author: BROSKY, Judge: CIRILLO, President Judge, ROWLEY, Judge, OLSZEWSKI, Judge, POPOVICH, Judge,

text:
    560 A.2d 183
    William TINDAL, Jr. and Delores Rollins & Carl Rollins v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Robert Addison and William Tindal Jr., Additional Defendant. Appeal of Robert ADDISON and Southeastern Pennsylvania Transportation Authority.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed June 12, 1989.

      Stephen S. Dittmann, Philadelphia, for appellants.
    Alan Greenberg, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.
   BROSKY, Judge:

This appeal is from the judgment entered on molded verdicts awarded in favor of appellees, Carl Rollins (hereinafter, “Rollins”), and Delores Rollins (hereinafter, “Mrs. Rollins”), and against appellants, Southeastern Pennsylvania Transportation Authority (hereinafter, “SEPTA”), and Robert Addison (hereinafter, “Addison”), and William Tindal, Jr. (hereinafter, “Tindal”). Appellants raise two interrelated issues before the court en banc. The first is whether they have a due process right to an evidentiary hearing to determine their responsibility for the payment of delay damages. Appellants’ second contention assumes, for the purpose of argument, their liability for delay damages. However, they question whether delay damages should be allocable either jointly and severally as against all liable defendants or whether they should be apportioned only against a particular defendant’s liability.

Pursuant to the mandate of Pa.R.C.P. 238, newly promulgated as the embodiment of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), we reverse and vacate the judgment entered on the award, as molded, and remand with instructions. Our reasoning follows.

The procedural genesis of this suit is a complaint filed on December 1, 1978, by appellees and Tindal against appellants as a result of an intersectional collision between a motor vehicle driven by Tindal and a SEPTA bus operated by appellant, Addison. Appellees were passengers in the Tindal vehicle.

Pursuant to Pa.R.C.P. 2252(d), appellant, SEPTA, filed New Matter joining Tindal as an additional defendant. By Order of June 15, 1979, the President Judge of the trial court stayed the instant litigation because Tindal’s insurer, Safeguard Mutual Insurance Company, had become insolvent, as a result of which the Insurance Commissioner suspended Safeguard from conducting business in Pennsylvania. According to the Opinion of the trial court, this stay terminated on October 2, 1982.

Pursuant to a pre-trial conference, the trial court entered an Order dated November 2, 1984, which indicated that Rollins’ wage loss was, as yet, unascertainable because requested copies of Rollins’ tax returns had not been received by counsel for appellants.

A settlement figure for Mrs. Rollins of nine thousand dollars ($9,000.00) was recommended by the Court. However, at oral argument on post-trial motions, counsel for SEPTA conceded that it had never made a written offer of settlement. At a subsequent pre-trial conference, the trial court entered another Order dated December 7, 1984, indicating that Tindal’s settlement offer to Rollins was the policy limit of fifteen thousand dollars ($15,000.00), and that an offer of two-thousand dollars ($2,000.00) by Tindal to Mrs. Rollins had also been made. At that time, the trial court granted a continuance for the period December 17, 1984, through December 30, 1984, because appellants’ expert witness was unavailable for trial for this period of time.

Trial commenced on January 29, 1985, and terminated on February 5, 1985, culminating in a verdict in favor of appellees as follows: for Rollins, in the amount of seventy thousand dollars ($70,000.00); for Mrs. Rollins, in the amount of fifteen thousand dollars ($15,000.00) for her injuries due to the accident and in the amount of five thousand dollars ($5,000.00) for her derivative claim of loss of consortium. Tindal was determined to be seventy percent (70%) liable and both SEPTA and Addison together were found to be thirty percent (30%) negligent. On February 13,1985 (by document filed February 15, 1985), the trial court molded the verdicts to reflect delay damages.

Post-trial motions for a new trial, which included a motion to reduce the molded verdicts, were filed on behalf of SEPTA and Addison and orally argued on November 4, 1985. By Order filed December 81, 1985, the trial court denied appellants’ post-trial motions for a new trial and to reduce the molded verdicts and entered judgment on the verdicts, as earlier molded. From the judgment entered, an appeal was taken to this court on January 29, 1986, at No. 00291 Philadelphia, 1986. In a per curiam Memorandum Opinion filed January 21, 1987, 363 Pa.Super. 649, 522 A.2d 666 this court remanded for further proceedings consistent with Craig.

Following remand, the trial court, by Order entered March 19, 1987, vacated its previous Order filed December 31, 1985, and entered judgment on the verdicts as remolded, in the amount of ninety thousand, three dollars ($90,003.00) in favor of Rollins and twenty-five thousand, seven hundred fifteen dollars ($25,715.00) for Mrs. Rollins. This latter figure represents the aggregate amount for both the direct and the derivative claims made by Mrs. Rollins. Following entry of judgment on the verdicts as remolded, appellants once again appealed to this court.

As their threshold issue, appellants urge that, upon initial remand of this case by us for consideration in light of Craig, the trial court “failed to hold an evidentiary hearing or to make findings as to what extent ... SEPTA was responsible for any alleged delay.” Appellant’s Brief, 6.

The basis for the trial court’s reduction of delay damages and its consequent remolding of the verdicts on remand was its exclusion from the period of alleged delay the one hundred-eighty-seven-day stay imposed by the President Judge of the Philadelphia County Common Pleas Court as a result of the insolvency of Tindal’s insurer, Safeguard Mutual Insurance Company. The trial court believed that the mere deduction of the period of time in which the litigation was stalled because of administrative concerns — a period of delay for which neither party was responsible — without further ascertainment of fault on the part of the respective parties for the balance of the delay period was tantamount to compliance with Craig. In short, the trial court simply deducted the period of time encompassed by the stay from the total time between one year following accrual of the cause of action and the date of verdict and then charged the balance of the time to appellants.

Appellants’ dispute is two-fold. First, they contest their liability for delay damages at all; secondly, assuming that a court would find them liable for at least some delay, appellants seek a judicial determination as to the extent of their responsibility for delay damages. Appellants argue, in essence, that “the Trial Court has stopped short of the due process requirement [of holding an evidentiary hearing] as to ... SEPTA to determine what period of delay is to be assessed against a particular defendant[,]” (Appellant’s Brief, 7) i.e., against appellants and against Tindal, as well. They further charge the trial court with failing to “sufficiently evaluate the cause of the delay____” Id.; emphasis in text. We interpret this to mean the failure of the trial court, in considering the total amount of delay, to assess responsibility for delay according to the respective faults of appellants and appellees. A contrary suggestion would work a patent distortion upon its otherwise clear language.

Consequently, the trial court’s belief that it had complied with the dictates of Craig by virtue of its elimination from the computation of delay damages the span of time encompassed by the stay Order from the total time lapsing between accrual of the cause of action and the date of verdict is contradistinct to the express mandate of the new Rule in subsection (b) thereof as follows:

(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of
(i) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsible entity,
and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff or
(2) during which the plaintiff caused the delay of the trial.

