author: CIRILLO, Judge: BECK, Judge,

text:
    491 A.2d 156
    Joseph A. FLYNN v. Mary FLYNN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed March 29, 1985.

      Armand E. Olivetti, Scranton, for appellant.
    Amil M. Minora, Assistant District Attorney, Scranton, for appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Lackawanna County entered November 23, 1982, granting a decree in divorce and an award of temporary alimony. The appellant, Mary Flynn, requests that the divorce decree be reversed and that her award of alimony be vacated and remanded for additional consideration.

On January 22, 1981, the appellee, Joseph Flynn, filed a complaint for divorce based upon indignities and irreconcilable differences, which was subsequently amended in May. A supplemental complaint was filed under section 201(d) of the Divorce Code, alleging that the marriage was irretrievably broken and that the parties have lived separate and apart for a period in excess of three years. The appellant filed an answer and counterclaim, denying the aforementioned allegations and requesting that the court issue an order awarding alimony, child support, and the equitable distribution of all marital property.

The matter was assigned to a master who, after having conducted a hearing, concluded that a divorce should be granted and that temporary alimony in the amount of $150 per month for twelve months be awarded to the appellant. On November 23, 1982, the Honorable James M. Munley issued an order adopting the master’s recommendation of the divorce decree, but modifying the award of temporary alimony. Alimony payments were extended for a period of twenty-four months at $75 per month, in lieu of assigning a value to the appellee’s pension fund as part of the marital property. This appeal followed.

On appeal, the appellant contends that the circumstances attendant to her living arrangement in the same household with her husband do not méet the requirements of “separate and apart” of Section 201(d), thereby invalidating the ground upon which the divorce decree was granted. She also contests the method by which the value of her husband’s pension interest was allocated and the amount of the award of alimony as materially insufficient and unsupported by evidence.

In the review of a divorce case, it is the responsibility of the Superior Court to make a de novo evaluation of the record and to determine independently of the master and of the hearing court whether a legal cause of action exists. Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985); Jones v. Jones, 311 Pa.Super. 407, 457 A.2d 951 (1983). Since the divorce in the matter before us was based upon Section 201(d) of the Divorce Code, we must apply that provision to the facts at hand.

Section 201(d) of the Divorce Code provides in pertinent part:

(d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and
(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

The operative language “separate and apart” is defined as the “complete cessation of any and all cohabitation”. 23 P.S. § 104. The term “cohabitation”, however, is not defined in the Code.

In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), we recently addressed the issue of the definition of cohabitation:

“[CJohabitation” means the mutual assumption of those rights and duties attendant to the relationship of husband and wife. The ties that bind two individuals in a marital relationship involve more than sexual intercourse. Thus, we find that instances of sexual relations during a separation period do not, without more, defeat a claim that the parties have lived separate and apart for purposes of Section 201(d).

Id., 335 Pa.Superior Ct. at 47, 483 A.2d at 948. This definition “reflects the public policy of this Commonwealth as declared in the legislative findings and intent outlines in Section 102 of the Divorce Code. Section 102 states that the legislature intended to ‘[e]ncourage and effect reconciliation and settlement of differences between spouses .. Id.

Thus, the gravamen of the phrase “separate and apart” becomes the existence of separate lives not separate roofs. See, e.g., Meyerl v. Meyerl, 21 Pa.D. & C.3d 729 (Allegheny Co., 1981); Amelio v. Amelio, 18 Pa.D & C.3d 673 (Lehigh Co., 1981). This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart in order to establish entitlement to support. Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976); Commonwealth ex rel. DiPadova v. DiPadova, 223 Pa.Super. 403, 302 A.2d 510 (1973). It additionally considers the economic hardship imposed in requiring parties to occupy separate households in order to dissolve their marriage under Section 201(d) and the realities of a marital relationship as extending beyond joint residency. 23 P.S. § 102(a)(1). Cf. Pangallo v. Pangallo, 329 Pa.Super. 25, 477 A.2d 885 (1984).

In the instant matter, it is evident that the parties, though living under the same roof but in separate parts of the house, have ceased all marital relations for a period in excess of three years. Therefore, we find that the parties have met the requirements of “separate and apart” under the Divorce Code. The decree of divorce is affirmed.

Appellant next contends that the interest of her husband’s pension is improperly allocated and further that the award of alimony is materially insufficient and unsupported by evidence. In determining the propriety of property distribution and of alimony, this Court in Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983), applied the abuse of discretion standard:

Under the abuse of discretion standard, we are not to usurp the trial court’s duty as finder of fact. Moreover, we do not choose to follow presumptions in the hope of achieving the legislature’s goal of “economic justice”. At oral argument in this case, a suggestion was made by counsel for the parties that this Court adopt “guidelines” or establish “presumptions” to be applied in deciding issues involving property rights under the Code. In view of the legislative guidelines which are set out forthwith, we see no need for this Court to enumerate additional criteria. Rather, we will carefully scrutinize each of the guidelines in determining whether or not the lower court has abused its discretion. This will assure that our review of proceedings under the New Divorce Code be appropriately assiduous.

Id., 316 Pa.Superior Ct. at 287, 462 A.2d at 1353. In applying this standard, we find the allocation of the non-vested pension interest within the award of alimony to be an improper method of distribution.

It is the function of the court to determine whether a property right has been acquired during marriage and whether equity warrants its inclusion in the marital estate. If the property right is deemed includable, the court must allocate the interest fairly, consistent with the legislative intent to effectuate economic justice between the parties. 23 P.S. § 102(a)(6). It is acknowledged in jurisdictions requiring the distribution of marital property that a spouse has a right, co-extensive with that of a wage-earner spouse, to a portion of retirement benefits accrued during marriage. See Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.1981); Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235 (1978); see generally Annot., Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3d 176 (1979). Some courts, however, have distinguished the various types of benefits, determining some to constitute marital property subject to distribution while declining to so classify others. See McCandless v. McCandless, 23 Pa.D & C.3d 739 (Butler Co., 1982) in which the court did not order the equitable distribution of a spouse’s pension rights that had not vested at the time of the divorce. See Miller v. Miller, 83 Mich. App. 672, 269 N.W.2d 264 (1978), in which the court characterized vested unmatured pension benefits as marital property, but declined to classify a non-vested retirement annuity. See also Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985) (collecting cases). Section 401(e) defines marital property as “all property acquired by either party during the marriage.” Since a pension benefit is an economic resource acquired with funds that would otherwise have been utilized by the parties during their marriage to purchase other assets, it constitutes marital property. This determination is made without regard to the possibly contingent nature of the pension, whether or not it has vested or matured. In our classification of pension interests as marital property, we are persuaded by the analysis of the Superior Court in our sister state in Weir v. Weir, 173 N.J.Super. 130, 133, 413 A.2d 638, 640 (1980):

[T]he fact is that the concept of vesting, though embodied in the [retirement] plan document itself, really has little meaning from the standpoint of the ultimate decision which must be made under [the marital property act]. Our equitable distribution statute requires that property ... acquired during marriage ... be subject to equitable distribution upon divorce. There is no requirement of vesting.

The California Supreme Court in In Re Marriage of Brown, 15 Cal.3d 838, 544 P.2d 561, 126 Cal Rptr. 633 (1976), similarly concluded that non-vested pension interests are a variety of marital property rather than a mere expectancy of gain. Any contingencies, explained Brown, should be taken into account by the hearing court, not when determining whether the plan is includable in the marital estate, but, rather, when allocating the property rights between the parties. Consequently, we conclude that a spouse’s pension rights, to the extent accumulated during the marriage, constitute a form of marital property subject to consideration by the court.

Accordingly, we support the finding of the hearing court in designating the pension of the appellee as marital property. However, we find its allocation within the alimony award to be improper and remand the order for reconsideration.

