author: MONTGOMERY, Judge: KELLY, Judge,

text:
    515 A.2d 984
    In the Interest of Guy DUMAS, A Minor. Appeal of COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued April 16, 1986.
    Filed Oct. 3, 1986.

      D. Sherwood Jones, Assistant District Attorney, Erie, for Commonwealth, appellant.
    Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal by the Commonwealth from an order suppressing evidence seized from the school locker used by Guy Dumas. We affirm.

The facts, as found by the court below, reveal that Guy Dumas, a student at Academy High School, was observed getting a pack of cigarettes from his school locker and giving one of the cigarettes to another student. The teacher who observed this immediately notified the assistant principal, Mr. Grode. Mr. Grode approached the students, took the cigarette from the other student and took a pack of cigarettes from the person of Guy Dumas. Mr. Grode then searched the locker. Inside a jacket he found another pack of cigarettes which contained some marijuana. Although Mr. Grode testified that he suspected Guy of being involved with drugs, he was unable to state any basis for this suspicion. Mr. Grode further stated that it was because of this suspicion that he decided to search the locker.

A delinquency petition charging Guy with possession of a controlled substance was filed in juvenile court. The Master recommended that Guy’s motion to suppress the marijuana be denied. Exceptions were filed and the Honorable Fred P. Anthony granted the motion. The Commonwealth appealed.

The issue is whether evidence seized from a school locker during a search by a school official is admissible in a delinquency proceeding. This precise issue has not been decided by a Pennsylvania appellate court.

The United States Supreme Court has determined that the Fourth Amendment’s prohibition against unreasonable searches and seizures does apply to searches conducted by public school officials. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). T.L.O. involved the search of a student’s purse, which uncovered marijuana, a pipe, and a variety of other materials which implicated the juvenile in marijuana dealing. To determine whether the search was reasonable, the Supreme Court balanced the student’s legitimate expectations of privacy against the school’s need to maintain order. The Court specifically declined to express any opinion on whether a student has a legitimate expectation of privacy in a school locker. Id. at 337, n. 5, 105 S.Ct. at 741, n. 5, 83 L.Ed.2d at 732, n. 5.

Much of the Court’s discussion of the privacy factor, however, would apply equally to one’s expectation of privacy in a locker.

... Students at a minimum must bring to school not only supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities.

Id. at 339, 105 S.Ct. at 742, 83 L.Ed.2d at 733.

These are the types of items which students store in lockers and for which lockers are provided. We are unable to conclude that a student would have an expectation of privacy in a purse or jacket which the student takes to school but would lose that expectation of privacy merely by placing the purse or jacket in school locker provided to the student for storage of personal items. In an analogous situation, this court found a legitimate expectation of privacy in a locker used by an employee at his work place. Commonwealth v. Gabrielle, 269 Pa.Super. 338, 409 A.2d 1173 (1979). We hold therefore, that a student does have a legitimate expectation of privacy in his/her school locker.

This is not to say that the student’s expectation of privacy is absolute. It must be balanced against the school’s need to maintain order and discipline. New Jersey v. T.L.O., supra. Under the facts of this case, we see no need to deviate from the “reasonableness” standard set forth in T.L.O. That standard asks, first, whether the search was justified at its inception and, second, whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. The court below found that Mr. Grode did have reasonable grounds for believing that the initial search of Guy would provide evidence that Guy had violated school rules by possessing cigarettes. However, once he had seized the pack of cigarettes from Guy’s hands, the court found that it was not reasonable to suspect that there would be more cigarettes in his locker. We agree. Further, although Mr. Grode suspected Guy of being involved with marijuana he was unable to articulate any reasons for this suspicion. The mere fact that Guy possessed cigarettes does not lead to the conclusion that he would also possess marijuana. As noted by Judge Anthony, “it seems that catching the juvenile with cigarettes formed a pretext for a search for drugs.” (Slip Op. at 9). We therefore affirm the order suppressing the marijuana.

Order affirmed.

TAMILIA and KELLY, JJ., join in Opinion.

KELLY, J., files a Concurring Opinion in which TAMILIA, J., joins.

KELLY, Judge,

concurring:

I concur in the majority’s opinion. I write separately to emphasize the limited scope of this decision. In the instant case, we found that a search of an individual student’s school locker to determine whether the locker contains cigarettes or other unpermitted materials violated the student’s privilege against unreasonable searches and seizures when the school official conducting the search did not have a reasonable and articulable basis to believe that the search would uncover evidence that the law or the rules of the school were violated or being violated.

The majority finds that the student had a reasonable expectation of privacy with regard to the contents of his school locker. The majority relies upon the similarity between the items subjected to a search in New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), and those subjected to a search in the instant case. The majority also relies upon our holding in Commonwealth v. Gabrielle, 269 Pa.Super. 338, 409 A.2d 1173 (1979), wherein we held that in certain circumstances an employee may have a legitimate expectation of privacy with respect to the contents of a locker provided at his workplace.

In the instant case, the school provided the student with a locker in which the student was permitted to store personal property. The record does not indicate that the school made any special restrictions with regard to the nature of the items which could be stored in the locker. The school did not notify students that use of the lockers would be subject to random or periodic inspection or search. The school did not follow a uniform policy or consistent practice regarding locker searches. Indeed, the record indicated that other students in similar circumstances were not subjected to locker searches. Consequently, I agree that the student in the instant case had a reasonable expectation of privacy with regard to the contents of his locker.

In People v. Overton, 24 N.Y.2d 522, 301 N.Y.S.2d 479, 249 N.E.2d 366 (1983), a New York court stated, “For the four years of high school, the school locker is home away from home. In it the student stores the kind of personal 'effects’ protected by the Fourth Amendment.” This is true. Consequently, when a student is given an unrestricted right to place personal items in a school locker, the privacy interest in the items can reasonably be expected to extend Fourth Amendment protections to the locker in which they are placed.

I emphasize that although students may in fact store a variety of personal items in their lockers, they do so by license and not by right. If the student is notified that he or she is provided with a locker which is subject to inspection or search, there would be no reasonable expectation of privacy. A student would then have the choice of using the locker subject to its conditions, or not using it. I find no constitutional entitlement to a private school locker. Hence, I would find no prohibition to prevent the adoption of reasonable restrictions on the use of school lockers.

In Commonwealth v. Dingfelt, 227 Pa.Super. 380, 323 A.2d 145 (1974), this Court stated: •

School officials have a great responsibility to see that the vital process of education can take place in an environment conducive to learning____certainly the peddling or possession of drugs by a student within the confines of the school is not conducive to a secondary school environment.

227 Pa.Superior Ct. at 383, 323 A.2d at 147. It is a sad fact of modern society that drugs and violence have found a foothold in our schools and-threaten the vital educational process. See Lloyd D. Johnston, et al., Student Drug Use, Attitudes and Beliefs: National Trends 1975-1982. National Institute on Drug Abuse, (U.S. Gov. Printing Office, Rockville, Md. 1982); The Scope of Crime and Violence in Schools and on Proposed Initiatives to Combat Juvenile Crime in the Schools, Senate Hearing Before the Subcommittee on Juvenile Justice, 98th Cong., 2d Sess. 98-488 (January 25,1984).

In light of this harsh reality, and in view of the state’s compelling interest in educating its youth in an environment conducive to learning, schools may be expected to take reasonable measures to eliminate the disruptive influence of drugs and violence. We have not held and do not suggest that the school may not restrict the school locker privilege in such a way as to eliminate a student’s reasonable expectation of privacy.

In State v. Stein, 203 Kan. 638, 456 P.2d 1 (1969), the Kansas Supreme Court stated:

Although a student may have control of his locker as against fellow students, his possession is not exclusive against the school and its officials. A school does not supply its students with lockers for illicit use in harboring pilfered property or harmful substances. We deem it a proper function of school authorities to inspect lockers under their control and to prevent their use in illicit ways or for illegal purposes.

456 P.2d at 3. In State v. Engerud, 94 N.J. 331, 463 A.2d 934 (1983), the New Jersey Supreme Court held that “[H]ad the school carried out a policy of regularly inspecting students’ lockers, an expectation of privacy may not have arisen.” 463 A.2d at 943. In Zamora v. Pomeroy, 639 F.2d 662 (10th Cir.1981), the Court of Appeals stated that “Inasmuch as the school had assumed joint control of the locker it cannot be successfully maintained that the school did not have a right to inspect it.” 639 F.2d at 670.

However, in order for a school to make the transition from a practice of allowing students to maintain the privacy in their lockers to a practice of regular or periodic inspection or search, ample notice must be given of any such limitations. The importance of notice to the students of any change in the policy regarding the privacy of school lockers cannot be overstated. Because no such notice was given in the instant case, the search was unconstitutional and the evidence must be suppressed.

      . Two of the Commonwealth’s arguments for reversal—that the search was conducted by a private person and that school officials act in loco parentis rather than as state officers—were specifically reiected by the Court in T.L.O.