It is clear from the above that the newly enacted Rule does not permit the exclusion from the calculation of delay damages periods of delay for which no party is responsible due to extraneous administrative concerns. Moreover, the assumption that this delay is solely attributable to appellants without conducting further fault-finding proceedings is tantamount to a procedure “that punishes a defendant qua defendant ... [and] smack[s] of a substantive enlargement of duties owed.” Craig at 65, 512 A.2d at 1353.

Relative to the matter at bar, we are remanding to the trial court for the holding of an evidentiary hearing in light of the newly promulgated Rule 238. At this hearing, the trial court shall ascertain all instances of fault-based delay caused by appellees. If the trial court concludes, after hearing, that fault-based delay on the part of appellees exists, it shall proceed to subtract that period of time involved in appellees’ delay from the total delay time assessed against appellants.

As we noted at the genesis of our discussion, SEPTA never made a written offer of settlement and conceded as much at argument on post-trial motions. A written offer of settlement is sine qua non to the tolling of the delay damage period under newly effective Rule 238(b)(1) {supra at 8-9) as it was under subsection (e) of its predecessor Rule. At first blush, it appears, then, that SEPTA would be liable for payment of delay damages for the entire period commencing one year from the date of the accrual of the cause of action to the date of verdict. See new Rule 238(a)(2)(i). Subsection (b) thereof is express in terms of allowable exclusions. Under subsection (b)(1), the requisite offer of settlement must be made in writing, maintained in effect for the period provided by the Rule, not accepted by the plaintiff and, finally, not exceeded by more than one-hundred twenty-five percent (125%) of the ultimate verdict rendered. However, subsection (b)(2) provides that alternative exclusions may become applicable when the trial court determines that the plaintiff has caused some delay which has actually impeded the normal progress of the case towards trial. This is precisely what the trial court failed to consider on initial remand and what it is directed to determine upon remand this time.

To explicate, we direct the trial court, on remand, to conduct an evidentiary hearing at which the entire record will be scrutinized for instances of delay attributable to the fault of appellees which actually stalled the trial of this case. In this regard, the Comment to new Rule 238 reminds that “not every procedural delay [as to appellees] is relevant to the issue of delay damages, but only such occurrences as actually cause the delay of the trial.” Hence, the trial court shall not subtract any period of time where delay on the part of appellees, if any, has not contributed to the breakdown of the normal progress of the litigation. In considering whether appellants’ delay for failing to offer to settle can be mitigated by any corresponding fault-based delay on the part of appellees as contemplated by the new Rule, the trial court is directed to consider the entire period from December 10,1978, which is one year after the accrual of the cause of action (see new Pa.R.C.P. 238(a)(2)(i)), to February 5, 1985, the date of verdict.

We are mindful that newly promulgated Rule 238 in subsection (c) thereof and Craig do not require the trial court to hold a hearing. Instead, the court may determine the application for delay damages solely upon Petition and Answer. Craig notes that a hearing may be held where factual disputes exist. The Comment to the new Rule further explains:

Rule 238 as revised is not a balancing test which weighs every procedural maneuver of the parties. It does not mandate a hearing on delay damages in every case, but permits a hearing when the award of such damages is opposed by the defendant, an issue of fact is raised and the court feels that a hearing would be useful. It is an attempt to inject fairness into the rule and to balance that fairness with efficient judicial administration.

We believe that the foregoing observation by our Supreme Court contemplates the situation with which we are faced instantly. Appellants oppose the assessment of delay damages as against them without the holding of further fault-finding proceedings relative to a finding of fault, if any, on the part of appellees as a result of which they may be able to mitigate their responsibility for the payment of delay damages. This concern, in our view, is sufficient to raise the need to hold such a fact-finding hearing, and we so order.

In their second issue to this court, appellants assume, for the purpose of argument, that they are, indeed, responsible for delay damages. After the trial of this case, the jury rendered a verdict finding both appellants and Tindal liable for injuries. Appellants were determined to be thirty percent (30%) negligent in causing the injuries sustained by appellees with the remaining seventy percent (70%) being attributed to the negligence of Tindal.

The parties have raised no issues relative to the underlying cause of action on appeal. Instead, appellants now ask this court to decide whether they should be jointly and severally liable on the total amount of delay damages of twenty-five thousand, seven hundred eighteen dollars ($25,-718.00) (which is exclusive of the verdict), as they would be on the jury verdict, or whether their responsibility should be limited to their corresponding liability on the verdict (i.e., thirty percent). This concern seems to have been generated by the apparent inability of Tindal to meet his obligations on the underlying verdict due to the insolvency of his insurer, Safeguard Mutual.

Appellees rely on our Supreme Court’s summary affirmance in Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985), of this court’s determination that SEPTA was jointly and severally liable for that portion of delay damages attributable to the delay of another tortfeasor. See 330 Pa.Super. 420, 479 A.2d 973 (1984). As the predicate for its conclusion, this court likened a tortfeasor’s liability for delay damages to his corresponding responsibility for a damage award on the original cause under the provision of the comparative negligence law which allows a plaintiff to recover the full amount of an award from any tortfeasor who is not otherwise judgment proof. In essence, a plaintiff may, under this statute, recover against a tortfeasor in excess of the latter’s pro rata share of damages in a suit where multiple tortfeasors are found liable. The statute further allows the overpaying tortfeasor to seek contribution from the other responsible defendants for such overpayment. See 42 Pa.C.S.A. § 7102(b).

Liability normally follows verdict. Therefore, appellants are jointly and severally responsible for the entire amount of delay damages because they are jointly and severally liable for the entire amount of the verdict. This result logically obtains from the new Rule which, while labelled “delay damages,” is really in the nature of prejudgment interest to be added to compensatory damages awarded at verdict. Moreover, the express language of Rule 238 requires that damages for delay “become part of the verdict, decision or award.” Pa.R.C.P. 238(a)(1).

In sum, we hold that considerations of due process militate in favor of appellants’ entitlement to an evidentiary hearing to ascertain the existence of any period(s) of fault-based delay on the part of appellees as discussed supra. In this case, the trial court, in failing to conduct an evidentiary hearing after our initial remand, “sought [to] run too tight a gauntlet through Due Process [ ] by denial of a forum to assess fault for the delay sought to be avoided[,]” Craig at 65, 515 A.2d at 1353, or, at least, mitigated.

Hence, since delay damages have not been determined in accordance with this new Rule, we vacate, reverse and remand for an evidentiary hearing to determine which periods of delay, if any, were caused by appellees and for a remolding of the verdict, if necessary, pursuant to those findings.

Judgment on the verdicts as remolded is vacated and reversed. Matter remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

McEWEN, J., did not participate in the consideration of or decision of this appeal.

CIRILLO, President Judge, and OLSZEWSKI, J., files concurring and dissenting statements.

ROWLEY, J., joins the majority and files a concurring statement.