We recognize that the hearing court is presented with a complex task, exacerbated by the fact that the pension right may be terminated upon discharge, death, or other contingencies. See Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.1981). However, given the very nature of a non-vested pension benefit, i.e., that it is speculative, deferred distribution is the preferred method of effectuating economic justice between the parties and insuring a just settlement of property rights.

In reaching this conclusion, we are mindful of the concerns expressed by Judge Beck in her Concurring and Dissenting Opinion. But at the same time, we have given thoughtful attention to the injustices that may occur were we to adopt the approach she suggests.

We cannot overlook the speculative nature of non-vested pension benefits. In cases involving this type of pension, it is questionable to assume that benefits will ever be received. The Illinois Supreme Court aptly summarized the problem in In re Marriage of Fairchild, 110 Ill.App.3d 470, 475, 66 Ill.Dec. 131, 134, 442 N.E.2d 557, 560 (1982):

The dilemma ... is that while it is unfair to ignore the value of non-vested benefits in the division of marital property, those benefits in some instances being the only significant asset, it is also unfair to effect a present division of the marital property utilizing an actuarial value of those benefits computed in reliance on speculative, albeit actuarily accepted assumptions.

Judge Beck is of the opinion that

the present value of the pension benefit reflects actuarial discounts for contingencies that might prevent realization of the benefit so that the nonemployee-spouse does, to some extent, share the risk of non-payment by receiving an immediate offset of property that may prove less than the worth of the pension benefits ultimately received by the employee-spouse.

At 164.

Actuarial discounts reflect nothing more than estimates of life expectancies and the possibilities of a contingency occurring. These estimates may work well for the insurance industry. However, in situations such as the case sub judice, they do not reflect the realities of what may occur. For example, assume that a court orders immediate offset distribution of a non-vested pension benefit, and that the employee-spouse is awarded the speculative pension benefit while the nonemployee-spouse is awarded the remainder of the marital property. If the employee-spouse were to die the day after distribution, the beneficiaries of the spouse’s estate would effectively be left with nothing.

Admittedly, this scenario illustrates a drastic situation, but it is no less a possibility than those suggested by Judge Beck. Under virtually any conceivable factual scenario in which immediate offset distribution is employed, the employee-spouse is required to bear all the risk of nonpayment. To say that the nonemployee-spouse shares this risk by “receiving an immediate offset of property that may prove less than the worth of the pension benefits ultimately received ...” still does not equalize the risk of nonpayment.

Therefore, by deferring the allocation of benefits until the time of receipt, both parties share the risk that the benefits may not be paid without being denied the opportunity to receive this share of the marital estate. Further, deferred distribution allows the court to divide and distribute those pension benefits actually paid. Moreover, any attempt to defeat the nonemployee-spouse’s right to a portion of the pension entitlements may be adequately dealt with by the trial court pursuant to its grant of “full equity power and jurisdiction.” 23 P.S. § 401(c). Cf. Vajda v. Vajda, supra. We find this method best effectuates economic justice and insures a just settlement of property rights.

The only remaining question is how to implement the deferred distribution. In cases involving a non-vested pension plan where, as we have discussed above, it would be inequitable to assume that benefits will ever be received, the court may resolve this uncertainty by giving the non-pension holding spouse a share of the interest if and when it matures. The court may elect to retain jurisdiction and to divide the benefits upon receipt. See, e.g., In re Marriage of Hobbs, 110 Ill.App.3d 451, 66 Ill.Dec. 203, 442 N.E.2d 629 (1982). Alternatively, the court may elect to assign a percentage to each party of any future payments. See, e.g., Robert C.S. v. Barbara J.S., supra; Blitt v. Blitt, 139 N.J.Super. 213, 353 A.2d 144 (1976). The decision to retain jurisdiction or to assign a percentage distribution is one that we leave to the sound discretion of the trial court.

In the case at bar, we find that appellee’s non-vested pension interest requires the hearing court to apply the method of deferred distribution until the time of receipt. Accordingly, we vacate the order of alimony and remand for entry of a new decree, in which the pension interest is extracted from the alimony award and considered in equitable distribution consistent with the method set forth in this opinion. Since we are unable to distinguish the award of temporary alimony from that of the adjustment for pension interest, we need not address the appellant’s contention that the award is materially insufficient and unsupported by the evidence.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

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

BECK, Judge,

concurring and dissenting:

I agree with the majority’s resolution of the cohabitation issue, see Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), and with the majority’s determination that a portion of the employee-spouse’s pension benefits constitutes marital property subject to equitable distribution.

However, I disagree with the majority’s conclusion that upon remand to the lower court, the marital property portion of the pension benefits should be given deferred distribution because the pension benefits are too speculative for present valuation and immediate offset distribution. Instead, I should hold that upon remand, the lower court must obtain actuarial testimony as to the present value of the pension benefits and determine whether an award to the employee-spouse of the entire marital property portion of the pension benefits can be immediately offset by an award to the nonemployee-spouse of other marital assets of comparable worth. If on remand the lower court finds that the pension benefits are not amenable to immediate offset distribution, the lower court should then decide how to effect deferred distribution of the marital property portion of the pension benefits.

At the core of our decision stands the legislative recognition of Section 401 of the Divorce Code (“Code”), Act of April 2, 1980, P.L. 63, 23 P.S. § 401, that marriage is, inter alia, an economic partnership whose assets, upon dissolution of the marriage, may be equitably divided and distributed between the parties after the court’s due consideration of “all relevant factors ... [such as the] contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.” Section 401(d)(7) of the Code; Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); see also Section 102(a)(6) of the Code, 23 P.S. § 102(a)(6).

Barring the exceptions listed in Section 401(e) of the Code, “[a]ll property, whether real or personal, acquired by either party during the marriage ... regardless of whether title is held individually or by the parties in some form of co-ownership” is marital property subject to equitable distribution. Section 401(f) of the Code. The only reference in Section 401(e) to pension benefits appears at Subsection (6) which excludes certain veterans’ benefits from marital property “except ... where [the] veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.” Hence, apart from Section 401(e)(6) of the Code, pension benefits, even if presently uncollectible, constitute marital property to the extent that they are attributable to employment performed during the marriage and are thus “acquired during the marriage.” See King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984); accord, Kikkert v. Kikkert, 177 N.J.Super. 471, 427 A.2d 76 (App.Div.1981).

While the present uncollectibility of a pension benefit does not prevent the benefit’s inclusion as marital property, the contingencies affecting the employee-spouse’s realization of the benefit must be assessed in the court’s valuation of the benefit and subsequent equitable distribution of the parties’ marital property. Accurate appraisal of the pension benefit is especially important because in most marriages, the pension benefit and the marital residence comprise the two major marital assets.

I. Immediate Offset Distribution

Where it is probable that the employee-spouse will overcome obstacles to realization of the benefit, the benefit is assigned a present value

estimated to be the amount of monies the employee would take in return for giving up his right to an unknown number of future payments. This amount is discounted by actuarial calculations reflecting contingencies that could affect future pay outs, with such discounts being given for mortality, inflation, interest, probability of continued employment and probability of vesting.

Skoloff, How to Evaluate and Distribute Employee Benefits in a Divorce, Nat’l L.J., February 13, 1984, at 25.

Since marital property consists only of property acquired by either party during the marriage, a coverture fraction must be applied to the present value of the pension benefit in order to determine the percentage of the pension benefit attributable to the marriage. King. The numerator of the coverture fraction is the period of the employee-spouse’s pension plan participation during the parties’ marriage, from the date of marriage to the date of separation (23 P.S. § 401(e)(4)) and the denominator of the fraction is the total period of the employee-spouse’s pension plan participation. Multiplying the present value of the pension benefit by the coverture fraction yields the portion of the pension benefit which is marital property.

