55 B.R. at 517 (“... the nonexistence of other property may make other forms of support payments necessary.”). In the instant case, without the debt arising from the value of the pension fund, wife would have been without urgently needed support until husband had completed his graduate training. Under these circumstances, it is evident that the pension fund/IRA money was intended for support until such time as the other obligations imposed by the court could be met by husband. Cf. Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1986) (where circumstances indicate recipient spouse needs support and a decree fails to provide same, it can be presumed that a so-called property settlement is intended for support); accord In re Singer, 787 F.2d at 1035.

We next turn to appellant’s claim of error regarding the trial court’s admission of testimony of the parties’present circumstances. Specifically husband claims that it was error for the trial court to hear evidence of his current income since the only relevant time frame for purposes of dischargeability is the time the obligation was created. Appellant raises an issue which has been the subject of considerable controversy in federal bankruptcy law. While some courts adhere to the approach formulated in the frequently-cited Calhoun case, several others have rejected the Calhoun analysis. Calhoun would allow the bankruptcy court to look both to the debtor’s present financial circumstances and the economic conditions which prevailed at the time the decree was entered. The Calhoun court reasoned that the debt must be viewed in light of the debtor’s present ability to pay it because the bankruptcy court should be in a position to discharge a continuing obligation which is “manifestly unreasonable in view of the earning power and financial status of the debtor spouse”. Calhoun, 715 F.2d at 1110.

In rejecting the Calhoun approach, many courts point out the danger of transforming the bankruptcy courts into “super divorce courts”. Thus, the cases which urge the opposite approach stress that the bankruptcy courts are not entrusted “to actually determine the amount of alimony or support appropriate to the circumstances”. In re Jenkins, 94 B.R. at 360 (citation omitted). In In re Harrell, 754 F.2d 902, 906 (11th Cir.1985), the Eleventh Circuit rejected Calhoun and stated:

The statutory language [of § 523(a)(5) ] suggests a simple inquiry as to whether the obligation can legitimately be characterized as support, that is, whether it is in the nature of support. The language does not suggest a precise inquiry into financial maintenance to determine precise levels of need or support; nor does the statutory language contemplate an ongoing assessment of need as circumstances change.

We conclude that Harrell and Jenkins represent the better view. Therefore, we hold that circumstances present at the time of the divorce decree are not the proper focus in dischargeability decisions. We agree with the Jenkins court’s conclusion that, absent an unmistakable mandate from Congress, bankruptcy courts should not be in a position to modify state-created matrimonial obligations. If occasionally a situation arises wherein a nondischargeable support obligation far exceeds either the reasonable needs of the recipient or the ability of the debtor to pay, the remedy lies in seeking relief in the state divorce forum:

If the original state court award was excessive, it may be addressed by a state court appeal. . If the circumstances of the parties change warranting an adjustment of the obligation, state law allows a party to request a modification.

Jenkins, 94 B.R. at 360-61 (citations omitted).

Despite our holding on this issue, however, appellant is not entitled to the relief he seeks. Although the lower court admitted minimal testimony regarding husband’s current financial status and thus arguably contravened the principle announced here, it is clear that such testimony was not a factor in his ruling. The court’s order abundantly establishes that its decision on dischargeability was based on the intent and function underlying the marital obligations at the time they were created. The court’s findings were that “the financial obligations imposed upon [husband] were clearly necessary for the support and maintenance of [wife] and her child” and that “[wife’s] need for support prior to and at the time of the divorce decree was compelling”. The only relevance to the court’s mention of husband current financial status was to note that he indeed had accomplished what the court in its original decree had already considered, i.e., husband’s opportunity for an excellent future income. This comment in no way altered the nature of the obligation originally imposed by the court nor did the testimony on current income undermine the validity of the court’s conclusion on dischargeability.

In light of the foregoing, we conclude that the trial court correctly determined that the marital debts at issue here were in the nature of support or alimony and were not dischargeable in bankruptcy.

Order affirmed.

      . The Bankruptcy Reform Act was enacted by Congress in 1978 and replaced the then-existing Title 11 of the United States Code. Bankruptcy Reform Act of 1978, Pub.L.No. 95-598, 92 Stat. 2549 (codified at 11 U.S.C. § 101 et seq. 1978) (the “Bankruptcy Code”).
      Section 523 of the Bankruptcy Code enumerates the types of debts which are not dischargeable and therefore are exceptions to the general discharge of obligations in bankruptcy. In particular, section 523(a)(5) provides an exception for those debts which are owed to a spouse, former spouse or child of the debtor which are in the nature of alimony, maintenance or support. (For full text of section 523(a)(5) and further discussion see pp. 249-252, infra.)

      . Husband had been attending dentistry school on a full scholarship provided by the Public Health Service and the National Service Corporation. As a result, he was obligated to serve in an area which had a shortage of dentists after graduation.

      . The trial court concluded that between 1979 and 1985, wife contributed in excess of $70,000 to husband’s schooling and career advancement in the form of supplementary family support during the course of husband’s education and early professional practice. The court noted in its opinion, however, that based upon then-existing case law, it believed that it could not directly reimburse wife for these contributions.

      . Although custody and child support were disposed of in the court’s order, these matters are not at issue in the instant appeal.

      , To the extent that the instant appeal makes reference to or challenges the proprietj' and equity of the original award, such allegations are wholly waived.

      . The Bankruptcy Code and accompanying federal bankruptcy rules specify the matters over which a bankruptcy court may exercise exclusive jurisdiction. The dischargeability of a debt under section 523(a)(5) regarding whether a marital obligation is in the nature of support or alimony is not among the enumerated questions given solely to bankruptcy courts. See 11 U.S.C. § 523(c) (West Supp.1986).
      The official notes of the Advisory Committee on Bankruptcy Rules, in the notes accompanying Rule 4007(b), state:
      Subdivision (b) does not contain a time limit for filing a complaint to determine the dischargeability of a type of debt listed as nondischargeable under § 523(a)(1), (3), (5), (7), (8), or (9). Jurisdiction over this issue on these debts is held concurrently by the bankruptcy court and any appropriate non-bankruptcy forum.

        Collier, Bankruptcy Rules 129 (pamphlet edition 1986); See also 3 Collier on Bankruptcy § 523.15[6] (15th ed. 1984); In re Aurre 60 B.R. 621, 624 (Bankr.S.D.N.Y.1986); Zimmerman v. Zimmerman, 322 Pa. Super. 121, 124, 469 A.2d 212, 213 n. 1 (1983); Loyko v. Loyko, 200 N.J.Super. 152, 490 A.2d 802 (1985).

