author: POPOVICH, Judge:

text:
    519 A.2d 462
    Frank SHELLHAMER v. Nadine GREY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1986.
    Filed Dec. 9, 1986.

      Michael B. Kaleugher, Pittsburgh, for appellant.
    Edward J. Balzarini, Jr., Pittsburgh, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, v JJ-
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County entered in favor of the plaintiff /appellee, Frank Shellhamer, and against the defendant, Nadine Grey, in the amount of $269,676.44. We reverse and remand.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that at approximately 10:15 p.m. on the 26th of June, 1981, the plaintiff, age 37 and mildly retarded at the time, was about to cross the roadway where Helen Drive intersects with the four-lane McFarland freeway situated in the Pittsburgh/Mt. Lebanon area of Allegheny County.

The plaintiff looked in both directions before traversing the two lanes of the south-bound McFarland roadway without incident. He paused in the middle of the four-lanes, and, seeing no approaching vehicles from the remaining two north-bound lanes, he had completed crossing the third lane closest to the medial strip before he was struck and rendered unconscious by the vehicle driven by the defendant.

The weather was dry, and, according to the defendant’s own recollection of her line of vision, there were no vehicles on either side of the highway to obstruct her view for some 300 feet before the point of impact. The defendant recalled that she had her headlights on and her vehicle was being driven between 25-30 miles per hour in the right hand (curb) lane proceeding north on McFarland. There was a street light at the intersection, which was otherwise not controlled by any traffic lights, signs or pavement markings as for a pedestrian cross-walk.

The defendant also admitted to being familiar with the roadway in question since she had driven and walked it over a period of two years on her way to work to a donut shop adjacent to where the accident occurred.

As for the victim’s ability to remember what transpired, he could recall no more than crossing the roadway, being struck after walking three-quarters of the width of the highway and waking up in the hospital. As a result of the accident, the victim’s mild retardation became more acute and will hamper his ability to seek any type of meaningful employment.

The most that the defendant could offer was that, while driving, she saw “something checkered” — the victim’s slacks. She did not know how far away it was, but when she saw the checkered object she “[sjlammed on [her] brakes and [the victim] was on top of [her] car.” The victim rolled onto the hood of the vehicle and fell to the left (driver’s) side. The time lapse between seeing “something checkered” and the actual contact was “[m]aybe two, three seconds.”

Thereafter, the defendant put her vehicle in park after the collision and ran to the nearby donut shop to get help. The police and paramedics arrived within 15 minutes to transport the victim to the hospital for a skull injury which required surgery and a subsequent period of rehabilitation that never brought the victim back to his former self.

In addition, there was a vehicle traveling in the left (fast) lane, some 75-100 feet behind the defendant, but the driver and passenger could not shed any light as to the direction the victim was proceeding prior to the accident. However, they did confirm the speed at which the defendant was driving and the weather conditions. Both witnesses were only able to recall what occurred after impact.

The jury, hearing all of the evidence, found the defendant to be 85% negligent and the plaintiff 15% negligent. Damages for loss of earning capacity were assessed at $80,-000.00, while all other damages awarded came to $210,-000.00. The verdict was thereafter molded by the trial court. Following this, the plaintiff sought and was granted delay damages by the trial court under its interpretation of Pa.R.Civ.P. 238. Post-verdict motions were filed and denied. The verdict was reduced to judgment and this appeal ensued.

The first issue we will address is labelled Roman numeral IV in the appellant’s brief and complains of the trial court’s error in assessing Rule 238 delay damages of approximately $40,000.00 in the face of a defendant who was unable to offer more than the limits of her insurance policy ($25,000.00) to settle the case prior to trial.

The defendant urges that her single status and minimum wage job, with no assets and no ability to pay the Rule 238 damages, render the imposition of delay damages “unfair, confiscatory, and unreasonable.” The defendant asks that the Rule 238 damages be vacated, or, in alternative, a hearing be conducted below concerning the financial circumstances she finds herself and if such are justifiable grounds to exempt her from having to pay delay damages.

The appellant concedes that at the time her brief was written there was no definitive law in this Commonwealth on the issue at bar. This is even more evident from the Common Pleas Court cases cited by the trial court and the appellee in support of the assessment of delay damages despite a defendant’s indigency or limits of his/her insurance policy impairing his/her ability to make an offer to settle commensurate with the injury inflicted, i.e., Berry v. Anderson, 115 Montg.L.Rev. 121 (Montgomery 1984); Hill v. Letender, 131 Pitts.L.J. 154 (Allegheny 1983); Santiago v. Kauffman, 6 Phila. 141 (Philadelphia 1981).

Our Supreme Court’s recent holding in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), read in conjunction with this Court’s decision in Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986), gives us a clear course to pursue.

To start with, in regard to all cases pending in the courts of this Commonwealth as of October 8, 1986, Craig suspended the “mandatory provisions of Rule 238 which assess delay damages against defendants without regard to fault....” 512 Pa. at 65, 515 A.2d at 1353. Also, the path to take in the face of such an order was outlined in Craig, i.e., the determination of “fault”, now injected into the assessment of one’s entitlement to Rule 238 damages, is to be decided by petition and answer at the trial level, with the option available to the judge to hold a hearing to resolve any factual disputes.

The Craig Court did caution, however, that the prospective effect of its decision would foreclose those parties whose cases were then in the appellate process or post-trial stage from challenging such awards if they had not mounted attacks on the Rule 238 aspect of the damage award by the date of its ruling.

Instantly, the issue of delay damages having been raised before this appellate court (as well as in the court below) prior to the Craig decision renders it preserved and subject to remand for an evaluation of the “fault” element, which is now required as a condition precedent to the imposition of Rule 238 delay damages.

Further, this Court’s decision in Berry v. Anderson, supra, dictates a remand as well.

In Berry, the Court was confronted with the question of whether Rule 238 delay damages could be imposed, in addition to an award of compensatory damages by a jury, without first inquiring into the financial status of the defendant/ appellant.

An automobile accident involving the defendant left the plaintiff partially paralyzed. The defendant offered to settle for the full amount of her insurance policy ($100,000.00). The offer was rejected and, after a trial, an award of $2,000,000.00 was entered by the jury. This, in turn, was molded to add delay damages under Rule 238.

Our Court, in examining Rule 238, detected a latent ambiguity in that the Rule was silent with regard to a defendant who lacked resources to make an offer to settle sufficient enough to avoid the monetary penalty of delay damages. In resolving this question, the Court proceeded to examine the history of the Rule and found that its primary objective was to facilitate early settlement. This, the Court felt, would not be fostered by penalizing an indigent defendant who proffered all of the financial resources at his/her disposal, although woefully inadequate when measured against the actual award made by the jury at trial.

To exact upon a defendant the payment of delay damages, albeit an offer of a reasonable settlement was made, was held to run counter to the purpose sought to be attained by the Supreme Court in its promulgation of Rule 238. In line with such thinking, the en banc Court, speaking through Judge Rowley, stated:

We hold that a plaintiff shall not be awarded damages for delay pursuant tó Pa.R.C.P. 238 after the date of the defendant’s offer when the court determines that, because of the defendant’s indigency, the offer was the full amount available for payment of the plaintiff’s claim and it was impossible for the defendant to have offered more.
* * * * * * . _
Reversed and remanded for an evidentiary hearing. Jurisdiction is relinquished.

348 Pa.Super. at 627, 502 A.2d at 722. In like fashion, in light of Berry, we are required to hold that the imposition of delay damages against the defendant was unwarranted and requires a remand so that an evidentiary hearing may be conducted to determine the financial status and ability of the defendant to pay.

On remand, if the defendant is found not to be at “fault”, under the factors made mention of in Craig, there would appear to be no reason to inquire further as to her ability to pay under Berry. However, if “fault” is established, then the financial status of the defendant is a proper subject of inquiry so that damages can be imposed according to ability to pay.

The second issue we will treat relates to the claim that the trial court erred in not allowing the defendant to pay the insurance proceeds (a draft in the amount of $25,000.00 and accumulated interest) into court, unconditionally.

We commence our discussion by observing that the payment of money into court is not a matter of right. On the contrary, it is either based on a privilege given by a statute or, when the facts set forth in a petition to deposit are such as would warrant it, on the equitable discretion of the court. See Nieman v. Bethlehem National Bank, 28 Northampton Cty. Rptr. 19, 21 (1941); 23 Am.Jur.2d, Deposits in Court § 1 (1983) (Rules, statutes or discretionary power of court come into play as to the deposit of funds in court).

It is the defendant’s contention that 42 Pa.C.S. § 6141 allows for the payment of the draft to the plaintiff or to the court, the only requirement being that the payment be credited to the person making it against the final settlement or judgment. The plaintiff, on the other hand, argues that Section 6141 pertains only to settlements and does not provide for partial payments on verdicts. In support thereof, he cites 42 Pa.C.S. § 8101 and Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983).