The court must then decide whether the marital property portion of the benefit is amenable to immediate equitable distribution between the parties. If at the time of the entry of a distribution order, an award of the pension benefit to the employee-spouse could be immediately offset by an award to the nonemployee-spouse of other marital property of comparable value (usually the marital residence), the pension benefit is subject to present division and distribution.

An award of all the pension benefits to the employee-spouse and an award of other marital property to the nonemployee-spouse protects both spouses from problems that can occur. Such problems include the establishment and maintenance of contact between the nonemployeespouse and the pension plan administrator and the fact that the employee-spouse could choose certain benefit options that would defeat the nonemployee-spouse’s entitlement. See discussion of deferred distribution disadvantages, infra.

The advantages of immediate offset distribution are that the parties receive a final resolution of their litigation. Moreover, the nonemployee-spouse is protected against any attempts by the employee-spouse to change pension plan beneficiaries. Finally, the court is not required to retain jurisdiction in order to allocate the pension benefits when they are received or to enforce an award of a percentage of the benefits as they are received.

The chief disadvantages of immediate offset distribution are that a pension benefit may be offset by a liquid asset and thus afford the nonemployee-spouse greater immediate economic opportunities than those of the employee-spouse and that the risk of nonpayment of the pension benefit is born principally by the employee-spouse. With respect to the risk of nonpayment, it must be remembered, however, that the present value of the pension benefit reflects actuarial discounts for contingencies that might prevent realization of the benefit so that the nonemployee-spouse does, to some extent, share the risk of nonpayment by receiving an immediate offset of property that may prove less than the worth of the pension benefits ultimately received by the employee-spouse. Additionally, “the pension may be taxed as an annuity, ... in part at ordinary income rates ... while the nonemployee spouse’s ‘equivalent’ asset, e.g., a home, may be taxed at capital gain rates ... or not at all. . . .” Kalinoski, supra, at 3036.

II. Deferred Distribution

Where there exists a substantial probability that the employee-spouse will not overcome the contingencies affecting realization of the pension benefit, the pension benefit is too speculative for present valuation and immediate offset distribution. Additionally, where the pension benefit can be presently valued but there are insufficient other marital assets of comparable worth to award to the nonemployeespouse, the benefit cannot be equitably divided and distributed through an immediate offset. In either of these instances, the court must defer valuation and distribution of the pension benefit until the benefit becomes payable.

Deferred distribution cannot be based upon the present value of the pension benefit at the time of the marital dissolution. As we explained in King,

[i]f the non-employee spouse is to wait until the pension enters pay status to receive [a] share of the marital property, [the non-employee spouse] should not receive only that portion of the benefit that it seemed likely [the non-employee spouse] would receive at an earlier date [i.e., the present value of the benefit at the time of marital dissolution]. Instead, [the non-employee spouse] should receive that portion of the actual payment attributable to the years of the marriage.

Id,., 332 Pa.Super. at 535, 481 A.2d at 917. Hence, “the total benefits entitlement of the employee spouse” must be ascertained by the court.

To determine the percentage of the pension benefits entitlement ascribable to the marriage, the court must apply a coverture fraction whose numerator is the period of the employee-spouse’s pension plan participation during the parties’ marriage from the date of marriage to the date of separation and whose denominator is the total period of the employee-spouse’s participation in the pension plan. Multiplying the total pension benefits entitlement by the coverture fraction yields the portion of the pension benefits entitlement which is marital property.

Division and distribution of the marital property portion of the pension benefits entitlement may occur in two distinct ways. At the time of marital dissolution, the court may equitably divide the marital property portion of the benefits entitlement by determining the nonemployeespouse’s percentage share of the benefits marital property. Deferred distribution of the benefits is then accomplished by distributing to the nonemployee-spouse the predetermined percentage share of the pension benefits when the benefits are paid. Alternatively, the court may reserve both equitable division and distribution- of the marital property portion of the pension benefits entitlement until the pension benefits are payable.

The advantages of deferred distribution are that both parties bear the risk of nonpayment of the pension benefits and that the court can base its division and distribution of the pension benefits upon the payments that are actually made rather than upon an actuarial calculation [present value] of the payments that may be made.

However, the disadvantages of deferred distribution are numerous. Deferred distribution forces parties who desire to dissolve their relationship by divorce to continue to deal with one another, and deferred distribution continues to burden the court. In our highly mobile society it may be difficult to resolve the distribution because the residence of the parties and the situs of the pension fund may no longer be in the forum where equitable division was had.

The following scenarios illustrate some additional avenues by which a nonemployee-spouse’s right to a portion of the pension entitlements may be defeated. The nonemployee-spouse may predecease the employee-spouse whereupon the employee spouse might receive a windfall, since the employee spouse might resume full right to the benefit entitlements. An employee-spouse may choose a straight life annuity option which guarantees maximum benefits for the life of the employee but ceases all payments upon the employee’s death. The employee-spouse may remarry and elect a joint survivor annuity which, upon the death of the employee-spouse, will pay the annuity to the employee’s new spouse as survivor. If the employee-spouse’s pension plan has a death benefit, the employee-spouse can attempt to thwart the nonemployee-spouse’s right to an equitable portion of the pension entitlements by naming a new beneficiary of the death benefit. While the employee-spouse may secure restoration of the death benefit beneficiary status through a court action, the fact remains nevertheless that such litigation is not only costly in time and money for the nonemployee-spouse and the court but also delays the desired final resolution of the parties’ rights.

Additionally, deferred distribution requires the court to continue supervision and enforcement of the marital property award and may result in the proliferation of administrative problems as, for example, proper notification to pension plan administrators of any restrictions on payment of plan benefits stemming from the marital property award.

III. Conclusion

Comparing the advantages and disadvantages of immediate offset distribution with those of deferred distribution leads to the inescapable conclusion that whenever possible, a court should utilize immediate offset distribution of pension benefits and thereby finally determine the parties’ marital property rights.

I now examine the facts of the instant case to ascertain whether the marital property portion of the employee-spouse’s pension benefits is susceptible to distribution under the preferred method of immediate offset.

At the master’s hearings of December 30, 1981, and March 31, 1982, the employee-spouse testified that he had been employed as a steam fitter for twenty-five years, Record at 22-23, and that accordingly, he was participating in the pension plan of the Plumber and Pipefitters National Union. Record at 46. The employee-spouse explained that his pension benefits would vest in 1984. Record at 93. Furthermore, the employee-spouse stated that at the time of the hearings he was fifty years old (date of birth — November 21, 1931), Record at 32, and that his pension benefits would not mature (become payable) before he reached the age of 65 unless he became disabled and attained the age of 55. Record at 46.

Thus, as of the date of the hearings, the employee-spouse had worked for twenty-five years as a steam fitter and needed only two additional years of work in that capacity in order to have his pension benefits vest (become nonforfeitable). The employee-spouse did not offer any evidence tending to suggest the probability of his not being able to complete the two years of employment necessary for vesting {e.g., work in a faltering industry) or of his not being able to survive until maturation (payment) of the benefits {e.g., poor health). Given the scant evidence of record, I cannot rule, as does the majority, that the employee-spouse’s pension benefits are too speculative for present valuation by an actuary.

Consequently, I should remand this case to have the parties present the lower court with actuarial calculations regarding the likelihood of the employee-spouse’s receipt of the pension benefits and the concomitant present value, if any, ascribable to the pension benefits. Upon receipt of the additional evidence, the court could then ascertain whether the pension benefits are amenable to present valuation. If the benefits are capable of being presently valued, the court could then determine whether there are sufficient marital assets available for distribution to the nonemployee-spouse to offset an award of the pension benefits to the employee-spouse or whether deferred distribution is necessary due to a lack of assets whose worth is comparable to that of the pension benefits.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S.