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

CIRILLO, President Judge,

concurring and dissenting:

I respectfully dissent from the result reached by the majority here. I would not remand this case to the trial court with instructions that it reassess delay damages in accordance with new rule 238 for reasons more fully expressed in my dissenting opinion in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc) (Cirillo, P.J., dissenting). I would remand with instructions that the court determine delay damages pursuant to the Pennsylvania Supreme Court’s decision in Craig v. Magee Memorial Rehabilitative Center, 512 Pa. 60, 515 A.2d 1350 (1986), as explicated by that court’s promulgation of new rule 238. See Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc) (Cirillo, P.J., dissenting). As I stated in my dissent in Miller, “[e]ven though the delay damages determination was made using an improper standard, the determination was made, and the issue resolved.” Miller, 381 Pa.Super. at 244, 553 A.2d at 447.

I do, however, agree with Judge Brosky’s discussion of the proper method by which to apportion delay damages among multiple defendants. I therefore concur in that portion of his majority opinion which deals with the issue of apportionment.

ROWLEY, Judge,

concurring:

I join in the Opinion of the majority, and write separately only in order to point out the distinction between the present case, in which plaintiffs/appellees were awarded prejudgment interest (“delay damages”) by the trial court and defendants/appellants’ request for remand was granted by this Court, and King v. SEPTA, 383 Pa.Super. 420, 557 A.2d 11 (1989), in which plaintiff/appellee was awarded prejudgment interest by the trial court but defendant/appellant’s request for remand was not granted by this Court.

The factor which distinguishes the two cases is the merit, or lack thereof, of the issues raised by the appellants. In the case before us, one of the issues raised by defendants/appellants is, as the majority explains, the trial court’s failure to assess plaintiffs/appellees' responsibility, if any, for pretrial delay. This claim for relief is a meritorious one under new Rule 238, which directs that periods of time during which the plaintiff caused delay of the trial shall be excluded from the period for which prejudgment interest is awarded. Remand to the trial court for the limited purpose of holding an evidentiary hearing to evaluate plaintiffs/appellees’ responsibility for delaying the trial is, therefore, necessary in the present case.

In King v. SEPTA, by contrast, “[t]he sole issue presented for our review [by defendant/appellant SEPTA was] whether the trial court erred in awarding ‘delay damages’ to [plaintiff/appellee] after having found that the delay encountered in litigating the case was not the fault of either party.” Id., 383 Pa.Superior Ct. at 420, 557 A.2d at 11 (emphasis in original). Defendant/appellant conceded that plaintiff/appellee was not at fault in delaying the trial, but argued that its own lack of fault should bar any award of prejudgment interest. We held that this claim did not entitle defendant/appellant to relief, as the drafters of new Rule 238 “have not allowed for the exclusion of periods of delay not caused by either party.” Id., 383 Pa.Superior Ct. at 424, 557 A.2d at 13 (quoting Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 242, 553 A.2d 443, 446 (1989)). Because defendant/appellant was not entitled to relief under new Rule 238 and plaintiff/appellee sought none, remand to the trial court in King v. SEPTA, unlike in the present case, was unnecessary.

OLSZEWSKI, Judge,

concurring and dissenting:

I agree with the majority in every respect except on its holding that appellants are jointly and severally responsible for the entire amount of delay damages. I am of the opinion that such a result, in some situations, will unfairly and unjustly place a penalty for delay damages on a party who may not be responsible for the entire amount.

Therefore, I would hold that the extent of appellants’ responsibility for payment of damages for delay should be in direct proportion to the amount of delay that they have actually generated minus the amount of delay attributable to appellees’ conduct.

POPOVICH, Judge,

concurring and dissenting:

To the extent the Majority acknowledges the use of a “fault-based” standard for the imposition of delay damages, first enunciated by our Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), I join in the remand requiring the trial court to conduct an evidentiary hearing to ascertain the presence of “fault” and its apportionment.

However, because the trial court made its determination regarding delay damages in conformance with what it believed was called for by Craig, the matter should be controlled by the procedure which existed prior to the promulgation of the November 7, 1988 new Rule 238. In any case, my belief is that the overriding consideration prior to the awarding of delay damages is the ascertainment of “fault” against the party whom the damages are sought to be imposed. Therefore, where purely administrative court-related matters impair the bringing a case to trial, I can see no justification for placing the mantle of liability, solely as a matter of course, upon a defendant. This, in my view, strikes of a pro forma application of Rule 238 violative of the spirit of the Rule and Craig.

Thus, for the reasons herein stated, I respectfully dissent to a portion of the Majority’s rationale implying that the calculation of delay damages against a defendant should be effectuated where he/she/it had no hand in the prolongation of the case to completion.

      . As set forth in text, supra, Tindal, the driver of the automobile involved in the subject collision with the SEPTA bus, filed suit, together with his passengers, the Rollinses, appellees herein, against SEPTA and Addison, the driver of the bus. Thereafter SEPTA, pursuant to Pa.R.C.P. 2252(d), filed New Matter in which it joined Tindal as an additional defendant. Although Tindal was ultimately found jointly liable with SEPTA and Addison, he is not a party to this appeal.

      . At argument on post-trial Motions, appellants were primarily concerned with facing the possibility of being held ultimately responsible for payment of delay damages assessed not only against them but also against Tindal, whose insurance carrier was declared insolvent. Their argument focused not on their blamelessness for causing any delay but, rather, in favor of the proposition that their accountability should be limited in proportion to their liability on the underlying verdict.

      . There is, in particular, a suggestion in the majority opinion of fault on the plaintiffs’ part for failing to deliver promptly the tax returns that were essential to the determination of plaintiffs’ wage loss. On remand the trial court will have to determine 1) whether plaintiffs were in fact at fault in this regard and 2) if so, whether their dilatory response caused delay of the trial.

      . It is interesting to note that on the criminal side, judicially caused delay is excluded from the running of the 180-day time-frame for bringing an accused to trial under Pa.R.Crim.P. 1100. See Comment to Rule 1100. Yet, the majority proposes to add court-related delay to the computation of delay damages. Although the former impacts on a defendant’s freedom of movement, while the latter is preoccupied with the deprivation of a defendant's proprietary interest in order to make the plaintiff "whole” monetarily, I can see no legitimate justification for excluding judicially caused delay in one and including it in the other.
      I would treat both circumstances in the same manner and exclude that period of time attributable to judicially caused delay.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    560 A.2d 191
    Harry M. ZERBEY and Joseph H. Zerbey, IV, Appellees, v. J.H. ZERBEY NEWSPAPERS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1989.
    Filed June 12, 1989.

      J. Tomlinson Fort, Pittsburgh, for appellant.
    John M. Elliott, Philadelphia, for appellees.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from a summary judgment entered by an Order of the Court of Common Pleas of Schuylkill County in favor of the appellees, Harry M. Zerbey and Joseph H. Zerbey, IY. It is axiomatic that a motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The court, in considering a motion for summary judgment, must examine the record before it in the light most favorable to the nonmoving party and resolve all doubt against the moving party. In the instant case, the trial court was cognizant of these principles, and we find no error in the entry of summary judgment. Consequently, we affirm.