      . I note that it is not necessary that the student whose locker is to be searched be the individual suspected of a violation of a law or school rule. "The critical element in a reasonable search is not that the owner is suspected of a crime but that there is reasonable cause to believe that the specific 'things’ to be searched for and seized are located on property to which entry is sought.” Zurcher v. Stanford Dailey, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

      . I note that in Gabrielle, this Court found that: the employee had been permitted to use the locker for storage of personal items; the locker was not government property; and the employer had not manifested an intent to regulate the use of the lockers by promulgating regulations permitting search of the locker without the employee’s consent. 269 Pa.Superior Ct. at 344, 409 A.2d at 1176.

      . This 1982 report revealed the following grim facts. Nearly two-thirds of all seniors (64%) report illicit drug use at some time during their lives. More than four of every ten seniors (41%) report using an illicit drug other than marijuana. Seventy percent of all high school seniors reported drinking alcohol in the past month, ninety-three percent report having drunk alcohol at some time. Seventy percent reported smoking cigarettes at some time, thirty percent reported smoking cigarettes in the past month.

      . Testimony before Senator Arlen Specter’s subcommittee disclosed the following. The most comprehensive study of crime and violence in America’s secondary schools was completed in 1978 By the National Institute for Education in response to a Congressional mandate. The NIE reported that:
      • Each month: 282,000 students were physically attacked in America’s secondary schools; 112,000 were robbed through force, weapons, or threats; and 2,400,000 students had personal property stolen.
      • Each month: 6,000 teachers were robbed in America’s secondary schools; 1,000 were injured in assaults seriously enough to require medical attention; 125,000 teachers were threatened with physical harm; and 125,000 teachers reported encountering at least one situation where they were afraid to confront misbehaving students.
      • Each month: 2,400 acts of arson; 23,000 thefts of school property; 24.000 incidents of vandalism; and 42,000 cases of damage to school property are reported in America’s secondary schools.
      • An average of 21% of all secondary students stated they avoided restrooms and were afraid of being hurt or bothered at school; 800.000 reported staying home from school because they were afraid.
      • Secondary students reported beer, wine, and marijuana were widely available in their schools. Almost half of them stated that marijuana was easy to get and 37% made the same comment concerning alcohol.
      A major 1983 study of school violence by Jackson Toby, Director of Rutgers University’s Institute for Criminological Research, concluded that the NIE data had probably understated the actual instances of school violence at the time the study was conducted. (“Violence in school," Crime and Justice: An Annual Review of Research, Vol. 4). A November 1983 report prepared by the Boston Commission on Safe Public Schools, chaired by retired Massachusetts Supreme Court Justice Paul C. Reardon entitled, "Making Our Schools Safer for Learning," concluded that the problems described in the NIE report have probably worsened since 1978.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    515 A.2d 1379
    at No. 571 Pittsburgh, 1985.
    Dewayne E. SHREFFLER and Pamela J. Shreffler, His Wife, v. GREENVILLE AREA CHAMBER OF COMMERCE, Pymatuning Township and Reynolds Disposal Company v. John and Lois M. BRZEZINSKI, Jr., et al. Appeal of William H. and Karen L. RIGGLE, Appellants Appeal of REYNOLDS DISPOSAL COMPANY, Appellant Gerald PLOWMAN and Delores Plowman, His Wife, v. REYNOLDS DISPOSAL COMPANY et al. Appeal of William H. and Karen L. RIGGLE, Appellants Appeal of REYNOLDS DISPOSAL COMPANY, Appellant William H. and Karen L. RIGGLE, His Wife, Appellants v. REYNOLDS DISPOSAL COMPANY, et al. Appeal of REYNOLDS DISPOSAL COMPANY, Appellant Thomas L. MOWRY and Bessie M. Mowry, His Wife, v. REYNOLDS DISPOSAL COMPANY, v. John and Lois BRZEZINSKI, Jr., et al. Appeal of William H. and Karen L. RIGGLE, Appellants Appeal of REYNOLDS DISPOSAL COMPANY, Appellant Dale L. and Patricia A. JOHNSON, v. GREENVILLE AREA CHAMBER OF COMMERCE, Pymatuning Township and Reynolds Disposal Company, et al. Appeal of William H. and Karen L. RIGGLE, Appellants Appeal of REYNOLDS DISPOSAL COMPANY, Appellants Arthur J. HARVEY and Doris Harvey, v. REYNOLDS DISPOSAL COMPANY, et al. Appeal of William H. and Karen L. RIGGLE, Appellants Appeal of REYNOLDS DISPOSAL COMPANY, Appellant

      at No. 621 Pittsburgh, 1985.
    at No. 572 Pittsburgh, 1985.
    at No. 622 Pittsburgh, 1985.
    at No. 573 Pittsburgh, 1985.
    at No. 620 Pittsburgh, 1985.
    at No. 574 Pittsburgh, 1985.
    at No. 619 Pittsburgh, 1985.

      at No. 575 Pittsburgh, 1985.
    at No. 618 Pittsburgh, 1985.
    at No. 576 Pittsburgh, 1985.
    at No. 623 Pittsburgh, 1985.
    Superior Court of Pennsylvania.
    Argued April 16, 1986.
    Filed Sept. 12, 1986.
    Reargument Denied Oct. 24, 1986.

      Lynette Norton, Pittsburgh, for Riggle, appellants (at 571-576) and appellees (at 618-623).
    Cyril T. Garvey, Sharon, for Reynolds, appellant (at 618-623) and appellee (at 571-576).
    Charles F. Gilchrest, Sharon, for Sanders, appellees.
    Russell L. Schetroma, Meadville, for Brzezinski, appellees.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The consolidated appeals in this case began as six individual suits instituted by six customers of the Appellant Reynolds Disposal Company (hereafter referred to as “Reynolds Disposal”). Such actions involved requests for damages to be assessed against Reynolds Disposal and other Defendants for alleged harm to real estate and personal property from the backup of sewage and flooding into the basements of the Plaintiffs’ homes. Reynolds Disposal holds a certificate of convenience as a public utility and provides sanitary sewage disposal through a sanitary sewer system located in the community of Reynolds in Mercer County. Inter alia, the Plaintiffs asserted in their Complaints that the sewage system was inadequate.

Reynolds Disposal denied liability and joined fifty-two (52) property owners in the community of Reynolds as Additional Defendants. It alleged that any damage to the Plaintiffs from sewage backup and flooding was the result of overloading of the sewage system by surface and storm waters, and that the Additional Defendants had caused or allowed such waters to enter the system through the construction of their homes or other buildings on their respective properties.

Because allegations of inadequacy of the sewer system were raised, the lower court initially stayed all proceedings until the Public Utility Commission reached a determination on the adequacy of the system. Various property owners raised the dispute before the Public Utility Commission by the filing of a complaint. After conducting hearings, a Public Utility Commission Administrative Law Judge issued a decision concerning the adequacy of the system. Exceptions were thereafter denied and the Commission ordered Reynolds Disposal to file a plan for ameliorating the problem of surface waters infiltrating into its sanitary sewer system. Both Reynolds Disposal and the homeowners involved in the case appealed this decision to the Commonwealth Court, which affirmed the Commission order in Reynolds Disposal Co. v. Pennsylvania Public Utility Commission, 79 Pa.Cmwlth. 222, 468 A.2d 1179 (1983).

When the cases were returned to the Court of Common Pleas, several Plaintiffs filed motions for partial summary judgment, which were denied. Motions for summary judgment by the Additional Defendants also came before the lower court. Upon consideration of various matters of record which will be further discussed herein, the court issued an Order dated March 27, 1985 granting summary judgment in favor of several of the Additional Defendants and denying such relief as to other Additional Defendants. It is from these rulings that the instant appeals are filed by Reynolds Disposal and by William H. Riggle and Karen L. Riggle. The latter were Plaintiffs and also were named as Additional Defendants by Reynolds Disposal in those cases, consolidated on this appeal, in which they were not Plaintiffs.

The sole claim by Reynolds Disposal and by the Riggles on these appeals is that the lower court erred in dismissing any Additional Defendants from the case because such action was based only upon the testimonial affidavits and answers to interrogatories by such parties, in violation of the so-called “Nanty-Glo ” rule. That rule provides that whenever proof depends solely upon the affidavit testimony of a party, it is the province of the jury to judge credibility and resolve the dispute, and met a proper case for the entry of summary judgment. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); see also Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981).

We must reject that claim. Reynolds Disposal’s claims against the Additional Defendants were based upon allegations that they knew or should have known that they were allowing their storm, surface and ground water to enter and overload the sanitary sewer system. In granting summary judgment to some of the Additional Defendants, the lower court considered not only denials of knowledge of discharges in the answers to admissions, answers to interrogatories, and affidavits of such Additional Defendants, but also the court considered other critical evidence. Reynolds Disposal had submitted a report to the court which was titled “In-Depth Inspection for Inflow” for each of the Additional Defendants whose motions for summary judgment were granted. Such reports showed that none of those Additional Defendants had constructed their drains in such a manner as to allow roof, storm, surface or ground water to enter the sanitary sewer. It is evident that the lower court relied upon such reports and other evidence, in addition to considering the testimony of such Additional Defendants, in reaching its conclusions. The court’s deeision was clearly based, in significant part, upon evidence from Reynolds Disposal which was directly contrary to the asserted basis for the Appellant’s claims against such Additional Defendants. Thus, we can discern no violation of the Nanty-Glo rule in this case.