      . We note that the record indicates that appellee’s pension was to vest in 1984. We have no way of knowing whether it did in fact vest. Consequently, on remand, the court must first address this question.
      The long delay involved between the filing of this appeal and our decision today brings to mind the sentiments expressed by Judge Beck in her dissenting opinion in Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599, 603 (1984) (en banc): "Justice is best served and harm to both parties is minimized by proceeding directly and expeditiously to a final disposition of the entire case ..."

      . We quote with approval the excellent opinion of Honorable R. Stanton Wettick, Jr., in Salac v. Salac (No. 2310-78, Allegheny County Court of Common Pleas, filed March 21, 1984), slip op. at 10:
      Equitable distribution of virtually all property acquired during the marriage rests upon the concept of marriage as a shared enterprise or joint undertaking in which both parties contribute to the acquisition and preservation of marital assets.... A property division based on the concept of marriage as a shared enterprise means that full recognition is to be given to non-economic contributions and that distribution is not intended to be based primarily on the dollar value of the services each party contributed to the marriage.
      (Citation omitted.)

      . Pension benefits are not collectible until they are vested and have matured. Pension benefits are nonvested “so long as the right to receive these benefits will be forfeited by discharge, voluntary termination, or death____ A vested interest matures when the employee can meet all requirements for immediate payment of retirement benefits.” Salac, slip op. at 3; Kalinoski v. Kalinoski, 9 Fam.L.R. 3033 (1983).

      . In discussing the public policy issues relating to pensions and in describing the mathematical formulas to be used in dividing the pension, we have relied on Salac; King; Kalinoski; Skoloff, How to Evaluate and Distribute Employee Benefits in a Divorce, Nat’l.LJ., February 13, 1984, at 25; Troyan, What’s Wrong with the ‘Accrued

        Benefit’ Method of Valuing Pensions upon Divorce, 4 Fairshare 10 (1984); Troyan, Pension Evaluation and Equitable Distribution, 10 Fam.L.R. 3001 (1983).

      . An actuary is needed to determine the statistical probabilities of vesting and maturation of the pension benefits. King; Kalinoski.

      . “Long-term and deferred sharing of financial interests are obviously too susceptible to continued strife and hostility, circumstances which our courts traditionally strive to avoid to the greatest extent possible." Kikkert, 177 N.J.Super. at 478, 427 A.2d at 79.

      . The sole evidence now of record concerning the value of the pension benefits consists of confusing and incomplete testimony offered by the employee-spouse. Record at 46-49. Since the record does not contain accurate and complete information regarding the value of the pension benefits, I cannot hold that deferred distribution will ultimately prove necessary because the parties lack assets to offset the pension benefits (the parties’ chief marital asset is the marital residence appraised at $18,500 as of January 31, 1982, Record at 16, 18, 90).


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    491 A.2d 166
    COMMONWEALTH of Pennsylvania, Appellant, v. Casper GUIMENTO, a/k/a Cappy Guimento.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1985.
    Filed March 29, 1985.

      Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellant.
    Thomas Hanlon, Scranton, for appellee.
    Before McEWEN, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

“A statute of limitations instead of being viewed in an unfavorable light as an unjust and discreditable defense, should have received such support from courts of justice as would have made it, what it was intended emphatically to be, a statute of repose.” Bell v. Morrison, 26 U.S. (1 Pet.) 349, 360, 7 L.Ed. 174 (1828).

The Commonwealth appeals an order of the Court of Common Pleas of Luzerne County dismissing a conspiracy to commit arson charge against appellee Casper Guimento. We affirm.

On July 5, 1983, appellee was arrested and charged with conspiracy to commit arson. 18 Pa.C.S. § 903. The criminal information lodged against Guimento showed the offense date as November 22, 1978 to December 1, 1978. At the time of the alleged offense, the statute of limitations for the crime of conspiracy to commit arson was two years. Act of July 9, 1976, P.L. 586, § 2, amended by Act of Oct. 5, 1980, P.L. 693, § 206(a). Therefore, as of December 1, 1980, the two-year statute of limitations had run on this charge. In 1982, however, the limitations period for the crime of conspiracy to commit arson was extended to five years. 42 Pa.C.S. § 5552(b)(3).

On the basis of the two-year statute of limitations and the Pennsylvania Supreme Court’s ruling in Commonwealth v. Askin, 502 Pa. 575, 467 A.2d 820 (1983), the trial court dismissed the charge against appellee.

We are asked to determine whether the legislature can enact a law which extends an existing statute of limitation so as to revive a case in which the statutory period has already run. We hold that an extension of a statute of limitation cannot revive a case in which the statutory period has run. A contrary result would be in violation of the ex post facto clause of Article I, section 17 of the Pennsylvania Constitution.

Article I, section 17 of the Pennsylvania Constitution provides:

No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.

In its most basic form, “[a]n ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.” 1 W. Blackstone, Commentaries * 46. “[I]t is a proscription which attempts ‘to preserve for persons the right to’ fair warning that their conduct will give rise to criminal penalties.’ ” Commonwealth v. Grady, 337 Pa.Super. 174, 177, 486 A.2d 962, 964 (1984) quoting Commonwealth v. Hoetzel, 284 Pa.Super. 623, 630, 426 A.2d 669, 672 (1981). See also Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

In order for a law to be found constitutionally violative of the ex post facto clause, one of the following effects must be present:

(1) The law makes an act criminal which was not criminal when done; (2) The law aggravates a crime, or makes it greater than it was when done; (3) The law changes a punishment, and makes it greater than it was when the punishable act was committed; and (4) The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed, in order to convict.

Commonwealth v. Riley, 253 Pa.Super. 260, 264-65, 384 A.2d 1333, 1335 (1978). See also Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913); Commonwealth v. Grady, supra; Commonwealth v. Hoetzel, supra; Commonwealth v. Pickett, 244 Pa.Super. 433, 368 A.2d 799 (1976).

“The correct focus of an ex post facto analysis is an examination of the effect at the time the critical offense is committed.” DiNapoli v. United States Parole Commission, 538 F.Supp. 658, 667 (M.D.Pa.1982) aff'd 676 F.2d 684 (3rd Cir.1982). In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court stated:

[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it ... The critical question is whether the law changes the legal consequences of acts completed before its effective date.

Id. at 29-31, 101 S.Ct. at 964-65, 67 L.Ed.2d at 23-24 (emphasis added; footnotes and citations omitted).

Courts that have considered the relationship between statutes of limitations and the ex post facto clauses have adopted an analysis similar to that set forth in Weaver. Finding there is a crucial distinction between cases in which the statutory period has already run and those cases where the statutory period has not yet run, the

authorities seem to be in agreement that if the statutory period of the statute has fully run and the bar has once attached so that the defendant could not be prosecuted under the existing statute, the law cannot be changed by future legislation so as to extend the period of limitation as to past offenses, already barred. Such a law would violate the ex post facto clause.

Black, Statutes of Limitations and the Ex Post Facto Clauses, 26 Ky.L.J. 41, 42 (1937). See also Moore v. State, 43 N.J.L. 203 (1881); State v. Sneed, 25 Tex.Supp. 66 (1860). Cf. 51 Am.Jur.2d Limitation of Actions § 44 (1970); 67 A.L.R. 297 (1930). Our Supreme Court made such a distinction in Commonwealth v. Duffy, 96 Pa. 506 (1880) when it stated that “in any case where a right of acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto law.” Id. at 514. See also Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (1981); People v. Anderson, 53 Ill.2d 437, 292 N.E.2d 364 (1973); People v. Massarella, 80 Ill.App.3d 552, 36 Ill.Dee. 16, 400 N.E.2d 436 (1980), cert. denied 449 U.S. 1077, 101 S.Ct. 855, 66 L.Ed.2d 799 (1981).