      . See In re Aurre, supra; In re Grimshaw, 57 B.R. 181, 182 (Bankr.N. D.Okla 1986); Goss v. Goss, 722 F.2d 599 (10th Cir.1983).

      . The bankruptcy court ordered: “[T]hus, upon the conclusion of the Divorce Court proceeding to determine the dischargeability of the Marital Obligations, assuming the [established] conditions for the application of collateral estoppel are met, Creditor or Debtor may make a motion for summary judgment to the Court in the adversary proceeding filed by Debtor, and the Court will afford the decision of the Divorce Court the finality appropriate pursuant to the doctrine of collateral estoppel." Bankruptcy Court’s Entry on Motion for Relief from Stay p. 9, February 22, 1989.

      . The legislative history of the Bankruptcy Reform Act of 19.78 is explicit regarding which law governs the issue of dischargeability under section 523(a)(5). The legislative reports accompanying the enactment of the new Code state: What constitutes alimony, maintenance, or support, will be determined under the bankruptcy laws, not State law.

      S.Rep. No. 95-989, 95th Cong., 2d Sess. 79, reprinted in [1978] U.S. Code Cong. & Admin.News 5787, 5963, 6320.

      . See DeSylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956) (no federal law of domestic relations); In re Spong, 661 F.2d 6 (2nd Cir.1981); In re Calhoun, 715 F.2d 1103 (6th Cir.1983) and cases cited therein.

      . The United States Supreme Court in Audubon v. Shufeldt, 181 U.S. 575, 577-78, 21 S.Ct. 735, 736, 45 L.Ed. 1009 (1901) explained:
      Alimony does not arise from any business transaction but from the relation of marriage. It is not founded on a contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction____ But its obligation in that respect does not reflect its nature.

      . It has often been noted that a fundamental goal of bankruptcy relief if to provide an economic "fresh start” to the honest debtor. See, e.g., Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); In re Alloway, 37 B.R. 420 (Bankr.E.D.Pa.1984); In re Hixson, 23 B.R. 492 (Bankr.S.D.Ohio 1982).

      . One bankruptcy court noted: "[T]he former spouse rather than society should be responsible for the maintenance and support of members of the family which is split by divorce or separation.” In re Alloway, 37 B.R. at 425. See also In re Jenkins, 94 B.R. 355, 358 (Bankr.E.D.Pa.1988); In re Schmiel, 94 B.R. 373, 377 (Bankr.E.D.Pa. 1988).

      . The bankruptcy court in In re Wisniewski, 109 B.R. 926, 930 (Bankr.E.D.Wisc.1989) stated: "Bankruptcy courts must fit those obligations into pigeon holes for which they were not intended, because neither the parties nor the divorce court contemplated the effect of a subsequent bankruptcy when the obligation arose.” See also In re Messnick, 104 B.R. 89, 93 (Bankr.E.D.Wisc.1989) ("This support/property division dichotomy must be applied to liabilities that do not neatly fit into either category and were not created with such categories in mind.”).

      . Our Divorce Code is among those which direct divorce courts to consider various overlapping economic and non-economic factors both in awarding alimony and in distributing marital assets. When fashioning an alimony award, a court must consider, inter alia, whether the property distributed through equitable distribution reasonably meets the needs of the dependent spouse. 23 Pa.Cons.Stat. Ann. § 501(b)(16) (Purdon Supp.1990). Moreover, several of the factors the court must take into account when distributing marital property under § 401 of the Divorce Code are similar to alimony considerations and may have a “support” component. The court must look to the parties’ income, employability, marital standard of living, needs and economic circumstances. It is plain that equitable distribution sometimes serves a support function and is not always a strict splitting of assets and liabilities. Compare 23 Pa.Cons.Stat.Ann. § 401(d)(3), (9) and (10) with § 501(b)(1), (3), (8) and (10).

      . See Scheible, Defining “Support" Under Bankruptcy Law: Revitalization of the “Necessaries" Doctrine, 41 Vanderbilt L.Rev. 1 (1988).
      In In re Jenkins, the bankruptcy court observed that the blurring of the distinction between alimony (or support) and property division led the Commission on the Bankruptcy Laws of the United States to recommend to Congress the elimination of the distinction and the enactment of an amendment making both types of marital obligations nondischargeable. Congress rejected this proposal when it adopted the Bankruptcy Reform Act of 1978. In re Jenkins, 94 B.R. at 358.

      . In re Jenkins, 94 B.R. at 360.

      . See, e.g., In re Anderson, 62 B.R. 448, 454-55 (Bankr.D.Minn.1986); In re Neely, 59 B.R. 189, 193 (Bankr.D.S.D.1986); In re Coffman, 52 B.R. 667, 674-75 (Bankr.D.Md.1985).

      . In an argument bordering on specious, appellant claims that the alimony award here was actually a strict division of property in that it was intended to “reimburse” wife for the financial contributions made to husband during his schooling. It is true that the trial court made note of wife’s considerable financial sacrifice to her then-husband's career advancement. In addition, the court noted that the advanced degree husband had earned while being supported by wife had been held not to be a marital asset subject to distribution. In light of this, the trial court noted that its ability to “redress” the wife was "limited".

        See Bold v. Bold, 524 Pa. 487, 574 A.2d 552 (1990), reversing, 374 Pa.Super. 317, 542 A.2d 1374 (1988).
      The contribution by one spouse to the education, training, or increased earning power of the other party has always been, and remains, a factor in the divorce court’s determination of alimony. 23 Pa.Cons.Stat.Ann. § 501(b)(6) (Purdon Supp.1990). It does not follow, however, that the alimony award here was “based on repayment” and therefore was not meant as support. Every aspect of the court’s decree, including the express language used, indicates that wife here was awarded spousal support in order to survive the economic impact of the dissolution of her marriage.
      We find persuasive the reasoning of the bankruptcy court in In re Stranathan, 15 B.R. 223 (Bankr.D.Neb.1981) .which held that a lump-sum award payable in installments to a former wife was in the nature of alimony and support even though it was meant, in part, to compensate wife for her contributions to her former husband’s professional education. The court there observed that such a purpose does not exclude the award from the category of alimony or support since a majority of alimony awards involve recompense to the recipient spouse for efforts devoted to and resources spent on the marriage. Therefore, even if we were to agree with husband that the divorce court intended to compensate wife for contributions to his dentistry degree and career advancement, such a finding would not dissuade us also from finding that the award was in the nature of alimony or support. Husband’s argument regarding the $200 per week payment fails under any analysis.

      . The standard of appellate review for bankruptcy court determinations of whether debts are exempt from discharge under § 523(a)(5) is that such a finding will be set aside only if “clearly erroneous". In applying federal bankruptcy law as a state court sharing concurrent jurisdiction, we use the same standard of review. See In re Calhoun, 715 F.2d 1103, 1110 (6th Cir.1983) (citation omitted).