The lower court specifically recognized the existence and application of the Nanty-Glo rule in its consideration of the motions for summary judgment. The excellent and detailed opinions authored by the court also show its thorough analysis of the complex factual details and legal issues presented thus far in this voluminous case.

The Order of the lower court is hereby affirmed, and the case is remanded for further proceedings. Jurisdiction is not retained.

      . See Section 1501 of the Public Utility Code, 66 Pa.C.S. 1501 and Bell Telephone Co. of Pa. v. Sanner, 248 Pa.Super. 273, 375 A.2d 93 (1977).

      . These appeals were originally filed in this Court. Although they were initially transferred to the Commonwealth Court, which had already reviewed the Public Utility Commission aspects of the case, the appeals were subsequently retransferred to this Court.

      . The lower court denied requests for summary judgment as to Additional Defendants who were established to have known they were discharging such waters into the system, and as to those Additional Defendants who experienced flooding or other circumstances which created an issue as to whether they should have known such discharges might be occurring.

      . The lower court authored an Opinion and Order dated March 27, 1985, a Memorandum Opinion and Order dated April 24, 1985, which rejected a motion for reconsideration and stay, and an Opinion dated June 20, 1985, pursuant to Pa.R.A.P. 1925.


author: HESTER, Judge:

text:
    515 A.2d 1382
    COMMONWEALTH of Pennsylvania v. James GRIFFIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Sept. 29, 1986.

      Michael J. Healey, Pittsburgh, for appellant.
    Sean K. Code, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, McEWEN and HESTER, JJ.
   HESTER, Judge:

In this appeal from judgment of sentence, a mandatory life term, entered upon appellant’s conviction of first degree murder by a jury, appellant raises numerous issues alleging trial error and ineffectiveness of trial counsel. We hold that no reversible error occurred, and affirm.

Appellant was one of eight men who participated in a conspiracy which led to the contract killing of Norman McGregor on December 14, 1978. The events surrounding the conspiracy and murder are summarized in Commonwealth v. Watson, 355 Pa.Super. 160, 512 A.2d 1261 (1986). Appellant was one of the intermediaries between Thomas Skelton, who paid for the murder, and James Watson, who shot the victim.

Following the confessions of three conspirators, appellant was brought to trial on February 21, 1984, on a general charge of criminal homicide. The jury returned a verdict of guilty of murder in the first degree and imposed a life sentence. Appellant retained new counsel following his trial who presented post-verdict motions which were denied. Appellant appealed from the judgment of sentence entered on May 20, 1985.

Appellant raises five issues. He argues that: 1) trial counsel was ineffective in failing to object to deliberate references to appellant’s past, by Commonwealth witnesses and by the prosecutor, from which the jury could only have inferred that he had engaged in prior criminal activity; 2) the trial court erred in failing to instruct the jury on (a) the statutory exception to accomplice liability, (b) voluntary manslaughter, and (c) criminal solicitation; 3) the trial court erred in permitting the Commonwealth to question prospective jurors regarding their attitude toward the death penalty and in allowing the Commonwealth to challenge for cause any person irrevocably committed to vote against the death penalty; 4) trial counsel was ineffective for failing to produce a necessary witness who could have impeached the credibility of a Commonwealth witness; and 5) the evidence was insufficient as a matter of law to support a jury verdict finding appellant guilty of first degree murder beyond a reasonable doubt. We will address the issues seriatum.

In the first issue, appellant presents a dual argument. He claims, first, that references to his past inevitably implied prior criminal behavior and were so prejudicial they constituted reversible error, and second, that trial counsel was ineffective for failing to object to the references. Appellant objects to three statements, elicited on direct examination of Commonwealth witnesses, which allegedly implied prior criminal behavior by appellant, as well as to a portion of the prosecutor’s closing argument.

The first challenged testimony was given by Charles Kellington, who testified that appellant and co-conspirator Gerald Walls recommended that Robert Bricker be solicited to kill the victim. The prosecutor asked Kellington whether appellant and Walls were suggesting Bricker was “qualified to do this sort of thing,” and Kellington responded, “Yes. He told me about a murder that he committed, a guy named Mitch.” Reproduced record (R.) at 205a. Appellant argues that this testimony implicates him in the murder of Mitch. We do not agree. The clear import of the testimony is that Bricker was qualified to kill the victim because Bricker had murdered Mitch, not that appellant or Walls had been involved in the murder of Mitch.

Appellant argues that testimony by Commonwealth witnesses Gerald Walls and Charles Rossi implied that they had met appellant in prison, and further, that appellant must have been in prison due to a prior criminal conviction. Appellant relies on Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), to support his argument. Although the parties in Bricker were the same ones involved in this conspiracy and though the testimony challenged by appellant is indeed similar to that which was condemned in Bricker, we hold that it is sufficiently distinguishable to warrant a different result. We hold that the testimony in appellant’s trial did not create the inevitable implication of prior criminal activity which required a new trial in Bricker, supra, 506 Pa. at 584, 487 A.2d at 350-51.

In the Bricker trial, the prosecutor elicited from Charles Rossi a detailed litany of his criminal record and dates of incarceration, followed by a reiteration of the exact years Rossi had spent in prison, followed almost immediately by testimony that Rossi had known Bricker for about twenty years, which reasonably implied that the two had met during one of Rossi’s lengthy periods of incarceration. Unlike the testimony in the Bricker case, the testimony of Walls and Rossi at appellant’s trial did not so directly imply that the parties met in prison.

In the testimony of both Walls and Rossi at appellant’s trial, their statements as to how long they had known appellant were substantially separated from their prior testimony as to terms of imprisonment, so that the jury was not likely to infer that appellant had been incarcerated with them. Nor had the prosecutor reemphasized the dates either Walls or Rossi had been in prison so as to underscore the impermissible implication that appellant had a prison record, as was done in the Bricker case. Our review of the transcript of appellant’s trial convinces us that it would have taken an exceedingly astute jury to draw the inference appellant argues.

Appellant’s final allegation pertaining to implications of prior criminal activity relates to a portion of the prosecutor’s closing argument. We reproduce the challenged statements in full, together with the sidebar conference which followed.

[MR. STEELE, Assistant District Attorney:] But does what they say ring true? This is a contract killing, the clubhouse, an inside circle of people who have a secret among them that they talk about and tell no one else. Who is going to know what those secrets are? Not the Boy Scout Leader in your town, but it is going to take somebody like a Kellington and somebody like a Walls to even be involved in a contract killing to even raise the subject. Kellington says that he walked into Butchie’s [bar] that night and Griffin and Walls were there and they started to talk about a contract killing. And no problem. That was their kind of stuff.
And Walls says that he was the best friend. And you remember how he put it, he was with him all of the time, Jimmy Griffin, Jimmy. Snooky was with Jimmy all of the time. Best friends, closest of people, families together. They were the closest and tightest, and yet today Snooky Walls is the merchant of menace, he is the con man, he is the drug dealer, he is the murder[er], he is the thug, he is all of those things. Well, he was all of those things at that time and he was spending everyday with Jimmy Griffin. And when he came back from Florida in trouble and Jimmy told him to hang with him in Pittsburgh, he was all of those things too then. He was a convicted murder[er] then, and a counterfeiter then, and he was a drug dealer then, and he was involved in contract murder then. And I suggest to you that Jimmy Griffin was the guy that was with him.
Now, if that is all not correct—.
MR. LIVINGSTON: Your honor, move for mistrial.
THE COURT: Discussion on the motion?
MR. LIVINGSTON: Yes, I think we should.
[Discussion at side bar]
MR. LIVINGSTON: I move for a mistrial based upon the statement that Walls was involved in contract murders and I suggest to you that Jimmy Griffin was the guy that was with him.
MR. STEELE: This one. I talked this one [sic].
MR. LIVINGSTON: The motion is made.
MR. STEELE: Butchie’s and their discussion of eon-tract murder at Butchie’s that night, that it was Walls and Kellington and Griffin. Made no reference to any other murders.
MR. LIVINGSTON: The motion is made. That’s all.
THE COURT: You are not trying to imply to the jury that there are other unrelated crimes?
MR. STEELE: Absolutely not.
THE COURT: Other than the one on the trial?
MR. STEELE: I made specific reference to the conversation in Butchie’s about the contract killing that Kellington walked in and immediately commenced a discussion about a contract killing.
THE COURT: That was the sense and impression that I got of it.
Motion for mistrial denied.

R. at 497-500 (emphasis added). Appellant argues that the emphasized statements are a blatant reference to prior criminal behavior by appellant.

Although we agree that the remarks are subject to varying interpretations, we believe the statements should be construed as explained by the prosecutor during the sidebar conference and as the trial court understood them. The prosecutor referred to prior criminal behavior of the witness, Walls, a matter properly in evidence, and then referred to appellant’s presence with Walls at Butchie’s bar, a matter pertaining to the credibility of appellant.

We therefore reject appellant’s claim that impermissible evidence of prior criminal behavior was admitted. We turn to his related argument that trial counsel, Mr. Livingston, was ineffective for failing to object to the testimony of Kellington, Walls and Rossi.