These courts, while not expressly addressing the question posed in Weaver, seemed to do so sub silentio. Their primary concern was whether a legislative enactment extending a statute of limitations changed “the legal consequences of acts completed before its effective date.” Weaver, supra. In cases where a statute had not yet run, there would be no change in legal consequences — a prosecution could still be maintained because the defendant had not obtained an absolute defense of the statute of limitations. However, in cases where a bar to prosecution has already attached, there would be a definite change in legal consequences if an enactment was permitted to revive a case.

In cases falling under the latter situation, not only would the law be applied retroactively, but it would also “disadvantage the offender affected by it.” Weaver, supra. Essentially, “the extension act ... restoring the expired law, had precisely the same effect as though the offense had not been punishable originally, but had been made so for the first time by restoring the act.” Black, supra at 45. See also Moore v. State, supra; State v. Sneed, supra. Therefore, such a law would be ex post facto. Dobbert v. Florida, supra; Calder v. Bull, supra; Commonwealth v. Kalck, supra; Commonwealth v. Grady, supra.

Turning to the instant case, we hold that the two-year statute of limitations, the law in effect at the time the alleged offense was committed, is the applicable statute. Under this statute, the Commonwealth was required to initiate a criminal prosecution on or before December 1, 1980. After that date, appellee acquired an absolute defense to prosecution for the charged crime. Such a defense could not be taken away by legislative enactment. Moore v. State, supra. To hold otherwise would sanction a violation of the Constitution. This we cannot do.

Order affirmed.

      . (b) Major offenses. — A prosecution for any of the following offenses must be commenced within five years after it is committed:
      (1) Under the following provisions of Title 18 (relating to crimes and offenses):
      Section 3301 (relating to arson and related offenses).
      (3) Any conspiracy to commit any of the offenses set forth in paragraphs (1) and (2).

      . The trial court misapplied the rule announced in Commonwealth v. Askin. In Askin, the Supreme Court held that the statute of limitations for conspiracy cannot be determined by the statute of limitations for the most serious offense for which a defendant could properly be convicted. The action in Askin was commenced prior to the amendment to section 5552. We, however, may affirm a correct decision of the trial court for any reason, even if the trial court offered an erroneous reason for its decision. Commonwealth v. Reidenbaugh, 282 Pa. 300, 422 A.2d 1126 (1980); Commonwealth v. Hinton, 269 Pa.Super. 43, 409 A.2d 54 (1979).


author: BECK, Judge:

text:
    491 A.2d 169
    ORMOND REALTY, Agent for Angelina DeBlasiis, Appellee, v. John R. NINNIS and Anna C. Ninnis, Appellants. John R. NINNIS and Anna C. Ninnis, Appellants, v. Angelina DeBLASIIS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 25, 1984.
    Filed March 29, 1985.
    Petition for Allowance of Appeal Denied Aug. 5, 1985.

      Gordon W. Gerber, Philadelphia, for appellants.
    Andrew J. Damico, Media, for Ormond, appellee.
    Before McEWEN, BECK and CERCONE, JJ.
   BECK, Judge:

On August 15, 1979, appellants John and Anna Ninnis entered into a written agreement of sale with appellee Angelina DeBlasiis for the purchase of appellee’s real estate. Appellee seller was represented in the agreement by her agent, appellee Ormond Realty. The agreement, prepared by appellee agent, contained a mortgage contingency clause which required that appellants secure a mortgage commitment by October 20, 1979. The clause provided as follows:

“4. MORTGAGE CONTINGENCY (1-79) this sale and settlement hereunder are NOT conditional or contingent in any manner upon the sale or settlement of any other real estate NOR subject to any mortgaging or financing except as hereinafter provided.
(a) Term and amount of mortgage loan required by Buyer: thirty years, $40,000.00.
(b) Type mortgage and interest rate required by Buyer: Type conventional. Interest Rate 10V2% however, buyer agrees to accept the interest rate as may be committed by the mortgage lender (not to exceed the maximum permissible interest rate).
(c) Commitment date for approval of the mortgage: October 20th, 1979.
(d) Mortgage loan application shall be made through the office of Ormond Realty 3801 State Road., who for the purpose of negotiating for the said mortgage loan, shall be considered the agent for the Buyer, and if said mortgage loan cannot be obtained, this agreement shall be NULL AND VOID and all deposit moneys shall be returned to the Buyer on or before date for settlement as provided herein, subject however to the provisions in paragraphs # 4(e) and # 4(f).
(e) Buyer shall make a completed application to a responsible mortgage lending institution for the aforementioned mortgage loan, through the office of the agent named in paragraph # 4(d), within ten (10) days from the Seller’s approval hereof. Should the Buyer fail to make such completed application within the specified (10) days, it shall be at the option of the Seller within five (5) days thereafter to:
(1) Declare this agreement NULL AND VOID at which time, all moneys paid on account will be forfeited to Seller as liquidated damages, or
(2) In absence of written notice to the Buyer, by the Seller, declaring this agreement, NULL AND VOID, the condition and contingency herein provided for in paragraphs # 4(a) through # 4(f) together with any other mortgage loan contingencies that may be herein or endorsed hereto, shall no longer prevail, and this agreement shall remain effective according to its terms in the same manner as if the condition and contingency were not a part hereof.
(f) Seller or agent must receive a written commitment, valid until the date of settlement, for the mortgage loan, on or before the date as specified in paragraph # 4(c). If the said commitment is not furnished with the terms as specified herein, or on other terms accepted in writing by the Buyer, on or before the specified date, Seller shall have the option, at that date, or any other time thereafter, during the term of this agreement, until, but not beyond the date of receipt of the commitment by the Seller, or Agent, to declare this agreement NULL AND VOID, by written notice to the Buyer of his decision to cancel, at which time all deposit moneys paid on account shall be returned to the Buyer, subject to the payments required, if any, provided for in paragraph #7(b), 1, 2, and 3.”

Appellants gave Ormond Realty a deposit of $2,000 in cash and a note for $4,600.

Appellants made a good faith effort to obtain a mortgage which would conform with the specifications in the agreement, but were unable to do so by the commitment date, October 20, 1979. On November 2, 1979, appellants wrote to Ormond Realty and stated that appellants’ failure to secure a mortgage by the commitment date meant that the agreement was null and void. Appellants requested the return of the deposit moneys; no written response was received, but Ormond Realty told appellants in conversations that they, appellants, were still obligated under the agreement. Sometime after November 28, 1979, Ormond Realty sent appellants a mortgage commitment it had arranged. On December 11, 1979, appellant’s counsel sent Ormond Realty a written request for the return of the deposit. On December 14, 1979, Ormond Realty entered judgment against appellants on their note. On December 20, appellants received a notice of the judgment, and on December 26, Ormond Realty informed appellants that their note and cash deposits would not be returned to them.

Appellees scheduled a settlement date on January 18, 1980, but appellants did not attend the settlement, contending that the agreement of sale was null and void as of October 20, 1979. Appellants brought an action in equity for the return of all deposit moneys, and filed a petition to strike or open judgment on the $4,600 note. These cases were consolidated. The lower court found for appellees and held that under the agreement of sale, only the seller had the power to declare the agreement null and void. Appellants filed exceptions which were denied.

In this appeal, appellants claim that the agreement became null and void when after making a bona fide effort they failed to obtain a mortgage commitment by October 20, 1979. We agree, and for the reasons stated below, reverse the order of the lower court.

It is well established that, in interpreting the intent of parties in a written contract, when the words are clear and unambiguous, the intent is to be determined only from the express language of the agreement. Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982); Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). A written agreement will be construed against the party preparing it. Central Transportation v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 417 A.2d 144 (1980); Longenecker v. Matway, 315 Pa.Super. 411, 462 A.2d 261 (1983).