In January of 1985, Mrs. Joseph H. Zerbey, III, the original plaintiff in this action, filed a complaint which requested the court to order the appellant, J.H. Zerbey Newspapers, Inc., to make available for Mrs. Zerbey’s inspection and copying the following records of the corporation:

a. Salaries of all officers, directors, and employees and consultants, including former employees engaged as consultants, from 1980 to the present;
b. Bonuses paid to all officers, directors, and employees and consultants, including former employees engaged as consultants, from 1980 to present;
c. Pension contributions made by and to all officers, directors, and employees and consultants, including former employees engaged as consultants, from 1980 to the present and review the complete actuary report for the years 1980 through 1983;
d. Any other remuneration paid to all officers, directors, and employees and consultants, including former employees engaged as consultants, from 1980 to the present, including reimbursement for expenses; and
e. Any travel expenses or reimbursement paid to senior staff from 1980 to the present or officers, directors, employees and consultants, including former employees engaged as consultants.

R.R. at 6a. At the time of the filing of this complaint, Mrs. Zerbey was a stockholder in Zerbey Newspapers, holding ten shares. Following Mrs. Zerbey’s death on May 31, 1986, her shares passed equally to her sons, appellees Harry M. Zerbey and Joseph H. Zerbey, IV. Appellees were substituted as plaintiffs in this action on August 13, 1986.

This action has been brought pursuant to various provisions of 15 Pa.S.A. § 1308:

B. Every shareholder shall, upon written demand under oath stating the purpose thereof, have a right to examine in person or by agent or attorney, during the usual hours for business for any proper purpose, the share register, books or records of account, and records of the proceedings of the shareholders and directors, and make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a shareholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the shareholder. The demand under oath shall be directed to the corporation at its registered office in this Commonwealth or at its principal place of business.
C. If the corporation, or an officer or agent thereof, refuses to permit an inspection sought by a shareholder or attorney or other agent acting for the shareholder pursuant to subsection B of this section or does not reply to the demand within five business days after the demand has been made, the shareholder may apply to the court of common pleas of the county in which the registered office of the corporation is located for an order to compel such inspection. Such court of common pleas is hereby vested with exclusive jurisdiction to determine whether or not the person seeking inspection is entitled to the inspection sought. The court may summarily order the corporation to permit the shareholder to inspect the share register and the other books and records of the corporation and to make copies or extracts therefrom; or the court may order the corporation to furnish to the shareholder a list of its shareholders as of a specific date on condition that the shareholder first pay to the corporation the reasonable cost of obtaining and furnishing such list and on such other conditions as the court deems appropriate. Where the shareholder seeks to inspect the books and records of the corporation, other than its share register or list of shareholders, he shall first establish (1) that he has complied with the provisions of this section respecting the form and manner of making demand for inspection of such document; and (2) that the inspection he seeks is for a proper purpose. Where the shareholder seeks to inspect the share register or list of shareholders of the corporation and he has complied with the provisions of this section respecting the form and manner of making demand for inspection of such documents, the burden of proof shall be upon the corporation to establish that the inspection he seeks is for an improper purpose. The court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other or further relief as the court may deem just and proper. The court may order books, documents and records, pertinent extracts therefrom, or duly authenticated copies thereof, to be brought within this Commonwealth and kept in this Commonwealth upon such terms and conditions as the order may prescribe.

There is no question that Mrs. Zerbey, prior to filing her complaint, did make a written demand, under oath, for the right to examine various documents and records of Zerbey Newspapers, which was refused. The central dispute is whether Mrs. Zerbey, and now substituted plaintiffs, Harry M. Zerbey and Joseph H. Zerbey, IV, have set forth a “proper purpose” within the meaning and intent of 15 Pa.S.A. § 1308.

In her original demand letter to Zerbey Newspapers, which was attached to the complaint, Mrs. Zerbey stated that the purpose for the requested inspection of corporate documents was “to determine the nature and extent of certain corporate expenditures which effect my interest in J.H. Zerbey Newspapers, Inc.” R.R. at 9a. Appellees Harry M. Zerbey and Joseph H. Zerbey, IV, continue to adopt this reason as the purpose for the document inspection request, id. at 582a and 631a, and Joseph testified as follows during his February 3, 1987, deposition:

Q. What is your purpose in wanting to see information concerning every employee whether salary or on an hourly basis no matter what their responsibility since 1980?
A. I believe — being in business, I believe it’s important to find out how the business is operated. I believe it’s important to know whether or not these hourly rates and/or salaries are in line with industry standards. To give one a sense of how the business is run, one should be able to see all the parts to that.
Q. But I’m asking if you have any information from other sources that, in fact, former employees are being paid salaries or hourly rates other than by pensions.
A. Yes.
Q. What information do you have?
A. It was information about a former employee, I believe the editor, who was still being paid by the corporation but was no longer physically present in the newspaper but residing in another state.
Q. What is the identity of that person?
A. I believe his name was Costello.
$ ‡ $ $ $ $
Q. Do you have any other information concerning payments made other than by pension to former employees?
A. Not information. I’ve seen some bylines of former employees contributing written articles to the newspaper. Obviously I don’t know whether or not they’ve been paid.
Q. Can you identify those employees, please?
A. No. Just several of them. A name that comes to me is Estelle Powers for one. I’ve seen her byline.
Q.....My question is why do you want [the information concerning bonus payments?]
A. Because I think it’s important for a stockholder of a closed small corporation to be able to know if the corporation has paid bonuses to any officers, directors, employees, consultants, including former employees acting as consultants, in order to know if the property is being properly managed.
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Q. Do you have any information or reason to believe that the pension contributions made by J.H. Zerbey Newspapers, Inc., are not in accordance with industry standards____
A. It is really noninformation. When I requested it as a director, I was provided pension information with all names whited out. It would lead one to believe that there was obviously a reason. I got information that was incomplete.

R.R. at 586a-587a, 589a, 590a, 596a, 599a.

The trial court specifically found that the appellees set forth a proper purpose to support their request to inspect certain corporate documents and records of Zerbey Newspapers. This decision cannot be properly considered without a general understanding of the corporate structure of Zerbey Newspapers. Zerbey Newspapers is not a publicly held corporation. The Zerbey Trust owns 5,960 shares of the 6000 outstanding shares of this corporation. Four directors of the Zerbey Newspapers also serve as trustees of the Zerbey trust: Thomas A. Elliott, Jr., Lewis M. Koch, Paul Orkin, Willis R. Parnell. There are eleven directors of Zerbey Newspapers, and appellee Joseph M. Zerbey, IV, is one of them. However, appellee Joseph M. Zerbey did not become a director until January 31, 1985. Other directors include Uzal H. Martz, Jr., president and editor of Zerbey Newspapers, and his sister Johanna Zerbey Martz (who jointly own nine shares), and their cousin Margareta Lazarus Paduch (who owns one share). These latter three individuals are also income beneficiaries of the Zerbey Trust, as are the appellees.

