author: BROSKY, Judge: ROBERTS, Judge,

text:
    508 A.2d 322
    COMMONWEALTH of Pennsylvania v. Thomas CAFFREY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1985.
    Filed April 28, 1986.

      Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from the denial of a writ of habeas corpus sought to prevent appellant’s extradition to Delaware. Appellant contends that the trial court erred in denying the writ as the matter was res judicata in other proceedings before the trial court of another county in this Commonwealth. We cannot reach the merits of this contention because appellant has already been extradited to Delaware. The appeal is, thus, moot and this appeal is, accordingly, quashed.

After the denial of the instant writ, the extradition hearing was held and appellant was extradited to the requesting state, Delaware. That rather simple fact is of the greatest significance, for it deprives this Court of the ability to effectively rule on the merits of this appeal. Arguendo that appellant would prevail here on the merits, at whom would we direct our order line? The courts of the Commonwealth of Pennsylvania do not, under our federal system of government, issue orders to the governments of our sister states. “States, through their courts, should not reach beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” Beatrice Foods Co. v. Proctor & Schwartz, 309 Pa.Super. 351, 358, 455 A.2d 646, 649 (1982). A state’s jurisdiction is territorially limited. “The decree of a court of a state cannot operate extraterritorially, nor can a state exercise jurisdiction by judicial process or otherwise over persons or property outside its territorial limits.” Commonwealth v. Graham, 367 Pa. 553, 561, 80 A.2d 829, 833 (1951). As so often happens in the law, the simpler the proposition, the more difficult it is to find a statement of it. That is so here. Research has not disclosed a single case in these United States standing for the proposition that the asylum state cannot review, on appeal, the propriety of the denial of a writ of habeas corpus when the subject has already been taken to the demanding state. Only the reverse situation has been treated.

In Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975), this Commonwealth’s courts were asked to rule on the propriety of appellant’s extradition to this state. Justice Eagen wrote, “The legality of extradition must be challenged in the asylum state prior to extradition to the demanding state.” Carlos, 462 Pa. at 267, 341 A.2d at 73 (emphasis added). Going beyond the facts in Carlos, as we must, the above statement can be read to imply that not only is the demanding state not the appropriate forum to test, by writ of habeas corpus, the legality of the extradition (the issue before the Court in Carlos), but also that the legality of the extradition must be tested in the asylum state prior to extradition, not afterwards. In any event, we now so hold.

This Court will not put itself in the position of issuing orders that can have no effect. Whether this is categorized in terms of lack of extraterritorial jurisdiction or of mootness due to that lack, matters little. Under either rubric, we could grant no relief, if we thought it required in this case. Accordingly, we are compelled to decline the opportunity of appellate review.

Appeal quashed.

ROBERTS, J., files a concurring opinion.

POPOVICH, J., concurs in the result.

ROBERTS, Judge,

concurring:

I agree that this appeal should be quashed because the record establishes that appellant has already been extradited to Delaware. Accordingly, this case is controlled by the decisions of our courts which hold that a writ of habeas corpus shall not issue when the relator was once, but is no longer, in the custody of this Commonwealth. See e.g. Commonwealth ex. rel. Wood v. Maroney, 207 Pa.Super. 191, 215 A.2d 286 (1965); Commonwealth ex. rel. Spader v. Burke, 171 Pa.Super. 289, 90 A.2d 849 (1952) (writs of habeas corpus will not issue in favor of parolees). Cf. Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978); Commonwealth ex. rel. Marshall v. Gedney, 237 Pa.Super. 372, 352 A.2d 528 (1975) (once asylum state has extradited based on demanding state’s probable cause determination, no further judicial inquiry may be had in asylum state).

      . Indeed, there is no law to the contrary.

      . It may well be that the situation does not often arise that counsel asks one state to act when his client is in another state.

      . This does not leave all those denied the writ no appellate review. A stay of the extradition could be sought pending appeal. See, for example, Commonwealth ex rel. Raucci v. Price, 409 Pa. 90, 185 A.2d 523 (1962). Had appellant utilized that procedure, he would, most likely, still be in this state and we would have the ability to rule on the merits of his appeal. However, he did not and we do not.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    508 A.2d 324
    Diane DeFAY v. Barbara L. McMEEKIN and Michael C. Flood. Appeal of Michael C. FLOOD.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1986.
    Filed April 29, 1986.

      Maria Zulick, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order denying appellant’s petition to open a default judgment. Plaintiff/appellee, Diane DeFay, a Pennsylvania resident, brought suit in trespass against Barbara L. McMeekin and appellant, Michael C. Flood, a New Jersey resident, alleging their negligence in an automobile accident which occurred in New Jersey. Appellant was served with the complaint on March 5, 1984. On April 5, 1984, he received notice that default would occur if, by April 16, 1984, he failed to plead. On April 25, 1984, appellant having failed to file a responsive pleading, default judgment was entered. On May 18, 1984, appellant filed a petition to open the judgment which was denied. This appeal followed.

Before considering the merit of appellant’s argument in favor of opening the default judgment, we must necessarily address appellant’s contention that the court lacks personal jurisdiction over him because he is a New Jersey resident and the automobile accident occurred in New Jersey. In determining whether a nonresident defendant’s activities bring him within the long-arm jurisdiction of this Commonwealth, we must turn to the Pennsylvania Long Arm Statute, 42 Pa.C.S.A. § 5322(a), which in relevant part reads as follows:

(a) General rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
(iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.
(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.
(v) The ownership, use or possession of any real property situate within this Commonwealth.
(2) Contracting to supply services or things in this Commonwealth.
(3) Causing harm or tortious injury by an act or omission in this Commonwealth.
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth. (emphasis added)

42 Pa.C.S.A. § 5322(a) (1978).

Thus, bur inquiry of whether in personam jurisdiction exists with respect to the New Jersey appellant focuses on whether his conduct can be characterized as “causing harm within this Commonwealth.” The United States District Court for the Eastern District of Pennsylvania, applying Pennsylvania law in a diversity action, held that “... the mere fact that a plaintiff may have some residual pain and suffering while recuperating in the forum state from an accident which occurred entirely out of the state is not the type of harm ‘caused in the Commonwealth’ which is contemplated by the long arm statute.” Hilferty v. Neesan, 506 F.Supp. 218, 220 (E.D.Pa.1980).

Again, the court in Dunnigan v. Silverthorn, 542 F.Supp. 32 (E.D.Pa.1982), dealing with a defendant whose sole contact with the forum state was his involvement in an out-of-state automobile accident with a Pennsylvania resident who sustained injuries as a result, held that residual harm within this state was not a sufficient basis to sustain personal jurisdiction.

In the case sub judice, it is clear that the statutory requirements for exercising in personam jurisdiction over our New Jersey appellant have not been satisfied. Moreover, appellant’s contact with the forum does not satisfy the constitutional requirements of minimal contacts necessary to justify the exercise of in personam jurisdiction. Under Pennsylvania law, personal jurisdiction is authorized to the fullest extent allowed under the United States Constitution. 42 Pa.C.S.A. § 5322(b). The constitution requires that the non-resident defendant have certain “minimum contacts” with the forum state. International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Pecot, Inc. v. Sirianni, 295 Pa.Super. 462, 441 A.2d 1324 (1982). The sole contact appellant has with the forum in the instant action is appellee’s suffering of residual harm in the forum. This is not sufficient to satisfy the constitutional requirement of minimal contacts. Thus, under both statutory and constitutional analysis, the court did not have personal jurisdiction over appellant at the outset of this action.

So concluding, it becomes unnecessary for us to reach the merits of appellant’s argument in support of opening the default judgment. Since the court lacked jurisdiction over appellant, the default judgment itself is a nullity. The lower court was, in essence, powerless to enter a judgment against appellant. Mischenko v. Gowton, 307 Pa.Super. 426, 453 A.2d 658 (1982). Where, as here, the judgment was invalid at its inception, we need not address whether appellant has presented legally sufficient reasons for opening the default judgment. Storm v. Golden, 338 Pa.Super. 570, 488 A.2d 39 (1985).

Accordingly, we order the default judgment is hereby set aside.

The default judgment is hereby vacated for lack of jurisdiction and the Order denying the petition to open judgment is set aside as being moot.

Jurisdiction relinquished.


author: POPOVICH, Judge:

text:
    508 A.2d 327
    ESTATE OF Alexander YOUNGER, Deceased. Appeal of AMERICAN COMMITTEE OF WEIZMANN INSTITUTE OF SCIENCE, INC. and Philadelphia Geriatric Center.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed April 29, 1986.

      John M. Elliott, Philadelphia, for appellants.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order, later reduced to judgment, of the Orphans’ Court of Philadelphia County, sitting en banc, denying the exceptions of the appellants, American Committee of Weizmann Institute of Science, Inc. and Philadelphia Geriatric Center, and confirming the last Will of the decedent (Alexander Younger). We affirm.

The facts surrounding the execution of the 81-year-old decedent’s fifth, and final, Will admitted to probate are well-documented in the opinions of the Orphans’ Court (per Judge Gutowicz) and this Court in response to the appellants’ initial appeal in Estate of Younger, 314 Pa.Super. 480, 461 A.2d 259 (1983), overruled 505 Pa. 530, 482 A.2d 215 (1984). We find it, therefore, unnecessary to reiterate those facts here.

The first issue concerns whether the appellants/contestants have satisfied their burden of proving that the decedent had such a “weakened intellect” that all but the No. 1 and No. 2 Wills executed by him should be held untainted by any evidence of undue influence.

Although all parties concede, as evidenced in the opinions of the Orphans’ Court dated August 26, 1980, and this Court in Estate of Younger, supra, that the decedent did have a confidential relationship with the attorney-scrivener-beneficiary, and he did leave this individual a substantial part of his estate, the failure of the contestants to establish by clear and convincing evidence that the testator was suffering from mental infirmities falls short of their entitlement to have the last Will and Testament (No. 5) of the decedent, or, for that matter, any of the other previous testamentary documents, voided. Wills Nos. 1-4 were properly revoked by the decedent, and no evidence has been presented to us to hold otherwise.