We have examined the statutes referred to us by the parties. In particular, Section 6141, which, contrary to the plaintiff’s contention, applies not solely to settlements, but to “any payment made” with regard to an injured person. Nonetheless, we do not find Section 6141 to be beneficial to the defendant either, for nowhere therein does it obligate the trial court to accept custody of any (partial) payment(s). Cf. Krupa, supra, 316 Pa.Super. at 423-24, 463 A.2d at 436-37 (“There is no provision under ... Rule [238] for the court to become the stakeholder as it did in the instant case[, i.e., prior to verdict]. Rule 238 is geared to negotiations and settlement between the parties; these offers do not require court approval. If the trial court chooses to act as stakeholder, as it did in this instance, it is merely that. Rule 238 itself provides no basis for an order determining aspects of the insurer’s liability other than damages for delay.”).

Next, our review of the record indictes that the insurer (Erie Insurance Exchange) has taken no steps, on its own behalf, to terminate the running of interest on (any portion of) the amount awarded by the jury to the plaintiff in this civil suit.

The post-verdict petition seeking the payment of insurance proceeds and accumulated interest (without limitation) to the plaintiff or the prothonotary was filed by counsel for the defendant/insured. The only mention of the insurance carrier in the petition was with reference to a pre-trial offer made by it of the insurance proceeds (of $25,000.00), which was rejected by the plaintiff. However, it must be pointed out that the pretrial offer of settlement by the defendant, as authorized by the carrier, was conditional upon the plaintiff executing “releases” and “a certificate showing that the lawsuit ... ha[d] been settled and discontinued.” Absent a condition upon which a party has the right to insist and to which the other party cannot reasonably object, such a tender has been considered invalid. See Nichols v. Jones, 166 Pa. 599 (1895); Booker Bros., Inc. v. American Casualty Co. of Reading, Pa., 57 D. & C.2d 353, 358 (1971), aff’d 221 Pa.Super. 762, 291 A.2d 896 (1972); 25 Standard Pennsylvania Practice 2d, § 128:13 (1983).

Further, the absence of the insurer from the suit, save for the jointly submitted pre-trial tender, counsels against us characterizing it as one authorized in fact or in law to tender a payment on behalf of the defendant as the case stands presently, which right does exist to validate a tender otherwise. See Johnston v. Gray, 16 Pa. (Serg. & R.) 361, 365-66 (1827); 86 C.J.S. Tender § 35 at 576 (1954) (“... a tender to be valid must be made by [the debtor] or someone representing him____ although it has been held that a person who has an interest in the consequences of a tender may make an effectual tender____”).

Parenthetically, this Court would note that, at this stage in the litigation and in the absence of any action on the part of the insurer, treatment of the insurer as an interpleader under the Pennsylvania Rules of Civil Procedure 2301 et seq. would be inappropriate since there is no indication that the insurer would be exposed to double liability or multiple litigation. See Fisher v. Stevens Coal Co., 136 Pa.Super. 394, 7 A.2d 573 (1939); 25 Standard Pennsylvania Practice 2d, § 129:7 (1983). Moreover, “an insurer of a defendant— who is not itself a party to the action — cannot invoke the interpleader process.” Id., § 129:6 at 429-30, citing Lucka-sevic v. Borough of Charleroi, 50 Washington Cty. Rpts. 5 (1969).

Notwithstanding the aforesaid, unlike the interpleader under the Rules of Civil Procedure, the stakeholder proceeding in equity, who is not a defendant in a pending action, may interplead by filing a complaint naming the rival claimants as defendants. In this context an automobile insurance company which was not a defendant in a pending action, but which desired to pay its policy limits to the court to avoid the running of interest, was permitted to resort to equitable interpleader to achieve its end. See Nationwide Insurance v. Ansel, 30 Fayette L.J. 16 (1967); see also Paugh v. Delaware County Trust, Safe Deposit & Title Insurance Co., 62 Pa.Super. 523 (1916).

In Ansel, a complaint in equity for interpleader was filed by the insurer following the trial of its insured, wherein she was found responsible for the injuries sustained by the victims in a vehicular accident. In exercising its equitable powers in permitting the filing of the complaint, the trial court stated:

Interpleader at law is available only to defendants: Pa.R.C.P. 2301; 3 Goodrich-Amram 2301-2. Accordingly, a stakeholder of an automobile liablity insurance fund, desiring to stop the running of interest, and to unconditionally pay the fund into court for distribution to persons legally entitled thereto, is relegated to equitable inter-pleader: McKinley v. Mutual Life Ins. Co., 278 Pa. 800 [123 A. 304]; Book v. Sharpe, 189 Pa. 44, 47 [41 A. 998]; Metropolitan Life Ins. Co. v. Doty, 140 Pa.Superior Ct. 581, 586 [14 A.2d 878]; Prudential Ins. Co. v. Grabouski, [Grabowski], 144 Pa.Superior Ct. 243, 246 [19 A.2d 572]; Fisher v. Stevens Coal Co., 136 Pa.Superior Ct. 394 [7 A.2d 573]. The granting of interpleader is within the Court’s sound discretion and it may in proper cases direct the writ to issue sua sponte: Slavin v. Slavin, 368 Pa. 559, 564 [84 A.2d 313]; Allegheny County v. Virgin, 367 Pa. 389, 393 [80 A.2d 807]; Maxwell v. Phila. Fire Dept., 138 Pa.Superior Ct. 356 [10 A.2d 857]; Pa.R.C.P. 2302.

30 Fayette L.J. at 19.

At bar, it is true that the insurer is not a party to the suit. However, it is undisputed that, as made reference to in Ansel, a court “may in proper cases direct the writ [of interpleader] to issue sua sponte.” Id. This inherent power applies to appellate courts, as well as to the Courts of Common Pleas, to afford them the authority to direct an interpleader sua sponte even after the rendition of a final judgment when the interests of justice so require. See Slavin v. Slavin, 368 Pa. 559, 84 A.2d 313 (1951); Allegheny County, for Use of Ed. Vero Co. v. Virgin, 367 Pa. 389, 80 A.2d 807 (1951). We find the present case to be such an instance.

For example, the payment of the limits of the defendant’s insurance policy into court would not appear to be prejudicial to the rights of either party. Given that both litigants are preoccupied with the accumulation of interest on the money tendered ($25,000.00 — plaintiff wants it to accrue; the defendant wants it to cease), this objective would seem to be accomplished to the satisfaction of all concerned (without any loss to either side) under 42 Pa.C.S. § 3561, which reads:

All money paid into court shall be held in the custody of such officer, shall be invested in such manner, and shall be withdrawn from deposit, as shall be prescribed by general rules. Any such investment, except as otherwise prescribed by or pursuant to general rules, shall be restricted to obligations of the United States or the United States Treasury, or of the Commonwealth.

The Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended April 28, 1978, P.L. 202, No. 53, § 10(48).

The “general rules” referred to in Section 3561 regarding the “manner of investment” of monies paid into court, in this instance they would be the Local Rules of Court of Common Pleas of Allegheny County, dictate that the money “be deposited by the prothonotary in interest bearing accounts”. Rule 255. Accordingly, the plaintiffs preoccupation with the potential loss of interest with the deposit of money into court (see plaintiffs brief at 16) is obviated by the provisions of Section 3561 and Allegheny County Local Rule of Court 255.

Therefore, our reading of the facts, against the backdrop of the applicable statutes and case law, would warrant the insurer’s payment of the limits of the policy of insurance into court with the filing of a complaint in equity for interpleader. Ansel, supra; 26A C.J.S. Deposits in Court § 3. The defendant/insured’s efforts to do so would run counter to the rule that any tender less than the total amount due need not be accepted by the plaintiff/creditor, since it is ineffective as a tender, and allows the interest thereon to keep running. See Kelly v. Allegheny County Redevelopment Authority, 411 Pa. 210, 191 A.2d 393 (1963); Gold & Co. v. Northeast Theater Corp., 281 Pa.Super. 69, 76-77, 421 A.2d 1151, 1155 (1980); Smith v. Cassida, 23 D. & C.2d 287, 302 (Beaver Cty., 1960), aff’d 403 Pa. 404,169 A.2d 539 (1961); 47 C.J.S. Interest & Usury § 62 at 149 & n. 41 (1982) (The accural of interest on a debt is not generally suspended by the tender of an amount less than the amount due); 86 C.J.S. Tender § 7 (1954); 25 Standard Pennsylvania Practice 2d, § 128:9 at 408-09 (1983); see also 6 Couch on Insurance 2d, § 31:29 at 44-45 (Rev. ed. 1985).