We have already concluded that the challenged testimony was admissible. Had trial counsel objected to its admission, his objections would properly have been denied. It is well established that counsel will not be deemed ineffective for failing to take baseless or meritless action. Commonwealth v. Blagman, 350 Pa.Super. 367, 371, 504 A.2d 883, 885 (1986); Commonwealth v. Davis, 331 Pa.Super. 285, 300, 480 A.2d 1035, 1043 (1984); Commonwealth v. Green, 315 Pa.Super. 564, 568-69, 462 A.2d 736, 738 (1983).

The second issue is appellant’s claim that the trial court erred in failing to give three requested instructions to the jury. First, he requested an instruction on the following statutory exception to accomplice liability: “Unless otherwise provided by this title or by the law defining the offense, a person is not an accomplice in an offense committed by another person if ... the offense is so defined that his conduct is inevitably incident to its commission.” 18 Pa.C.S. § 306(f)(2).

Appellant fails to explain in what possible way this exception might have been applicable in his case. Proper application of section 306(f)(2) is found in Commonwealth v. Brown, 245 Pa.Super. 134, 369 A.2d 329 (1976). Brown was charged with hindering the apprehension of a robbery suspect. This court held that section 306(f)(2) precluded that suspect from being an accomplice in hindering her own apprehension. Id., 245 Pa.Superior Ct. at 137, 369 A.2d at 331. Appellant suggests no parallel way in which he could not have been an accomplice in the murder of Norman McGregor. The trial court was therefore correct in refusing to give the requested instruction. Commonwealth v. Carter, 502 Pa. 433, 440, 466 A.2d 1328, 1331 (1983); Commonwealth v. White, 490 Pa. 179, 182, 415 A.2d 399, 400 (1980).

Appellant next challenges the trial court’s refusal to instruct the jury as to the elements of voluntary manslaughter. Appellant’s counsel requested a charge on voluntary manslaughter, R. at 450a; the court refused to give the charge, adopting the rationale of Commonwealth v. Carter, supra 502 Pa. at 440, 466 A.2d at 1331, that “a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial.” Slip op., 2/12/86, at 16. The court understood that it was extending the holding of Carter by refusing to give the voluntary manslaughter charge, doing so on the logic expressed in the concurring opinion of Mr. Justice McDermott, Carter, supra, 502 Pa. at 445-47, 466 A.2d at 1333-34. This was error, for the approach of Mr. Justice McDermott was not adopted by a majority of the court.

The rule is that a defendant charged with criminal homicide is entitled to a charge on “heat of passion” voluntary manslaughter, whether or not there was any evidence to support a verdict of voluntary manslaughter. Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984); Commonwealth v. Carter, supra; Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977). There is only one court in the state which has the authority to abrogate the rule. Although the Pennsylvania Supreme Court questioned and undermined the rule in Frey and Carter, the court expressly did not abandon it. Frey, supra 504 Pa. at 450 n. 10, 475 A.2d at 711 n. 10; Carter, supra 502 Pa. at 441 n. 8, 466 A.2d at 1331 n. 8.

Despite the error in refusing to give the “heat of passion” voluntary manslaughter instruction, we hold that appellant is not entitled to a new trial. Commonwealth v. Green, supra 315 Pa.Super. at 573, 462 A.2d at 742; Commonwealth v. Weakland, 273 Pa.Super. 361, 369, 417 A.2d 690, 694 (1979). In this case it is clear that he did not suffer prejudice from the refusal of such an instruction in view of the jury’s decision to ignore their right to return a verdict of third degree murder. There is not the slightest reason to believe that the jury would have returned a manslaughter verdict out of sympathy or in recognition of factors they may have deemed mitigating when these factors were not sufficiently compelling to cause them to elect the lesser alternative of third degree murder which was offered. Carter, supra 502 Pa. at 441-42 n. 9, 466 A.2d at 1332 n. 9.

Appellant’s third challenge to the jury instructions is an argument that the court should have instructed on criminal solicitation as a lesser included offense of homicide. An instruction on a lesser included offense is required only if there is some disputed evidence concerning an element of the greater offense which is not an element of the lesser offense. Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984). It follows that the commission of the greater offense necessarily involves the commission of the lesser offense in order for the latter to be considered a lesser included offense. Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985). Clearly, appellant need not have committed criminal solicitation to have committed homicide. Consequently, criminal solicitation is not a lesser included offense of homicide.

In addition, appellant has failed to specify that evidence which satisfies the elements of both solicitation and homicide as well as that disputed evidence relating to an element of homicide which is not an element of solicitation which would have required a charge as to the lesser offense. Accordingly, the trial court properly refused to instruct the jury on the offense of criminal solicitation.

Appellant’s third argument is that the trial court erred in permitting potential jurors to be stricken for cause if they were irrevocably committed to vote against the death penalty. The argument is definitively foreclosed by the Supreme Court’s holding in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

Appellant’s fourth argument is that trial counsel was ineffective for failing to produce a necessary witness who could have impeached the testimony of a Commonwealth witness, Kellington. Moreover, appellant alleges counsel’s ineffectiveness for not cross-examining Kellington to establish an improper motive for implicating appellant in the McGregor murder scheme.

Appellant has failed to meet his burden of proving that the missing witness was actually available, Commonwealth v. Ashley, 277 Pa.Super. 287, 419 A.2d 775 (1980), prepared to cooperate and testify for the defense, Commonwealth v. Warner, 277 Pa.Super. 598, 419 A.2d 1312 (1980), and that because the missing witness’ testimony was essential, an unfair verdict resulted. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983).

In order to establish that trial counsel was ineffective, appellant has the burden of proving: 1) his claim is of arguable merit; 2) counsel’s strategy had no reasonable basis for promoting appellant’s interest; and 3) appellant was prejudiced by counsel’s conduct to the extent that the result would likely have been different but for the error. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984). The court will not consider a claim of ineffectiveness which does not satisfy the requirement of specific pleading. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Garvin, supra.

Appellant has not met his burden under the foregoing authorities. His allegation is that the missing witness should have been called to testify that she had been asked to provide a false alibi for Kellington in an unrelated case. In fact, however, she could only have testified that such a request was made by a third party rather than Kellington. R. 524a-525a. The witness’ testimony would thus have been hearsay within hearsay and therefore inadmissible. In re Estate of Donsavage, 420 Pa. 587, 218 A.2d 112 (1966). Inasmuch as the witness’ testimony would have been inadmissible, trial counsel cannot be deemed ineffective for failing to call her as an impeachment witness.

Although cross-examination for the purpose of revealing the bias or improper motive of a witness permits counsel to introduce extrinsic evidence to substantiate the allegation of bias, Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), appellant’s trial counsel would have been without any extrinsic evidence to support the allegation of Kellington’s bias if Kellington had denied the charge on cross-examination. Counsel cannot be deemed ineffective for failing to pursue a meritless claim, Commonwealth v. Blagman, supra, so we reject appellant’s claims of ineffectiveness.

Appellant’s final argument is that the evidence was insufficient to prove his guilt of first degree murder beyond a reasonable doubt. The standard of review for the sufficiency of the evidence is whether accepting as true all the evidence of the Commonwealth and the reasonable inferences arising therefrom, the evidence is sufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Barnes, 310 Pa.Super. 480, 456 A.2d 1037 (1983).

The evidence presented at trial established that Kellington approached appellant and asked him if he knew anyone who would commit a contract murder. Appellant responded affirmatively and agreed with Kellington on a price of ten thousand dollars for the murder. The agreement stipulated that five thousand dollars would go to the assassin and the remaining five thousand would be divided among Kellington, Walls and appellant.

Appellant instructed Kellington to obtain the details of McGregor’s movements and demanded partial payment in advance. Kellington paid appellant and Walls two thousand five hundred dollars and showed them McGregor’s haunts. Appellant assured Kellington that McGregor would be taken care of. Upon appellant’s direction, Walls showed Brick-er where McGregor lived, worked, and socialized. Appellant then accepted a second installment payment from Kellington. Bricker later hired Rossi and Watson to help him kill McGregor after telling them that appellant had hired him and had arranged the assassination.

Rossi and Watson waited in ambush outside McGregor’s home on two occasions and on a third occasion, Watson shot James Smith, having mistaken him for McGregor. After the Smith shooting, appellant informed Kellington that he would not accept less than payment in full if Kellington’s principal, Thomas Skelton, wanted to cancel the murder contract. In addition, appellant threatened Kellington that Skelton could get hurt if he did not pay the balance due.

Appellant directed Walls to introduce Kellington to Brick-er. Bricker and Kellington surveyed the locations frequented by McGregor, and discussed possible places for an ambush, whereupon Bricker disclosed that he had hired Rossi and Watson to help him commit the murder. While Kellington kept appellant and Walls apprised of the progress of the murder plot, Bricker and Watson began to lay in wait for McGregor.