      . The record at the hearing on dichargeability also revealed that husband was paying wife a fraction of the court-ordered amount of child support and was substantially in arrears.

      . In fact, the majority of the gift money was spent as a down payment on a Peugeot automobile which remained in husband’s possession.

      . Appellant argues that in order to find that the debt in question was in the nature of support or alimony, this court must find that the parties mutually intended to create a support obligation. This is incorrect. In contested cases such as the instant one, the parties cannot and have not mutually agreed to anything. The divorce court fashions the decree on the basis of the testimony and the record before it in accordance with the law. Hence, the only relevant "intent” is the intent of the court after it has considered all the evidence and applied the law. See In re Lineberry, 55 B.R. 510, 516-17 (Bankr.W.D.Ky.1985), in which the court stated: “As this was a contested divorce case, with a two-day trial held in state court, this Court need only consider the intent of the court which created the obligation by its decree.” The Lineberry opinion further noted: "In cases where it is clear that the state court has clearly and carefully considered the question of support in the context of a contested case ... then it is extremely unlikely that a bankruptcy court would make a contrary finding as to the true nature of the support obligation”. Id. (quoting In re Helm, 48 B.R. 215, 220 n. 13 (Bankr.W.D.Ky.1984)).

      . In an analogous case, In re Swiczkowski, 84 B.R. 487 (Bankr.N.D. Ohio 1988), the husband was ordered in a divorce decree to make car payments on the family car which the divorce court gave to wife. When the husband defaulted on the periodic payments, the divorce court ordered that husband make a lump sum payment to the wife, representing the value of the car. Thereafter, husband filed for bankruptcy and sought discharge of the above-cited debt. In the meantime, the car had been repossessed due to non-payment. In holding that the car debt was not dischargeable, the bankruptcy court noted the former spouse’s need for reliable transportation and concluded that such need was an essential element of support. The court then went on to consider the impact of the car’s repossession. In concluding that the repossession was irrelevant, the court pointed out the inequity of allowing the husband to control the nature of the obligation simply by failing to pay the court-ordered amounts. The court stated: ”[R]eliable transportation being an essential commodity for a family with minor children, the vehicle would have provided necessary support to the Debtor's family if the obligation had been paid and the vehicle had not been repossessed." Id. at 492.
      In our case, had husband not appropriated the family home for his own use, the home or the proceeds therefrom would have provided necessary support for wife and child. Due to husband’s actions the divorce court had no alternative but to provide said support in the manner it did.

      . In re Calhoun, 715 F.2d 1103 (6th Cir.1983).


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    580 A.2d 25
    COMMONWEALTH of Pennsylvania v. William FRANKLIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 29, 1990.
    Filed Aug. 27, 1990.

      John F. Stullmun, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, CERCONE and BROSKY, JJ.
   CERCONE, Judge:

This is an appeal from an order denying appellant’s petition for relief under the Post Conviction Hearing Act (the “PCHA”), 42 Pa.C.S.A. §§ 9541-9551. For the reasons set forth below, we affirm.

Appellant, William Franklin, was arrested because of an incident involving the murder of Joseph Hollis and the attempted murder of John Pickens. The facts adduced at trial, which were set forth by the lower court in an opinion filed May 24, 1983, may be summarized as follows. The relevant crimes were committed during a meeting on October 22, 1976 which occurred between two rival syndicates engaged in illegal narcotics operations, the “North Philadelphia” and “West Philadelphia” groups. The purpose of the meeting allegedly was to reconcile differences between the two syndicates which had arisen two days earlier when Hollis insulted Alfred Clark, the leader of the North Philadelphia organization, by questioning his credentials as a “real gangster” and slapping him in the face with a gun.

The meeting on October 22, 1976 was attended by approximately ten people. During the meeting, appellant and Major Tillery, a member of the North Philadelphia syndicate, drew weapons from underneath a pool table and shot Hollis and Pickens; Hollis died as a result of the shooting. Emmanuel Claitt, also a member of the North Philadelphia group, testified that he had no prior knowledge of the shooting and that he was standing by the door during the meeting to prevent anyone from entering or leaving. Based on information supplied by Claitt, appellant was arrested four years later. Claitt’s evidence was given in return for leniency from the Commonwealth relating to other open cases.

Following a trial which began on December 1, 1980, a jury found appellant guilty of first degree murder, possession of instruments of crime generally, criminal conspiracy, and aggravated assault. Appellant’s post-verdict motions were filed and argued by trial counsel. Subsequently, appellant raised allegations of ineffectiveness and new counsel assumed representation. Appellant was given additional time to file and brief post-trial motions nunc pro tunc. However, following a second hearing, all of appellant’s post-verdict motions were denied. On July 7, 1982, appellant was sentenced to serve life imprisonment for the murder conviction, concurrent terms of five (5) to ten (10) years for criminal conspiracy and two and one-half (2V2) to five (5) years on the weapons charge, as well as a consecutive term of five (5) to ten (10) years for aggravated assault. This judgment of sentence was affirmed on direct appeal by Commonwealth v. Franklin, 339 Pa.Super. 615, 488 A.2d 1163 (1985). Allocator was denied by the Pennsylvania Supreme Court on June 24, 1985. In an opinion filed December 22, 1989, the lower court indicates that appellant also filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The lower court states that this petition was withdrawn on June 6, 1986.

On June 24, 1986, appellant filed a petition under the PCHA and new counsel was appointed to write a brief for appellant. Prior to the hearing conducted on appellant’s claims, new counsel was once again appointed. Following the hearing, the lower court held its decision so that additional briefs could be submitted. Ultimately, the lower court denied collateral relief to appellant and the instant timely appeal followed which presents five questions for our consideration:

1. Was William Franklin denied the right to the effective assistance of counsel because of his trial counsel’s unreasonable failure to secure and present the testimony of an exculpatory witness?
2. Was Franklin deprived of his constitutional right to present a defense because he was prevented from introducing vital evidence at trial, namely an exculpatory statement made by the victim of the shooting?
3. Was Franklin deprived of the right to confrontation because he was not permitted to cross-examine the Commonwealth’s primary witness on the contents of an exculpatory statement made by the victim of the shooting?
4. Did the trial judge err in failing to charge the jury that Emmanuel Claitt, the sole witness against Franklin, was an accomplice to the crime with which Franklin was charged?
5. Was Franklin repeatedly denied effective assistance of counsel because both trial and appellate counsel neglected to pursue admission into evidence of the victim’s exculpatory statement and to request an accomplice charge?