Accordingly, in light of our remand for an evidentiary hearing on the propriety of imposing Rule 238 damages against the defendant, we direct that the record be opened to permit the insurer the opportunity to interplead, with directions that such a complaint be filed within 20 days of the filing of the opinion herein. See Virgin, supra.

The last point we wish to make, finding all the remaining claims of the defendant to have been properly dealt with by the trial court in its opinion to us, deals with the defendant’s assertion that the trial court erred in charging that “... every person shall drive at a safer than appropriate speed when approaching and/or crossing an intersection.” (Emphasis added) The trial court stated that the underlined portion of the instructions was probably a typographical error. However, since the defendant’s counsel did not take specific exception to the language used at the completion of the court’s charge to the jury, we find the issue waived. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Judgment reversed and the case is remanded for proceedings consistent with the opinion herein written. Jurisdiction is not retained.

      . Contra Luckasevic v. Borough of Charleroi, 50 Washington Cty. Rpts. 5, 10-11 (1969).

      . The opinion limits its discussion to the issue of interest accumulation on the $25,000.00 offered by the defendant because of the exclusion from the record of the policy of insurance. In other words, the policy of insurance not being a part of the record, it would be pure speculation and surmise to "assume” that the insurer is legally obligated to pay for the interest accumulating on the entire verdict, i.e., over and above the policy limit of $25,000.00.
      Thus, we do not address the liability of the insurance carrier on the interest accumulating on the balance of the jury’s verdict, i.e., $208,-750.00. We believe it to be the better practice to leave it to the parties and the court below to resolve the question on remand. At that point, the policy may be produced and read to determine the extent of the insurer’s liability with regard to the accumulating interest, save for the $25,000.00 which we have already determined is the responsibility of the insurer to shoulder.

      . The entire Rule provides:
      Rule *255. Money Deposited in Court.

      (a) Except as hereinafter provided, all money deposited with the prothonotary shall be deposited by the prothonotary in an institution insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation. All deposits with the prothonotary in excess of Five Thousand Dollars ($5,000) shall be deposited by the prothonotary in interest bearing accounts, or may be invested in United States Government obligations or United States Government guaranteed obligations.
      (b) All interest accrued on deposits, other than deposits of costs, made for a period of three (3) months or more in excess of Five Thousand Dollars ($5,000) shall be paid to the party or parties ultimately determined to be entitled to the fund.

        (c) All accrued interest not distributed pursuant to subdivision (b) of this rule shall be paid to the county treasurer.
      (d) The prothonotary shall maintain a record of all monies deposited, and paid out, setting forth the names of the parties from whom the money was received and to whom the money was paid, and the commissions charged pursuant to subdivision (e) of this rule.
      (e) The prothonotary shall charge for the benefit of the county a commission equal to one-half of one percent (1/2%) on all deposits up to one thousand dollars ($1,000) and one fourth of one percent (1/4%) on all deposits and interest accured on deposits of one thousand dollars ($1,000) or more.

      . Generally, however, a fund paid into court does not pay interest. Appeal of County Treasurer, 8 Erie L.J. 83, 84 (1926) (“... a fund paid into court does not bear interest: Oliphant vs. Frost, 9 Pa. [Barr.] 308 [ (1848) ]; 33 CJ. 245[.]”); see also 23 Am.Jur.2d, Deposits in Court §§ 7, 19 (1983). The exception obviously being where a statute indicates otherwise, as is the case here with 42 Pa.C.S. § 3561 when read in conjunction with Allegheny County Local Rule of Court 255.

      . Interest is to cease running with its filing. The insurer’s failure to act sooner to mitigate the accrual of interest, under principles of equity — one who sits on his rights cannot complain thereafter of wrongs incurred, justifies the time set for the cessation of interest-accumulation. Cf. Booker Bros. Co., supra at 358.
      As an aside, we note that the trial court’s denial of the defendant’s payment of monies into court was unaccompanied by any reason for the denial. We would ask that any future refusal or grant be accompanied by reasons. See McCanna & Fraser Co. v. Continental Hotel Co., 252 Pa. 482, 484, 97 A. 700 (1916) (holding that a refusal to grant such a petition should, nevertheless, be accompanied by reasons therefore).

      . While the order for deposit is more commonly made on motion of the plaintiff, a defendant may also make the motion in a proper case. Commonwealth ex rel Homer v. Houk, 96 Pa.Super. 363, 375 (1929). Also, it has been held that a stranger to the suit may successfully apply for leave to pay into court, pending the litigation, a fund claimed by several parties — payment into court in interpleader proceedings. 26A CJ.S. Deposits in Court § 3 at 475 & n. 32 (1956).


source: Caselaw Access Project

author: WIEAND, Judge: BECK, Judge,

license: Public Domain

text:
    519 A.2d 470
    MOREFIELD COMMUNICATIONS, INC., Appellee, v. PURSEL CONSTRUCTION COMPANY, INC. and Pennsylvania National Mutual Casualty Insurance Company, Appellants.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Dec. 23, 1986.

      H. William Koch, Milton, for appellants.
    Anthony Stefanon, Harrisburg, for appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

This appeal from a judgment entered in favor of a materi-alman and against a corporate surety on a payment bond requires that we interpret and apply the language of the bond requiring prompt notice of claims for unpaid materials.

On March 11, 1981, Pursel Construction Company (Pur-sel) entered into a contract with Lewisburg Elderly Associates for the construction of a housing project known as Lewisburg Elderly Housing in the Borough of Lewisburg, Union County. On the same date, Pursel delivered to Lewisburg Elderly Associates a payment bond which had been executed by Pursel, as principal, and Pennsylvania National Mutual Casualty Insurance Company (Penn National), as surety, and which guaranteed payment to subcontractors and materialmen. Pursel entered a subcontract with Long Electric, Inc. (Long) for the electrical work on the project. This subcontract provided, inter alia, that Long would be responsible for installing an emergency call and intercom system in the housing units. In accordance with the contract, Long issued a purchase order to Morefield Communications, Inc. (Morefield) for an emergency call and intercom system at a price of $6,458. Shop drawings, which Morefield agreed to supply and which consisted of lists and diagrams of equipment making up the system, were submitted and approved early in 1981. On April 29,1981, Long also requested a change which was made and which resulted in a price increase of $250.

By a series of shipments between July 29, 1981 and November 4, 1981, Morefield delivered to Long all of the equipment required by the purchase order. Sometime thereafter, Long abandoned the project. In December, 1981, Charles Pursel, the president of Pursel Construction Company, requested Morefield’s salesman to supply him with “authentication diagrams” for the stated purpose of assisting another subcontractor in installing the system. The diagrams were supplied early in January, 1982.

On February 9, 1982, Morefield presented a claim for the unpaid price of the equipment to Penn National. Notice was also given to Pursel. Both Pursel and Penn National refused to pay the claim. They contended that they were relieved of liability by Morefield’s failure to give notice of the claim within ninety (90) days of final delivery, as required by the bond. Morefield then filed an action in assumpsit for $7,118.77, which allegedly was the price which Long had agreed to pay for the emergency call and intercom system. The trial court, following trial without jury, dismissed the claim against Pursel but allowed recovery against Penn National. Post-trial motions were denied, and this appeal followed by Penn National.

The payment bond executed by Pursel and Penn National contained the following notice provision:

No suit or action shall be commenced hereunder by any claimant:
(a) Unless claimant, other than one having direct contract with the Principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant ... furnished the last of the materials for which said claim is'made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished ... Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety____

It is undisputed that Morefield gave notice of its claim to Penn National for the first time on February 9, 1982. It is also clear that the last delivery of equipment had been made by Morefield on November 4, 1981. Reference to a calendar suggests that the period intervening was ninety-six (96) days. Morefield contended in the trial court, however, that the delivery of authenticated diagrams in January, 1982 was the date on which the ninety (90) day period commenced. The trial court accepted Morefield’s argument and found that notice of the claim had been timely. Penn National argues that this was error. We agree.