As the Orphans’ Court so aptly stated in this matter: This Court is fully aware of the financial interest Ocks [attorney-scrivener-beneficiary-appellee] has in the outcome of the instant will contest. However, we find nothing improbable, implausible, inconsistent, in short, nothing incredible, in his testimony. He paints a picture of the testator which matches perfectly that drawn by Dr. LaVan and Mrs. Sullivan. Dr. LaVan noted,
“If he (Alexander Younger) had a mental quality that one might look at I would have to call it stubbornness and a tenacity to do things his way ...” (NT 168)
Mrs. Sullivan had been with the testator since 1942; he spoke to her almost daily; and yet, he never discussed the contents of his wills with her. (NT 280) However, he did keep the original of each will in his possession while it was current. (NT 81) And, he phoned Mrs. Sullivan in January of 1976 and again in January of 1977, to tell her where his current will could be found. (NT 280) This Court finds, as a fact, that Alexander Younger was indeed an elderly gentleman who knew exactly what he was doing when he executed each and every one of the wills in question. Neither his body nor his mind was the “prisoner” of any of the proponents. "... (his) failure to secure independent counsel is not controlling under the circumstances.” Paul Will, supra, at 45. We are unconvinced that Will No. 4 and Will No. 5 would not have been produced but for the failure of [Attorney] Ocks to inform Geriatric [contestant/appellant] of their existence.

We have been presented with no evidence to require that the burden of proof (burden of non-persuasion) should have been shifted to the proponents in light of the contestants’ failure to prove by clear and convincing evidence that the decedent was suffering from a weakened mental condition during the drafting and execution of the last Will so as to invalidate its distributive scheme. See In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976); In re Gold’s Estate, 408 Pa. 41, 182 A.2d 707 (1962); see also Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); In re Estate of Agostini, 311 Pa.Super. 233, 457 A.2d 861 (1983).

It must be noted that counsel for the proponent admitted that the decedent had certain physical debilities. However, the decedent’s attending physician testified that during the period Mr. Younger was a patient (from November of 1975 until his death in 1977, which included a minimum of thirty office and hospital visits) there was no sign that he was “non compos in any way whatsoever.” The doctor also opined that Younger was “in total control and was in good mental shape”, such that he, because of his tenacious and stubborn attributes, could not be influenced or persuaded to do anything he did not wish to do. The decedent’s secretary of some ten years, a Ms. Sullivan, echoed these sentiments.

The only evidence proffered by the contestants came from individuals who either never met the decedent, or, in the case of his prior physician, had not seen him since November of 1975. Thus, their assessment of mental instability is to be accorded little weight vis-a-vis the views of the attending physician, Ms. Sullivan and a George Ludwin, all of whom had personal contact with the decedent during the crucial time the Will in question was executed. See In re Estate of Agostini, supra. All agreed that the decedent appeared to be of sound mind and not open to persuasion inconsistent with his own thinking.

The presence of a confidential relationship and substantial benefit to the scrivener/attorney in the decedent’s Will, in the absence of a weakened intellect does little to advance the appellants’ case. Compare In re Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975); In re Estate of Button, 459 Pa. 234, 328 A.2d 480 (1974); In re Stewart’s Estate, 354 Pa. 288, 47 A.2d 204 (1946); In re Patti’s Estate, 133 Pa.Super. 81, 1 A.2d 791 (1938). Likewise, the stipulation by the parties that the decedent possessed testamentary capacity impairs their argument further as to the claim that the decedent was “unduly influenced” to dispose of his estate in a manner inconsistent with his true intent. Such an argument, as with the others advanced by the appellants, has no merit. See Wetzel v. Edwards, 340 Pa. 121, 16 A.2d 441 (1940).

As for the second claim raised by the appellants, i.e., that the court below erred in not re-opening the case when confronted with the contention that one of the beneficiaries (Mauro Dominquez — now deceased) was blackmailing the decedent (which supposedly precipitated his inclusion in all five Wills), we find this argument untenable.

On October 25, 1984, the Orphans’ Court filed its opinion disposing of the appellants’ exceptions. Therein, the court made mention of the January 6, 1984 letter of the appellants concerning the alleged blackmail. As observed by the Orphans’ Court in its October 25th opinion, after making reference to the letter of January 6th, “To date, no substantiation of the aforementioned ‘allegation’ has been presented.” (Opinion at 12)

The inaction of the appellants during a 10-month period to introduce evidence regarding its assertion of “undue influence” is not justified, even though a request for a stay of 60 days to investigate the matter was never granted by the court. No effort was made by the appellants during the lapse of 10 months — between the request for the stay and the ultimate adjudication — to offer to the court below (or, for that matter, this Court) the fruits of its efforts in this area. Thus, the appellants will not be heard to complain now. See Barrows v. Allum, 361 Pa. 624, 66 A.2d 66 (1949).

Also, we wish to mention that the recent decision of our Supreme Court in Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984), in which the application of the equitable doctrine of clean hands precluded the scrivener-beneficiary from probating the decedent’s Will, is inapplicable here. As noted by Chief Justice Nix in his Concurring Opinion, the actions of the attorney shocked the conscience in that he procured a substantial interest in the decedent’s estate by his inclusion in the Will. However, in Pedrick, unlike the case at bar, the presence of a confidential relationship was coupled with the presence of a testator suffering from a weakened intellect prior to the execution of the Will. Since there was no evidence produced by the contestants here that the decedent was suffering from a mental infirmity, we see no reason to impose the sanction referred to in Pedrick to remedy the attorney’s conduct at bar.

Attorney Ocks’ conduct, although regrettable, does not rise to the level justifying a revocation of Younger’s fifth Will. We are dismayed, but not shocked, by the actions of the attorney/appellee. Unlike in Pedrick, where the scrivener-attorney-beneficiary never had the Will witnessed, the attorney here prepared the last four Wills of the decedent, all of which were witnessed. Thus, we do not equate the condemnation of the attorney’s actions in Pedrick to the facts sub judice. Accordingly, the remedial measure provided for in Pedrick need not be resorted to here.

“It has been said many times that one may by will dispose of his property as he sees fit and that he is entitled to act on his own prejudices.” See In re Patti’s Estate, supra, 133 Pa.Super. at 95, 1 A.2d at 798. In other words, it being the prerogative of any man to dispose of his estate as he sees fit, it is not the function of any court of equity to invalidate a testamentary disposition in the absence of, e.g., undue influence, the components of which — weakened intellect, confidential relationship and substantial benefit — have not all been established to the level of clear and convincing evidence instantly.

We have carefully reviewed the record, including the testimony of the contestants and of the attending physician and of the other witnesses presented and of the attorney who drew the Will. Little would be accomplished by further detailing the extensive testimony, or in quoting the applicable principles of law which have often-times been reiterated by our Supreme Court and this Court alike. Suffice it to say that in reviewing the record and the actions and rulings of the hearing court, in light of all the evidence and the pertinent legal principles, we find that the findings of the Orphans’ Court, which were approved by the court en banc, were based upon legally competent and sufficiently convincing evidence, and that there was no error of law or abuse of discretion.

We affirm the actions of the court below.

      . Of the estimated one million dollar estate, the scrivener-beneficiary would be in line to inherit, before taxes, approximately $342,000.00. However, the distributive scheme benefitting the decedent's two nephews, three nieces and his secretary (totalling $70,000) remained relatively constant throughout all of the Wills. Further, the legatees that remained appeared with consistency throughout Wills Nos. 2-5.

      . E.g., arteriosclerotic cardiovascular disease, Parkinsonism, chronic lymphatic leukemia and diabetes mellitus. The decedent’s attending physician noted that all the maladies were being treated and, for instance, the Parkinsonism was a disease primarily of the motor activity and did not affect mentation at all. As for leukemia, the doctor stated it was really benign and most patient’s in Younger's age group die of some other causes. Also, both the diabetes mellitus and Parkinsonism were diagnosed as "mild”. This was all told to Mr. Younger.

      . Wills Nos. 2, 4 and 5 were witnessed by Ocks and a secretary in the law office. Will No. 3 was witnessed by one of Ocks’ law partners and a secretary in the law office.


author: DEL SOLE, Judge:

text:
    508 A.2d 330
    Gerald A. MAYCOCK, Appellant, v. GRAVELY CORPORATION, a/k/a Clark Gravely Corporation, Gravely International, Inc., Gerald Maycock and Carol Ruth Gilmore Tome, the Executrix of Ruth Gilmore.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1986.
    Filed May 2, 1986.

      Eugene J. Brew, Jr., Erie, for appellant.
    Natalie A. Dwyer, Erie, for appellees.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This appeal is taken from an Order of the trial court granting Appellee’s Motion for Judgment on the Pleadings and dismissing and denying Appellant’s Motion for Partial Summary Judgment and Motion for Sanctions.

Initially, we note that, “[t]he grant of a judgment on the pleadings has been held to be a final order____ Such a judgment is dispositive of all issues raised by the case and is, therefore, an appealable order.” Indiana County Hos pital v. McCarl’s Plumbing, 334 Pa.Super. 226, 228-229, 496 A.2d 767, 768 (1985).

“The standard by which we review a motion for judgment on the pleadings is identical to that which we use to review the sustaining of a demurrer.” Stein v. Richardson, 302 Pa.Super. 124, 137, 448 A.2d 558, 564 (1982). “In determining whether a demurrer should be sustained and the complaint dismissed the question is whether, on the facts averred, the law says with certainty that no recovery is possible: (citations omitted).” Stein v. Richardson, supra, 302 Pa.Super. at 137, 448 A.2d at 564. It is only where no material facts remain in dispute and “the moving party’s right to prevail is so clear that a trial would be a fruitless exercise should a judgment on the pleadings be entered.” Williams v. Lewis, 319 Pa.Super. 552, 555, 466 A.2d 682, 683 (1983).