After McGregor had been killed, Bricker called Kellington to report that the contract had been fulfilled. Thereafter, Bricker disclosed to Rossi that Watson had committed the killing. Kellington received the three thousand dollars due from Skelton and turned it over to appellant. Appellant kept eight hundred dollars for himself and instructed Kellington to deliver shares to Bricker and Walls. After Kellington paid Bricker, Bricker revealed the details of the shooting. Bricker later paid Rossi one thousand eight hundred dollars for his part in the murder contract.

In reviewing the accomplice testimony, it was reasonable for the jury to find beyond a reasonable doubt that the appellant played a critical and continuing role in the McGregor murder scheme. Because the uncorroborated testimony of an accomplice has been held sufficient to sustain a conviction, Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), we hold that the trial evidence was sufficient to support the jury’s verdict that appellant was guilty beyond a reasonable doubt of murder in the first degree.

Our exhaustive review of appellant’s arguments, the applicable law and the record leads us to conclude that no reversible error occurred. Accordingly, we affirm the judgment of sentence.


author: CIRILLO, President Judge: McEWEN, Judge, OLSZEWSKI, Judge, DEL SOLE, Judge,

text:
    516 A.2d 1
    Edward KIRKBRIDE and Carole Kirkbride v. LISBON CONTRACTORS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed Aug. 12, 1986.
    Clarification Denied Oct. 16, 1986.

      David G. Battis, Philadelphia, for appellant.
    William H. Lamb, West Chester, for appellees.
    Before CIRILLQ, President Judge, and CAVANAUGH, BROSKY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO and TAMILIA, JJ.
   CIRILLO, President Judge:

The issue presented to this Court is whether a jury’s award of punitive damages must bear a reasonable relationship to the amount awarded as compensatory damages. Specifically, did the trial court err when it instructed the jury to the effect that no such relationship need exist?

The subject jury charge followed a trial initiated by the Kirkbrides, owners of property that is part of a wooded, thirty-acre tract in East Cain Township, Chester County. The Kirkbrides’ lot fronts for about 120 feet on Norwood Road and extends across a ridge back to a former railroad easement that runs parallel to the Brandywine Creek for more than 1000 feet behind their property. In 1977, the Uwchlan Township Municipal Authority obtained the former railroad easement for construction of a sewer line. Later that same year, Chester County took the easement outright to build a bike path and jogging trail over the sewer line. The Uwchlan Township Municipal Authority subsequently contracted with appellant, Lisbon Contractors Inc., to construct the sewer line and bike path.

Work on the project started in February, 1978. Early in the job, appellant’s bulldozer turned onto the Kirkbride’s property from the sewer line right of way and drove toward Norwood Road, making a clearing for about 1,200 feet. This clearing was later used as a storage area. During the restoration work, after the sewer line was completed, appellant pulled down an 800 foot embankment on the Kirkbride property, immediately parallel to the construction right of way, and regraded the slope to meet the adjoining hillside along the sewer line and bike path.

In June of 1979, the Kirkbrides instituted a suit in trespass as a result of appellant’s actions. Following trial, the jury returned a verdict of $7,000 in compensatory damages and $70,000 in punitive damages for the land marred by the bulldozer, and $12,000 in compensatory damages, but no punitive damages, for the embankment which was regraded. Appellant timely filed motions for judgment n.o.v. and a new trial which were denied after argument. This appeal followed.

Appellant had requested the trial court to instruct the jury that the amount of an award of punitive damages must be reasonable and may not be disproportionate to any award of compensatory damages. The trial court refused to so instruct and instead, over appellant’s objection, charged the jury as follows:

The amount you assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages, and it is not necessary that you award compensatory damages to the plaintiffs in order to assess punitive damages against the defendant so long as you find in favor of the plaintiffs, as we tell you to do, on the question of liability.

Appellant contends that this charge was in error and necessitates the grant of a new trial.

We observe that this challenged instruction was taken from a bracketed portion of the Pennsylvania Suggested Standard Jury Instruction (Civil) § 14.02, Subcommittee Draft (September 26, 1976), relating to the assessment of punitive damages and was given by the trial court in reliance on this Court’s decision in Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982). In Rhoads, the trial court instructed the jury that the amount of punitive damages awarded need not bear any relationship to the actual damages rendered. The panel, in holding that this instruction was proper, opined that such a charge was consistent with the Restatement (Second) of Torts § 908, Comment C (it is not essential to the recovery of punitive damages that the plaintiff should have suffered any pecuniary or physical harm) which, in the panel’s view, was adopted by this Court in Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970). Actually, Focht cited Chambers v. Montgomery, 411 Pa.Super. 339, 192 A.2d 355 (1963) as adopting the Restatement view. Neither case, however, even remotely considered that portion of Section 908 regarding the compensatory-punitive relationship; only an interpretation of the word “punitive” was involved. The panel in Heberling also relied on the model charge prepared by the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions. See also Laniecki v. Polish Army Veterans Association, 331 Pa.Super. 413, 480 A.2d 1101 (1984) (sets forth the rule adopted in Rhoads). In no case, though, has the Supreme Court approved or accepted its own committee’s proposed instruction. As a matter of fact, the draftsmen of this model charge admit that it “departs ... from what may be considered as the existing Pennsylvania law on punitive damages.” Pennsylvania Suggested Standard Jury Instruction (Civil) § 14.02, Subcommittee Note at 3, 7-8.

Indeed, several earlier Supreme Court decisions held that the amount of punitive damages must bear a reasonable relationship to the award of compensatory damages. See Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944); Givens v. W.J. Gilmore Drug Co., 337 Pa. 278, 10 A.2d 12 (1940); Thompson v. Swank, 317 Pa. 158, 176 A. 211 (1934); and Mitchell v. Randal, 288 Pa. 518, 137 A. 171 (1927). These Supreme Court decisions were cited as authority and followed by our Court in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983), and Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983), reversed on other grounds, 506 Pa. 383, 485 A.2d 742 (1984). They were also discussed in the case of Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). To date, none of these cases has been overruled by the Supreme Court. Rather, their viability has recently been confirmed by a plurality decision of our Commonwealth’s highest court in Martin v. Johns-Manville Corporation, 508 Pa. 154, 494 A.2d 1088 (1985). In Martin, Justice Hutchinson, joined by Justice Flaherty, reiterated that punitive damages must bear a reasonable relationship to actual compensatory damages. Justice McDermott, who filed a concurring opinion, did not take issue with Justice Hutchinson’s statement of the law concerning the relationship between punitive and compensatory damages. Justice Papadakos joined Justice McDermott while Chief Justice Nix and Justice Zappala concurred in the result and Justice Larsen did not participate.

This is not to suggest that the reasonable relationship test is immune from valid criticism, which is particularly sharp in the defamation context. Detractors see a glaring flaw in the test’s patent reliance upon the compensatory award as a reliable indicator of the extent of the wrongdoing. Essentially, it is urged that a plaintiff’s failure to recoup a high compensatory award does not necessarily mean that defendant’s wrongdoing was not so egregious as to warrant a high punitive award. F. Warren Jacoby, The Relationship of Punitive Damages and Compensatory Damages in Tort Actions, 75 Dick.L.Rev. 585, 607 (1970-1971) contains this lament:

A test or ratio [which compares the punitive and compensatory figures awarded] must rely on a presumption that the amount of actionable, provable injury is in direct correlation with the degree of malicious or wanton behavior exhibited by the defendant. While that presumption may be valid in certain situations, it has no place in areas of the law such as defamation. A defendant may entertain the most malicious thoughts and intentions while defaming the plaintiff, yet, if the plaintiff has a sound reputation, there is a great possibility that he will suffer little or no observable injury.

See generally Prosser and Keaton on the Law of Torts at pp. 14-15 (5th ed. 1984).

Even in the defamation context, however, we are of the view that the drawbacks inherent in the rigidity in its application are outweighed by the benefit reaped: stability. By insisting upon a reasonable relationship between compensatory and punitive damages, there remains intact an analysis of the ratio between the amounts awarded. True, this method of numbers comparison must itself be loosely applied to account for the variables in each case. Nonetheless, it succeeds in keeping awards within shouting distance of each other from one case to the next. Jurors are thereby precluded from awarding punitive damages on the basis of passion, prejudice, or improper motives.

It has been suggested that even the most carefully considered test for appellate review of jury awards may nonetheless allow for a mere substitution of the court’s judgment for that of the factfinders. Punitive Damages L & Prac. § 5.39. Realistically, then, we are at a loss as to how a tangible figure can be assigned to punitive damages when the defendant’s wrongdoing is considered separate and apart from the compensatory award. Deprived of any anchoring force, each case is set adrift on its own, thoroughly void of context. If it is the conclusion of a jury that X wrongdoing equals Y punitive dollars, upon what basis are we to meaningfully review that conclusion on appeal? To abandon the test and examine the wrongdoing in isolation would be to place the harm in a hot air balloon and cast the sandbags overboard. The sky would be the limit, and as an appellate court we would be left clutching thin air, possessing nothing of substance against which to scrutinize punitive awards.

We will therefore continue to follow the lead of the Supreme Court in holding that an award of punitive damages must bear a reasonable relationship to the amount awarded as compensatory damages. A test such as this, which provides that the punishment to a defendant and its deterrent effect on society be related to the nature and extent of the plaintiffs injuries, enables the court to temper the amount of punitive damages awarded yet insure that justice is served. To the extent that the yet-to-be-adopted Standard Jury Instructions impute a contrary intention to the Supreme Court, it is our fervent hope that the Court will take the model charge by the horns and either embrace it or cast it aside.