Although our research has disclosed no prior appellate court decisions in this Commonwealth which have interpreted similar notice requirements, relevant federal case law is instructive. This body of law has evolved from numerous cases arising under Section 270a of the Miller Act. See: 40 U.S.C.A. § 270a. Section 270a provides that a materialman may call upon the general contractor to answer for the debts of a subcontractor only if the supplier has given notice of its claim within ninety days after the day on which the last materials were furnished or supplied. Federal courts have unequivocally held that “[o]nly work involving the original completion of the contract may be relied upon to toll the ninety day [notice] provision____” United States ex rel. Joseph T. Richardson, Inc. v. E.J.T. Construction Co., 453 F.Supp. 435, 439 (D.Del.1978), citing United States ex rel. Austin v. Western Electric Co., 337 F.2d 568 (9th Cir.1964). See: United States ex rel. Magna Masonry, Inc. v. R.T. Woodfield, Inc., 709 F.2d 249 (4th Cir.1983); United States ex rel. Georgia Electric Supply Co. v. United States Fidelity & Guaranty Co., 656 F.2d 993 (5th Cir. 1981); United States ex rel. Light & Power Utilities Corp. v. Liles Construction Co., 440 F.2d 474 (5th Cir.1971); United States ex rel. Noland Co. v. Andrews, 406 F.2d 790 (4th Cir.1969). Thus, if the materials supplied are a part of the supplier’s original obligations under the contract, the ninety day period begins to run anew on the date when each additional shipment is made. If, however, the additional shipment is made in order to make repairs or provide replacement parts, the running of the notice period will not be tolled thereby. See: United States ex rel. Magna Masonry, Inc. v. R.T. Woodfield, Inc., supra; United States ex rel. Georgia Electric Supply Co. v. United States Fidelity & Guaranty Co., supra; United States ex rel. Light & Power Utilities Corp. v. Idles Construction Co., supra; United States ex rel. Joseph T. Richardson, Inc. v. EJ.T. Construction Co., supra.

The trial court found that the materialman had not performed his contract of sale fully until he supplied Pursel with diagrams which enabled a new electrical subcontractor to wire and install the system. It is correct, of course, that “[t]he findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of the jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record.” Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983). Our reading of the record, however, fails to support a finding that the supplying of the authentication diagrams by Morefield in January, 1982 was part of Morefield’s original contract with Long. Instead, the record shows that November 4, 1981 was the date upon which Morefield completed its entire obligation under the contract with Long. This contract required Morefield, in exchange for an agreed sum of money, to sell and deliver to Long an emergency call and intercom system. The agreement also required Morefield to supply “shop drawings.” The drawings were supplied, reviewed and approved early in 1981. All equipment purchased was thereafter delivered, the final delivery being on November 4, 1981. As of that date Morefield had fully performed its contract. Pursel’s need for authentication diagrams in December 1981 arose, not because Morefield had failed to complete performance of its contract, but because Long had abandoned the project, thereby requiring Pursel to hire another subcontractor to install the system which had already been delivered to the site. The furnishing of additional diagrams may have been in the nature of a courtesy, but it was not required by Morefield’s contract, and it did not serve to start anew the period within which notice of nonpayment was required to be given to the surety under the terms of its bond.

Judgment reversed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

The trial court found that the authentication diagrams were a necessary part of the materials to be delivered on the contract. This finding was crucial to the determination that appellee-materialman’s notice of non-payment was timely because the delivery of essential material pursuant to contract extends the notice period. See United States v. E.J.T. Construction Co., 453 F.Supp. 435 (D.Del.1978).

There was a conflict in testimony. Materialman’s witness testified that Pursel had indicated that the first electrical sub-contractor was not longer on the project and that Pur-sel “needed the diagrams to complete the project so that he could finish it up right on scheduled time____” (N.T. 14-15). This witness’ subsequent testimony during cross-examination supports his initial testimony. Appellant’s witness testified that the diagrams were for purposes of repair. Appellant further argues that the diagrams were insignificant. However, the trial court determined this issue of credibility in favor of materialman.

Since I do not believe the trial court erred in finding timely notice, I reach appellant’s argument for set-off or mitigation of damages. Appellant never filed a counterclaim. Furthermore in its answer, appellant did not raise an affirmative defense that the intercom system supplied by materialman was defective and that appellant made expenses to correct the defect. See 5 Standard Pa.Practice 2d 508 § 27:102. Failure to raise an affirmative defense constitutes waiver. Pa.R.Civ.P. 1032. Even if the issue had not been waived, the trial court properly found that appellant did not meet its burden of establishing the materials were defective. Although Pursel testified regarding payment to correct an intercom system, his testimony did not establish defective material.

Mindful of our scope of review, I dissent, and would affirm the judgment of the trial court.

      . The complaint also included a claim for $1,512.65, which represented Morefield's loss of profits on the sale of certain television equipment which, Morefield alleged, Pursel had agreed to purchase. The trial court found for Pursel and Penn National with regard to this claim, and Morefield has not contested that finding.


author: MONTEMURO, Judge: BROSKY, Judge, KELLY, Judge,

text:
    519 A.2d 473
    Barbara PAULUSSEN, Appellant, v. George Ronald HERION, Appellee.
    Superior Court of Pennsylvania.
    Argued June 30, 1986.
    Filed Dec. 30, 1986.

      Esther L. Hornik, Philadelphia, for appellant.
    Michael S. Ramage, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WICKERSHAM, BROSKY, McEWEN, OLSZEWSKI, MONTEMURO, BECK, KELLY and JOHNSON, JJ.
   MONTEMURO, Judge:

This appeal is before us on remand from the United States Supreme Court, Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986).

The underlying cause of action is a petition in paternity and child support filed by appellant on February 17, 1980, on behalf of her daughter, born out of wedlock on March 5, 1972. The petition designated appellee, George Ronald Herion, as the father of the child, and as a voluntary contributor to her support until April, 1975, at which point appellee’s assistance ceased. In his Answer ánd New Matter, appellee raised as a defense the six year statute of limitations for such actions prescribed by 42 Pa.C.S.A. § 6704(e), and moved for summary judgment. Appellant countered with an allegation as to the unconstitutionality of the statute on grounds of equal protection.

The lower court entered summary judgment in favor of appellee, finding that appellant’s claim was in fact untimely, and that the constitutionality of § 6704(e) had been upheld by the Pennsylvania Supreme Court decision in Astembor-ski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983), thus invalidating appellant’s equal protection thesis. This court affirmed. Appellant’s allocatur petition to our Supreme Court was denied, and further appeal was brought in the United States Supreme Court, which noted probable jurisdiction, Paulussen v. Herion, 474 U.S. —, 106 S.Ct. 224, 88 L.Ed.2d 223 (1985). Before a ruling was made, however, the statute of limitations for filing paternity actions was enlarged by the Pennsylvania legislature to eighteen years, effective as of January 28, 1986. 23 Pa.C.S.A. § 4343(b). In February, 1986, on the basis of that statute, appellant filed a second petition for support and paternity which is still pending. During the interim, the Supreme Court remanded to this court for a determination of the new statute’s effect upon the old, that is, “the legal consequences of the enactment of the new 18 year statute of limitations.” Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986).

Appellant seems to suggest that we have before us the task of choosing between alternatives: either we declare § 6704(e) unconstitutional, or we find § 4343 retroactive. In this, appellant misapprehends the nature of the case. We need not rule upon the constitutional validity of the six year statute because our Supreme Court has already adjudged it sound. We may not, as appellant suggests, “take notice of the anticipated ruling of the United States Supreme Court,” (Appellant’s brief at 24) for to do so is tantamount to overruling Astemborski, supra. Nor are we compelled to apply § 4343 retrospectively. Precedents, even those most sympathetic to appellant’s case, direct us otherwise.

In this regard, a brief survey of the development of the law respecting filiation actions is instructive.

Until the 1963 amendment to the Civil Procedural Support Law, 62 P.S. § 2043.31, et seq, the only avenues of relief for determination of paternity and support questions relating to out of wedlock children were through criminal actions for fornication and bastardy, 18 P.S. § 4506, or wilful neglect to support an illegitimate child, 18 P.S. § 4732. Because this court held, in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), that the civil statute in no way affected a putative father’s absolute right to a (criminal) jury trial where paternity was contested, enforcement of the act was possible only where a prior determination of paternity had been obtained through the criminal system within the two year limitation period of the criminal statute. Once the two years had elapsed without a ruling on the criminal side as to the paternity issue, the civil right to support was obliterated. Id.

In 1978, the criminal statutes affecting paternity and support were repealed, and 62 P.S. 2043.31 was passed extending the statute of limitations for commencement of such actions from two years to six years from the birth of the child, and not incidentally placing all questions relating to filiation strictly within the civil area. In 1980, the standard of proof in these cases was legislatively altered to require a preponderance of the evidence.

The motivating factor for passage of § 4343(b) is contained in the 1984 Child Support Enforcement Amendment to the Social Security Act, 42 U.S.C.A. § 666(a)(5), which mandated the institution in all states of “procedures which permit the establishment of the paternity of any child at any time prior to such child’s eighteenth birthday.” Id.

For guidance in the instant dilemma, we must look to cases concerned with the 1978 transition between the two and the six year statutes. Paramount among these is Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982), in which this court held that a paternity suit filed after the passage of the six year statute was not barred by the expiration of the two year criminal limitations period, which had been repealed. Implicit in the Williams rationale is the notion, later made explicit in Commonwealth ex rel. Pugh v. Callahan, 312 Pa.Super. 246, 458 A.2d 607 (1983), and Hatfield v. Hazelbaker, 306 Pa.Super. 555, 452 A.2d 863 (1982), that the statute in force when the complaint is filed is controlling as to timeliness.