Appellant, born September 17, 1963, alleges that on May 13, 1967 he was struck by a lawn mower manufactured by Appellee, Gravely Corporation, a/k/a Clark Gravely Corporation, Gravely International, Inc., (Gravely), operated by his father, Gerald Maycock, also a named defendant, on property owned by the Estate of Ruth Gilmore. According to the complaint, the injury sustained from this incident resulted in the amputation of Appellant’s right leg.

On September 17, 1981, Appellant attained the age of 18 years. It was not until September 15, 1983 that Appellant initiated an action against the above-named defendants by filing a Writ of Summons in Trespass and Assumpsit. The Summons was never served and on May 1, 1984, a Praecipe to reissue the Writ of Summons was filed. The Summons was not served at that time either. Finally, on June 11, 1984, the Appellant filed a Complaint in Trespass and As-sumpsit alleging a product liability claim, negligence in the manufacture and sale of the mower as well as a cause of action based on breach of warranty. Following the filing of an answer with New Matter pleading the affirmative defense of the applicable statutes of limitations, Appellee Gravely, subsequent to Appellants reply, filed a Motion for Judgment on the Pleadings claiming the action was time-barred. The trial court agreed and this appeal ensued.

Appellant advances two arguments on appeal:

1. A history of the statutes tolling the statute of limitations during disability indicates that the 1713 Statute was in effect until repealed in 1978 by JARA Legislation.
2. The Act passed in 1984 tolling the statute for minors should be applied retroactively.

Appellant’s first argument involves an historical analysis of the tolling of statutes of limitation during minority. It is said that the “Act of March 27, 1713 (1 Small’s Laws 76) 12 P.S. 31 et seq. provided that all actions of trespass be commenced within 6 years, and also that any person who was within the age of 21 years ‘shall be at liberty to bring the same actions ... after coming to or being of full age.’ 12 P.S. 35 (Repealed).” (Appellant’s Brief at 6). It is Appellant’s contention that this Act remained in effect until repealed in 1978 by JARA Legislation.

Appellant concedes at the outset, as he must, that the Supreme Court of Pennsylvania in Peterson v. Delaware River Ferry Co., 190 Pa. 364, 42 A. 955 (1899) held that the Act of June 24, 1895, P.L. 236 being a general Act in the nature of a Statute of Limitations made no exceptions in favor of minors. Indeed, the Court stated, “Its terms are general, and make no exceptions in favor of persons under disability. The settled rule is that infants as well as others are bound by the provisions of such statutes.” Peterson v. Delaware River Ferry Co., supra, 190 Pa. at 365, 42 A. at 955. Appellant further concedes that Peterson was reaffirmed in Von Colln v. Pennsylvania Railroad Co., 367 Pa. 232, 80 A.2d 83 (1951) and still more recently in Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967).

Appellant also acknowledges that effective June 27, 1978, 42 Pa.C.S.A. § 5533 declared:

Except as otherwise provided by statute, infancy, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter. (emphasis added).

It was not until 1984 that the statute was amended to read:

§ 5533. Infancy, insanity or imprisonment.
(a) General rule. — Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.
(b) Infancy. — If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subchapter the term “minor” shall mean any individual who has not yet attained the age of 18.

As amended 1984, May 30, P.L. 337, No. 67, § 1 effective in 30 days.

The argument on this issue is concluded by the Appellant with the statement that, “[b]y overruling Peterson, supra, this Court could get Pennsylvania back on track, by holding that the Act of 1713 was not repealed by the Act of 1895, and that the tolling statute for minors remained in effect until 1978, and was placed back in effect in 1984.” (Appellant’s Brief at 7-8) “[N]eedless to say, the Superior Court cannot overrule Supreme Court decisions.” Commonwealth v. Edrington, 317 Pa.Super. 545, 552 n.3, 464 A.2d 456, 460 n. 3 (1983). We therefore consider this issue no further.

Appellant next contends that 42 Pa.C.S.A. § 5533 as amended 1984, and set forth above, should be applied retroactively. Appellant acknowledges, and as the trial court found, The Statutory Construction Act of 1972, 1 Pa.C.S. § 1926, provides, “No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” Appellant, not to be dissuaded, argues that a statute of limitations tolling the limitation period for minors is a statute affecting a party’s procedure for enforcing rights and remedies, and does not affect the substantive rights and obligations of the parties. Being procedural in nature, 42 Pa.C.S.A. § 5533(b) is said to apply to existing proceedings and pending claims.

Initially we note there is no clear and manifest intent by the General Assembly that 42 Pa.C.S.A. § 5533(b) be applied retroactively. In Commonwealth v. Baysore, 349 Pa.Super. 345, 503 A.2d 33 (1986) this Court recently addressed the question of the retroactive application of legislation which lengthened the statute of limitations for theft. The Act in question merely stated it shall take effect in 60 days. We noted that the legislature clearly can and does manifest its intent when amendments are to be applied retroactively. “For example, when the legislature added 42 Pa.C.S. § 762(a)(1)(ii), relating to Commonwealth Court jurisdiction over appeals from the Court of Common Pleas, it provided that this act ‘shall take effect immediately and shall be retroactive to December 5, 1980’ ” Commonwealth v. Baysore, supra, 349 Pa.Super. at 349, 503 A.2d at 35.

Our attention has been directed by Appellant to this Court’s decision in Seneca v. Yale & Towne Mfg. Co., 142 Pa.Super. 470, 16 A.2d 754 (1940), wherein it was said:

As stated in 37 C.J. 697 § 15; ‘The fact that a statute of limitations is postponed in its operation, and is not to take effect from its passage, has been held to be a circumstance showing that the statute was intended to be retrospective in its operation and therefore applicable to existing, as well as prospective, causes of action......’ As we have already indicated, changes in procedure may properly have a retroactive as well as prospective application and this rule is quite generally applied to statutes of limitation, aside from the question of postponement of the operation of the statute. See 37 C.J. 695, § 12, where it is said: ‘...... the rule is frequently laid down that inasmuch as statutes of limitation affect the remedy only, the statute in force at the time of suit brought governs the case and operates, in the absence of saving clauses, on causes of action accruing prior to its passage, especially if the statute extends, instead of shortens, the pre-existing limitation period......’

Seneca v. Yale & Towne Mfg. Co., supra, 142 Pa.Super. at 477, 16 A.2d at 757.

We direct Appellant’s attention to the recent Commonwealth Court summary of Seneca which indicates the flaw in Appellant’s argument. The court pointed out Seneca, “concluded that a new statute of limitations, being procedural in nature, should apply to litigation existing at the time of its passage and to cases where the right to sue has accrued but not yet expired under the former statute of limitations.” In re Condemnation of Real Estate by Carmichaels, 88 Pa.Commonwealth Ct. 541, 545, 490 A.2d 30, 32 (1985) (emphasis added). Therein lies the distinction. In the case sub judice, the right to sue has accrued but expired under the applicable statutes of limitation prior to the effective date of 42 Pa.C.S.A. § 5533(b). “As to causes which are not barred, a statute of limitations may be extended, or even repealed.” Overmiller v. D.E. Horn & Co., 191 Pa.Super. 562, 568, 159 A.2d 245, 247-248 (1960). However, “after an action has become barred by an existing statute of limitations, no subsequent legislation will remove the bar or revive the action.” Overmiller v. D.E. Horn & Co., supra, 191 Pa.Super. at 568, 159 A.2d at 248. It is unnecessary to decide whether 42 Pa.C.S.A. 5533(b) is a procedural statute not affecting the substantive rights for in either event Appellants claim is time-barred.

We hold that a minor injured prior to the effective date of 42 Pa.C.S.A. § 5533(b), who attained majority before the effective date, and whose claims are time-barred by applicable statutes of limitations prior to the effective date of § 5533(b) cannot rely on this section to revive a barred claim.

Order affirmed.

      . 42 Pa.C.S.A. §§ 5524 and 5525.

      . Act of Dec. 6, 1972, P.L. 1339, No. 290, § 3, imd. effective.

      . As we have stated, there is no clear and manifest intent by the General Assembly that 42 Pa.C.S.A. § 5533(b) be applied retroactively. There is also no indication that the Legislature attempted to revive claims such as Appellants which have been barred, “but had the legislature made any such attempt there is authority to indicate that it would be unconstitutional: Stewart v. Keys, 1935, 295 U.S. 403, 416, 417, 55 S.Ct. 807 [812-813], 79 L.Ed. 1507; Bagg’s Appeal, [43 Pa. 512, 82 Am.Dec. 583 (1862) ]” Overmiller v. D.E. Horn & Co., supra, 191 Pa.Super. at 572, 159 A.2d at 249. See also, Oneida County, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226, -, 105 S.Ct. 1245, 1271 n. 29, 84 L.Ed.2d 169, 203 (1985) (Stevens, J„ dissenting).