It is clear under the present state of the law that the trial court erred in its charge on punitive damages and that such error was prejudicial to appellant necessitating a new trial. However, since the issue of liability was fully and fairly tried, we limit the new trial solely to the issue of damages. Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

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

OLSZEWSKI, J., files a dissenting opinion, joined by DEL SOLE, J.

DEL SOLE, J., files a dissenting opinion.

McEWEN, Judge,

concurring and dissenting:

The depth of the respect in which the members of this Court hold their colleagues of the majority causes me to be hesitant to express a differing view, but I am, nonetheless, compelled to, very respectfully, dissent.

Parenthetically, may I note that I embrace, as does my learned brother Judge Peter Paul Olszewski, the position that an award for punitive damages need not bear any relationship to the amount of the award of compensatory damages and that I do so for all the reasons that such a view was adopted by the drafters of the Restatement (Second) of Torts as Section 908. Our Supreme Court has, however, as the majority correctly states, declared that such a relationship must exist and that the jury must be so instructed. Thus, I must on that issue march with the majority.

It is upon another issue that I hear a different drummer. A careful examination of all of the testimony offered at the trial causes me to conclude that the amount of punitive damages awarded actually bears a reasonable relationship to the compensatory damages awarded. Thus, the erroneous instruction—that the amount of “punitive damages need not bear any relationship to the amount” of compensatory damages—was of no consequence, and, in the terms of the trade, was harmless error. Even but a quick glance at the trial testimony makes it evident that it was not the faulty instruction, nor the tortious conduct that inspired the award of punitive damages. Rather, the contempt and arrogance displayed by the representative of the contractor triggered that award.

It is undisputed that finality is a fundamental goal of the civil justice system and I am reluctant to abandon that goal and discard the verdict of the jury in the absence of serious and harmful error. The majority, however, holds that the prevailing party, having proceeded through the stage of pleading, through all the pre-trial procedures including discovery, and through all of the effort that accompanied the preparation for and conduct of the trial, must now convince yet another jury that just redress may only be provided by substantial awards. As a result, the new trial ordered by the majority composes, for the losing contractor, a windfall, and, for the prevailing property owners, a dreadful inequity. And, thus, it is that I would affirm the Order of the distinguished Judge Charles B. Smith.

OLSZEWSKI, Judge,

dissenting:

I must disagree with the majority’s holding that an award of punitive damages must bear a reasonable relationship to the amount awarded as compensatory damages. I believe that the better course would be to acknowledge the different purpose served by each type of damages and to adopt the view of the Second Restatement of Torts. The Restatement’s section on punitive damages reads:

(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts Sec. 908. Comment c to that section states that “it is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.” Id. comment c.

The considerations given by the Restatement for assessment of punitive damages provide ample means by which punitive awards may be scrutinized. This view allows for greater flexibility than the one adopted by the majority today without abandoning stability. For these reasons, I respectfully dissent.

Joined by DEL SOLE, J.

DEL SOLE, Judge,

dissenting:

While I join in the Dissenting Opinion of my colleague, Judge Olszewski, I write separately to take issue with the Majority’s analysis of the punitive damage question.

The Majority, in reviewing the history of the relationship between punitive and compensatory damages in Pennsylvania, is correct in pointing out that early Supreme Court decisions required such a relationship. Further, the Majority is correct in pointing out that the concept of no need for a relationship between actual and compensatory damages is set forth in Restatement (Second) of Torts § 908(2). There, as my colleague, Judge Olszewski clearly states, punitive damages are awarded for conduct and harm, and no relationship between compensatory and actual damages is required.

Where the Majority goes astray in its analysis is in relying upon the plurality opinion of Mr. Justice Hutchinson in Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985), an opinion that obviously was not joined in by a majority of the members of the court. The error in this analysis is particularly evident in light of Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), where Mr. Justice McDermott writing for a unanimous Supreme Court stated as follows:

This Court has embraced the guidelines of § 908(2) of the Restatement (Second) of Torts regarding the imposition of punitive damages:
‘Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ See Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). Punitive damages must be based on conduct which is ‘ “malicious”, “wanton”, “reckless”, “willful”, or “oppressive”,____’ Further, one must look to ‘the act itself together with all circumstances including the motive of the wrongdoers and the relations between the parties ____’

Id., 506 Pa. at 395, 485 A.2d at 747-748.

Thus, it is readily apparent that the Supreme Court of Pennsylvania adopted Restatement (Second) of Torts § 908(2) to govern the issue of punitive damages. The reliance upon dicta in Mr. Justice Hutchinson’s Opinion in Martin, (joined by one other Justice) is reading too much into the decision of that case. All other Justices that voted in the Martin case concurred in the result. The result was an affirmance of the trial court’s decision refusing to submit to the jury the issue of punitive damages on the basis that there was insufficient evidence to establish the type of conduct necessary to allow that issue to go to the jury. The Opinion stands for nothing more.

When one views Martin, in light of Feld, one must clearly recognize that the Restatement section controls and that pursuant to the comments thereto, as pointed out by my colleague, Judge Olszewski, the charge given by the trial court in this case was clearly proper.

The question then becomes whether or not the punitive damage award rendered by the jury is based upon the type of conduct which permits such an award and whether or not the amount awarded bears a relationship to the conduct of the defendant which the award is seeking to prevent, and the harm (not damages) suffered by the plaintiff. When viewed in this light, it is apparent that the punitive damage award in this case was proper and not excessive and should, therefore, be affirmed.

      . Because of our disposition of this issue, we need not reach the merits of appellant’s challenges to the excessiveness of punitive damages and to the award of compensatory damages for the regrading of the embankment on the Kirkbrides’ properly.


author: CERCONE, Judge:

text:
    516 A.2d 6
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert B. McKEE. (Two Cases)
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Aug. 25, 1986.
    Reargument Denied Oct. 20, 1986.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellant.

      Kathleen J. Boyer, Assistant Public Defender, West Chester, for appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

These consolidated Commonwealth appeals are from two orders of the Court of Common Pleas of Chester County expunging all records possessed by all agencies of government with respect to appellee Robert B. McKee regarding two acquittals in separate trials for rape and related offenses. In each of the underlying cases, following a full trial, appellee was acquitted by a jury. He subsequently filed a petition to expunge all criminal records related to those two cases.

The Commonwealth has brought this appeal raising several issues for our consideration. It first alleges that the lower court erred in finding that the Commonwealth had not shown compelling reasons for the retention of appellee’s arrest records. We agree and, therefore, we need not address the remaining issues raised by the Commonwealth.

In each of the underlying cases, the complaining witness testified extensively as to the sequence of events which led to the alleged rape. At each trial, appellee did not deny that intercourse had occurred but testified that the sexual acts were consensual and not forcible. Both times, appellee was acquitted by a jury.

At the expunction hearing, the Commonwealth submitted extensive expert testimony by which it showed that the facts, as alleged by the complaining witnesses, followed a distinctive and recognizable modus operandi. The Commonwealth presented testimony that sex offenders usually fit into one of several recognized classifications. A Commonwealth witness testified as to the classifications of sex offenders as formulated by both the Federal Bureau of Investigation and by law enforcement authorities in New York state. Based on appellee’s criminal record and the incident reports, the witness concluded that the two underlying cases fit the New York state offense classification of “Predatory Rapist” and the Federal Bureau of Investigation classification of “Anger Rapist.” Appellee presented no evidence to challenge the conclusions asserted by the Commonwealth’s expert witnesses, nor did he present any testimony on his own behalf at the expunction hearing.

The Commonwealth alleges that the lower court erred (1) in taking judicial notice of the prejudice which appellee may suffer by having a criminal record and (2) in concluding that the Commonwealth’s interest in retaining appellee’s arrest records was less compelling than appellee’s interest in ex-punction.

The Supreme Court of Pennsylvania has specifically set forth a balancing test to be applied in these cases which requires the court to consider both the interests of the individual and the interests of the Commonwealth:

In determining whether justice requires expungement the Court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records.

Commonwealth v. Wexler, 494 Pa. 325, 329, 431 A.2d 877, 879 (1981). This court, in Commonwealth v. Iacino, 270 Pa.Superior Ct. 350, 411 A.2d 754 (1979) (Spaeth J., concurring), listed several factors that should be considered in determining the respective strengths of the Commonwealth’s and petitioner’s interest in this type of case:

These [factors] include the strength of the Commonwealth’s case against the Petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the Petition to Expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

270 Pa.Superior Ct. at 358, 411 A.2d at 759. These factors were cited with approval by the Supreme Court in Commonwealth v. Wexler, 494 Pa. at 330, 431 A.2d at 879, and Commonwealth v. Armstrong, 495 Pa. 506, 510, 434 A.2d 1205, 1207 (1981).