We are bound by this conclusion, as there is no persuasive theory available to justify the application of a statute of limitations effective in 1986, to an action commenced in 1980. The court in Astemborski, supra, declined to address the wisdom of a legislative scheme which “prevented forever [a child] from asserting a successful claim for support.” Id. 502 Pa. at 417-18, 466 A.2d at 1022, simply because its mother neglected to protect its rights. We are in much the same position.

The legislative scheme has, however, been amended, and appellant has sought relief under the altered statute. We note in this regard that appellee has consistently, since the institution of the first petition, denied both paternity and any coterminous financial obligation to the child. Contemporaneous with appellant’s institution of the second claim, however, appellee admitted both physical and financial responsibility, limiting the latter to the filing of the 1986 complaint. These issues are not before us, as no adjudication has been made below.

Order granting summary judgment is affirmed.

CIRILLO, President Judge, and WICKERSHAM, McEWEN, OLSZEWSKI, BECK and JOHNSON, JJ., join in this opinion by MONTEMURO, J.

BROSKY, J., files a concurring opinion by BROSKY, J.

KELLY, J., joins Judge BROSKY’s concurring opinion and also files a concurring opinion by KELLY, J.

BROSKY, Judge,

concurring:

I concur in the decision to remand this case to the Court of Common Pleas of Bucks County for further proceedings, but for other reasons. I question seriously the propriety of what I consider to be this court’s sua sponte entertainment of a legal argument not heretofore addressed by a Pennsylvania trial court.

Our court is not possessed of original jurisdiction except in cases of mandamus and prohibition ancillary to its appellate jurisdiction and in the issuance of writs of habeas corpus. 42 Pa.C.S.A. § 741. The instant matter does not fall within any of these exceptions. Accordingly, as I see it, we are without jurisdiction presently to hear the issue presented in this case which was not ruled upon in the first instance by a trial court.

The General Assembly of this Commonwealth, pursuant to Article 5, Section 3 of the Pennsylvania Constitution, has clothed us with “exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas ... except such classes of appeals as are ... within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.” 42 Pa.C.S.A. § 742. (emphasis added). We are further empowered to “affirm, modify, vacate, set aside or reverse any order brought before [us] for review.” 42 Pa.C.S.A. § 706. (emphasis added). In doing so, we may remand and direct the entry of an appropriate order or require further proceedings. Id.

Thus, we are a court without plenary or extraordinary jurisdiction, this power having been bestowed by the Pennsylvania Legislature, in its wisdom, upon our Supreme Court. See 42 Pa.C.S.A. § 726. Similarly, since we have no powers beyond that granted to us by the Legislature, we cannot, accordingly, enlarge our jurisdiction. See Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981), affirmed, 498 Pa. 536, 448 A.2d 1379 (1982).

Our Rules of Appellate Procedure prescribe the complete and exclusive means by which matters come before us. (Historical Note following Pa.R.App.P. 103.) Rules 341 and 702 authorize appeals as of right from final orders of lower courts or administrative agencies, and Rule 902 prescribes the manner by which an appeal is taken as of right from a lower court to an appellate court.

The instant case is before us on remand by the United States Supreme Court because of an intervening change in the law on commencement of paternity actions since the decision of this court, Paulussen v. Herion, 334 Pa.Super. 585, 483 A.2d 892 (1984), affirming the bar of appellant’s action on behalf of her minor child because of the lapse of the six-year statute of limitations period in effect at the time of the proceeding in the lower court and the denial of review by our Supreme Court (1985).

The United States Supreme Court, on appeal, Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986), refused to reach appellant’s constitutional claim that the statute {see supra note 2) violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution because of this legislative change. The pertinent language of its remand order reads as follows:

Our examination of Pennsylvania law leaves us uncertain as to the legal consequences of the enactment of the new 18 year statute of limitations. If, however, Pennsylvania were to interpret § 4343(b) to require support payments dating back to the filing of the original petition, the constitutionality of the 6-year statute of limitations would be irrelevant. Because Pennsylvania should have an opportunity in the first instance to resolve this issue of state law, and because we are reluctant to address a federal constitutional question until it is clearly necessary to do so, we vacate the judgment below and remand for further consideration in light of the intervening change in state law.

Id. at —, 106 S.Ct. at 1340. (Emphasis added).

This order is a clear and unequivocal mandate to us to remand this matter directly to the Court of Common Pleas of Bucks County to determine what effect, if any, the new legislation has upon the instant case.

To reiterate, the directive from the United States Supreme Court says that “Pennsylvania should have an opportunity in the first instance to resolve this issue ...” Id. at —, 106 S.Ct. at 1340. This means that the judicial process of determining conflicts or issues should be followed. That begins with the trial court. Then, from a final order of that court, comes the review by the appellate court. By assuming jurisdiction, our court is being deprived of the wisdom of counsel and the trial judge who, in the first instance, should rule on the issue involved.

Indeed, entertainment of issues sua sponte by this court has found disfavor with our Supreme Court. In Wiegand v. Wiegand {Wiegand I), 226 Pa.Super. 278, 310 A.2d 426 (1973), this court addressed sua sponte the constitutionality of Sections 11 and 46 of the then Divorce Law, 23 P.S. §§ 11 and 46, which allowed women, but not men, to obtain divorces from bed and board, reasonable alimony pendente lite, counsel fees and costs, in light of the adoption of Article I, § 27 (the Equal Rights Amendment) to the Pennsylvania Constitution. We never considered the issues properly preserved for appeal, which were whether the trial court had erred in refusing husband’s counsel’s request to cross-examine the wife concerning disposition of her own estate and whether the trial court abused its discretion in awarding counsel fees of $5000.

The Supreme Court granted review, 461 Pa. 482, 337 A.2d 256 (1975). Justice Roberts, writing for a unanimous Court, clearly outlined the function of this court:

The Superior Court by sua sponte deciding the constitutional issue exceeded its proper appellate function of deciding controversies presented to it. The court thereby unnecessarily disturbed the processes of orderly judicial decisionmaking. Sua spdnte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel’s advocacy.

Id., 461 Pa. at 485, 337 A.2d at 257.

Because the constitutionality of these provisions was never questioned by the parties either in the trial court or in their briefs in the Superior Court, we conclude that this issue was not properly before that court. We therefore reverse and remand to the Superior Court for consideration of the issues properly presented by the parties.

Id., 461 Pa. at 483-84, 337 A.2d at 257.

It must therefore be concluded that the Superior Court should not have considered an unpresented issue, but instead resolved the appeal on the basis of the issues raised by the parties.
The order of the Superior Court is reversed and the cause remanded to the Superior Court for consideration of the issues raised at trial and properly preserved for appellate review.

Id., 461 Pa. at 485, 337 A.2d at 257-58.

On remand, (Wiegand II), 242 Pa.Super. 170, 363 A.2d 1215 (1976), this Court, in properly addressing the issue of whether the trial court had erred in disallowing cross-examination of the wife regarding the disposition of her own estate, reversed on the basis of Judge Watkins’ dissent in Wiegand I, supra.

Therefore, as I see it, the posture which we erroneously adopted in Wiegand I is no different from the position the majority has taken in the instant case.

Pennsylvania Rule of Appellate Procedure 2573 provides for direct remand from our appellate courts to the trial court specified in the order of remand if, as is the case with the majority’s disposition here, a direction for further proceedings in the lower court is included in the order.

When an intervening change in a law relevant to the disposition of a matter on review before the U.S. Supreme Court occurs, the practice of that High Court, as provided for in § 2106 of the Judicial Code of the United States, 28 U.S.C.S. §§ 1 et seq. (Law.Coop.1977), is to remand the cause for appropriate action in deference to state courts on questions of state law. Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964); see also Watts v. Seward School Bd., 381 U.S. 126, 85 S.Ct. 1321, 14 L.Ed.2d 261 (1965); Missouri ex rel. Wabash R.R. v. Public Service Comm’n, 273 U.S. 126, 47 S.Ct. 811, 71 L.Ed. 575 (1927).

I take issue with the majority’s observation that we face a dilemma instantly. The issue concerning the effect of the new statute, 23 Pa.C.S.A. § 4343(b), upon the proceeding at bar is not before us, nor can it be in light of the language of the mandate of the U.S. Supreme Court vacating the judgment, supra 475 U.S. at —, 106 S.Ct. at 1340, and our consequent lack of jurisdiction to hear a matter not yet ruled upon by any lower tribunal of this Commonwealth. Our determination of the retrospective effect of the new statute is tantamount to the rendition of an advisory opinion. This would be presumptive of the lower court’s determination upon remand. Cf. Mt. Lebanon v. County Bd. of Elections, 470 Pa. 317, 368 A.2d 648 (1977) (a court cannot rule on constitutionality of legislation not yet adopted by the electorate); Pennsylvania R.R. v. Pub. Util. Co., 187 Pa.Super. 590, 146 A.2d 352 (1958).