We have examined the mortgage contingency clause in the parties’ agreement of sale and note that paragraph 4(d) provides that the failure to obtain a mortgage commitment by October 20, 1979 makes the agreement null and void. Paragraph 4(d) does not contain the additional condition that the seller must elect to treat the agreement as null and void. According to paragraph 4(d), the agreement becomes a nullity simply if a mortgage is not secured by the commitment date: “[I]f said mortgage loan cannot be obtained this agreement shall be NULL AND VOID and all deposit moneys shall be returned to the Buyer.” (emphasis added). It is clear that the clause in question is self-executing; the agreement is automatically voided if a mortgage commitment is not secured by the commitment date.

Appellees argue, however, that paragraph 4(d) is expressly subject to paragraphs 4(e) and (f), and claim that paragraph 4(f) restricts to the seller only the right to declare the agreement a nullity. We do not agree. Paragraph 4(f) merely gives the seller the exclusive right to void the agreement if the seller does not receive from the buyer by the commitment date a written commitment valid until the settlement date. All paragraph 4(f) provides is that if appellants obtain a mortgage by the commitment date, but then fail to give written notice to appellees by the commitment date, appellees would at that point have an exclusive right to void the agreement.

It is stipulated that appellants made a timely application to obtain a mortgage commitment by the commitment date. Since appellants made a bona fide effort to secure a mortgage commitment by October 20, 1979, but failed to obtain one, the agreement automatically became null and void by operation of paragraph 4(d). Therefore, the point at which appellees would have had the exclusive right to void the agreement was never reached. See generally Newman v. Sablosky, 268 Pa.Super. 85, 407 A.2d 448 (1979); Tieri v. Orbell, 192 Pa.Super. 612, 162 A.2d 248 (1960).

Since we conclude that the agreement became a nullity on October 20, 1979, we need not address the argument offered by appellees that the mortgage they obtained for appellants after November 28, 1979, substantially complied with the requirements of the agreement of sale.

Accordingly, the order of the lower court is reversed. The agreement is null and void. The appellees shall return to appellants the $2,000 deposit money and the judgment entered by appellees shall be vacated.

      . The commitment date, October 20, 1979, appears in Clause 4(c).

      . We have not made a provision for payment of interest to appellants. While it is true that interest on principal is awarded in cases where money has been unjustly or unlawfully withheld, Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865 (1959); Arcuri v. Weiss, 198 Pa.Super. 506, 608, 184 A.2d 24 (1962), the facts of this case indicate a bona fide dispute as to the meaning of a contractual clause.


author: TAMILIA, Judge:

text:
    491 A.2d 173
    COMMONWEALTH of Pennsylvania v. Michael LLOYD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dee. 14, 1984.
    Filed March 29, 1985.

      William H. Mitman, Jr., West Chester, for appellant.
    Eric G. Marttila, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant, Michael Lloyd, brings this appeal from judgment of sentence of ten to twenty years imprisonment for his conviction on charges of robbery and related offenses. Appellant’s post-trial motions had been dismissed by the lower court because appellant was a fugitive, and sentence was imposed without a ruling on appellant’s application to reinstate. On appeal to our Court, we granted the application to reinstate post-verdict motions, vacated judgment of sentence and remanded with instructions to the lower court to hear argument on post-trial motions and to hold a hearing on a motion for new trial based on after-discovered evidence. Commonwealth v. Lloyd, 319 Pa.Super. 6, 465 A.2d 1025 (1983). On remand, the lower court, after a hearing, denied appellant’s motions and imposed sentence. This appeal followed.

The issue on appeal is whether the criminal charges against appellant, who was in temporary custody of Pennsylvania authorities pursuant to the procedures prescribed by Article IV of the Interstate Agreement on Detainers Act, must be dismissed because he was released to federal authorities without first being tried on the charges. We hold that under the circumstances presented in this case, the Detainers Act does not require dismissal of the charges, even though appellant was released to federal authorities before ultimately being tried. Accordingly, we affirm.

A chronological statement of the facts is as follows. On March 21, 1980, a criminal complaint was filed against appellant charging him with robbery and related offenses in connection with a robbery of the Union National Bank and Trust Company in Milford Township, Bucks County, Pennsylvania. Appellant’s known residence was in New Jersey, and he was arrested there by New Jersey police on or about March 26, 1980 and placed in Monmouth County jail. The Bucks County criminal complaint had been served upon appellant as a fugitive warrant. Appellant was taken before the local court and advised of his extradition rights. Appellant chose not to waive the right to contest extradition and he was returned to the Monmouth County jail. An application for requisition was completed by the Bucks County District Attorney’s Office and necessary documents were sent to the State of New Jersey. On April 14, 1980, Monmouth County officials informed the Bucks County District Attorney’s Office by letter that it had executed a fugitive warrant on behalf of Bucks County against the appellant and that the warrant would act as a detainer. It was also informed that appellant refused to waive extradition and to await further instructions as to when to retrieve appellant. Unbeknownst to the Bucks County District Attorney’s Office, appellant posted bail on the fugitive complaint and was released from the Monmouth County jail. On or about April 22, 1980, appellant was arrested by federal authorities on charges that he had violated the terms of his federal parole. Appellant was subsequently sentenced by the United States District Court of New Jersey to five years imprisonment. Appellant was temporarily held at the Metropolitan Correction Center (MCC) in New York City in the custody of the Attorney General, Bureau of Prisons. On June 2, 1980, appellant was transferred to the Federal Correctional Institution (FCI) at Ash-land, Kentucky to serve his sentence. On July 31, 1980, the Bucks County District Attorney’s Office learned that appellant was incarcerated in the FCI at Ashland. At this time, its extradition efforts were abandoned in favor of other procedures pursuant to the Detainers Act. On September 2, 1980, a Form 5 under the Detainers Act was sent by Bucks County to officials at the FCI at Ashland requesting temporary custody of appellant. On September 10, 1980, a bench warrant was issued by the Bucks County court when appellant failed to appear for his scheduled trial on the pending charges. This warrant was sent to the FCI at Ashland. On September 17, 1980, officials at Ashland notified the Bucks County Sheriff’s Office by a Detainer Action letter that the bench warrant had been received and lodged against appellant as a detainer. Subsequently, for reasons undisclosed by the record, Ashland officials informed the Bucks County District Attorney’s Office that they had no detainer on file before having received the Form 5 from Bucks County. Under these circumstances, Ashland officials requested a second Form 5 be sent to serve as Bucks County’s official request for temporary custody of appellant. The second Form 5 was sent on September 26, 1980.

Bucks County’s actions were for naught as on October 15, 1980, the Bucks County District Attorney’s Office was informed that Chester County had assumed temporary custody of appellant on October 10 pursuant to the Detainers Act in order to prosecute appellant on separate charges pending in that county. Appellant, now in Pennsylvania, was arraigned on the Bucks County charges on November 7. Trial was set for November 17 but was continued since appointed counsel for the appellant was involved in another trial. At the next trial listing of December 1, appellant requested a continuance because of his belief that appointed counsel was unprepared and to enable him to retain a private attorney. The case was continued to December 3, at which time appellant appeared without counsel. Appellant was unsuccessful in securing an attorney and as a consequence, the case was continued to January 19, 1981, the next available trial date. New counsel was appointed to represent appellant. On December 23, 1980, while awaiting trial, appellant was taken from Chester County prison by New York federal authorities pursuant to a writ of habeas corpus ad testificandum. Appellant was returned to the Chester County prison by the federal authorities approximately one week later. Trial commenced on the Bucks County charges on January 20, 1981, and appellant was found guilty on January 23.

Appellant’s sole contention is that the Bucks County charges against him must be dismissed pursuant to Article IV(e) of the Act because he was transferred on December 23, 1980 from Pennsylvania to federal authorities pursuant to the writ of habeas corpus ad testificandum before being tried and found guilty on January 23, 1981. We disagree.