The court’s balancing process should be guided by but not limited to the enumerated factors. The Commonwealth’s emphasis on requiring the petitioner to prove “specific adverse consequences” is misplaced. Nowhere have our courts held that a petitioner must allege and prove that he has suffered specific harm before he is entitled to have his criminal records expunged. This issue was discussed in Commonwealth v. Chacker, 320 Pa.Superior Ct. 402, 467 A.2d 386 (1983), wherein this court stated:

We do so to dispel the notion that the petitioner seeking to have his/her record expunged is saddled with the burden of proving why his/her request should be granted. Our Supreme Court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) held: 1) if the Commonwealth admits that it is unable to bear its burden of proof (as was the case here), then it must bear the burden of justifying why the arrest record should not be expunged; and 2) a judge’s conclusion at the preliminary hearing that the Commonwealth had presented a prima facie case at that time is not dispositive of the issue to expunge.

320 Pa.Superior Ct. at 405 n. 1, 467 A.2d at 388 n. 1. In further discussion, the Chacker court reiterated, “Thus, under Wexler, the burden to present compelling evidence against expungement is placed on the Commonwealth if it has failed to establish the accused’s guilt beyond a reasonable doubt ...” 320 Pa.Superior Ct. at 409, 467 A.2d at 390.

The factors to be considered, as set forth in Armstrong, serve as guidance to the court in determining whether the Commonwealth has met its burden. Those factors do not shift the burden of persuasion to the petitioner. If the petitioner does not show great harm or prejudice by retention of the records, such a showing may be considered in a balancing test, but the ultimate burden of proof and persuasion is upon the Commonwealth.

Thus, we must examine the evidence presented to determine whether the Commonwealth proffered compelling evidence to justify the retention of appellee’s records. There are no set rules to be followed when balancing the competing interests in a case such as this. The court must resolve each case on its own facts. See Commonwealth v. Malone, 244 Pa. Superior Ct. 62, 366 A.2d 584 (1976).

The essence of this court’s holdings has been that the Commonwealth’s generalized concern for retention of records, applicable to all defendants, is not a sufficient basis for denying an expunction petition, see Commonwealth v. Wexler, supra (illicit drug activity) and Commonwealth v. Chacker, supra (drug activity), nor is the retention of records to inhibit further crimes of the same sort a compelling reason. See Commonwealth v. Rose, 263 Pa.Superior Ct. 349, 397 A.2d 1243 (1979) (retail theft); Rambo v. Commissioner of Police, 301 Pa.Superior Ct. 135, 447 A.2d 279 (1982) (drug charges).

The reasons for retaining the records must be focused on the particular petitioner before the court and the justifications must pertain specifically to that case.

. In this case there are several factors which weigh heavily in the Commonwealth’s interest. The Commonwealth presented expert testimony, based on the specific facts of this case, which showed that the two alleged instances showed that appellee followed a particular modus operandi or identifiable pattern of behavior. We do not agree with the lower court’s conclusion that the Commonwealth merely asserted “a general concern for maintaining records of all persons accused of rape.” Rather, the Commonwealth asserted a very specific concern for maintaining .appellee’s records because of the identifiable pattern of behavior involved. The Commonwealth’s argument would be less compelling if only one rape charge had been lodged against appellee. But here, there were two separate charges, three years apart, each involving a, similar, identifiable modus operandi which the Commonwealth documented thoroughly. The Commonwealth also presented persuasive evidence showing how the retention and use of modus operandi files was essential to accurate and successful criminal investigation which should be considered in the balancing process when ruling on an expunction petition.

Another persuasive reason asserted by the Commonwealth was the fact that one of the underlying arrests had been based, in part, on information obtained from two admitted drug users. If, in the future, those individuals would provide confidential information to the police concerning controlled substances, and the police wished to qualify them as confidential informants, they would be able to do so by asserting in the warrant that these individuals had provided reliable information in the past. If these arrest records were to be expunged, the police would not have them to provide a basis for qualifying those individuals as confidential informants.

These factors asserted by the Commonwealth weigh heavily when balanced against the other factors in this case. Appellee has a prior criminal record consisting of a conviction for robbery and importation of obscene materials and there had been a very short lapse in time between the most recent acquittal and the expunction hearing (two months). Finally, the petitioner presented no evidence of an employment history or other relevant specific factors. Such assertion of specific harm would weigh more heavily in his favor than does judicial notice of the harm involved and such information would be particularly pertinent when a petitioner, as here, already has a criminal record.

We find that, as a matter of law, the lower court failed to afford the appropriate significance to the law enforcement justification for retaining this specific appellee’s arrest records. The lower court did not err in taking judicial notice of the possible harm which might be suffered by an individual, however, in this case that potential harm is far outweighed by the Commonwealth’s asserted interests.

Accordingly, the order of the court below is reversed.

      . Appellee did allege in his Petition to Expunge Criminal Records that “To maintain the record of this criminal arrest will cause undue harm and specific prejudice to petitioner who is attempting to reconstruct his life and support his wife and minor child."

      . In Commonwealth v. Wexler, 494 Pa. at 329-330, 431 A.2d at 879, the Court expressed approval of the statement in Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976), recognizing the serious harm an individual may suffer as a result of the Commonwealth’s retention of an arrest record. In Malone, Judge Hoffman wrote:
      The harm ancillary to an arrest record is obvious: “Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual’s reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender.”
      244 Pa.Superior Ct. at 68-69, 366 A.2d at 587-88, quoting Menard v. Mitchell, 430 F.2d 486, 490-91 (D.C.Cir.1970).


author: TAMILIA, Judge:

text:
    516 A.2d 10
    Alex MORSCHHAUSER, Appellant, v. Charlotte MORSCHHAUSER. Alex MORSCHHAUSER v. Charlotte MORSCHHAUSER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1986.
    Filed Aug. 28, 1986.
    Reargument Denied Oct. 20, 1986.

      Frank L. Kroto, Jr., Erie, for appellant No. 1579 and appellee No. 1580.

      Donald W. Grieshober, Erie, for appellant No. 1580 and appellee No. 1579.
    Before GRILLO, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal and cross appeal from a Decree providing for equitable distribution and awarding alimony. The parties were married in 1948 and separated in 1977. The action was bifurcated and a divorce Decree entered in 1982. Hearings were held by a master on the issues of equitable distribution, alimony and counsel fees. Exceptions were filed and ruled upon by the court at which time a final Order was entered. This appeal followed.

Both parties were born in 1925. The husband owns one-half interest in Onex, Inc. and works for the corporation with an annual gross income of $155,000. In addition he has a pension and profit sharing plan along with various life insurance policies.

The wife is unemployed, not having worked on a regular basis since 1950. She suffers from phlebitis and related leg problems. She has remained in the marital residence which is owned by the parties, while receiving support payments. These payments have been $2,000 per month from January 1, 1979 to February 29, 1984 and $1,600 per month since March 1984.

The Decree of equitable distribution provided that husband be awarded the one-half interest in Onex, Inc; the entire pension and profit sharing plans and four insurance policies.

The wife was awarded the residence and contents thereof; a life insurance policy; $127,641.25 cash, as her share of the marital assets awarded to husband and alimony of $13,-200.00 per year, indexed to change yearly.

Both parties were to pay their own counsel fees and one-half of the master’s fee.

The parties raise various issues on appeal. We will address those of appellant/husband first.

Appellant initially claims the court erred in valuing the business and life insurance policies in 1980, more than three years after the date of separation. He contends they should have been valued as of the date of separation.

Appellant maintains that under 23 P.S. § 401(e) marital property does not include property acquired after separation and thus any increase in value after March 1977 is not a marital asset. In support he cites King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984) and Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985) which held only the portion of a pension attributable to the marriage period ending with separation is marital property. This is so, in an ummatured unvested plan, where additional increments are to be paid until vesting or retirement, as pensions are treated as deferred compensation. Braderman, supra. It would not be the case where a plan has vested and value increases aside from contribution of the parties, beyond the date of separation.

In reviewing a court’s Decree in an equitable distribution of property we are limited to determining whether there was an abuse of discretion. Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984).

The issue raised by appellant, along with the King and Braderman cases, has recently been discussed in Sergi, supra. See also Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986). Although 23 P.S. § 403(b) requires parties to submit to the court an inventory and appraisement of all property owned or possessed at the time the action was commenced; {See also Pa.R.C.P. 1920.33(a)) and 23 P.S. § 401(e), supra, footnote 1, excludes property acquired after separation from inclusion in marital property; neither dictates a specific date for valuation. In Sergi and Winters after discussing those sections it was held that the Divorce Code (23 P.S. §§ 101 to 801) only sets a date for which property is no longer included as marital property for purposes of equitable distribution. Absent a specific benchmark for valuation the trial court is free to select the date which best serves to provide for economic justice between the parties. See 23 P.S. § 102(a), (b).

The question before us then becomes whether the court abused its discretion in selecting a date for valuation. We find it did not.

The court found there would not be a marked difference in valuation of the business between 1977 and 1980. The master recommended the value of the business was to be split evenly between the parties and the court held any increase which may have occurred was properly distributable to the wife because of its desire to provide her more than 50 per cent of the marital property. The insurance policies were valued in accordance with the earliest information available. The year 1980 was used on one policy and 1977 on three others.

We find no abuse of discretion by the court in thus establishing the value of the business and insurance policies.