I perceive no basis for us to become embroiled in a legal debate weighing the potential effects of 23 Pa.C.S.A. § 4343(b) at the present time. I agree with the result insofar as remand of the matter to the Court of Common Pleas of Bucks County is proper. However, in light of my foregoing exposition, I believe that the lower court should be directed to proceed consistent with the mandate issued by the U.S. Supreme Court, supra.

KELLY, J., joins in this concurring opinion.

KELLY, Judge,

concurring:

I join Judge Brosky’s concurring opinion. I heartily agree that this Court is not possessed of original jurisdiction to decide either the constitutionality of 42 Pa.C.S.A. Section 6704(e) or the retroactivity of 23 Pa.C.S.A. Section 4343(b). The trial court is the proper forum for the parties to address their arguments, and for the initial decision of law to be issued.

I write separately to note my concern that a child’s fundamental interest in obtaining a paternity determination, and financial support from both parents, should not be forever foreclosed because of a mother’s failure to seek a paternity determination within the applicable statute of limitations.

... [I]mposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

The preceding statute, 42 Pa.C.S.A. § 6704, provided that in a suit to determine paternity, the moving party may be any person “to whom a duty of support is owing, or ... on behalf of a minor child, ... without appointment of a guardian ad litem ...” 42 Pa.C.S.A. § 6704, repealed 1985, Oct. 30, P.L. 264 No. 66 § 3. Thus, an illegitimate child, as one to whom a duty of support may be owing, had the right to bring suit on his or her own behalf, within six years of birth. However, few, if any, children of such tender years were in the position to bring suit on their own behalf by age six; consequently, their right to a determination of paternity and to support was dependent on the ability of the custodial parent to institute suit. I note that such a dependency often operated to leave a child without any effective opportunity to exercise his or her legal rights. Accordingly, the law operated to impose a disability on the child without regard to responsibility or wrongdoing. Weber, supra.

The child in this case may be denied years of paternal support due to her inability to bring suit on her own behalf by age six. Cases in this jurisdiction have so far failed to address the issue of the child’s interest in bringing suit, as distinguished from the mother’s interest. The child’s needs and rights must be viewed as separate from the mother’s, as there are numerous financial, social and emotional problems which “may inhibit a mother from filing a paternity suit on behalf of the child ...” Pickett v. Brown, 462 U.S. 1, 13, 103 S.Ct. 2199, 2206, 76 L.Ed.2d 372, 382 (1983).

Therefore, I remain concerned that even if the issues we send to the trial court for argument, consideration and disposition are decided in appellant’s favor, the vital issue of the illegitimate child’s individual right to seek paternity determination and support has been heretofore ignored.

      . 42 Pa.C.S.A. § 6704(e)
      Limitation of actions. — All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.

      . 23 Pa.C.S.A. § 4343(b)
      Limitation of actions. — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

      . Section number references to Title 42 Pa.C.S.A. are to the Judicial Code, 42 Pa.C.S.A. §§ 101 et seq.

      . 23 Pa.C.S.A. § 6704(e). The new statute, 23 Pa.C.S.A. 4343(b), now provides for commencement of paternity actions within 18 years of birth.

      . Recently, a Michigan Court has held a statute which denied a child the right to commence an action was in violation of the Equal Protection Clauses of both the U.S. and Michigan Constitutions. Spa-da v. Pauley, 149 Mich.App. 196, 385 N.W.2d 746 (1986). While Pennsylvania has allowed a child a right to commence suit, it nonetheless operated, in a practical sense, to deny the child effective exercise of that right, by reason of its six year statute of limitations.


author: BROSKY, Judge:

text:
    519 A.2d 479
    Paul F. ESPERSEN, Appellant, v. Sherre DAVIDOW.
    Superior Court of Pennsylvania.
    Argued May 22, 1986.
    Filed Dec. 23, 1986.

      C. James Kutz, Greensburg, for appellant.
    Sanford P. Gross, Pittsburgh, for appellee.
    Before BROSKY, KELLY and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from an Order directing that custody of appellant’s daughter remain with her natural mother, the appellee herein.

Appellant presents three issues for our consideration: (1) whether the trial court’s findings of fact were supported by the evidence; (2) whether the evidence presented at trial established a substantial change in circumstances since the entry of the consent custody order; (3) whether the best interests of the child are served by granting custody to the appellant. We have reviewed the entire record, including briefs submitted by counsel and the opinion and findings of fact and conclusions of law of the trial court.

Because we agree with appellant that the evidence established a substantial change of circumstances from the entry of the initial custody order, we vacate the order of court continuing custody in appellee, and remand the case for proceedings consistent with this opinion.

The parties to this appeal were married on September 8, 1962. From this marriage were born three children. The third child, Shannon, born May 5, 1976, is the subject of the custody dispute presently before us. The parties were divorced on March 10, 1981 by decree of the Court of Common Pleas of Allegheny County. Pursuant to the divorce a “Property Settlement Agreement” was entered into and made part of the decree. Paragraph 9 of the “Property Settlement Agreement” entitled “Visitation” established “general care, custody and control” of the minor child in the mother, subject to “regular, reasonable and liberal right of visitation and partial custody” in the husband.

Subsequent to the divorce, Shannon lived in the family residence until November, 1983, when she and her mother moved next door to the residence of Jerry Davidow. Appel-lee subsequently married Mr. Davidow in July of 1984 whereupon appellee, with Shannon, her new husband and his two daughters, moved to a new residence in North Huntingdon, Pennsylvania. Shannon has resided in her new residence in North Huntingdon with her mother, stepfather and two stepsisters until the present time.

Shannon’s father also remarried on December 11, 1981, and subsequently had a house constructed in a suburb of Butler, Pennsylvania, where he currently resides with his present wife. Pursuant to the custody and visitation agreement previously entered, appellant routinely picked up Shannon for weekends and one night a week visits. Subsequent to appellee’s remarriage to Mr. Davidow, Shannon began making complaints about her home life during visits with her father. Shannon also stated that she wanted to live with her father and, often, towards the end of visits stated she didn’t want to go back home to North Hunting-don. On September 20, 1984 the appellant filed an action for custody of Shannon in Westmoreland County. Several hearings were held wherein testimony of the parties, Shannon, lay witnesses and expert psychologist witnesses was heard. On August 28, 1985, the trial court issued an order maintaining custody in the appellee-mother. This appeal followed.

It is well-established that in any custody proceeding where there exists a valid prior custody order the burden rests upon the party seeking modification of that order to prove a substantial change in circumstances that would justify a court’s reconsideration of the custody disposition. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). This burden has not been relaxed nor found any less valid when the custody order is entered into by agreement of the parties and without hearing on the merits. Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985). Nor is the burden lessened or altered when the moving party seeks modification of a partial custody order as opposed to one providing for full custody. Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985). However, once such a substantial change in circumstances has been established, both natural parents share equally the burden of demonstrating that the child’s best interests will be served by the granting of custody to them. Daniel K.D. v. Jan M.H., supra.

By imposing upon a challenging party the burden of showing changed circumstances, the doctrine of res judicata is adhered to without unduly prejudicing the interests of either parent or child. As this Court noted in Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super. 22, 24, 184 A.2d 290, 291 (1962):

To permit a party to relitigate [the] relative fitness of parents to have custody of children by an inquiry into the same or other facts existing at the time of or prior to the former decree would lay a foundation for interminable and vexatious litigation.

However, as this Court has also noted several times, the fundamental goal in a custody matter is the rendering of a decision serving the best interests of the child. As such, this interest cannot be fulfilled by adopting a rule which mechanically prevents a parent or other interested party from asserting, and therefore proving, at some point after the initial entry df a custody order, that the child’s best interests will be served by a different custody arrangement. When circumstances have changed since the entry of a custody order, some question may legitimately arise as to whether a child’s best interests are still being served by the existing custodial arrangement, and justice will not be served by adhering to some notion that the status quo should be maintained or that a party should only get “one shot” at litigating the matter. When the question is then litigated, it does not represent relitigation of the same matter, for the essential inquiry is directed to the best interest of the child at that point in time, not at the time the initial order was entered.

By requiring that the change of circumstance be “substantial” the Court will hopefully discourage an overburdening of the judicary, as well as vexatious or spurious litigation without necessarily trapping a child in a custodial arrangement which may not be in his or her best interests. However, once a substantial change in circumstances is shown, it is important that neither party enjoy a presumption or be saddled with a burden of proof, as this will only divert the court’s attention from the true inquiry of importance, that being what custodial arrangement will serve the child’s best interests at that point in time.