We shall address appellant’s claims seriatim, noting initially that we are governed by a narrow scope of review when examining a PCHA court’s grant or denial of relief. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). “We will not disturb the findings of the PCHA court unless they have no support in the record.” Id., 378 Pa.Superior Ct. at 206, 548 A.2d at 575.

It is well settled that the burden of establishing ineffective assistance of counsel rests upon the appellant because counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Appellant’s obligation is to demonstrate both that “the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result.” Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987) (emphasis in original). The initial inquiry in an ineffectiveness claim is always “whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.” Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989). If this threshold is met, it must next be determined that the particular course followed by counsel had no reasonable basis designed to effectuate his client’s interests. Id. The final inquiry is to establish the precise manner in which counsel’s commission or omission prejudiced the appellant. Id. In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective because the appellate courts will not consider such claims in a vacuum. Id.; Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). We note additionally that counsel will not be deemed ineffective for failing to predict a change in the law. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant's first contention is that trial counsel was ineffective for failing to secure at trial the testimony of one of the victims, John Pickens, who allegedly would have stated that appellant “did not do the shooting.” To obtain relief on an ineffectiveness claim based upon former counsel’s failure to call a witness, appellant is required to establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for appellant at trial; and (5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1986). Even assuming, arguendo, that appellant’s proffer has met requirements (1), (3), and (5), testimony at appellant’s PCHA hearing shows unequivocally that Pick-ens could not be located at the time of appellant’s trial, that he was not prepared to cooperate with the defense, and that he was unwilling to testify on appellant’s behalf.

Trial counsel explained at the PCHA hearing that he had contacted counsel for Mr. Pickens, Joseph Santiguida, Esquire, regarding the possibility of having Mr. Pickens testify at appellant’s trial. N.T. 10/5/88 at 9-10. Mr. Santiguida informed trial counsel that because of Mr. Pick-ens’ involvement in the events underlying the criminal charges filed against appellant, he would have to advise his client not to testify for appellant. Id. at 10. A witness who chooses to invoke his Fifth Amendment right not to testify is “unavailable.” See, e.g., Commonwealth v. Rodgers, 472 Pa. 435, 452-457, 372 A.2d 771, 779-781 (1977) (per Roberts, J., with one Justice concurring and two Justices concurring in the result); Commonwealth v. Bellacchio, 296 Pa.Super. 468, 474-475, 442 A.2d 1147, 1149-1150 (1982). As the trial court was not required to determine whether an attempt by Mr. Pickens to assert his Fifth Amendment rights was justified, we are not now in a position to rule that the witness was “unavailable” in this sense. However, under Commonwealth v. Petras, supra, we need merely consider whether the record indicates that the potential witness was physically available and whether he had shown that he was prepared to cooperate and was willing to testify for appellant at trial.

The record discloses that Mr. Pickens had apparently fled the jurisdiction at the time of appellant’s trial. Trial counsel indicated to the lower court at the hearing on appellant’s post-trial motions that he had made extensive, albeit unsuccessful, efforts to locate Mr. Pickens in late 1980. N.T. 4/7/81 at 9. The witness could not be reached at his last known address, the home of his mother. See Exhibit D-2. The record certified on appeal contains a deposition taken on February 19, 1988, in which Mr. Pickens’ mother, Delores Pickens, stated that her son has not lived with her since some time in the late 1970’s, that she has not known his whereabouts since that time, and that she did not know where he lived at the time of the deposition. Id. Mrs. Pickens also deposed that, although her son has contacted her from time to time, she “knows better than to ask” him questions relating to his whereabouts. Id. The deposition clearly indicates that in late 1980, the time of appellant’s trial, Mrs. Pickens did not know the location of her son and was not in a position to initiate contact with him.

The record plainly substantiates a finding that Mr. Pick-ens could not be located at the time of appellant’s trial, that he was unwilling to cooperate with the defense, and that he did not wish to testify for appellant. We therefore affirm the PCHA court’s ruling that trial counsel’s unsuccessful efforts to secure the witness’ testimony did not constitute ineffectiveness. See Commonwealth v. McClucas, supra; Commonwealth v. Vesay, 318 Pa.Super. 320, 327, 464 A.2d 1363, 1367 (1983) (an appellate court will not disturb the PCHA court’s findings where they are supported by the record).

The second claim made by appellant is that he was deprived of due process of law because he was prevented from introducing evidence vital to his defense. The gravamen of appellant’s complaint is that he was not permitted to introduce a hearsay statement made by Mr. Pickens to the police officer who investigated the shooting underlying appellant’s conviction. When he was questioned the morning after the shooting, Mr. Pickens named two men who had shot him, and upon viewing a photograph of appellant, stated that appellant was not his assailant. Appellant argues that the trial court improperly applied a “mechanistic” interpretation of the rules of evidence and incorrectly excluded Pickens’ statement. Although appellant concedes that the statement in question is hearsay, he contends that it should have been admitted under the “due process exception” to the hearsay rule. Appellant has summarized his argument as follows:

If hearsay testimony is critical to the defense and exhibits sufficient indicia of reliability, the state’s interest in excluding the testimony must yield to the right of the accused to present a defense. Pickens’ statement satisfies these criteria and ought to have been admitted by the trial judge.

Appellant’s brief at 41-42.

The decision to admit or exclude evidence is within the discretion of the trial court, and will not be reversed absent an abuse of that discretion. Commonwealth v. Wagner, 383 Pa.Super. 128, 131, 556 A.2d 462, 463 (1989). “Reversal based on the exclusion of evidence requires a showing of abuse of discretion as well as a showing of actual prejudice.” Id., citing Commonwealth v. Sweger, 351 Pa.Super. 188, 505 A.2d 331 (1986), allocatur denied, 513 Pa. 634, 520 A.2d 1385 (1987). In clarifying the meaning of “discretion of the trial court” in the context of determining whether to admit evidence, Judge Wieand explained that “[t]o receive evidence excluded by a rule of evidence is error; the trial court may not, in its discretion, ignore the rule.” Commonwealth v. Wagner, supra 383 Pa.Super. at 134, 556 A.2d at 465 (Wieand, J., concurring). The Pennsylvania Supreme Court has stated that “[i]t is well settled in our law that hearsay evidence is inadmissible unless it qualifies under one of the recognized exceptions to that rule.” Commonwealth v. Smith, 523 Pa. 577, 591, 568 A.2d 600, 607 (1989). Appellant has proffered no Pennsylvania statute or caselaw citing an exception applicable in this instance to the hearsay rule. Rather, he argues that certain United States Supreme Court precedent compels us to find that the trial court erred in its evidentiary ruling. We disagree, however, with appellant’s interpretation of the Supreme Court’s rulings.