“The policy of the Interstate Agreement on Detainers is ‘to encourage the expeditious and orderly disposition’ of charges and its purpose ‘is to promote and foster prisoner treatment and rehabilitation programs by eliminating uncertainties which accompany the filing of detainers.’ Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973).” Commonwealth v. Wilson, 231 Pa.Super. 451, 454, 331 A.2d 792, 794 (1974) (footnote omitted); see also Commonwealth v. Merlo, 242 Pa.Super. 517, 521, 364 A.2d 391, 394 (1976). Because the legislation is remedial in character, it is to be liberally construed in favor of the prisoner so as to effectuate its purpose. Commonwealth v. Merlo, supra, 242 Pa.Superior Ct. at 522, 364 A.2d at 394. To facilitate its purpose, the Act prescribes procedures by which a state, including the United States, may obtain temporary custody, for purposes of trial, of a prisoner incarcerated in another state. Article IV(e) of the Act provides:

(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V.(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

When prosecuting authorities in a jurisdiction in which charges are pending against a prisoner obtain temporary custody of him as the result of lodging a detainer and making a request therefor, Article IV(e) requires dismissal of the charges if the prisoner is returned to the original place of imprisonment without being tried. See Commonwealth v. Merlo, supra, 242 Pa.Superior Ct. at 525, 364 A.2d at 396; see also Commonwealth v. Diggs, 273 Pa.Super. 121, 123, 416 A.2d 1119, 1120 (1979), appeal dismissed, 498 Pa. 360, 446 A.2d 600 (1982).

In Merlo, a federal prisoner’s presence in Pennsylvania for purposes of trial had been secured by a detainer lodged against him at the Federal Correctional Institution at Dan-bury, Connecticut pursuant to the Act. The prisoner was returned to Danbury without being tried on the charges underlying the detainer because of the imminent expiration of his federal sentence. Our Court held that the prisoner was entitled to dismissal of the charges against him since he was returned to his original place of imprisonment without being tried, even though he was subsequently tried on the Pennsylvania charges within the 120 day speedy trial limit following his release from federal custody.

In Diggs, we held that pending charges against a prisoner in temporary custody of Pennsylvania would not be dismissed, even though the prisoner was returned to federal custody untried since Pennsylvania obtained the custody of the prisoner pursuant to a writ of habeas corpus ad prosequendum rather than by a detainer. In dicta, however, we stated that dismissal of the charges under the Act would have been required if appellant had been originally obtained from federal custody as a result of a detainer. Commonwealth v. Diggs, supra, 273 Pa.Superior Ct. at 123, 416 A.2d at 1120.

Appellant urges that Merlo and Diggs require the dismissal of the charges filed against him. We do not find Merlo controlling or the dicta in Diggs persuasive. Unlike Merlo where Pennsylvania authorities voluntarily returned the prisoner to federal custody untried, Chester County officials relinquished temporary custody of appellant because of the federal issuance of the writ of habeas corpus ad testificandum. The writ of habeas corpus ad testificandum under 28 U.S.C.A. § 2241(c)(5), like a writ of habeas corpus ad prosequendum, commands the presentation of a prisoner as a witness in a federal court. It appears certain that state officials are powerless to refuse to comply with the writ. See United States v. Mauro, 436 U.S. 340, 357-58, 363, 98 S.Ct. 1834, 1846, 1848-49, 56 L.Ed.2d 329, 345, 348-49; United States v. Mauro, supra at 369, 98 S.Ct. at 1850-51, 56 L.Ed.2d at 352 (1978) (Rehnquist, J. dissenting); United States v. Kenaan, 557 F.2d 912, 916 (1st Cir.1977) cert. denied 436 U.S. 943, 98 S.Ct. 2844, 56 L.Ed.2d 784; Stone v. Morris, 546 F.2d 730, 737 (7th Cir.1976); Gray v. Benson, 443 F.Supp. 1284, 1288 (D.C. Kan.1978). Hence, Chester County officials had little choice but to relinquish their temporary custody of appellant. Accordingly, appellant was not “returned” to federal authorities within the meaning of the Article VI(e).

Furthermore, appellant was tried before being returned to his original place of imprisonment, the FCI at Ashland, Kentucky, where he was serving his federal sentence. See United States v. Bryant, 612 F.2d 806 (4th Cir.1979), cert. denied, 446 U.S. 920, 100 S.Ct. 1855, 64 L.Ed.2d 274; Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978) reversed on other grounds, 252 Ga. 351, 314 S.E.2d 621 (1984); but compare Hughes v. District Court In and For City, Etc., 197 Colo. 396, 593 P.2d 702 (1979). In Merlo, the prisoner was originally incarcerated at the FCI at Danbury, Connecticut and returned there untried.

We also think that appellant should not benefit by the trial court’s fairness in recognizing his dissatisfaction with first appointed trial counsel, honoring appellant’s request to secure private counsel, and ultimately granting appellant a continuance to the next available trial date, January 19, 1981, so that newly appointed counsel could prepare for trial. On the scheduled trial dates, the Bucks County District Attorney’s Office stood ready to proceed expeditiously to trial on the charges, consonant with the policy of the Act. It was during the period of time between the scheduled commencement of trial and actual commencement of trial that the federal writ was issued upon Chester County officials. Had trial commenced before January 20, 1981, as scheduled, the charges underlying the detainer would have been disposed of and the intervening transfer to New York federal authorities would not have occurred. While we cannot conclude that appellant’s own actions prompted his transfer, since this was caused by the federal writ, the delay of trial occasioned by appellant’s dissatisfaction with first appointed counsel, his request to secure different counsel, his inability to do so, and the necessary granting of a continuance, did make possible the fortuity of the intervening transfer. Compare People v. Dye, 69 Ill.2d 298, 13 Ill.Dec. 695, 371 N.E.2d 630 (1977); Neville v. Friedman, 67 Ill.2d 488, 10 Ill.Dec. 575, 367 N.E.2d 1341 (1977); State v. Allen, 269 S.C. 233, 237 S.E.2d 64 (1977).

Appellant benefited from the delays of trial. It would be error to reward him further with dismissal of the charges where state officials had little choice but to release him to federal authorities during the period occasioned by the delays. So viewed, appellant’s brief and single removal from Pennsylvania custody for purposes of testifying and his prompt return for trial, violated no purpose of the Act. Appellant’s rehabilitation and treatment at the FCI at Ash-land was obstructed by his transfer to New York federal authorities no more than if he had not been transferred. As it happened, appellant was returned approximately one week later to the Chester County prison and was tried on the Bucks County charges within 120 days of his initial arrival in Pennsylvania. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Act of July 9, 1976, P.L. 586 No. 142 § 2, effective June 27, 1978, 42 Pa.C.S.A. § 9101 et seq.

      . Appellant also contends that the charges against him must be dismissed pursuant to Rule 1100, that the trial judge erred in refusing to recuse himself, that the trial court erred in admitting evidence of other criminal conduct committed by appellant, that the trial court erred by allowing the introduction of hearsay evidence, that the trial court erred in refusing to grant him a new trial based upon after-discovered evidence and that the sentence imposed violated double jeopardy protections. We have examined the record, the arguments of the parties and the applicable law and conclude that these contentions are meritless.

      . Article IV(c) provides that trial must be commenced within 120 days of the arrival of the prisoner in the receiving state. See Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983).


author: POPOVICH, Judge: DEL SOLE, Judge,

text:
    491 A.2d 177
    Catherine F. MANDIA, Appellant, v. Dominic MANDIA.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1984.
    Filed March 29, 1985.

      Neil Hurowitz, King of Prussia, for appellant.
    Arthur R. Littleton, Philadelphia, for appellee.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is a consolidation of two appeals filed by appellant, Catherine Mandia, one from an order which bifurcated from the parties’ economic claims appellant’s divorce from appellee, Dominic Mandia, and one which dismissed the exceptions of appellant to a Master’s report concerning, inter alia, equitable distribution, alimony, approving the Master’s report and recommendations, and entering a final order.