The trial judge in the instant case, after several hearings and the admission of psychological reports, issued both an opinion and findings of fact and conclusions of law in keeping with the dictates of In Re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) and similar decisions which called for the full development of a record to facilitate judicial review. The trial judge specifically found that the appellant failed in his burden of showing a substantial change of circumstances and, hence, issued the order currently appealed from. Appellant argues that the evidence at trial shows the requisite substantial change in circumstances and cites many facts of record in support of his position. We are inclined to agree with the appellant.

As might be expected, upon a review of past relevant cases one cannot glean a hard and fast rule as to what does and what does not constitute a substantial change of circumstances. However, past relevant cases are helpful in deciding if the present facts will get the appellant through what was described as an “evidentiary gate” in Agati v. Agati, supra to the second but paramount inquiry of the best interests of the child in the custody determination.

In Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983) , the court considered a modification petition of a prior custody order entered in Texas where the appellant father and appellee mother had resided. The mother had visitation of her two minor children in her hometown of St. Mary’s, Pennsylvania, to which she had returned to live after her divorce. Prior to the pre-arranged time for the children to return to Texas, the appellee filed a custody petition in the Court of Common Pleas of Elk County. The court, after determining it had valid jurisdiction, found appellee’s return to St. Mary’s to be a change in circumstances warranting reconsideration and granted custody in the mother. This Court, on appeal, while recognizing that the trial court was correct in its determination of the change in circumstances issue, reversed and remanded for additional hearing to provide a fuller development of the record.

In Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984) , the appellee mother sought custody of her minor child after a remarriage and after having entered a stipulation granting custody to the appellant father. Appellee testified at trial that she had permitted custody to be placed in the child’s father because she was uncertain of her future and was unable, at that time, to afford the child proper care. She argued that her change of residence and remarriage reflected a substantial change of circumstances. The trial court had agreed with appellee and granted custody to her. This Court, making an independent review of the record disagreed with the trial court which found that the best interests of the child would be served by awarding custody to the appellee mother, and reversed on these grounds.

The case of Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985), also found discussion of the substantial change in circumstances standard subsequent to a modification of an existing custody order. The trial court found that a substantial change in circumstances had taken place. This court affirmed on appeal. The record revealed that, following the initial entry of a custody order the appellee mother had remarried and terminated her employment. She now occupied a house sufficient to accommodate the child and her new husband indicated a willingness to accept the child. The new husband and the child also appeared to have a good relationship.

In the present case, there are many factors which lead this court to conclude that a substantial change of circumstances has taken place since entry of the initial custody order. Both the appellant and appellee have since remarried. The appellant, who did not have a residence to take the child to at the time of the divorce, now has a more than adequate residence. His present wife is a full time homemaker and will be available to care for Shannon when the appellant is working or away from the household. Shannon has testified that she gets along with appellant’s current wife and there exists no evidence to the contrary. Additionally, since the time of the initial custody order, Shannon has been moved out of the home in which she was raised, and is now situated in a household in a new neighborhood with two stepsisters and a stepfather. In contrast to her relationship with her stepmother, there is abundant evidence that Shannon’s relationship with her stepfather is less than desirable and often causes Shannon anxiety. The court pays particular attention to the fact that both psychologists testifying in this case indicate that Shannon is suffering anxiety and self-perception problems which appear causally related to her current living situation. Additionally, Shannon has maintained a stated preference to live with her father throughout the proceedings.

The court does not wish to leave an impression that Shannon’s current living arrangement is tortuous or in any way neglectful. The record bears out that Shannon’s mother is a loving, caring mother who can and has provided Shannon a suitable environment in which to thrive. Moreover, it would appear that some of Shannon’s complaints of her homelife are exaggerated and that perhaps Shannon, for whatever psychological reasons, has prevented herself from fully enjoying her current living situation. Nevertheless, the court has taken cognizance of the fact that Shannon has had difficulty thriving in her current environment, and of the many circumstances which have changed since the entry of the initial custody order, and has deemed them substantial enough to warrant a reconsideration of the preexisting custody order.

In reaching this decision, the Court has kept in mind its previous discussion of the policy behind imposing a burden of showing changed circumstances, or policy which has roots in the doctrine of res judicata and the desire to prevent interminable and vexatious litigation. However, the Court is convinced here that both the appellant and appellee have the best interests of the child in mind, and we do not believe the instant litigation, instituted by the appellant, was motivated by anything less. Nor would reconsideration of the existing custody order represent relitigation of a matter previously decided, as the record indicates that the situations of the parties involved are significantly different than they were when the consent custody order was entered. As such, it is the opinion of this Court that justice will be best served by a reconsideration of the present custodial arrangement with both parties standing in pari causa and both parties sharing equally the burden of proof.

While this Court is empowered to make an independent review of the record and arrive upon an appropriate custody determination, we recognize that the trial court is in at least as advantageous position to make such a determination as is an appellate court. The trial court in this case, finding that appellant failed to show a substantial change in circumstances, stopped its inquiry short of a consideration of the child’s best interests with both parties standing in pari causa (see discussion on page 536 supra.). Therefore, we believe that a remand to the trial court for a determination of the child’s best interests is appropriate under the circumstances of this case.

Order vacated. Jurisdiction relinquished.

      . We note that this represents the statement of this issue made by several panels of this Court and our decision today does not deviate from those holdings to this effect found in at least the cases of Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985), Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984), Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982).
      However, we note some concern over this position. To the extent both parties have previously litigated the custody matter and a determination of a custodial arrangement has been made which serves the child’s best interests, sound policy dictates that the matter not be subject to repeated litigation without a showing of a valid reason for the courts to reconsider the existing custodial arrangement. This is what the imposition of the subject burden was intended to accomplish. However, this protective facility presumes that the initial entry of a custody order did in fact serve the child’s best interests. When the custody order is entered pursuant to litigation of the matter where both parties are given a full and fair opportunity to present their case, the court can presume this was accomplished, at least to the same degree of certainty which any determination by litigation has. But when the prior entry of a custody order was done by consent or stipulation without a hearing on the merits, it is not as certain that the custodial arrangement serves the child’s best interests, for there may be many factors facilitating the entry of a consent custody order. As such, the imposition of a burden, the effect of which is to prevent an inquiry and determination of the child’s best interests under these circumstances, may work to maintain a custodial arrangement which has not been serving the child’s best interests. Of course, the risk of such an event happening rises proportionately with the degree of difficulty of overcoming the initial burden of showing a substantial change in circumstances: which in turn depends on how stringently that phrase is interpreted by the courts. In light of this, justice may require that a custody order not based upon an adjudication on the merits be given a less conclusive status than one based upon such an adjudication.

      . This position was illustrated aptly in Daniel K.D. v. Jan M.H. where this court said:
      This standard of proof recognizes that to protect children’s interests the courts must assess evidence without reliance upon presumptions that prevent the natural parents from standing in pari causa.


author: DEL SOLE, Judge:

text:
    519 A.2d 483
    Lydia S. THOMSON, Appellant v. Michael R. THOMSON. Lydia S. THOMSON v. Michael R. THOMSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1986.
    Filed Dec. 22, 1986.

      Ray F. Middleman, Pittsburgh, for appellant (at 1147) and appellee (at 1179).
    Maurice A. Nernberg, Jr., Pittsburgh, for appellant (at 1179) and appellee (at 1147).
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   DEL SOLE, Judge:

The cross-appeal presented herein followed a trial court order which determined the equitable distribution of the párties marital property and structured an award of temporary alimony and partial counsel fees to Lydia S. Thomson, (Appellant at No. 01147 PGH 85). The Appellant at No. 01179 PGH 85 is Michael R. Thomson. For purposes of this appeal the parties shall be referred as to “wife” and “husband”, respectively.

The order at issue followed extensive hearings before a court appointed master, who submitted to the court a 46 page report including recommendations. The trial court by means of its Order dated August 19, 1985, accepted each of the Master’s recommendations; however, it refused to make the $1,200.00 per month alimony award permanent and, instead, limited its duration to December, 1985.

In her appeal, wife maintains the court erred when it refused to adopt the Master’s recommendation as to the duration of her monthly alimony award. She asserts, that based upon her age, her reasonable needs and the disparity in the income earnings and earning capacities of the parties, she is entitled to permanent alimony.

This court, when reviewing the equitable distribution of marital property and an award of permanent alimony, must utilize an abuse of discretion standard; absent an abuse of discretion by the trial court we will not disturb the award. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

Alimony has been defined as a form of support which continues after divorce and insures that reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met. McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). The legislature has provided for alimony in the Divorce Code at 23 P.S. § 501. Therein:

Subsection (a) directs that alimony shall be awarded only if the party seeking alimony lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. Subsection (b) directs that if upon consideration of the fourteen enumerated factors (in addition to any other relevant factors) the court finds it necessary, alimony shall be awarded.