Appellant next claims the court erred in awarding alimony when the wife received a substantial property settlement. Appellant refers to Chapter 5 of the Divorce Code, specifically § 501 which provides for alimony and contends the award was inappropriate under § 501(a), (b) and (c). Appellant maintains the wife has sufficient property to provide for her own reasonable needs. In addition he argues indefinite alimony is not permissible because it is violative of the rehabilitative purpose of alimony.

His final argument in this regard is that the lower court erroneously based its calculations on a mistaken belief the master had awarded the wife equitable distribution in the amount of $164,155.00. This figure actually represented the property award and wife’s non-marital assets.

In reviewing an award of alimony, we also apply an abuse of discretion standard. Lee v. Lee, 352 Pa.Super. 241, 507 A.2d 862 (1986).

The amount of alimony awarded by the court was based on a determination that $23,000 was needed by the wife to sustain her lifestyle. We agree with appellant that the court was mistaken in its statement that the master awarded $164,155 as part of the equitable distribution. This, however, does not lead to the conclusion that an abuse of discretion has occurred.

The court in establishing a specific amount for alimony wanted to insure the wife received $2,000 more than her estimated expenses or approximately $25,000. This was to pay for medical insurance and expenses which would be anticipated due to the wife’s age.

The court reached its award by calculating an 8 per cent return on both the $127,641.75 awarded in the property settlement plus the approximately $26,000 of non-marital assets retained by the wife. The court then determined the monthly alimony necessary to provide the funds needed.

The misstatement by the lower court thus had no bearing on its final determination of alimony.

The lower court properly considered the factors set forth in 23 P.S. § 501(b) and discussed in the master’s report in adopting the recommendation of the master that alimony for an indefinite period be awarded. The court specifically noted the wife was sixty years old with little employment experience since the marriage. In addition, she was suffering from phlebitis and other leg problems. Thus, there was a proper basis to award alimony, especially considering appellees age and physical condition. These same factors also support awarding alimony for an indefinite period of time. Pacella v. Pacella, 342 Pa.Super. 179, 492 A.2d 707 (1985); Mazzei v. Mazzei, 331 Pa.Super. 432, 480 A.2d 1111 (1984); 23 P.S. § 501(c). Should circumstances change, appellant can petition to modify the Order under 23 P.S. § 501(e).

The third issue raised by appellant is that the court erred in awarding one spouse more than 50 per cent of the marital assets when no exceptions were filed to the master’s recommended award of 50 per cent. Appellant asserts that failure to file exceptions addressing the distribution of marital assets waives the issue under Pa.R.C.P. 1920.55(a) which provides in pertinent part:

Rule 1920.55(a)
... Matters not covered by exceptions are deemed waived unless prior to entry of the final decree, leave is granted to file exceptions raising those matters.

Further, appellant maintains it was an abuse of discretion on the part of the court to alter the master’s recommendation absent such exceptions.

We do not agree with appellant’s argument. The question raised here is whether the court can alter the recommendations of the master absent a specific exception by one of the parties. This is different from the situation where the court adopts the recommendations of the master and an appeal to the final Decree raises an issue not raised in exceptions to the master’s report. There, Pa.R.C.P. 1920.-55(a) could be properly invoked to assert a waiver for appellant failed to exercise an opportunity to allow the lower court to review an alleged error.

In the present situation the court’s action was within its power to equitably divide the marital property under 23 P.S. § 401(d).

The court is charged with the responsibility of making equitable distribution under the Divorce Code. Although the rules of procedure provide for the appointment of a master to conduct a hearing, prepare a report and make recommendations (Pa.R.C.P. 1920.51) this does not transfer the final responsibility of making the distribution to the master.

A master’s report is entitled to great consideration, but the court is not bound by it. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1984); Herwig v. Herwig, 279 Pa.Super. 65, 420 A.2d 746 (1980). See also 24 Standard Pa.Practice 2d § 126:364. The court is required to structure an equitable distribution of property in light of the factors set forth in 23 P.S. § 401(d). If in its discretion the court determines it must deviate from the recommendation of the master it may do so regardless of whether either party has raised the issue in an exception. Our function then becomes one of determining if the court’s action constituted an abuse of discretion under the statutory guidelines.

We find no abuse of discretion by the court in its distribution of the marital property. We are concerned, however, of the growing tendency to establish a presumption in favor of a 50-50 ratio for distribution. The master’s report (p. 5) cites to Prescott v. Prescott, 21 Pa.D. & C.3d 590 (1981) and Paul W. v. Margaret W., 130 Pitts.L.J. 6 (Alleg.Co.1981) in support of this practice. See also 24 Standard Pa.Practice 2d § 126:393. The appellant in his brief also refers to this presumption.

This court in Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983) rejected the adoption of presumptions to be applied in deciding issues involving property rights. Rather, the guidelines established in the Divorce Code are to be the sole criteria upon which an equitable distribution is to be made. Adoption of a presumption places a burden upon the party seeking to influence the court to deviate from the presumed 50/50 distribution. This burden should not exist.

In addition, adoption of a presumption detracts from the court's consideration of the statutory guidelines by establishing a “normal” result which the court should reach after evaluation of the factors in 23 P.S. § 401(d)(1)—(10) supra, footnote 5.

The ten factors in § 401 stand alone, without presumptions, as the bases upon which the court is to fashion an equitable distribution. Weight is to be accorded the various factors as the court finds appropriate and the property to be distributed in such proportions as the court deems just. The court is not restricted by needing to overcome a presumption in favor of equal distribution. It is free to award the property in any proportion justifiable by its application of the relevant factors. Such decision will then be reviewable for an abuse of discretion. Since the court did not follow the master’s recommendation of a 50/50 split, it did not adopt the erroneous theory of presumption of equal division and was not in error.

Appellant next asserts error in the court’s failing to take into consideration the economic benefit bestowed on the wife by virtue of living in the marital residence rent free for nine years.

We find appellant has waived this issue by his failure to raise it as an exception to the master's recommendations. Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984) Pa.R.C.P. 1920.55(a).

The final claim made by appellant is that the court erred in requiring an immediate payment of the entire equitable distribution award, in the amount of $127,641.25. He contends this will force him to liquidate his business holdings or suffer adverse tax consequences.

The court directly addressed this argument and determined appellant could produce part of the sum from his annual income, (gross income was found to be approximately $155,000.00) with the remainder obtained through a bank loan or by reaching some accomodation with appellee/wife. The court did not agree with appellant’s contention that the measures he claims are necessary are actually required to meet this obligation.

The court also upheld the immediate payment because the alimony award was based on the wife having a large amount of investment capital to produce income. If the payment of the distribution amount was spread out over time, appellant would be required to pay interest, the same as if he obtains a bank loan to pay appellee.

We find no abuse of discretion by the court in reaching this determination. The rationale provided by the court is sufficient to justify the action.

We next address cross appellant/wife’s claims. She maintains the court abused its discretion in failing to award delay damages or interest from the date of valuation, awarding inadequate alimony and in requiring her to pay counsel fees and half of the costs.

We find no abuse of discretion by the court in these areas. The court discussed the need for delay damages and looked to the substantial support payments the wife was receiving as compared to her alimony award and determined the difference adequately compensated her for the delay in receiving her share of the marital property.

We determined the propriety of the court’s award of alimony when reviewing appellant/husband’s claim and need not discuss this issue further.

Finally, we find the court was justified in holding the wife is capable of paying her own counsel fees and half of the master’s fee due to the substantial lump sum payment she will receive. Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985).

Finding no merit to any of the claims raised by the parties, the Decree of equitable distribution is affirmed.

      . 23 P.S. § 401(e) provides:
      § 401. Decree of court
      (e) For purposes of this chapter only, "marital property" means all property acquired by either party during the marriage except:
      (1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
      (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
      (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
      (4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
      (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
      (6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229 b as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
      (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for divorce are commenced.

      . 23 P.S. § 102 provides in pertinent part:
      § 102. Legislative findings and intent
      (a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
      (6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
      (b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.
      1980, April 2, P.L. 63 No. 26 § 102, effective in 90 days.

      . 23 P.S. § 501 provides in pertinent part:
      § 501. Alimony
      (a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony;
      (1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
      (2) is unable to support himself or herself through appropriate employment.
      (b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
      (1) The relative earnings and earning capacities of the parties.
      (2) The ages, and the physical, mental and emotional conditions of the parties.
      (3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
      (4) The expectancies and inheritances of the parties.
      (5) The duration of the marriage.
      (6) The contribution by one party to the education, training or increased earning power of the other party.

        (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
      (8) The standard of living of the parties established during the marriage.
      (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
      (10) The relative assets and liabilities of the parties.
      (11) The property brought to the marriage by either party.
      (12) The contribution of a spouse as homemaker.
      (13) The relative needs of the parties.
      (14) The marital misconduct of either of the parties during the marriage, however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determination relative to alimony.
      (c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
      (1) obtaining appropriate employment; or
      (2) developing an appropriate employable skill.

      . The actual property award recommended by the master was $137,-555.50.

      . 23 P.S. § 401(d) provides:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (7) 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.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (8) The value of the property set apart to the party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.