Appellant cites Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) for the proposition that a criminal accused has the right to confront and cross-examine witnesses. In Pointer, the Supreme Court reversed a conviction based on the introduction at trial of prior testimony from a missing witness who was not subject to cross-examination. While we agree with appellant that he had the right to confront and cross-examine the prosecution’s witnesses, Pointer simply has no bearing on appellant’s attempt to introduce inadmissible hearsay.

Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), also cited by appellant, is inapposite to the instant appeal. In Washington, the Court held that a criminal defendant was denied his Sixth Amendment right to compulsory process for obtaining witnesses because a Texas statute prohibited principals, accomplices or accessories in the same crime from being introduced as witnesses on each other’s behalf. Appellant has not even argued that such a statute existed in Pennsylvania at the time of his trial. As previously discussed, the pertinent witness, Mr. Pickens, was physically unavailable at the time of appellant’s trial. Under the circumstances of the instant case, we are unable to conclude that appellant was deprived of the right to compulsory process as contemplated by Washington.

The core of appellant’s due process argument is based on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, the Supreme Court explained that the hearsay rule is grounded in the notion that “untrustworthy evidence should not be presented to the triers of fact.” Id. at 298, 93 S.Ct. at 1047. The Court’s general discussion of the hearsay rule and its exceptions stressed that not only the state, but the criminal accused also, “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. at 302, 93 S.Ct. at 1049. As appellant correctly notes, Chambers v. Mississippi held that it was error for the trial court to exclude critical hearsay testimony to the effect that a third party had, on three separate occasions, spontaneously confessed to having committed the murder of which the petitioner stood accused. However, the Court emphasized the fact that the hearsay statements in question had originally been made, and were subsequently offered at trial, under circumstances that provided considerable assurance of their reliability. Each confession was made spontaneously to a close acquaintance shortly after the murder was committed; each was corroborated by other evidence in the case; each confession was both self-incriminatory and unquestionably against the penal interest of the declarant. Id. at 300-01, 93 S.Ct. at 1048. Most significantly, the declarant was present in the courtroom and under oath during the petitioner’s trial. He therefore could have been cross-examined by the prosecution and his demeanor and responses could have been weighed by the jury. Id. at 301, 93 S.Ct. at 1049. In consideration of the totality of these indicia of reliability, the Court held that the “mechanistic” application of Mississippi’s rules of evidence by the state court had deprived Chambers of his right to due process of law. Id. at 302, 93 S.Ct. at 1049.

We disagree with appellant’s contention that the hearsay statement he attempted to introduce at trial was made under conditions of reliability similar to those present in Chambers v. Mississippi, supra. The ruling in Chambers is readily distinguishable from the instant case upon consideration of several particulars: although Pickens’ statement was made shortly after the shooting in question, the statement itself was not against Pickens’ penal interest, it was not uttered spontaneously to a “close acquaintance,” and it was not spontaneously repeated on multiple occasions. Finally, for reasons previously discussed, Pickens was not present in the courtroom, was not available to the prosecution for cross-examination, and his demeanor was not subject to evaluation by the jury. Under the facts presented by appellant’s case, we have no difficulty in holding that Chambers v. Mississippi does not compel us to overturn the ruling of the trial court on the admissibility of Pickens’ hearsay statement. The indicia of reliability which the Chambers Court emphasized as a necessity before requiring the admission of the hearsay statement simply are not present in the instant case. As the record contains no indication that the lower court committed abuse of discretion or error of law in its ruling, we find that appellant is not entitled to relief on this claim.

Appellant next contends that he was deprived of his due process right to effectively cross-examine adverse witnesses. The gist of appellant’s argument is that the exclusion of Pickens’ hearsay statement deprived appellant of the opportunity to adequately cross-examine Emmanuel Claitt, the principal prosecution witness. We agree that Article 1, Section 9 of the Pennsylvania constitution and the Sixth Amendment to the federal constitution guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. Commonwealth v. Lloyd, 523 Pa. 427, 429 n. 1, 567 A.2d 1357, 1358 n. 1 (1989). However, the Sixth Amendment right to confrontation extends only to witnesses whose testimony is actually presented at trial. Commonwealth v. Paskings, 447 Pa. 350, 354, 290 A.2d 82, 84 (1972); Commonwealth v. Allen, 287 Pa.Super. 88, 95, 429 A.2d 1113, 1116 (1981). See Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987) (Per Justice Powell, joined by the Chief Justice and two Justices, and with one Justice concurring in the result) (the confrontation clause only guarantees the opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the defense might wish) (emphasized in the original).

Appellant has cited precedent which supports the general proposition that a defendant may not be restricted by means of hyper-technical rules from adequately cross-examining a witness who actually testifies at trial against him. We find this argument inapt, however, as appellant does not claim that he was prevented from asking Emmanuel Claitt any particular question on any particular issue. Appellant merely makes the bald assertion that the exclusion of Pickens’ hearsay statement prevented the defense from probing the credibility of “much of Claitt’s testimony” despite trial counsel’s vigorous questioning regarding Claitt’s criminal record and his plea bargain with the Commonwealth. Our research has not disclosed, nor has appellant provided a citation to, any authority which compels the admission of an unreliable hearsay statement for the purpose of discrediting a prosecution witness.

Although the right of confrontation is a fundamental right under both the state and federal constitutions, it is not absolute. Commonwealth v. McCloud, 457 Pa. 310, 312, 322 A.2d 653, 655 (1974). The state court is free to develop rules of evidence which may, on their face, “conflict with the confrontation clause, provided we closely examine the rules and determine that the integrity of the factfinding process is not infringed.” Commonwealth v. Kravontka, 384 Pa.Super. 346, 351-52, 558 A.2d 865, 868 (1989) (citing U.S. Supreme Court precedent). In Pennsylvania, hearsay evidence is inadmissible unless it qualifies under one of the recognized exceptions to the hearsay rule. Commonwealth v. Smith, 523 Pa. at 591, 568 A.2d at 607. Such evidence may only be admitted in a Pennsylvania court after an evaluation of the particular circumstances of the case. Commonwealth v. McCloud, supra. Further, its admission is limited to “situations where the declaration is inherently trustworthy.” Commonwealth v. Kravontka, 384 Pa.Super. at 352, 558 A.2d at 868, citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2531, 65 L.Ed.2d 597 (1980). Accord Chambers v. Mississippi, supra. For the reasons set forth above, we have already concluded that Pickens’ hearsay statement was not uttered under conditions exhibiting “indicia of reliability” that would enable us to consider the declaration “inherently trustworthy.” Appellant has not even argued that the statement falls within an exception to the hearsay rule recognized in this Commonwealth. Thus, we hold that appellant was not entitled, as a matter of right under either the state or federal constitutions, to introduce Pickens’ hearsay statement for the purpose of discrediting Claitt.