Geyer v. Geyer, 310 Pa.Super. 456, 462, 456 A.2d 1025, 1028 (1983).

Section 501(c) provides in pertinent part:

(U)nless 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 ... or other compelling impediment to gainful employment the court ... 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.

23 P.S. § 501(c).

The trial court in limiting the duration of the award was bound to consider that wife was 48 years old and had earned no income over the past years from her position as owner/operator of a floral business, and that husband had considerable earnings. The court also accepted the Master’s conclusion that wife had “reasonable needs of $2,200.00 per month.” However, the court found “between her earnings from employment and the conversion of her unproductive assets to productive one, Wife (could) easily net the $2,200.00 per month that the Master found she needed.” In reaching this conclusion the court pointed to wife’s business, Plants Galore, Inc. The Master concluded this business, which was awarded to wife, had no value for purposes of equitable distribution although she recognized that the business premises had an appraised value of $91,-000.00, subject to a debt of approximately $20,000.00. The Master also attributed a $1,000.00 per month earning capacity to Appellant for her work at Plants Galore although she received no compensation for her services since the business was established in 1977. The trial court found wife could not “tie up both her labor and capital in a losing effort.”

We perceive this as a realistic and proper consideration. Much like one cannot elect to change his earning potential to a much lower level to escape duties of support, Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982), we do not believe wife can continually invest her time and assets in an unproductive business and seek alimony as a means of support.

Experts at the hearing revealed a person performing managerial functions in a greenhouse business would earn between “$18,000.00 and $25,000.00 per year, depending on experience”. Although the wife had eight years experience, the Master found her earning potential to be only $1,000.00 per month net. The trial court apparently found this figure to be an inaccurate reflection of wife’s earning capacity.

In addition the trial court pointed out that the Master failed to consider the income which could be earned on the assets wife was awarded in equitable distribution. This additional income would result from investments and interest earned on the assets. These assets included $25,795.00 from a Merrill-Lynch Account, the marital residence valued at $76,000, Persian Rugs, and a diamond ring, as well as the Greenhouse property. After allowing for a reasonable transition period, the court determined the alimony payments to wife should terminate.

We find, in view of the above, the court’s limitation on the alimony award was proper. The trial court gave due consideration to the factors mandated by statute, and thereafter entered an alimony award which in amount and duration was fair and reasonable.

Wife asks the court to remand the case to permit the trial court to “mold” the “equitable distribution package” in the event we affirm the trial court’s alimony award. This we decline to do.

While the courts have noted the interrelationship between alimony and equitable distribution awards, See Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985); Brader-man v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), our action in this case does not necessitate a remand.

The trial court, in limiting the duration of the alimony award from the permanent award recommended by the Master, did so based upon the amount of the assets acquired by wife in equitable distribution. Unlike the case where the court reverses an equitable distribution award, and therefore must also remand for a reconsideration of alimony, See Braderman, supra., here the alimony was terminated because the court found the wife received sufficient assets in the property distribution to make a permanent alimony award unjustified. In the first situation the wife may receive more or less property in the redistribution which is likely to effect the amount and duration of alimony she requires. In this case, the court’s actions, refusing to grant permanent alimony, were based on the 60% property distribution award she received. For this reason, it would be improper for the court to redistribute the parties property-

The wife also claims the award of counsel fees in the amount of $12,000.00 was insufficient. The Master noted, wife sought fees and costs in the amount of $51,917.33 in her post-trial Brief, but concluded, the fees could “not be seen as reasonable, even under the difficult circumstances of this case.” Master’s Report at 45.

Fee awards are “made under Section 502 of the 1980 Code, which permits the court to award ‘reasonable’ amounts for fees and costs ... ”. Chaney v. Chaney, 343 Pa.Super. 77, 89, 493 A.2d 1382, 1389 (1985). An award of counsel fees is appropriate when necessary to allow a dependent spouse to maintain or defend an action in divorce. Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986). The court is to make a fee award determination by examining the size of the moving party’s estate, the value of counsel’s services, and the ability to pay. Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984). As is true with alimony, this court’s review of an award of counsel fees is limited to a determination of whether the trial court abused its discretion. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984).

In fashioning the award proposal it was necessary for the master to examine wife’s ability to maintain the action by considering the assets she was to be awarded and the proposed alimony payments she was to receive. The Master commented that the proposed cash award from the Merrill-Lynch account was not to be characterized as an asset available for payment of fees in light of wife’s assumption of the debts on the marital residence and her indebtedness to two individuals. Although wife sought a much greater fee award, the Master determined an award of $12,000.00 was reasonable. The trial court adopted this finding without comment.

The trial court made the fee award by relying solely on the report of the Master. However, the trial court materially altered one of the factors which is to be considered when fashioning an award. The Master, when estimating wife’s estate, had before her for consideration a permanent alimony award of $1,200.00 per month. The trial court, believing this extended award to be in error, limited the duration of alimony payment to December 1985. The trial court failed to comment on the effect the restructed alimony award had on the ultimate fee award and on the record before us, we can not conclude that the court even considered their relationship.

In this ease, wife was granted an award of counsel fees which represents only a fraction of the actual billing. It is necessary to determine whether a fee award of $12,000.00 is proper in light of the trial court’s elimination of permanent alimony. Accordingly, we find we must remand this case to the trial court for reconsideration of wife’s entitlement to counsel fees.

We now turn to the matters raised by husband in appeal number 01179 PGH 1985.

Husband first suggests the court incorrectly adopted the Master’s finding that wife was credible and believable. The trial court in its Opinion makes no comment regarding the parties credibility; however, the court does state it adopts the Master’s recommendation in toto, except that regarding alimony.

In her report, the Master states she “found the testimony of Lydia Thomson to be generally credible”, and “most issues of credibility were resolved in favor of Lydia Thomson”. Master’s Report at 5. Emphasis added. Although husband points to inconsistencies and discrepancies in wife’s testimony, we note the Master did not blindly accept wife’s testimony and her position regarding every issue. The Master found the wife generally more credible. This determination is a function properly left to the factfinder. Credibility of witnesses is for the factfinder to determine as she has the parties before her and can observe their demeanor and attitude and can make a more reasonable assessment of where the truth lies than can the reviewing court. Com. ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1975). Accordingly, we reject husband’s claim.

Husband next alleges the proceeding was tainted by the unfairness of the Master as demonstrated by her refusal to permit evidence necessary to husband’s case. Our review of the record reveals no such prejudice on the part of the Master. The reasons outlined for her decision to refuse husband’s witnesses from testifying appear on page 4 and 5 of her report. The Master also remarks on page 24 of her report that even assuming the witnesses had testified as represented by Husband, the evidence would still remain insufficient to controvert the opinion of the court-appointed expert. We find no fault with the Master’s conclusions or conduct.

Husband also contends wife committed such waste as to require reduction of alimony and equitable distribution, and the Master failed to consider this fact “at all”. The Master’s report disputes this contention. On pages 26 and 27 of the report the Master discussed at length husband’s allegations that wife was wasteful and extravagant. The discussion concludes: “... the Master ... rejects Defendant’s contention that his wife wasted family funds.” Master’s Report at 27.

The remaining claims of husband each deal with the valuation of certain marital property. He asserts that Master and the court assigned incorrect values to the following:

1. Plants Galore, Inc.
2. Husband’s Pension and Profit Sharing Plans
3. Property at Indian Lake
4. Property at Beechwood Boulevard
5. Persian Rugs
6. Diamond Ring
7. Money Market Fund
8. Volkswagon Automobile
9. Van
10. Silver
11. The effect of Taxes on the Award; and
12. The giving of credit for Debt alleged by wife.

The values assigned to these items by the Master and adopted by the trial court were made by relying upon estimates, appraisals, and records of purchase prices. Although no specific values were established for the car, van and silver, the Master stated that little competent evidence was adduced on the value of these and other property. The Master determined that these items of personalty for which no value has been assigned, including the automobiles, furniture and a ski boat, would be awarded to the party in possession of the item.

The review of a trial court’s adoption of a master’s equitable distribution of marital property requires this court to keep in mind that the master and the trial court were free to accept or reject the parties’ testimony. Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984). This court must also utilize an abuse of discretion standard of review in determining the propriety of the property distribution in a divorce matter. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

We have reviewed the claim made by Husband in light of the above standard, and we conclude the values placed by the Master and adopted by the trial court were reasonable and the resulting property distribution fair. We therefore reject husband’s allegations of error.

Order affirmed in part. Case remanded to the trial court for reconsideration of the award of counsel fees.

Jurisdiction relinquished.