      . The Pennsylvania Trial Lawyers Association as Amicus Curiae argues there are potentially four categories of minors:
      1. those injured after the effective date of 42 Pa.C.S.A. § 5533(b);
      2. those injured prior to the effective date, who even without the benefit of the statute would have time to commence an action under the applicable “adult” Statute of Limitations;
      3. those injured prior to the effective date of the Act who are still minors on the effective date but have run out of time to commence a lawsuit to protect the "adult" Statute of Limitations.
      4. those injured prior to the effective date of the Act who attained majority as of the effective date.
      It is the position of the Pennsylvania Trial Lawyers Association that the application of 42 Pa.C.S.A. § 5533(b) to categories 1, 2, and 3 would not require a retroactive application of the statute. We express no opinion in this regard.


author: CAVANAUGH, Judge:

text:
    508 A.2d 334
    Catherine HEINSDORF, Administratrix of the Estate of Michael Heinsdorf and Catherine Heinsdorf In Her Own Right, Appellant, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raymark Industries, Inc., Forty-Eight Insulation, Nicolet Industries, Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork Company, Unarco Industries, H.K. Porter Co., Eagle-Picher Industries, Inc., Southern Asbestos Company, Delaware Asbestos and Rubber Co., Fibreboard Corporation, Pabco Industrial Products Division, Keene Corporation, Glen Alden, Rapid American, Turner Newall Ltd., Keasbey Matison Company, Certain-Teed Products Corp., U.S. Rubber Company, Pacor, Celotex Corporation, Philip Carey Manufacturing Co., Amatex Corporation, Owens-Corning Fiberglas, Asbestos Textile Institute, Uni-Royal, Carolina Asbestos, J. Franklin Burke, General Asbestos, Asbestos Textile Company, Thermoid Company, Asten-Hill Manufacturing Co., Ruberoid Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed May 7, 1986.

      Joseph D. Shein, Philadelphia, for appellant.
    Steven Revy, Philadelphia, for appellees.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   CAVANAUGH, Judge:

In this case the plaintiffs below, Catherine Heinsdorf, Administratrix of the Estate of Michael Heinsdorf and Catherine Heinsdorf in her own right, the appellants herein, filed a wrongful death and survival action based on the “deceased’s husband’s exposure to defendants’ asbestos products.” On July 16, 1981, the appellants filed a motion to amend the complaint to aver a “newly diagnosed injury to wife-plaintiff” alleging that “Catherine Heinsdorf was diagnosed as having an asbestos-caused disease, pleural thickening on 6-7-79 by Dr. Irving B. Wexlar.” On November 1, 1982 the court below, by Takiff, J., denied the petition to amend on the basis of the statute of limitations bar, as the petition to amend was filed more than two years after Catherine Heinsdorf’s diagnosis and the acquisition by her of the knowledge of the disease.

On appeal, the appellants contend for the first time that

“The lower Court’s ruling was grounded upon an averment in plaintiffs petition to amend which is clearly erroneous. Plaintiff was not diagnosed as having asbestos related pleural thickening on June 7, 1979. In fact, the June 7, 1979 x-ray report of Dr. Wexlar unequivocally stated that there was “no evidence of pleural thickening” found on plaintiffs x-rays. (R. 6). (Emphasis added.)

The issue of errors in the petition to amend the complaint has been waived on appeal under Pa.R.A.P. 302(a) which provides: “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” As noted in Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 293, 450 A.2d 681, 687 (1982):

The rule that an issue not argued below may not be argued on appeal is designed to promote the orderly and efficient use of judicial resources. If the lower court is given an opportunity to address an issue, it “is more likely to reach a satisfactory result, thus obviating the need for appellate review. . . .” Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 259, 322 A.2d 114, 117 (1974).

See also Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 442 A.2d 1158 (1982).

The appellants’ new counsel alleges in referring to Dr. Wexlar’s report at page 11 of appellants’ brief:

Unfortunately, this report was apparently misinterpreted by wife-plaintiff and the law firm that had represented her at that time. This is evidenced by the fact that in July 1981, plaintiffs lawyers filed a petition to amend the complaint in this matter averring erroneously that plaintiff had been diagnosed as having asbestos related pleural thickening by Dr. Wexlar on June 7, 1979. (Emphasis added.)

The appropriate time and place to raise any alleged errors in the petition to amend was in the court below prior to taking an appeal to this court and having failed to do so the issue is waived on appeal.

Order affirmed.

      . The statute of limitation set forth at 42 Pa.C.S. § 5524 (2) provides:
      § 5524. Two year limitation
      The following actions and proceedings must be commenced within two years:
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

      . If plaintiffs counsel negligently set forth incorrect dates as to crucial matters in the petition to amend the complaint, it is untimely to complain on appeal that the lower court erred when it relied on the facts alleged, and the error, if any, was not called to the attention of the court below. This would be so even in the absence of Pa.R.A.P. 302(a).

      . Appellants allege in the brief filed on appeal that "Plaintiff raised the issues herein at the time of the filing of its Petition to Amend the Complaint and Brief in support thereof’ (Appellants’ brief page 6.) This is totally incorrect. The issue on appeal is whether appellants may amend the petition to amend because of inaccurate statements in the petition to amend. Nowhere in the court below was this issue raised.
      In the memorandum of law filed by plaintiffs in the court below it was alleged that: "In that Opinion [Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) ] this Court held, inter alia, that the wife’s claims for emotional distress arising from her acquisition of the knowledge that she could develop an asbestos-related injury arose at the point that she was diagnosed as having such an injury. Obviously, such development of an asbestos-caused disease also creates a cause of action for that injury.”
      In the Petition to Amend, plaintiffs below alleged that Mr. Heinsdorf "was diagnosed as having an asbestos-caused disease, pleural thickening on 6-7-79 by Dr. Irving B. Wexlar.” It is only on appeal that plaintiffs below have alleged that this statement is erroneous. Appellate counsel do not further their cause when they allege matters, whether inadvertently or not, that are not supported by the record.


author: WIEAND, Judge:

text:
    508 A.2d 550
    Walter Edward MILLER, Jr., Appellant, v. Mary C. MILLER, Appellee. Walter Edward MILLER, Jr., Appellee, v. Mary C. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed March 17, 1986.
    Reargument Denied May 21, 1986.

      Michael K. Hanna, Lock Haven, for appellant (at 130) and appellee (at 826).
    Frederick D. Lingle, Lock Haven, for appellant (at 826) and appellee (at 130).
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

The only novel issue to be decided in these cross-appeals from an order distributing marital property and awarding alimony, alimony pendente lite, counsel fees and costs is the meaning to be ascribed to the term “cohabitation” as used in section 507 of the Divorce Code of 1980.

Walter Edward Miller, Jr. (Husband) and Mary C. Miller (Wife) were married on September 30, 1950. They separated on August 10, 1980, and on August 29, 1983, Husband filed a complaint seeking a section 201(d)(1) divorce. Wife filed an answer and counterclaim requesting alimony, alimony pendente lite, counsel fees and costs. A bifurcated divorce decree was entered on September 23, 1983. On January 29, 1985, after both parties had filed exceptions to the report and recommendations of a master, the court entered an order directing Husband to pay alimony penden-te lite at the rate of $64.00 per week from September 13, 1983 until January 29, 1985 and alimony at the same rate commencing February 1, 1985. The order distributed to Husband two pension funds, a freezer and several guns and to Wife the marital residence, a gravesite and all remaining personal property. The decree of equitable distribution also directed Husband to pay to Wife in cash the sum of $12,-312.50. Finally, Husband was ordered to pay to Wife the sum of $3,386.81, being seventy-five percent of Wife’s counsel fees. Both parties appealed.

Husband contends that following separation and continuing after divorce Wife cohabited with one Harold Geysler. This cohabitation, Husband argues, is a bar to an order to pay alimony and/or alimony pendente lite.

Section 507 of the Divorce Code provides as follows:

No petitioner shall be entitled to receive any award of alimony where such petitioner has entered into cohabitation with a person of the opposite sex who is not a member of the petitioner’s immediate family within the degrees of consanguinity subsequent to the divorce pursuant to which alimony is being sought.

This provision, it will be observed, refers to a spouse’s entitlement to alimony; it does not establish a bar to the receipt of alimony pendente lite. An award of alimony pendente lite is designed to enable the dependent spouse to maintain or defend the action in divorce. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 331, 475 A.2d 820, 823 (1984). Although the Divorce Code does not specify the grounds upon which an award of alimony pendente lite is to be made, this Court has held that a trial court making an award of alimony pendente lite should consider the respondent’s ability to pay, the petitioner’s separate estate and income, and the general character, situation, and surroundings of the parties. Orr v. Orr, 315 Pa.Super. 168, 172, 461 A.2d 850, 852 (1983); Wechsler v. Wechsler, 242 Pa.Super. 356, 362, 363 A.2d 1307, 1310 (1976).

The Divorce Code does not define “cohabitation.” The term, however, has been defined by this Court in a related context. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), the Court was called upon to determine whether isolated acts of sexual intercourse between spouses who were otherwise living apart constituted cohabitation for § 201(d)(1) purposes. Thomas had sought a § 201(d)(1) divorce and thus was required to prove that the couple had lived “separate and apart” for a period of at least three years. “Separate and apart” was defined by section 104 of the Divorce Code as the “[c]omplete cessation of any and all cohabitation.” In concluding that instances of sexual relations during a separation period did not alone constitute cohabitation, the Court stated that “ ‘cohabitation’ means the mutual assumption of those rights and duties attendant to the relationship of husband and wife. The ties that bind two individuals in a marital relationship involve more than sexual intercourse.” Id., 335 Pa.Superior Ct. at 47, 483 A.2d at 948. See also: Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985). “Cohabitation, although not defined statutorily, is defined by Webster’s New Collegiate Dictionary as ‘living together as husband and wife.’ Similarly, Ballentine’s Law Dictionary defines cohabitation as ‘[a] dwelling together of man and woman in the same place in the manner of husband and wife.’ The definitions are appropriate for our purposes and are followed pursuant to the mandate of Section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903, that ‘[w]ords and phrases shall be construed ... according to their common and approved usage. . . .’” McBride v. McBride, 335 Pa.Super. 296, 299, 484 A.2d 141, 142 (1984). Other courts called upon to define cohabitation have reached similar results. See: Hicks v. Hicks, 405 So.2d 31, 33 (Ala.App.1981) (“[C]ohabitation requires some permanency of relationship coupled with more than occasional sexual activity[.]”); Gertrude L.Q. v. Stephen P.Q., 466 A.2d 1213, 1217 (Del.1983) (“The word ‘cohabit’ ... [means] an arrangement existing when two persons live together in a sexual relationship when not legally married.”).