At the time of Mrs. Zerbey’s request for inspection of corporate documents, appellees had instituted an action seeking to be declared directors of Zerbey Newspapers and to oust the incumbent directors of the company. R.R. at 647a. Previously, appellees Harry Zerbey and Joseph H. Zerbey, IV, had successfully appealed a final decree which had interpreted the will of their great-grandfather, Joseph Henry Zerbey, in such a way as to preclude them from being recognized as income beneficiaries under the Zerbey Trust. This Court, in Estate of Zerbey, 313 Pa.Super. 297, 459 A.2d 1237 (1983), reversed the trial court and held that the term “my grandchildren” in the will of Joseph Henry Zerbey also included the children of deceased grandchildren. Thus, Harry Zerbey and Joseph H. Zerbey, IV, were recognized as income beneficiaries of the Zerbey Trust, along with the grandchildren of the testator: Johanna Zerbey Martz, Uzal Martz, Jr., and Margareta Lazaruas Paduch. Further, in October of 1984, Trustee Paul Orkin requested that information substantially similar to that requested by Mrs. Zerbey be furnished to him. This request came in response to a proceeding, brought by Uzal H. Martz, Jr., and others, wherein petitioners sought a court order to remove Paul Orkin as a Trustee of the Zerbey Trust. Mr. Orkin, in his petition requesting the production of corporate documents, alleged that Uzal Martz had refused to supply him with access to certain corporate records. Mr. Orkin claimed that he had received information that Uzal Martz had a practice of unilaterally awarding substantial bonuses to himself and to others without referral to the directors of Zerbey Newspapers and that Uzal Martz was receiving excessive compensation. Also, Mr. Orkin claimed that he had been provided with incomplete information concerning the corporation’s pension program.

It is against the above backdrop that, in 1985, Mrs. Zerbey filed her request pursuant to 15 Pa.S.A. § 1308. In responding to the request, Zerbey Newspapers set forth the following new matter:

11. The information requested in the alleged Demand for Inspection is sought for an improper purpose, namely for the use by persons who are not shareholders of J.H. Zerbey Newspapers, Inc., and whose interests are in fact adverse and inimical to J.H. Zerbey Newspapers, Inc.
12. The persons described in the preceding paragraph demonstrated their adversity to J.H. Zerbey Newspapers, Inc., by initiating litigation against the corporation, its officers, and its directors.
13. The information sought in the alleged Demand for Inspection is of a sensitive and confidential nature and could be used by those persons to the detriment of J.H. Zerbey Newspapers, Inc.

R.R. at 17a-18a. It is clear that the appellees in the case at bar were those nonshareholders, referred to in the above pleading, with interests alleged to be “adverse and inimical” to Zerbey Newspapers.

The trial court, in considering the summary judgment motion filed by appellees, was provided with the deposition testimony of Uzal H. Martz, Jr. In his May 1, 1985, deposition, Mr. Martz testified that he believed Mrs. Zerbey had requested the document inspection to help the actions of her sons “to put themselves on the Board [of Directors], or on certain committees of the Board. Id. at 97a. Mr. Martz also testified that “... I and all members of the Audit and Personnel and Pension Committees feel that the individual salaries are of the highest order of confidentiality and sensitivity.” Id. at 174a. In a later deposition, taken on October 1, 1985, Mr. Martz testified that “[t]here are no bonuses paid to anyone in the newspaper.” Id. at 250a. When questioned concerning whether Zerbey Newspapers had made loans to any officers or directors, Mr. Martz testified that one loan had been made to him personally:

A. That loan was made in 1974, by the Board of Directors. It was a $55,000 loan, fully collateralized by life insurance, second mortgage, promissory note, provided for annual repayments of $2,500 twice a year. Details have been in the financial statements, and Price Waterhouse has certified in the financial statements that it’s paid down as agreed.
Q. And is that loan paid off?
A. Today there is a $12,500 balance outstanding.

Id. at 277a. This loan was made on a no interest basis. Id. at 335a.

Two affidavits of Uzal H. Martz, Jr., were also before the trial court as it considered appellees’ summary judgment motion. In his June 13, 1988, affidavit, Mr. Martz states that Zerbey Newspapers is audited annually by Price Waterhouse-and that each director receives detailed financial information concerning the balance sheet, revenue, and expenses on a monthly basis. Mr. Martz also testified as follows:

In my opinion, Plaintiffs Harry M. Zerbey and Joseph H. Zerbey, IV, do not have a proper purpose for requesting this information. On the contrary, this request and the instant litigation- are part of a continuing pattern of harassment whereby Joseph H. Zerbey, IV, in particular, seeks to. exercise increased control over Defendant Zerbey Newspapers, particularly by forcing his election to the Journalistic and Marketing Committee of the Board of Directors.
With a vague and generalized statement of purpose, Plaintiffs seek to examine detailed and sensitive financial and personal records of all officers, employees, and consultants of Defendant Zerbey Newspapers, without a shred of evidence of any misdoing and in the face of the careful auditing and control procedures of the Board of Directors and its committees.

R.R. at 646a, 649a.

The right of a stockholder in a corporation to inspect corporate records was recognized very early in our common law. In one case, Kuhbach v. Irving Cut Glass Company, 220 Pa. 427, 69 A. 981 (1908), a stockholder filed a petition to compel production of corporate documents, including pay roll and sales books. In his petition, the stockholder set forth facts alleged to demonstrate reckless mismanagement of the corporation by its officers. The evidence revealed that the company had experienced a decline in dividends and an increase in outstanding debt. The corporation denied the allegations of mismanagement and alleged that the shareholder was “not acting in good faith for the reason that he is a director in a competing glass company and desires the information that it may be used to the advantage of that company.” Id., 220 Pa. at 430, 69 A. at 982. The Supreme Court first dismissed the claim that the stockholder’s contacts to a competing company would deprive him of the right to inspect corporate documents, finding that this fact “does not necessarily show an improper purpose in making demand for inspection.” Id., 220 Pa. at 432, 69 A. at 982 (citation omitted). In finding that the stockholder had set forth a proper purpose for an inspection of corporate records, the Supreme Court opined:

As we have suggested, the stockholders are the owners of the company’s assets, and for the protection of their interests they have a right to be informed of the management of its business. If, therefore, there is apparent mismanagement or misconduct by the officers of the corporation, a stockholder has a right to make an investigation for himself and ascertain the true condition of the company’s affairs. Of course, this right to examine the books, records and papers of the company must be exercised in good faith and at a proper time and place so as not to interfere with the business of the company____
It is settled at common law a stockholder of a trading corporation has a right to examine the books and papers of the company at a reasonable time and place, and for a proper purpose.

Id., 220 Pa. at 433, 69 A. at 983.