The fourth issue raised by appellant is that the trial court erred in failing to charge the jury that Emmanuel Claitt was an accomplice to the crimes with which appellant was charged. The Commonwealth correctly points out that appellant initially waived this issue by not raising it before the trial court. In Commonwealth v. Rounds, our supreme court explained that failure to raise issues pertaining to cautionary instructions in the trial court results in waiver. Id., 510 Pa. 524, 527, 510 A.2d 348, 349 (1986). Appellant admits that no request for a jury charge was ever made before the trial court. However, he alleges that this very fact demonstrates that he received ineffective assistance of counsel. Appellant further contends that, even in the absence of a request, his due process rights entitled him to an accomplice charge as the circumstances surrounding Claitt’s testimony should have alerted the trial court to the need for such a charge. Because of the context in which appellant raises the claim, we conclude that it is properly before this court.

An accomplice charge with respect to a witness is warranted when evidence at trial either requires or permits the inference that the witness may have been a participant in the crime charged. Commonwealth v. Howard, 375 Pa.Super. 43, 50, 543 A.2d 1169, 1172 (1988), allocatur denied, 522 Pa. 573, 559 A.2d 35 (1989). It is reversible error for a trial court not to give an accomplice charge if the evidence permits an inference that a witness was an accomplice. Commonwealth v. Smith, 343 Pa.Super. 435, 447-48, 495 A.2d 543, 549 (1985). However, where the evidence does not permit the jury to infer that a Commonwealth witness was an accomplice, the trial court is empowered to conclude, as a matter of law, that the witness was not an accomplice. Id., 343 Pa.Superior Ct. at 448, 495 A.2d at 549. In such a case, an accomplice charge is not required. Id.

As we stated previously, our narrow scope of review when examining a PCHA court’s denial of relief requires us to affirm the lower court’s findings unless they have no support in the record. Commonwealth v. McClucas, 378 Pa.Super. at 206, 548 A.2d at 575. We have carefully reviewed the record of the case sub judice and find that the evidence presented to the jury supports the PCHA court's conclusion that Emmanuel Claitt was not appellant’s accomplice with regard to the crimes underlying the instant appeal. Testimony introduced at trial indicated that Claitt and appellant were members of the same gang and that Claitt had participated in the organization’s drug selling activities. However, Claitt was not privy to the revenge plotted by appellant and Major Tillery against Joseph Hollis and his associates. Although Claitt admitted that he served as a look-out at the entry door to the gangs’ “summit meeting,” he had been instructed to leave his weapons in his car and was told that the only purpose of the conference was to straighten out the problems that had developed because Joseph Hollis insulted Alfred Clark. N.T. 12/8/80 at 3.32-3.68. As these facts do not support any conclusion of complicity by Claitt in appellant’s conspiracy with Tillery to shoot members of the rival gang, trial counsel was not ineffective for failing to request an accomplice charge nor was there any necessity for the trial court to provide such a charge sua sponte. We therefore affirm the PCHA court on this issue.

Appellant’s final contention is that he was repeatedly denied effective assistance of counsel because both trial and appellate counsel neglected to pursue the admission into evidence of Pickens’ hearsay statement and because trial counsel neglected to request an accomplice charge. We agree with the Commonwealth that appellant’s argument regarding this claim may be reduced to the assertion that prior counsel did not pursue the same mode of operation that present counsel would have chosen. Our previous discussion has addressed the contentions underlying appellant’s final argument and found them meritless. Because appellant was not entitled to introduce Pickens’ unreliable out-of-court statement under any exception to the hearsay rule, it is of no consequence that trial counsel was unsuccessful in his attempts to do so under either the res gestae or business records exceptions. In connection with appellant’s assertions that prior counsel were ineffective regarding the failure to request an accomplice charge, we have already concluded that appellant was not entitled to such a charge. We therefore can grant appellant no relief on this claim.

Order affirmed.

      . The PCHA has been modified in part, repealed in part and renamed the Post Conviction Relief Act (“PCRA") by the Act of April 13, 1988, 42 Pa. C.S.A. §§ 9541-9546. The new provision applies to all actions for collateral relief instituted on or after the effective date. The instant petition was filed prior to that date and will be evaluated under the PCHA.

      . 18 Pa. C.S.A. § 2502(a).

      . Id. § 907(a).

      . Id. § 903.

      . Id. § 2702.

      . The lower court docket entry incorrectly states that allocatur was denied on August 13, 1989.

      . As our analysis concedes, for the sake of this particular argument, that Mr. Pickens may have been able to provide exculpatory testimony, we need not consider the merits of whether the witness' hearsay statement should have been considered by the PCHA court. Nor is it necessary to discuss in the present context whether the absence of Pickens' testimony was prejudicial to the appellant.

      . In general, a witness may invoke the privilege against self-incrimination if his conviction has not been finalized by the imposition of sentence. Commonwealth v. Sanabria, 478 Pa. 22, 29, 385 A.2d 1292, 1295 (1978); Commonwealth v. Garland, 475 Pa. 389, 395, 380 A.2d 777, 779-780 (1977). The record clearly establishes that Mr. Pickens potentially was liable to prosecution based on his distribution of illegal drugs, which was the source of his involvement in the altercation with appellant which underlies the instant appeal. Under these circumstances, it is highly likely that the witness validly could have invoked his right not to testify. See Commonwealth v. McGrogan, 523 Pa. 614, 621, 568 A.2d 924, 929 (1990) (“Where other evidence tends to implicate [a potential] witness in criminal activity, the witness may have justification for invoking his Fifth Amendment privilege to prevent being harmed by his own words.”) See also Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979) (the trial court may overrule a claim of constitutional privilege only where the record clearly establishes that the witness is mistaken in believing self-incrimination will occur and that his testimony cannot possibly have such a tendency).