In defining cohabitation, the Court in Thomas v. Thomas, supra, relied in part upon the legislative history of the Divorce Code. The Court’s observations are also pertinent to our discussion.

House debates regarding the question whether cohabitation with a person of the opposite sex should serve as a bar to alimony (23 P.S. § 507) reveal that the legislators perceived “cohabitation” as involving more than just sexual relations. This point is illustrated by the following comments of Representative Cunningham, Centre County:
Cohabitation is clearly not remaining at someone’s house overnight. It is clearly not remaining at someone’s house for the weekend. Cohabitation is a definition that has to be viewed in light of the facts of each individual case ... We are talking about a consistent pattern of conduct established over a substantial period of time with one person.
HJ 1843L, reprinted in J.A. Rounick, Pa. Matrimonial Practice, Part 3, Appendix B at 42-43 (1983).

Thomas v. Thomas, supra 335 Pa.Super. at 46, 483 A.2d at 947. A further reading of the House debates discloses a legislative concern that subsequent marriages and subsequent relationships akin to marriage should be treated alike for purposes of terminating alimony. Representative McVerry, Allegheny County, in voicing his support for section 507, echoed the same concern when he argued that without section 507’s language the legislature would be sanctioning “unmarried persons living together yet being supported and/or financed by the remnants of a former marriage[.]” HJ 1843L, reprinted in J.A. Rounick, Pa. Matrimonial Practice, Part 3, Appendix B at 49 (1983). When circumstances are such that a dependent former spouse enters into a remarriage or an extramarital relationship which is similar to a marriage, receipt of alimony by one of the parties from a former spouse is thereafter barred.

We hold, therefore, that cohabitation, for purposes of applying the bar of section 507, requires that two persons of the opposite sex reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means. See generally: Hicks v. Hicks, supra. Where, upon proof by a preponderance of the evidence, the trier of fact concludes that the dependent former spouse has entered into a relationship with “a member of the opposite sex who is not a member of the petitioner’s immediate family within the degrees of consanguinity” and the two have assumed the rights, duties, and obligations attendant to the marital relationship, the dependent former spouse is no longer entitled to receive alimony from the other former spouse. An occasional sexual liaison, however, does not constitute cohabitation.

Turning to the present case, the nature of the relationship between Wife and her paramour was described by the trial court as follows:

Mrs. Miller has admitted to having sexual relations with Mr. Geysler and has admitted that he is not related to her in any way....
According to Mrs. Miller, Mr. Geysler only keeps one change of clothes at her house and she does not keep any clothing at his place in New York.
Mr. Geysler has given Mrs. Miller a car, food, a wood burner, and has helped maintain the marital home. However, both Mrs. Miller and Mr. Geysler have testified that she is to pay him for the automobile when she sells a Mustang that she owns.
The only real question is how often Mr. Geysler is at Mrs. Miller’s home. Mr. Geysler has testified that he is at Mrs. Miller’s approximately one weekend per month. These ‘weekends’ last from Thursday until Monday.
Mrs. Miller’s testimony was confusing on the time Mr. Geysler spent at her home. Mrs. Miller first testified that from September 22, 1983 until February 14, 1984 Mr. Geysler had only spent twenty-one days at her home. This was confirmed by Mr. Geysler. She had spent two (2) weeks at his home in the summer of 1983.
Mrs. Miller then testified that prior to September 23, 1983 that Mr. Geysler had spent two (2) or three (3) weekends a month at her home. She affirmed this on cross-examination. Mr. Geysler had also spent one week at Mrs. Miller’s during hunting season in 1982 and had spent from February 16, 1984 until March 1, 1984 due to a flood that had damaged Mrs. Miller’s house, bad roads in New York, the fact that Mr. Geysler had contracted the flu and he was subpoenaed for the Master’s Hearing of March 1, 1984. Mr. Geysler also testified that he didn’t intend to return to the Lock Haven area until April, 1984.

Trial court opinion at 36-37 (references to notes of testimony omitted).

Although Mrs. Miller and Mr. Geysler obviously shared more than a casual friendship, the trial court could properly conclude from the evidence that the two were not cohabiting within the meaning of section 507 of the Divorce Code. The evidence reflected only weekend sexual liaisons. The couple did not share a common home on a permanent basis but maintained separate residences. They did not mutually share their respective incomes and expenses. The evidence that weekends were spent together did not establish cohabitation; and, therefore, the trial court could properly conclude that Wife was not barred from receiving alimony. Accord: Hanson v. Hanson, 177 Pa.Super. 384, 110 A.2d 750 (1955).

Husband also challenges the amount of alimony and alimony pendente lite which the trial court awarded, contending that neither award accurately reflected the parties’ economic circumstances. A determination of the amount to be awarded, whether of alimony or alimony pendente lite, rests in the first instance in the exercise of a sound discretion by the trial court. Absent an abuse of discretion, a trial court’s award of alimony or alimony pendente lite will not be disturbed. Mazzei v. Mazzei, 331 Pa.Super. 432, 437, 480 A.2d 1111, 1113 (1984); Pangallo v. Pangallo, 329 Pa.Super. 25, 31, 477 A.2d 885, 888 (1984). The trial court in this case examined Husband’s weekly income of $319.78 and Wife’s weekly income of $82.00. Neither party had separate assets having substantial value. Wife remained in the marital home, maintained it and kept it in repair. The Master concluded and the trial court agreed that an award of twenty percent of Husband’s weekly income was within his ability to pay and would adequately assist Wife in supporting herself while defending the divorce action. We find no abuse of discretion in the $64.00 per week award of alimony pendente lite.

As to the alimony award, Husband argues (1) that the amount was too high and (2) that the award should not have been made to continue indefinitely. The trial court, in setting the award at $64.00 per week, allegedly failed to consider the distribution of marital assets. However, our review of the record does not reveal that the trial court, in fashioning an order of $64.00 per week, failed to take into account the economic factors suggested by the Divorce Code. We find, therefore, that there was no abuse of discretion and affirm an award of alimony in the amount of $64.00 per week.

The alimony award requires the weekly payments to “continue until further order of the Court.” At the time of the order of equitable distribution, Wife was 53 years old, was working part-time in a school cafeteria and was earning $82.00 per week. The court also observed that Wife was suffering from arthritis and was physically unable to work full time. Section 501(c) of the Divorce Code provides that “[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 in ordering alimony shall limit the duration of the order____” The trial court in the instant case considered Wife’s age, physical condition, and current employment and concluded that an award for an indefinite period but subject to the court’s future review would best meet Wife’s needs and Husband’s limited economic horizons. Husband was 54, in good health, and able to continue full time employment with Piper Aircraft Corp. Husband was also the beneficiary of two pension funds having a total value in excess of $33,-000.00. The trial court did not commit an abuse of discretion when it awarded Wife $64.00 per week, subject to further review and later modification according to Wife’s needs and Husband’s ability to pay. Wife’s contention that the award of alimony to her was inadequate must similarly be rejected. See: Remick v. Remick, 310 Pa.Super. 23, 33, 456 A.2d 163, 168 (1983).

An award of counsel fees is appropriate when necessary to allow a dependent spouse to maintain or defend an action for divorce. Young v. Young, 274 Pa.Super. 298, 302, 418 A.2d 415, 417 (1980). The trial court found that Wife was a dependent spouse and awarded her counsel fees. Although the husband-appellant contends that the amount was excessive, our review of the record discloses no abuse of the trial court’s discretion. In the absence of such an abuse, we will not interfere with the amount determined by the trial court. See: Ruth v. Ruth, 316 Pa.Super. 282, 285, 462 A.2d 1351, 1352-1353 (1983).

In distributing marital property, the trial court awarded Husband his United States Army and Piper Aircraft pensions, which had a combined value of $33,033.94, and also a fifty dollar freezer and five guns having an estimated value of $750.00. All other marital property was awarded to Wife. This other property included the marital residence, Wife’s retirement fund, the burial lot, and all personal property. In this manner the court divided and distributed all marital property then in existence and achieved a relatively equal division.

For reasons which have not been explained, the trial court also directed Husband to pay to Wife the sum of $12,312.50. We are constrained to hold that this was an abuse of discretion. This money was not “marital property.” As cash or investment, it simply did not exist. Neither party had such an amount in hand or in the bank at the time of separation or at the time of hearing. If Husband is to pay this sum, it will be necessary that he borrow the same, for the moneys in his pension accounts are not now available to him. The court’s order distributing marital property, however, has awarded all other assets to Wife and thus has made it exceptionally difficult, if not impossible, for Husband to borrow the money needed to comply with this portion of the court’s order. The Divorce Code instructs divorce courts to distribute “marital property” equitably between the spouses. It does not authorize divorce courts to impose orders with which a party cannot comply. A court should not visit retribution or punishment upon either spouse. We conclude in this case that it was an abuse of discretion to require a spouse, under the guise of effecting equitable distribution of marital property, to pay moneys to the other which the former did not have and which he or she could not reasonably be expected to acquire or borrow.

The trial court’s order of January 29, 1985 is modified by striking therefrom the requirement that Husband pay to Wife the sum of $12,812.50. As so modified, the order is affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 507.

      . 23 P.S. § 507.

      . 23 P.s. § 104.

      . 23 P.S. § 501(c).

      . The marital home was estimated by Husband to have a value of $25,400.00; Wife said it was worth $8,180.00; and the court placed on it a value of $16,500.00.

      . The trial court found that a 1979 Jeep truck had been disposed of in good faith and for value prior to commencement of the divorce action. See: Divorce Code of 1980, § 401(e)(5), 23 P.S. § 401(e)(5). The evidence supports this finding.


author: CIRILLO, President Judge:

text:
    508 A.2d 556
    In re ADOPTION OF B.A.B., a Minor Child. Appeal of C.W.W., JR., Mr. & Mrs. P., Adoptive Parents.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1986.
    Filed April 24, 1986.