The Pennsylvania Supreme Court, in Hodder v. George Hogg Company, 223 Pa. 196, 72 A. 553, 554 (1908), again addressed the right of a stockholder to inspect the books and records of a corporation. There, the stockholder alleged, inter alia, that statements of the corporation were not a correct reflection of actual profits, that salaries of officers were improperly increased, and that dividends should have been declared. As in Kuhbach, the corporation denied mismanagement and alleged that the stockholder “was not acting in good faith, and that he was interested in a rival concern, and that his purpose was to force a purchase of his stock at an unreasonable price.” Id., 223 Pa. at 198, 72 A. at 553-54. The Supreme Court affirmed the order which had compelled the corporation to arrange for an inspection of its books by the stockholder:

Realtor as a stockholder has without question the right to inspect the books of the company, at a proper time, and in a proper way, even though his only object is to ascertain whether the business has been properly conducted. Such a right is necessary for the protection of stockholders. The Realtor seeks at the present time merely for information. It may be that as a result of his examination of the books and of the records his suspicions will be shown to be groundless.

Id. See also Taylor v. Eden Cementery Co., 337 Pa. 203, 10 A.2d 573 (1940) (recognizing that a shareholder, seeking to examine corporate books, is vitally concerned with the salaries paid to officers because exorbitant salaries decrease the net proceeds earned by the corporation, thus reducing the return from the initial investment in the stock).

In Klein v. Scranton Life Insurance Co., 139 Pa.Super. 369, 11 A.2d 770 (1940), the trial court had refused to allow an examination of corporate books, finding that the stockholders “... at no time [set] forth any complaint or averment of mismanagement, wrongdoing, unlawful activity or any violation of any law or sound principle of management.” Id., 139 Pa.Superior Ct. at 375, 11 A.2d at 773. This Court reversed. In Klein, the stockholders’ stated purpose for seeking an inspection of corporate records was quite general: to ascertain whether the business of the corporation was being properly managed and for the purpose of soliciting proxies for use at the shareholders’ meetings. This Court found a proper purpose for the document inspection request and, in so doing, we stated:

It is not necessary for a stockholder to aver mismanagement or fraud to obtain his right to inspect corporate records. There is no evidence to sustain a finding that the examination of the books was sought for speculative purposes, rather than for the reasons averred in the bill____ The case of Hodder v. George Hogg Co. ... goes even further and establishes the right to inspect corporate records in a stockholder “even though his only object be to ascertain whether the business has been properly conducted.”

Id. Although the stockholder need not aver mismanagement or fraud, the Klein Court did recognize that an inspection should not be compelled for “speculative purposes” or to “ ‘... gratify idle curiosity or to aid a blackmailer____’” Id., 139 Pa.Superior Ct. at 376, 11 A.2d at 773 (citation omitted).

In Goldman v. Trans-United Industries, Inc., 404 Pa. 288, 171 A.2d 788 (1961), the Supreme Court analyzed the stockholder’s rights under The Business Corporation Law of May 5, 1933. At the time of the Goldman decision, the relevant statute provided as follows:

B. Every shareholder shall have a right to examine, in person or by agent or attorney, at any reasonable time, for any reasonable purpose, the share register, book or records of account, and make extracts therefrom.

15 P.S. § 1308 (1933, May 5, P.L. 364, art. Ill, § 308). The Goldman Court stated that this section of The Business Corporation Law was “merely a codification of the common law rule” which recognized a right in the shareholder to inspect the books of a corporation given a proper purpose for such a request. Id., 404 Pa. at 290, 171 A.2d at 790. In Goldman, judgment had been granted on the pleadings. The shareholders had alleged in their complaint that the affairs of Trans-United were not being properly managed and that the books of the company were irregular. They wanted to learn the salaries paid to officers and directors, the value of corporate shares, and the names of stockholders. The company alleged that the true purpose for the petition was “to gain control of the corporation through a general plan designed to deflate the market value of Trans-United Stock while simultaneously inflating the value of the stock of Son-Mark Industries, Inc., a holding company in which the [stockholders] have an interest and through which they intend to gain control of Trans-United.” Id.

The Supreme Court in Goldman reversed and remanded to allow evidence to be received relevant to the averments set forth by the corporation in its answer. The Court concluded that if the facts in the answer were proven, then no proper purpose could be found for a general examination of corporate records and books, in that the inspection would not further the interests of the stockholders of Trans-United or Trans-United itself. See also Hagy v. Premier Manufacturing Corporation, 404 Pa. 330, 172 A.2d 283 (1961) (corporation’s evidence that the stockholder’s demand to inspect records was in bad faith should have been heard by the trial court; plaintiff, a former president of the defendant corporation and owner of 44% of the corporation’s common stock, had made an agreement to sell his stock to the defendant corporation’s leading competitor in exchange for employment with that competitor and, further, plaintiff had supplied the competitor with confidential information concerning trade secrets of the defendant and had solicited defendant’s employees to work for such competitor).

The most recent case to address this area of the law is Sto-Rox Focus on Renewal Neighborhood v. King, 40 Pa.Commw. 640, 398 A.2d 241 (1979). There, as in the instant case, the plaintiff-stockholders based their request to examine corporate records on a general desire to determine whether the corporation had any financial irregularities and to apprise themselves of the corporate salaries, property, and income. “Plaintiffs suspected mismanagement, based upon reports of certain corporate activity; e.g., it was reported that county officials requested and were refused certain corporate financial information.” Id. at 645, 398 A.2d at 243. We find this analogous to the undisputed fact in the instant case that a director of Zerbey Newspapers, Mr. Orkin, had requested access to certain corporate records but his request had been denied. The Commonwealth Court, in Sto-Rox Focus on Renewal Neighborhood, recognized that the “[inspection of corporate records to determine whether a corporation is managed properly is a reasonable purpose.” Id. The corporation had maintained that no proper purpose had been set forth by the stockholders, because these particular stockholders were part of a group that vocally opposed corporate policies and leaders. Further, these stockholders made inquiries as to whether corporate funds were being properly expended. The Commonwealth Court, however, found no error in the trial court’s conclusion that a proper purpose had been established, noting that the corporation’s evidence “does not necessarily demonstrate an improper purpose or motivation for seeking to inspect corporate records.” Id.

Although the case at bar must be determined under 15 Pa.S.A. § 1308, as amended in 1968, there is no indication in the amended statute that the construction of a “proper purpose” to inspect corporate records differs from the construction of that term under the common law and under the prior statute. The case law which we have outlined above is thus applicable and guides us in the decision we now reach. Clearly, whether a stockholder has set forth a “proper purpose” to inspect corporate records is a determination which must be made on a case-by-case basis following a careful consideration of the surrounding circumstances of the document inspection request.

We find that the appellees have set forth a proper purpose because, as their deposition testimony reveals, they want to determine whether Zerbey Newspapers is being properly managed in a general sense, In particular, they want to determine whether corporate expenditures for such items as salaries and pensions conform with industry standards, and thus, whether these expenditures are in the best interests of Zerbey Newspapers. These are certainly purposes reasonably related to appellees’ interests as stockholders. Further, at the time of the original petition filed by Mrs. Zerbey, a director of the corporation, Mr. Orkin, had filed a petition to compel the production of corporate records, because he believed that certain corporate expenditures were excessive or unreasonable. This undisputed fact certainly creates a reasonable suspicion that Zerbey Newspapers was, and perhaps continues to be, improperly managed.