        Appellant’s argument that the witness could not reasonably have feared prosecution in connection with the events that caused him to be a victim is simply inapposite. Even if Mr. Pickens' liability for prosecution stemmed from acts other than those directly concerned with the charges filed against appellant, the witness properly could have asserted his rights against self-incrimination. See, e.g., Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967) (wherein an unmarried woman was permitted to invoke her Fifth Amendment privilege in connection with a grand jury investigation of a third party’s abortion practice because the witness’ answers to questions potentially would have incriminated her on charges of fornication). As the court ruled in Carrera, “it is not necessary that a real danger of prosecution exist to justify the exercise of the privilege against self-incrimination. It is sufficient if the person questioned has reasonable cause to apprehend such danger.” Id., 424 Pa. at 553, 227 A.2d at 629. Because the record clearly indicates that Mr. Pickens' involvement with appellant stemmed from his activities in connection with the distribution of illegal drugs, we cannot say that the witness would have had no reasonable basis to fear that his testimony could prove self-incriminating.
      We note additionally that appellant is unjustified in his reliance on Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980) for the proposition that the trial court would have been required to grant Mr. Pickens use immunity so he could testify for appellant. Although the Pennsylvania Supreme Court had not ruled on the precise question presented by appellant at the time of his trial, the court subsequently chose not to follow the lead provided by Smith. See Commonwealth v. Lacey, 344 Pa.Super. 576, 582, 496 A.2d 1256, 1260 (1985) (Pennsylvania’s appellate courts are not bound by an inferior federal court’s interpretation of state law). See also Moore v. Sims, 442 U.S. 415, 428, 99 S.Ct. 2371, 2379, 60 L.Ed.2d 994 (1979) (“state courts are the principal expositors of state law"). In Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985), our supreme court held that witness immunity in Pennsylvania is governed by statute and that a trial court has no inherent power to grant use immunity without the approval of the prosecutor. Id., 507 Pa. at 32, 487 A.2d at 1322-23. At the time of appellant’s trial, the relevant statutory enactment limited requests for judicial use immunity solely to the prosecution. See 42 Pa. C.S.A. § 5947. Trial counsel cannot be found ineffective for failing to pursue a right which appellant was not entitled to exercise. See Commonwealth v. Durst, supra.

      . We are cognizant that Commonwealth witness Emmanuel Claitt testified that he had seen Mr. Pickens "in and around town” at the time of appellant’s preliminary hearing in June of 1980. N.T. 12/3/80 at 3.73. Mr. Claitt also stated that Mr. Pickens actually attended the preliminary hearing. Id. However, the relevant inquiry is not whether Mr. Pickens was available at the time of the preliminary hearing, but whether he could be located at the time of appellant’s trial in December of 1980. We are unable to agree with appellant that because the witness’ location was known in June of 1980 that he was available to testify at a trial held in December of 1980.

      . We note parenthetically that although Pickens’ statement is exculpatory insofar as the aggravated assault charge filed against appellant because of his attack on Pickens is concerned, the declaration in no way exonerates appellant from the more serious charge of murdering Joseph Hollis. Likewise, the hearsay statement does not absolve appellant of criminal conspiracy or possession of instruments of crime.

      . As the Supreme Court explained, the rules of evidence obtaining in Mississippi at the time of Chambers’ trial forbade the admission of hearsay statements against the penal interest of the declarant, although hearsay statements against pecuniary interest were admissible.
        Id. at 298-300, 93 S.Ct. at 1047-48. At the same time, Mississippi also followed the “party witness” or "voucher" rule which prevented Chambers from impeaching his own witness, the declarant whose out-of-court confession was barred from admission under Mississippi’s interpretation of the hearsay rule. The Supreme Court condemned the "voucher” rule as archaic, id. at 295-98, 93 S.Ct. at 1045-46, and concluded that the combined effect of Mississippi’s “voucher” and hearsay rules had impermissibly worked to Chambers’ detriment.

      . We are cognizant of appellant’s argument that Pennsylvania courts have improperly limited Chambers to declarations against penal or social interest. Appellant cites Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) for the proposition that the Supreme Court intended Chambers to cover all situations in which ordinarily inadmissible hearsay evidence is critical to the defense. However, the out-of-court statement under consideration in Green was a confession to a murder and was clearly against the declarant’s penal interest. Further, the Green Court specifically limited its ruling to "the unique circumstances” of that particular case. Id. at 97, 99 S.Ct. at 2151-52.

      . The Court also explained in Ritchie that nothing in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), relied upon by appellant in the instant case, compelled the Commonwealth to override a Pennsylvania rule of evidence pertaining to statutory privilege simply because a defendant asserted a need for the protected information in order to proceed with a preferred method of impeachment. Pennsylvania v. Ritchie, 480 U.S. at 54, 107 S.Ct. at 999.

      . See Commonwealth v. Smith, 523 Pa. at 592-93, 568 A.2d at 608. "The predicate supporting the rejection of hearsay evidence is its assumed unreliability because the declarant from which the statement originates is not before the trier of fact and therefore cannot be challenged as to the accuracy of the information sought to be conveyed.”


text:
    580 A.2d 35
    Margaret CONNOLLY, Appellant, v. METROPOLITAN INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 5, 1990.
    Filed Sept. 18, 1990.

      Peter McNamara, Philadelphia, for appellant.
    Laurence I. Gross, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final order of the Court of Common Pleas of Philadelphia County which dismissed plaintiff/appellant’s complaint and entered judgment in favor of defendant/appellee. For the reasons set forth below, we affirm.

The parties have stipulated to the relevant facts which were read into the record on July 12, 1989. Plaintiff/appellant, Margaret Connolly, was injured in a motor vehicle accident in December of 1984 while she was driving an automobile which was covered by a policy of insurance issued by defendant/appellee, Metropolitan Insurance Company (“Metropolitan”). The policy was issued in accordance with the Pennsylvania No-fault Motor Vehicle Insurance Act (“the No-fault Act”), 40 P.S. §§ 1009.101-1009.701 (repealed). The parties have stipulated that the instant case is governed by that statute.

Appellant’s husband, Charles Connolly, had executed a certification on August 24, 1984 indicating that benefits under Blue Cross/Blue Shield coverage were available to him. This certification enabled Mr. Connolly to select “Option B” coverage for his two automobiles and thereby obtain a forty percent (40%) discount in the premiums payable to the insurer. Appellant and her husband were the only drivers listed on the application for insurance. At all times material to the cause of action underlying the instant appeal, appellant was married to Charles Connolly and resided with him. At the time of appellant’s accident she was insured for medical coverage by an HMO plan and was not covered by her husband’s Blue Cross/Blue Shield policy. However, appellant did not seek medical treatment for her injuries in accordance with the terms of her HMO policy.

When appellant submitted her medical claims to Metropolitan, her attorney was promptly advised that the coordination of benefits clause in the insurance policy issued under the “Option B” coverage selected by appellant’s husband required that medical claims should be submitted to the primary health insurance carrier. Because appellant did not utilize her HMO coverage in obtaining medical treatment, Metropolitan refused to pay the outstanding medical bills which total ten thousand seven hundred and eight dollars and twenty-seven cents ($10,708.27).