      C. Walter Whitmoyer, Jr., Lebanon, for appellant.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from an order dismissing the exceptions of Attorney A, appellant herein. The sole issue presented is whether the hearing court abused its discretion in ordering the reduction of a fee charged by Attorney A for services rendered in connection with an uncontested private adoptive placement.

The facts disclosed by the record may be summarized as follows. Appellees, Mr. and Mrs. B, were interested in adopting a child. Appellees learned through relatives that the unborn child of Miss C might be available for a private adoptive placement. Appellees then contacted Attorney A and requested that he represent them in the potential adoption proceedings. Mr. and Mrs. B inquired as to the cost of Attorney A’s services and were told that he would accept the case at an hourly rate of $60.00. Billing was to be done on the basis of a time record kept by Attorney A. The parties agreed that Attorney A’s fee would be based upon actual time and labor expended and not upon the success or failure of the adoption. The Bs requested that Attorney A conduct the adoption proceedings so as to preserve their anonymity.

Attorney A performed a variety of services during the twenty months between his initial consultation with Mr. and Mrs. B and the final hearing on the B’s petition for adoption. Attorney A drafted and filed various legal documents relating to the adoptive proceeding, consulted with and advised his clients, attended hearings, and corresponded with other attorneys and the courts. Attorney A also met with Miss C and her family, made financial arrangements for the Bs to pay Miss C’s medical expenses, obtained Miss C’s and the natural father’s consents, provided Miss C with a birth certificate and photographs of the child, obtained medical records, and was present at the hospital during the physical transfer of the child to the Bs. Attorney A was required to travel to a county at the other end of the state to testify as an intermediary at the final hearing.

Attorney A provided Mr. and Mrs. B with itemized bills on a periodic basis, which the Bs paid without objection. The total amount requested by Attorney A as compensation for his services was $3,160.00, not including $228.00 in transportation costs incurred as a result of traveling to the final hearing.

An examination of the record, including a transcript of testimony taken at the final hearing, reveals that neither the court nor Mr. and Mrs. B doubted that Attorney A had actually performed all of the services indicated on the bills and time sheets submitted to the hearing court. Further, local counsel for Mr. and Mrs. B testified that Attorney A’s services were satisfactory in all respects. The Bs do not argue differently on appeal and they do not challenge the existence or validity of their agreement with Attorney A.

At the final hearing, the court, acting sua sponte, raised a question as to the amount of appellant’s fee. Attorney A testified at length concerning the services rendered and made available detailed bills and time sheets for the court’s inspection. The court ordered that Attorney A reduce his fee to $1200.00 and remit the balance to Mr. and Mrs. B, but allowed an additional $228.00 for travel expenses. In its opinion, the court, sitting en banc, based its decision in part upon its understanding that the receipt of compensation for services rendered as an intermediary constitutes “dealing in humanity,” and thus a misdemeanor pursuant to 18 Pa.C.S. § 4305. The court further noted that, in its view, Attorney A’s fees for legal services also constituted a violation of 18 Pa.C.S. § 4305 to the extent that they were "... beyond what is reasonable____” The court took notice of the fact that $600.00 was the maximum fee charged by attorneys in that county for services in connection with an adoption. Finally, the court indicated that, in its view, charging for nonlegal services rendered as an intermediary or overcharging for legal services in an adoption case is a violation of the Thirteenth Amendment to the United States Constitution, which prohibits the treatment of a person as a slave. Attorney A’s exceptions to the order reducing his fee were dismissed. This appeal followed. Attorney A argues that the hearing court abused its discretion in reducing his fee. We agree.

In passing upon the court’s reduction of Attorney A’s fee, we are mindful that an abuse of discretion is more than just an error in judgment. A trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will. Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981). Further, it is well settled that supervision of compensation is peculiarly within the discretion of the Orphans’ Court. In re Reed Estate, 462 Pa. 336, 341 A.2d 108 (1975); Wallis Estate, 421 Pa. 104, 218 A.2d 732 (1966). Nevertheless, where the ultimate conclusion of law with respect to compensation is without record support, an appellate court cannot allow the decision to stand. In re Reed Estate, supra; Crawford’s Estate, 307 Pa. 102, 160 A. 585 (1931).

The court is statutorily authorized to exercise discretionary authority with regard to the payment of fees in adoption cases. Section 2533 of the Adoption Act of October 15, 1980, P.L. 934, was amended in 1982 to include subsection (c), which provides:

(c) Appropriate relief. — The court may provide appropriate relief where it finds that the moneys or consideration reported or reportable pursuant to subsection (b)(8) are excessive.

Subsection (b)(8) requires that an itemized accounting of moneys and consideration paid to an intermediary or any other person by reason of the adoptive placement be included in the report of the intermediary mandated by § 2533. “Intermediary” is defined in the Adoption Act as:

Any person or persons or agency acting between the parent or parents and the proposed adoptive parent or parents in arranging an adoption placement.

23 Pa.C.S. § 2102.

In the instant case, the court relied primarily upon the following provision of the Pennsylvania Crimes Code in holding that Attorney A’s receipt of compensation was partially unlawful and that the amount received was thereby subject to reduction:

Dealing in infant children
A person is guilty of a misdemeanor of the first degree if he deals in humanity, by trading, bartering, buying, selling, or dealing in infant children.

18 Pa.C.S. § 4305.

The obvious intent of § 4305 is to prohibit the evil of “baby selling” or trafficking in humanity. After careful review of the record, we are unable to find factual support for the court’s assertion that this evil is present or threatened in the case sub judice.

As stated above, Mr. and Mrs. B learned of the potential availability of the unborn child through persons other than Attorney A. Attorney A did not procure the child. The Bs then contacted Attorney A and requested that he provide them with legal representation in the potential proceedings. They insisted that he preserve their anonymity and also requested that he perform, on their behalf, the numerous nonlegal tasks connected with arranging the placement. The Bs agreed to pay Attorney A a fee based strictly upon the number of hours actually expended. Payment was not contingent upon the delivery of the child or the successful conclusion of the adoption proceedings. Thus, there was no danger that appellant’s fee could be disguised as a payment for the baby. Under these circumstances, it cannot be said that Attorney A or any other person was directly or indirectly “dealing in humanity” with respect to this infant. We are not confronted with a situation wherein an attorney or another person solicits natural parents for their offspring or offers compensation for the release of a child to his custody or to the custody of a third person. Nor are we faced with the obvious evil inherent in a situation involving the procurement of a child with a view towards a future payment for placement, or the receipt of bids for an infant, or the maintenance of a list of adoptive parents willing to pay a flat fee for the delivery of a child. See In re Adoption of Baby Boy L., 27 Pa.D. & C.3d 584 (1983).

The court concluded that at least some of the services performed by Attorney A were that of an intermediary as defined by § 2101 of the Adoption Act. However, even if true, this fact standing alone does not render those services noncompensable absent conduct in violation of the statutory prohibition against “dealing in humanity.” Our Legislature has made no provision regulating the licensure or qualifications of intermediaries. Private persons or agencies are not statutorily prohibited from acting as intermediaries in adoptive placements and are not expressly prohibited from charging a fee for services rendered unless, of course, such services involve conduct amounting to “dealing in humanity” as proscribed by § 4305. The Legislature has provided that all fees paid to intermediaries are subject to complete and itemized disclosure, 23 P.S. § 2533(b)(8), and that the court shall order an investigation and report covering “... all pertinent information regarding the child’s eligibility for adoption and the suitability of the placement____” 23 Pa. C.S. § 2535. We believe that these provisions contemplate the possibility of fees being paid to private intermediaries and provide a mechanism whereby violations of § 4305 may be discovered and then remedied pursuant to § 2533(c) or through possible criminal sanctions.

Under the facts of the instant case, appellant’s conduct is not a violation of the statutory prohibition against dealing in humanity or the Thirteenth Amendment. Therefore, he may not be precluded as a matter of law from charging and collecting a previously agreed upon fee for services rendered as an intermediary and attorney in an adoption proceeding. We draw no distinction with regard to which of the services performed by appellant were that of an intermediary as defined and leave the task of defining or eliminating the role of the private intermediary to our Legislature.

Having determined that the hearing court’s reliance upon § 4305 and the Thirteenth Amendment constituted a misapplication of the legal principles governing the exercise of its discretionary power, we next consider whether the order in question may be affirmed on the basis of the court’s overall conclusion that the fee was excessive. The law is clear that the decision of a trial court may be affirmed on appeal where the result is correct on any legal ground or theory. Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985). Thus, if the fee was unrelated to the services actually rendered, and therefore excessive, we may affirm the order of the hearing court.

The hearing court concluded that, in any event, Attorney A’s total fee of $3,160.00 and his hourly fee of $60.00 were excessive in light of fees customarily charged for adoption cases by attorneys in that county. The court took notice of the fact that attorneys in that area rarely charged more than $600.00 and never more than $30.00 per hour for adoption cases and, according to the court, often charged nothing at all.

We hold that the hearing court abused the discretionary authority granted it by § 2533(c). We believe that § 2533(c) was intended to empower the court to provide “appropriate relief” when the fees reportable under § 2533(b)(8) are unrelated to actual services rendered and which therefore constitute payment for the child itself. As discussed above, the evil of “baby selling” as proscribed by § 4305 is not present in this case. Moreover, neither the court nor the adoptive parents dispute that Attorney A actually performed all of the services indicated in his detailed bills and time sheets or that he actually worked the number of hours claimed. Thus it is not contended that Attorney A’s fee was unrelated to the services actually rendered. Under these circumstances, we are not inclined to disturb or otherwise invalidate an undisputed agreement fairly entered into and fully performed to the satisfaction of the parties.