Zerbey Newspapers’ arguments that the request should be refused because the appellees’ concerns are unfounded and vague, or because appellee Joseph H. Zerbey, IV, desires a position on a corporate committee utterly fail to establish that the request has been made for an improper purpose. This is not a case of bad faith, where a stockholder is attempting to undermine or negatively affect the continued viability of the corporation. Further, appellees are not aligned with a competing corporation which could benefit from information contained in the records of Zerbey Newspapers. At most, Zerbey Newspapers has simply alleged that Joseph H. Zerbey, IV, wants to have more involvement in the management and future of Zerbey Newspapers. Zerbey Newspapers has gone to great lengths to show that it views its corporate expenditures to have been both reasonable and in the best interests of the corporation. It has emphasized the role of the independent auditors in the management and review of the financial stability and management of this corporation. However, it is well established in the legal precedent set forth above that the appellees are not bound to accept the statements and opinions of the officers of Zerbey Newspapers, made under oath or otherwise. See Kuhbach v. Irving Cut Glass Co., supra. Appellees have a right to make a personal inspection of the records and form their own opinion as to whether they agree that Zerbey Newspapers’ expenditures are reasonable or appropriate. Appellees have a right to verify, for example, that no bonuses have been paid and that the salaries of corporate officers are not excessive. The fact that appellees may ultimately conclude that Zerbey Newspapers has been managed honestly, competently, and reasonably does not derogate from their present right under 15 Pa.S.A. § 1308.

Finally, we reject, as did the trial court, any claim that inspection should not be ordered because of the alleged confidential or sensitive nature of the information in the records. Specifically, Zerbey Newspapers states in its brief to this Court that the amount of compensation paid by Zerbey Newspapers is “highly confidential”. Brief for Appellee at 39. This is a small, closed corporation, and appellees hold ten of the forty shares owned by private parties. Indeed, it may be that appellees are the only shareholders that do not have access to this information. It has never been alleged that the appellees intend to bring this information to the public light. Appellees have requested this information in order to determine whether, in their personal view, corporate expenditures are in line with industry standards. We fail to see how access to this information by these two individuals will in any way harm this particular corporation. In any event, 15 Pa.S.A. § 1308 provides that the trial court may, in its discretion, prescribe any limitations or conditions with reference to the inspection it orders. Zerbey Newspapers failed to request any limitation under this statute.

For all of the foregoing reasons, we affirm the order of the trial court, which determined that appellees had set forth a proper purpose, pursuant to 15 Pa.S.A. § 1308. No material facts are in dispute and appellees are entitled to judgment as a matter of law. Accordingly, appellees must be allowed to exercise their right to inspect the records of Zerbey Newspapers.

Order affirmed.

      . This action was ultimately rendered moot, when Joseph H. Zerbey, IV, was named as a director of Zerbey Newspapers during January of 1985.

      . We are not able to determine, from the record before us, what, if anything, ultimately resulted from Mr. Orkin’s document inspection request. However, this is irrelevant for the purposes of the instant appeal.

      . The Supreme Court did, however, affirm the order to the extent of allowing the stockholders to obtain the stockholder .list, recognizing that a stockholder’s right to this information is more liberally construed. "The primary purpose for this special treatment lies in the very nature and purpose for obtaining the- stockholders lists; i.e., to influence the vote at an impending stockholders’ meeting.” Goldman, supra, 404 Pa. at 292, 171 A.2d at 791.

      . Zerbey Newspapers filed a stay petition with this Court on August 29, 1988. On September 29, 1988, the Honorable Stephen J. McEwen, Jr., issued an Order requiring that appellees submit an itemized list of the documents to be produced under the trial court’s order. Zerbey Newspapers was then to deliver the documents under seal and protective order to the Court of Common Pleas of Schuylkill County to be held during the pendency of this appeal. It appears, from the reply brief filed by the appellant, that the parties have complied with Judge McEwen’s order and have reached an agreement as to the specific documents which will be provided to the appellees to be examined.


author: OLSZEWSKI, Judge:

text:
    560 A.2d 199
    Deborah F. ROCK, Appellee, v. James S. ROCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1989.
    Filed June 12, 1989.

      Joel F. Bigatel, Philadelphia, for appellant.
    Madeline H. Lamb, West Chester, for appellee.
    Before BROSKY, McEWEN, and OLSZEWSKI, JJ.

       McEwen, J., did not participate in the consideration or decision of this case.

   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County directing appellant to: (1) pay $180.00 per week for the support of one child, $100.00 per week for spousal support, $10.00 per week toward arrears; and (2) maintain medical insurance and pay all of his child’s unreimbursed medical expenses.

The Rocks were married on May 21, 1980, and separated in February of 1988. Mrs. Rock, accompanied by her and Mr. Rock’s daughter, Jamie Cooper Rock, age 8, left the marital residence. On February 25, 1988, Mrs. Rock filed a complaint for support. A conference was held, after which a temporary agreement was entered. The agreement provided that Mr. Rock would pay support in the amount of $125.00 per week.

Following a hearing before a support master, an order of child and spousal support was entered. Timely exceptions were filed, and a de novo hearing was held before the Honorable John A. Reilly during which the parties introduced numerous exhibits regarding their respective incomes and expenses. In response, the court entered an order directing Mr. Rock to pay child support in the amount of $180.00 per week, spousal support in the amount of $100.00 per week, $10.00 toward arrears per week, and continued medical coverage and payment of all of Jamie’s unreimbursed medical expenses.

Thereafter, Mr. Rock filed the instant appeal. Mrs. Rock then filed a petition to quash that part of the appeal relating to spousal support. Following the grant of Mrs. Rock’s petition, Mr. Rock filed a petition for reconsideration of the court’s order which quashed part of his original appeal. Mr. Rock’s petition was granted, and Mrs. Rock’s petition to quash was denied.

On appeal, Mr. Rock contends that the trial court erred in: (1) ordering him to pay $100.00 per week for spousal support since Mrs. Rock failed to meet her burden of establishing adequate legal cause for vacating the marital residence; (2) failing to assign Mrs. Rock an earning capacity commensurate with her abilities; (3) calculating his net earnings; and (4) calculating the child’s reasonable needs, as it is based upon calculations on speculative future projections rather than present actual expenses.

Initially, Mr. Rock alleges that due to Mrs. Rock’s failure to meet her burden of demonstrating good cause for vacating the marital residence, the trial court erred in ordering him to pay spousal support. Specifically, Mr. Rock alleges that Mrs. Rock’s testimony, which indicated that she left the marital residence due to his drinking problem and resultant erratic behavior, was insufficient to sustain her burden of proof. Further, Mr. Rock contends that Mrs. Rock’s claims were laden with generalities regarding the detriment to her physical and emotional well-being and, as such, remained unsubstantiated.

This Court may reverse a support order only if it finds that the order cannot be sustained on any valid ground. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983). As such, absent an abuse of discretion or sufficient evidence to sustain the support order, this Court will not interfere with the broad discretion afforded the trial court. Boni v. Boni, 302 Pa.Super. 102, 448 A.2d 547 (1982). Further, the assessment of the credibility of witnesses is within the sole province of the trial court. Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984).