Appellant filed a complaint which was submitted to arbitration. With one member dissenting, the panel of arbitrators found in favor of Metropolitan on June 29, 1987. Appellant then took an appeal to the Court of Common Pleas of Philadelphia County which also found in favor of Metropolitan. On October 27, 1989, the lower court dismissed appellant’s complaint by an order docketed on November 8, 1989. Appellant timely filed the instant appeal which raises two questions:

I. Did the lower Court commit an error of law by disregarding the clear and unambiguous wording of the No-Fault Act and Pennsylvania Code in determining that Plaintiff Margaret Connolly was required to coordinate her private health insurance with the coverage provided by the Defendant?
II. Did the lower Court commit an error of law by requiring a non-party to a contract [to] be bound [by] its terms?

We shall address these issues in sequence.

The gravamen of appellant’s first complaint is that she should not be considered an “insured” for purposes of the policy of insurance issued by Metropolitan because her name does not appear in the policy. Appellant argues that, as she is not a “named insured,” the coordination of benefits clause in the insurance policy does not apply to her. Thus, appellant would have us conclude that she was under no obligation to seek treatment from her private medical insurance carrier. We find, however, that such a determination would contravene the plain and unambiguous language of the No-fault Act.

We agree with appellant that when the words of a statute are clear and free from all ambiguity, the courts may not disturb the plain meaning of the statutory language. Pavelic v. Nationwide Insurance, 352 Pa.Super. 11, 14-15, 506 A.2d 1310, 1312 (1986), citing Philadelphia Housing Authority v. Commonwealth of Pennsylvania Labor Relations Board, 508 Pa. 576, 581, 499 A.2d 294, 297 (1985); 1 Pa.C.S.A. § 1921(b). Every statute must be construed to give effect to all its provisions whenever this is possible. § 1921(a), supra. With these principles in mind, we conclude that the No-fault Act makes no distinction between an “insured” and a “named insured” that would compel the result sought by appellant in the instant case.

The No-fault Act defines “insured” as follows:

“Insured” means:
(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(b) a spouse or other relative of a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of a named insured if—
(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
(ii) in residence in the same household with a named insured.
An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

40 P.S. § 1009.103 (repealed). The parties have stipulated that at all times relevant to the instant appeal, appellant was the spouse of the policy’s “named insured,” Charles Connolly, and resided with him in the same household. There is no stipulation, or any evidence in the certified record, suggesting that appellant was identified by name as an insured in any other contract of basic restoration insurance complying with the No-fault Act. Thus, the record supports the the lower court’s conclusion that appellant is an “insured” within the meaning of the No-fault Act.

Section 203 of the No-fault Act provides as follows:

(b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim,[] allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.
(c) An insurer providing basic loss benefits and tort liability in accordance with the provisions of subsection (b) above shall reduce the cost of such contract of insurance to reflect the anticipated reduction in basic loss benefits payable by the insurer by reason of the election of the owner or operator to provide substitute security.

40 P.S. § 1009.203(b), (c) (repealed). Charles Connolly, the owner of the vehicle driven by appellant at the time of her accident, elected to take advantage of this statutory provision and make his automobile liability insurance coverage with Metropolitan secondary to other medical coverage for payment of benefits. In return, Metropolitan provided the required premium reduction. Appellant now argues that she is not bound by this election because she is not a “named insured” under the terms of the policy issued to her husband.

In Solis v. Prudential Property and Casualty Insurance Co., 344 Pa.Super. 284, 496 A.2d 797 (1985), a panel of this court considered an argument similar to that advanced by appellant. The injured claimant in Solis argued that she was not obligated to utilize her private health insurance plan to provide primary coverage because she was not a “named insured” under the relevant no-fault automobile insurance policy. The Solis court held that the automobile owner, in making the § 203(b) election under the No-fault Act, had no authority to bind an unrelated third party. Id., 344 Pa.Superior Ct. at 287, 496 A.2d at 798. However, the appellant in the instant case is not an “unrelated third party.” For the reasons previously discussed, she is an “insured” within the meaning of the No-fault Act. More to the point, appellant is the named insured’s spouse and is a member of the named insured’s immediate family residing with him.

As interpreted by Solis, supra, the plain language of § 203(b), supra, authorized appellant’s husband to elect insurance coverage options binding on members of his family resident in his household. The fact that appellant herself was not named in the policy of insurance issued to her husband is a quibble over a distinction without a difference. She is bound by the limitations imposed under Pennsylvania law requiring her to coordinate benefits. Because of the directive in § 203(c), supra, appellant benefitted from reduced premiums payable on the insurance policy under which she was an “insured.” She must also accept the corresponding duties imposed by § 203(b), supra.

A contract of insurance which reduces premiums for an insured who is primarily covered by basic economic loss benefits available under another policy clearly contemplates that the insured has a duty to take advantage of available benefits from the collateral source before turning to the excess carrier. Carr v. Erie Insurance Co., 342 Pa.Super. 429, 435, 493 A.2d 97, 100 (1985). At the time of her accident, appellant’s primary medical insurance was provided by an HMO policy. Because Metropolitan was an excess carrier and not the primary carrier under the policy covering appellant, she was required to seek basic economic loss benefits from her HMO policy before applying to Metropolitan. Id.

An insured seeking basic economic loss benefits from an excess insurer under a no-fault policy cannot render otherwise collectible benefits from the primary insurer uncollectible by failing to comply with required procedures. Id., 342 Pa.Superior Ct. at 433, 493 A.2d at 99. Appellant chose to seek treatment from non-HMO physicians and did not comply with the requirements imposed by her HMO plan. She may not now complain because her excess carrier has denied payment of a basic loss which should have been collected from the primary insurer.

Appellant also argues that the lower court committed an error of law and an abuse of discretion by requiring a non-party to the insurance contract to utilize a health plan outside the parameters of the contract in question. An appellate court can only consider the record certified on appeal when reviewing a case. Barner v. Barner, 364 Pa.Super. 1, 9, 527 A.2d 122, 126 (1987). The certified record in the instant case does not contain a copy of the pertinent insurance contract. In the instant case, however, we are not precluded from resolving this issue by counsel’s failure to provide a copy of the contract. As discussed previously, appellant’s husband was empowered by § 203(b) of the No-fault Act to elect coverage terms binding on his spouse and members of his family resident with him. Because appellant falls within this category, the lower court committed neither an abuse of discretion nor an error of law in holding that appellant was bound by the contractual option chosen by her husband.

Order affirmed.

      . The phrase “victim or members of his family” in this clause has been construed to mean “named insured or members of his family.” See Solis v. Prudential Property and Casualty Insurance Co., 344 Pa.Super. 284, 287, 496 A.2d 797, 798 (1985) ("The plain meaning of the language in the statute forces the conclusion that “victim” signifies the named insured.”)