The order of the hearing court dismissing appellant’s exceptions is reversed.

      . Surnames will be referred to only by initial throughout this opinion in keeping with the confidentiality of the Adoption Act. The initials have been changed so as not to coincide with the actual initials.

      . The following is an excerpt from the final hearing testimony:

        ATTORNEY: Is it your position that I didn’t do the services?
      COURT: I’m not saying that you didn’t, no, I’m not saying that. I know that you did all the work. What I’m saying is that we control the fees, and the attorneys know that when they come in to do adoption work that they can only charge a modest fee.

      . For an overview of legislative regulation of intermediaries, see Annot., 3 A.L.R.4th 468 (1981).


author: TROMMER, Judge:

text:
    508 A.2d 561
    Anne S. COHEN, Appellant, v. Gerald COHEN.
    Superior Court of Pennsylvania.
    Submitted March 12, 1985.
    Filed May 1, 1986.

      Elaine Smith, Philadelphia, for appellant.
    Bennett Block, Philadelphia, for appellee.
    Before McEWEN, CERCONE and TROMMER, JJ.

       Judge Evelyn M. Trommer, Senior Judge, of the Comí of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   TROMMER, Judge:

This is an appeal from an order of the trial court denying appellant’s petition for enforcement of a foreign divorce decree. We reverse.

On February 21, 1975, the Superior Court of New Jersey, Chancery Division, Burlington County, entered a decree divorcing appellant, Anne S. Cohen, and appellee, Gerald Cohen. The decree provided for permanent alimony payable to appellant in the amount of $30.00 per week. On February 2, 1976, appellee moved from New Jersey to Philadelphia. A year later, February 3, 1977, appellee’s last payment of alimony was made. Prior to the last payment, appellee had frequently failed to make timely payments and arrearages accumulated to $11,925.00.

On September 23, 1983, pursuant to section 506 of the Divorce Code, 23 P.S. § 506, appellant filed a petition in the Montgomery County Court of Common Pleas for registration, adoption and enforcement of the foreign divorce decree. Appellant also sought payment of the accumulated arrearages (with interest), an attachment of appellee’s wages for future payments, an order for appellee to post a $50,000 bond to insure future compliance, and attorney’s fees. In his answer to the petition, appellee asserted that appellant’s claims were barred by the statute of limitations provided in 42 Pa.C.S.A. sections 5527(1),(6), and that section 506 of the Divorce Code did not apply to alimony decrees entered before the Code became effective in July, 1980. Appellee also cross-petitioned to have the divorce decree modified to eliminate the provision for alimony and to have the arrearages extinguished.

After argument before the trial court en banc, on April 2, 1984, appellant’s petition was denied. Appellant subsequently petitioned the trial court to reconsider its order and to permit additional testimony, which were denied. This appeal from the order of April 2, 1984, timely followed.

On appeal, appellant argues that the trial court erred (1) in refusing to enforce the provisions of the New Jersey divorce decree under section 506 of the Divorce Code and (2) in holding that appellant’s claim was barred by the six-year statute of limitations of 42 Pa.C.S.A. § 5527. We shall address these issues seriatim.

I.

Appellant initially claims that the trial court erred in refusing to enforce the New Jersey divorce decree under section 506 of the Divorce Code, 23 P.S. § 506. The trial court held that the clear language of section 103 of the Divorce Code barred the application of section 506 or any other provision of the Act to appellant’s case, since the New Jersey decree in question had been entered in 1975, prior to the enactment of the Divorce Code. The trial court relied upon the Statutory Construction Act in reaching this conclusion, specifically 1 Pa.C.S.A. § 1903(a) (“Words and phrases shall be construed according to rules of grammer and according to their common and approved usage ... ”) and 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”).

Appellant argues that in applying section 103 of the Divorce Code to bar her claim for enforcement of the New Jersey decree, the trial court improperly overlooked the legislative history of that section. She points specifically to statements made by the author of the bill which was eventually enacted as the Divorce Code regarding an amendment to section 103 to add what now appears as the final sentence of the section:

This amendment is primarily technical in that it removes some of the ambiguities in the bill that came to our attention after the bill was reported out of committee. However, it does make some changes that I would like to bring to your attention.
In the first place, it provides that “This act,” if it passes, “shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.” This is consistent with another provision of the bill that says that once a decree in divorce has been entered prior to the effective date, it cannot be reopened, and the intent of this part of the amendment is to treat those matters that have been settled, either in court or out of court, as settled, and not allow parties to open them up.

1979 Pa. House Journal 1825-1826 (Daily Ed., Sept. 25, 1979). Appellant argues that this passage reveals a legislative intent to preclude relitigation where the parties substantive rights have already been determined, not to bar enforcement of pre-Code foreign decrees. Appellant also cites as persuasive several decisions by Courts of Common Pleas which have adopted her position in interpreting sections 103 and 506 of the Code, see, e.g., Kramer v. Kramer, 21 D. & C. 3d 94 (1981) (section 103 was intended to prevent the creation of new substantive rights in parties divorced under the old Divorce Code; allowing plaintiff access to procedures established in section 506 of the new Code in no way frustrates the legislative intent evidenced by section 103 and does not create new substantive rights); Heyman v. Heyman, 37 Bucks Co. L.Rep. 182 (1981) (the plain intent of the restriction in section 103 was to prevent the enlargement of a party’s substantive rights in a case that had already become final), aff'd per curiam, 307 Pa.Super. 617, 452 A.2d 1095 (1982).

Appellant distinguishes the situation presented here from that in the recently decided case of Gilham v. Gilham, 327 Pa.Super. 342, 475 A.2d 829 (1984). In Gilham, this court affirmed a trial court’s refusal to enforce a 1978 Ohio court order requiring a husband to pay alimony to his wife both during and after their divorce action. The parties discontinued their Ohio divorce action, but were subsequently divorced in Pennsylvania in 1979. The wife’s petition to enforce the Ohio order under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) was denied by the trial court on the basis that at the time of the entry of the order in question, Pennsylvania’s policy was that post-divorce support was enforceable only as a contractual obligation through an action in equity or assumpsit. The wife argued, however, that the passage of the Divorce Code was evidence of a change in policy, as section 506 of the Code specifically provided for enforcement of foreign alimony awards. This court rejected the argument that section 506 applied to the order in question, since it had not been entered “in conjunction with a decree granting a divorce or annulment” and thus was not alimony as defined in section 104 of the Code. It also rejected the argument that the order should be enforceable through RURESA because of Pennsylvania’s changed policy regarding alimony, reasoning that such enforcement would be permitting a spouse divorced under the former law to receive support payments after the entry of the divorce, and would thus be in contravention of section 103 of the Code.

Appellant argues that Gilham should be read to hold only that section 103 bars the creation of new substantive rights, since in that case the parties had been divorced in Pennsylvania under the old law. In her case, she contends, that bar does not apply, since her substantive right to alimony derived from her New Jersey divorce decree and the alimony order was perfectly valid in that state.

We agree.

At first glance, section 103 appears to be a straightforward proscription against the application of the Divorce Code to any case in which the final decree had been entered prior to the effective date of the Code. However, a careful reading of the section compels the conclusion that section 103 merely proscribes the enlargement of a party’s substantive rights in a case that had already become final. This conclusion is supported by the aforecited legislative history. Although, as appellee argues, the Statutory Construction Act permits consideration of legislative history only “[w]hen the words of the statute are not explicit,” 1 Pa.C.S.A. § 1921(c), we do not find section 103 to be sufficiently explicit to preclude such consideration. The trial court’s reliance upon sections 1903(a) and 1921(b) of the Statutory Construction Act, 1 Pa.C.S.A. §§ 1903(a), 1921(b), is similarly misplaced. The interpretation of section 103 proffered by appellant, and accepted by this court, is consistent with those provisions of the Act.

Gilham, supra, does not compel a contrary conclusion. As appellant argues, Gilham is inapposite. In Gilham, the parties were divorced under the former Pennsylvania divorce law. If the appellant in Gilham had been permitted to enforce the foreign post-divorce support order, she would thereby have acquired a new substantive right in contravention of section 103. That is not the case here. Pursuant to the New Jersey divorce decree, the appellant herein already has a right to post-divorce support. Registration, adoption, and enforcement of the New Jersey decree will therefore not alter appellant’s substantive rights, but rather will merely provide for the transfer and maintenance of such rights as appellant had previously acquired.

Accordingly, the order of the trial court denying appellant’s petition for registration, adoption and enforcement of the New Jersey divorce decree is reversed.

II.

Appellant argues that the trial court erred in holding that as appellant’s claim was brought more than six years after appellee’s last payment of alimony, it was barred by the six year statute of limitations of 42 Pa.C.S.A. § 5527. Appellant contends that under section 506 of the Divorce Code, 23 P.S. § 506, New Jersey’s twenty-year statute of limitations would be applicable to this action.

The trial court held that appellant’s action was governed by a six-year limitation period under either section 5527(1) (applying the six-year limitation to actions “upon a judgment of decree of any court of the United States or of any state”) or section 5527(6) (six year limitation period applicable td “any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531”). The court further noted that although 42 Pa.C.S.A. § 5527 became effective after the date of appel-lee’s last alimony payment, the Statutory Construction Act, 1 Pa.C.S.A. § 1975, provides that in such cases “the time which has already run shall be deemed part of the time prescribed as such limitation” in the new legislation, and cited Crisante v. J.H. Beers, Inc., 297 Pa.Super. 337, 443 A.2d 1150 (1982), as authority for the proposition that such retroactive application of a statute of limitations creates no constitutional problem since such a statute is procedural rather than substantive. The trial court further noted that under the Uniform Statute of Limitations on Foreign Claims Act, 42 Pa.C.S. § 5521 et seq., Pennsylvania’s six-year, rather than New Jersey’s twenty-year, statute of limitations should be applied.