On January 18, 1988, an order was entered bifurcating the parties’ divorce from the outstanding economic claims. Appellant filed a Notice of Appeal from the bifurcation order at No. 427 Philadelphia 1983 on February 4, 1983. We hold that an order granting a petition for bifurcation is not final and appealable.

Whether an order is final and appealable cannot necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.

Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). An order which grants a bifurcation has no bearing on the parties’ status nor does it realistically affect them in any way. It is only upon entry of the actual decree of divorce when the ramifications of the order become apparent and tangible. A party who opposes the grant of a petition for bifurcation is not necessarily acting in opposition to the divorce per se but is opposing the timing of the divorce vis a vis the parties’ economic claims. Indeed, in this case, appellant initially filed for divorce. For reasons carefully explored in Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983), a party who opposes the petition does so on the grounds that it would be error to grant a divorce at this time and under these circumstances.

In the instant case, six days after the entry of the bifurcation order, a divorce decree was entered. Although the initial appeal is lodged from the bifurcation order, such an order would not be entered without intention of thereafter entering a decree of divorce. Indeed, often the two orders are combined. As expressed above, the bifurcation order did not aggrieve appellant; the order entering the divorce represents the substance of her appeal. In this case, the divorce decree states that it is “by virtue of the authority vested in this Court under ... the Order entered by this court on January 18, 1983, decreeing bifurcation of this case to effectuate economic justice.” The appeal from the order which was entered as a final decree of divorce “is sufficient to raise the bifurcation issue.” Thill v. Larner, 321 Pa.Super. 62 n. 1, 467 A.2d 894 n. 1 (1983). We believe that a notice of appeal from an order granting bifurcation, premised as it is on the eventual granting of a divorce is, conversely, sufficient to raise the issue of the propriety of the grant of the divorce. An order entering a bifurcated divorce is final and appealable. See Wolk v. Wolk, supra. Appellant’s attorney, in an attempt to assert appellant’s rights to appeal the bifurcation, described the appeal as one from the order granting bifurcation. Under these circumstances, we find counsel’s action an uninformed procedural misstep and will preserve appellant’s right to appeal the order granting the divorce, premised as it is on the bifurcation order.

Since the decision to bifurcate is discretionary, we will review lower court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion. In other words, this determination should be the result of a reflective examination of the individual facts of each case.

Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984).

The hearing on the petition to bifurcate was held on January 18, 1983. The standard by which we must evaluate the record is enunciated in Wolk v. Wolk. An independent examination of the January 18, 1983, hearing transcript on the bifurcation petition indicates little consideration of the ramifications of bifurcation on the parties involved. The facts of the instant case mirror those in Hall v. Hall in which this court reversed the order which granted the bifurcation. There is simply no evidence on record that the court gathered adequate information, thoughtfully studied that information and then explained its decision. At the hearing, the court briefly entertained arguments by counsel and then stated:

Mr. Hurowitz, do you mean to tell me that here where she’s agreeable that they have been separated three years, and its the whole purpose of the new divorce code to speed up divorces so you wouldn’t have all these battles, and this one, if Mr. Littleton is correct, that this one has been going on for four years that the court should not bifurcate?

These are precisely the reasons expressed by the Judge in Hall v. Hall and are, as such, little more than “conclusions”.

We, therefore, reverse the order of the lower court and remand for proceedings consistent with this opinion.

After Notice of Appeal was filed by appellant on February 4, 1983, the trial court entered an order on October 28, 1983, which dismissed exceptions to a master’s report on issues concerning the parties’ financial status. Appellant filed a notice of appeal at No. 3190 Philadelphia 1983. After appellant lodged her appeal at No. 427 Philadelphia 1983, the trial court lacked jurisdiction to act further and to dismiss appellant’s exceptions on the economic claims under Pa. Rule of Appellate Procedure 1701. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984). Therefore, the appeal of the order of the Honorable Robert W. Tredinnick which concerned the economic claims is quashed.

Order entered at No. 427 Philadelphia 1983 reversed and appeal at No. 3190 Philadelphia 1983 quashed. We remand for proceedings consistent with this opinion. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent. I would find that the divorce decree in this case was granted in accordance with the statute 23 P.C.S.A. § 401(b) which provides:

(b) Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment. The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order of decree shall be entered, or may order that each party shall pay his or her own costs, or may order the costs be divided equitably as it shall appear just and reasonable. (Emphasis added).

The record shows that in this case there were two Master’s Reports filed. The Master’s Report on the Divorce Decree was filed on March 15, 1982 and was approved by the trial court on April 13, 1982. The Master’s Report on Equitable Distribution was filed on August 11, 1982. The trial court entered the divorce decree on January 24, 1983, retaining jurisdiction over economic matters. The Master’s Report on economic matters was filed more than 30 days before the divorce decree was entered, in fact, it was filed five months before the divorce was granted.

The Majority relies on the holding of Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983); and Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984), which precludes the pro forma granting of bifurcation orders. The practice of concern to our court in Wolk and Hall was the granting of a petition to bifurcate without any consideration of the facts in an individual case. In both cases, the petition to bifurcate was granted and the divorce decree entered before a Master’s Report was filed and without an adequate hearing. The Wolk court noted that the trial court should make a determination to bifurcate only after it had weighed the advantages and disadvantages of proceeding in this manner, and that the determination should be the result of a reflective examination of the individual facts of each case. Wolk supra, 318 Pa.Superior Ct. at 317-318, 464 A.2d at 1362. The court noted how significant factors such as the parties’ tax positions, and the impact of the death of one of the parties could be affected by a bifurcation order.

The procedural history of the case sub judice differs from that of Wolk and Hall. Although the bifurcation hearing in this case was brief, there had been two Master’s Reports filed with the court before the hearing was held. Therefore, I would find that in this case the statute which permits the entry of a decree of divorce within 30 days after the Master’s Report has been filed has been complied with. I would also find that the standards set by Wolk have been met in view of the fact that through the two years of proceedings which preceded the entry of decree, the trial court had ample opportunity to gather the information necessary to make a decision which was more than pro forma.

Therefore, I would approach this case viewing this issue before us as simply whether the divorce decree was properly entered. The record shows that the parties had been separated for over three years and that each party had filed an affidavit of consent to the divorce decree pursuant to 23 P.C.S.A. § 201(c), stating that the marriage was irretrievably broken. The Master’s recommendation was that a divorce decree should be granted. I would therefore conclude that the granting of the decree was proper. Even if the bifurcation order had been improperly entered, it cannot be argued that it had any effect on the granting of the decree since no one contests the validity of the decree or the underlying facts giving rise to its propriety.

I would also find that the trial court acted properly in continuing to exercise its jurisdiction over the economic claims, even though the divorce decree was on appeal.. The statute [§ 401(b) ] contemplates the separation of the economic claims from the divorce decree in some cases, and the consequent separate disposition of these matters.

Consequently, I would go on to address the second order on appeal, that of Judge Tredinnick of the Court of Common Pleas of Montgomery County, whereby he dismissed the Appellant’s exceptions to the Master’s Report on Equitable Distribution. The Report was based on the parties’ settlement agreement which was negotiated before the Master by counsel. The Appellant excepted to the Report on the basis that there was no full disclosure of assets and that she had not made an informed consent to the settlement agreement which she had signed. A full evidentiary hearing was held on the Appellant’s exceptions, at which both parties testified. After this hearing, the trial court dismissed the Appellant’s exceptions, finding that the Appellant did consent to the agreement, that she was not under such duress as to invalidate the decree and that there was adequate disclosure. I find no reason to disturb these findings and would affirm the opinion of the trial court.