Appellant argues that the trial court erred in measuring the running of the statute of limitations from the date of the last alimony payment made by appellee. She argues that under the decree, alimony was an ongoing obligation her right to receipt of which accrued separately as to each installment as it became due, citing Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910). She contends that a claim for each weekly installment of alimony has thus continued to accrue throughout the period since appellee’s last payment and that, at least as to payments which were due during the six years prior to the filing of her petition, the statute of limitations has not run, citing Van Sciver v. Van Sciver, 337 Pa. 390, 395, 12 A.2d 108 (1940) (suit for arrearages under separation and maintenance agreement relating to alimony and child support not time-barred, as agreement “is a continuing contract, [to which] the statute of limitations does not apply at least as to the sums due within six years”). She also asserts that in numerous other jurisdictions the statute of limitations is held to commence to run against each installment as it becomes due, citing Annot., 70 ALR 2d 1250.

Appellant argues further that the provisions of 42 Pa.C.S.A. § 5527 should not be applied retroactively to bar her action even as to payments that became due more than six years before her petition was filed. She bases this argument upon her contention that, at the time such payments were due, no statute of limitations was applicable to actions to enforce alimony orders or decrees. She argues that actions to collect alimony or support arrearages are personal actions, and that the statute of limitations applicable to personal actions at the time of appellee’s last payment of alimony, 12 P.S. § 31, did not by its terms include actions for enforcement of alimony or support among the types of actions to which a six-year limitation period applied. Specifically, she argues that actions for enforcement of alimony were not “actions of trespass quare clausum fregit, ... of detinue, trover and replevin, for taking away goods and cattle, ... upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants), all actions of debt grounded upon any lending or contract without specialty, ... of debt for arrearages of rent, except the proprietaries’ quitrents, ... [or] of trespass, of assault, menace, battery, wounding and imprisonment, or any of them” and thus did not fall within the six-year limitation period prescribed by section 31. She also cites Evans v. Cleary, 125 Pa. 204, 17 A. 440 (1889), which she claims was being cited as late as 1978 as generally accepted authority for the proposition that the statute of limitations was no bar to enforcement of a foreign judgment rendered by a justice of the peace more than six years before the moving party sought enforcement in Pennsylvania. Although the date at which her action began to accrue occurred between the passage of the new statutes of limitation in 1976 and their effective date in 1978, she argues that the new statutes should not be made retroactive beyond their effective date absent a clear legislative intent to do so, citing 53 C.J.S. Limitations of Actions § 4 (1951) (“Under the fundamental rule for the construction of statutes, statutes of limitations ordinarily will not be given a retroactive effect unless it clearly appears that the legislature so intended.”) She argues that Crisante v. J.H. Beers, Inc., supra, relied upon by the trial court in applying the limitation of 42 Pa.C.S.A. § 5527 retroactively, is distinguishable from this case because there the limitation period under the new statute expired prior to the statute’s effective date and the plaintiff failed to bring her action either within the two-year limitation period prescribed by the new statute or within the additional one-year grace period following the statute’s effective date which had been enacted to be applied in such cases. Here, the action began to accrue during the period between passage and the effective date of the applicable statute. Thus, appellant claims, the Clisante decision as to the retroactivity of the statute is not controlling.

Appellant is correct in her assertion that the trial court erred in holding that her claim was completely barred under the six-year statute of limitations provided by 42 Pa.C.S.A. §§ 5527(1), (6). As appellant argues, appellee’s obligation to pay alimony was an ongoing obligation, appellant’s right to receipt of which accrued separately as to each installment as it became due. See Van Sciver, supra. However, that does not mean that appellant had an indefinite period of time within which to file a claim for the unpaid installments. Under 42 Pa.C.S.A. §§ 5527(1), (6), as applied to this case pursuant to the Uniform Statute of Limitations on Foreign Claims Act, 42 Pa.C.S.A. § 5521, appellant had six years within which to file an action for each unpaid installment. Appellant’s attempt to distinguish Crisante and thereby to avoid the retroactive application of section 5527 is unpersuasive.

We also find unpersuasive appellant’s argument that pursuant to section 506 of the Divorce Code, New Jersey’s twenty-year statute of limitations should have been applied to this case. Section 506 contains a general provision regarding the assertion of defenses by an obligor subject to a foreign decree (i.e., which defenses are available). However, the Uniform Statute of Limitations on Foreign Claims Act contains a specific provision regarding the assertion of a statute of limitations defense by one subject to a foreign claim (i.e., the period of limitation applicable). Under the Statutory Construction Act, 1 Pa.C.S.A. § 1933, the specific provision in the Uniform Act governs the general provision in the Divorce Code. Although the Divorce Code was enacted after the Uniform Act, since the legislature did not indicate a “manifest intention” that the general provision in section 506 would prevail over the specific provision in the Uniform Act, the exception to the aforecited rule of statutory construction would not apply.

Therefore, although the trial court was correct insofar as it barred appellant’s claim for the alimony installments due greater than six years before the filing of appellant’s petition, it incorrectly barred appellant’s claim for those installments due within six years of the filing of the petition. Accordingly, we reverse the trial court’s order denying appellant’s petition for registration, adoption, and enforcement of a foreign divorce decree and remand this matter to the trial court for further proceedings consistent with this opinion. Jurisdiction is relinquished.

Reversed and remanded.

      . Section 506 provides:
      § 506. Enforcement of foreign decrees
      Whenever a person subject to a valid decree of a sister state or territory for the payment of alimony, temporary alimony, or alimony pendente lite, or his or her property is found within this Commonwealth, the obligee of such a decree may petition the court, where the obligor or his or her property is found, to register, adopt as its own, and to enforce the said decree as a duly issued and authenticated decree of a sister state or territory. Upon registration and adoption, such relief and process for enforcement as is provided for at law, in equity, or by court rule, in similar cases originally commenced in this Commonwealth, shall be available, and a copy of the decree and order shall be forwarded to the court of the state or territory which issued the original decree. The obligor, in such actions to register, adopt, and enforce, shall have such defenses and relief as are available to him in the state or territory which issued the original decree and may question the jurisdiction of that court if not otherwise barred. Interest may be awarded on unpaid installments and security may be required to insure future payments as in such cases originally commenced in this Commonwealth. Where property of the obligor, but not his person, is found within this Commonwealth, there shall be jurisdiction quasi in rem and, upon registration and adoption of the decree of the sister state or territory, such relief and enforcement of the decree shall be available as in other proceedings which are quasi in rem. 1980, April 2, P.L. 63, No. 26, § 506, effective in 90 days.

      . Section 103 provides:
      § 103. Construction
      The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto. (Emphasis added).
      1980, April 2, P.L. 63, No. 26, § 103, effective in 90 days.

      . The pertinent provision of section 506 provides:
      The obligor, in such actions to register, adopt, and enforce, shall have such defenses and relief as are available to him in the state or territory which issued the original decree____ (Emphasis added).

      . 42 Pa.C.S.A. § 5521 provides:
      § 5521. Limitations on foreign claims
      (a) Short title of section. This section shall be known and may be cited as the “Uniform Statute of Limitations on Foreign Claims Act.”
      (b) General rule. The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this commonwealth, whichever first bars the claim.
      (c) Definition. As used in this section “claim” means any right of action which may be asserted in a civil action or proceeding and includes, but is not limited to, a right of action created by statute. 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

      . 1 Pa.C.S.A. § 1933 provides:
      1933. Particular controls general
      Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
      1972, Dec. 6, P.L. 1339, No. 290, § 3, imd. effective.

      . We note that in the recently circulated opinion in Miller v. Jolly, 347 Pa.Super. 218, 500 A.2d 485 (1985), a panel of this court considered the issue of whether the six-year statute of limitations provided in 42 Pa.C.S.A. § 6704(b), should be applied to bar a support action filed in Pennsylvania under the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C.S.A. §§ 6741-6780 (RURESA), against an obligor residing in Arizona. The panel held that the trial court erred in applying the Pennsylvania statute of limitations. The panel reasoned that the choice of law provision in section 6747 of the Act ("[d]uties of support applicable under this subchapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought”) mandated that any defenses available should be raised in an Arizona court applying Arizona law (i.e., the Arizona statute of limitations would be applicable.). However, we find that Miller does not dictate the application of the New Jersey statute of limitations in this case. The action in Miller was filed under RURESA, whereas the action in the instant case was filed under section 506 of the Divorce Code. Moreover, the claim in Miller accrued in, not outside of, Pennsylvania, as required by the Uniform Statute of Limitations on Foreign Claims Act. For these reasons, Miller is distinguishable from the instant case.
      We further note that in Wing v. Wing, 338 Pa.Super. 516, 488 A.2d 11 (1985), a panel of this court applied section 506 of the Divorce Code to enforce an alimony provision of a property settlement agreement incorporated into the parties’ 1978 Ohio divorce decree. In that case, however, it does not appear that the parties raised any issue as to the applicability of section 506 to divorce decrees entered prior to the enactment of the Divorce Code, and section 103 of the Code is not discussed.
      Lastly, we note that in Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985), in an opinion reversing the Superior Court, the Supreme Court addressed the issue of whether funds in the support obligor’s police pension were subject to attachment. In a footnote, 507 Pa. 45 n. 7, 488 A.2d 266 n. 7, the court noted that the appellant's petition to attach the pension funds had been filed pursuant to various provisions of the Divorce Code and that the lower courts had relied upon the Code in their dispositions of the case. Relying upon section 103 of the Code, the court concluded that the Code was inapplicable, since both the divorce decree and the property distribution order had been entered prior to the effective date of the Code. However, Young is distinguishable from the instant case inasmuch as the petition in Young was not filed pursuant to section 506 of the Divorce Code, but rather, was filed pursuant to section 403 of the Code. See Young v. Young, 320 Pa.Super. 269, 272, 467 A.2d 33, 34 (1983).