A wife seeking support following a nonconsensual, voluntary vacation from the marital home has the burden of establishing that her husband’s conduct justified her in leaving the marital home. Larkin v. Larkin, 262 Pa.Super. 294, 396 A.2d 761 (1978). The wife, however, need not establish facts which would entitle her to a divorce. Id. Although this issue must be reviewed on a case-by-case basis, precedent is nevertheless helpful.

In Larkin, supra, this Court summarized applicable case law as follows:

In Commonwealth ex rel. Loosley v. Loosely, 236 Pa.Super. 389, 345 A.2d 721 (1975), we held that where the testimony established that the husband knew the wife was being treated for a psychiatric disorder, yet persisted in sleeping in a separate bedroom, even though this made her nervous, and also exchanged bitter words with her and told her on numerous occasions that he wanted a divorce, the wife had reasonable cause to leave. In Commonwealth ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135 (1965), a support order was upheld where the wife testified that she left her husband because he would curse her and argue with her incessantly, and that if she tried to escape him by sleeping in their second bedroom, he would follow her, pull the pillows and blankets from her, and try to drag her out of bed. In Commonwealth ex rel. Keeth v. Keeth, 223 Pa.Super. 96, 289 A.2d 732 (1972), we held that where the husband was away from home an entire weekend, and the wife found him in his car with another woman, and the husband slapped the wife after she slapped the woman, the wife was entitled to support from her husband after he permanently moved out of their common abode. In Commonwealth ex rel. Lebowitz v. Lebowitz, 227 Pa.Super. 593, 307 A.2d 442 (1973), a wife was held to have had adequate legal cause for leaving her husband when he refused to allow her to be a practicing Jehovah’s Witness in their house____
On the other hand, we have denied petitions for support where the wife left the husband because he refused to give her two thousand dollars, Commonwealth ex rel. Coleman v. Coleman, 184 Pa.Super. 256, 133 A.2d 307 (1957); where the wife left, even though her husband loved her, because members of the husband’s family complained of her race, Commonwealth ex rel. Pitucci v. Pitucci, 200 Pa.Super. 591, 189 A.2d 912 (1963); where the wife left because her husband criticized her house work (and she was also seeing another man), Commonwealth ex rel. Bergwerk v. Bergwerk, 228 Pa.Super. 190, 323 A.2d 243 (1974); and where the wife’s reasons for leaving were expressed in generalities, such as the fact that her husband “went into temper tantrums,” charged her with infidelity, and complained of her “incapacity to do for him,” Commonwealth ex rel. Van Wagenen v. Van Wagenen, 167 Pa.Super. 354, 74 A.2d 740 (1950)....

Larkin, supra, 262 Pa.Superior Ct. at 296-98, 396 A.2d at 763-764.

In the instant case, Mrs. Rock testified that Mr. Rock’s addiction to alcohol caused him to exhibit frightening and erratic behavior. Due to this behavior, Mrs. Rock stated that she feared for the emotional and physical well-being of Jamie, the couples’ child, and herself. While Mrs. Rock’s testimony may have been somewhat general in nature, it still serves to support the trial court’s determination that she had legal cause to vacate the residence. Clearly, Mr. Rock’s alcoholism coupled with his erratic and frightening behavior could reasonably have forced Mrs. Rock out of the marital home. Accordingly, since the trial court was in the best position to assess the credibility of Mrs. Rock’s testimony, and since Mr. Rock offered no evidence to refute the allegations, the trial court did not abuse its discretion in ordering Mr. Rock to pay spousal support.

Next, Mr. Rock contends that the trial court erred in failing to assign Mrs. Rock an earning capacity commensurate with her abilities. Specifically, he contends that Mrs. Rock holds an A.B.S. teaching degree in secondary English education and, as such, has a higher earning capacity than was determined. Mr. Rock also argues that Mrs. Rock would be capable of maintaining a thirty-hour work week without losing much time with her daughter. In support, he contends that Mrs. Rock would be forced to spend only seven additional hours away from Jamie and would only incur an additional $43.75 in child care per week.

In reviewing an order of support, this Court will not reverse the decision of the trial court absent an abuse of discretion. Machen v. Machen, 278 Pa.Super. 135, 420 A.2d 466 (1980). Further, it is well established that both parents are equally responsible to support their children, and the extent of their respective support obligations is gleaned from their earning capacity and ability. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). As such, in determining a parent’s ability to provide support, the trial court primarily focuses on earning capacity rather than actual earnings. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). In making this determination, the trial court should also consider that a parent may not be penalized for having remained in the home for the purpose of nurturing young children instead of obtaining employment outside of the home. Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985).

Instantly, after a comprehensive fact-finding process, the trial court determined the following: Mrs. Rock is a college graduate with a secondary-education degree in English; she is not certified, however, to teach. At the time Mr. and Mrs. Rock met, she was a waitress. During most of their marriage, Mrs. Rock did not work outside the home but became involved in various organizations, many of which were church related. Shortly before the parties separated, the Rocks agreed that Mrs. Rock would go back to school full-time to begin a nursing program.

Currently, after arranging her schedule to enable her to take Jamie to and from school, Mrs. Rock works approximately sixteen hours a week at a nursery school and attends classes for five hours per week. Further, Mrs. Rock began working for a fence company on a commission basis and would be earning money by house sitting. In utilizing this information, the court determined that Mrs. Rock’s monthly net income was $230.00. With regard to her earning capacity, however, the court determined that it was $400.00 per month.

In making this determination, the court weighed Mrs. Rock’s desire to spend “quality time” with her daughter and the fact that she should not be penalized for having stayed at home for several years while nurturing the parties’ young child, with her ability and willingness to maximize her income. Utilizing this information, the court determined that while Mrs. Rock should not be forced to incur additional day care expenses, she is not precluded from obtaining at least minimum-wage employment during the hours her daughter is in school.

Upon review, it is clear that the trial court did not err in making its determinations. The court comprehensively reviewed and weighed the applicable factors before making its determinations. Further, the court focused on Mrs. Rock’s earning capacity, not her current earnings. As such, this Court does not hesitate in affirming the decision of the trial court as to Mrs. Rock’s ability to contribute to the support of her child.

Next, Mr. Rock alleges that the trial court erred in calculating his net earnings. Specifically, he contends that the trial court’s reliance on his 1987 tax return resulted in a speculative and inaccurate reflection of his net earnings, since the return included a one-time severance pay for his 1986 income. Further, Mr. Rock contends that the trial court’s determination of his net income must be reduced since his 1987 tax return demonstrates that his net monthly income was significantly lower than was calculated by the trial court.

As has been previously stated, appellate review of support orders is very narrowly defined. Urban v. Urban, 298 Pa.Super. 224, 444 A.2d 742 (1982). Accordingly, this Court will not interfere with a determination of the trial court absent an abuse of discretion. Id. Further, it is within the sole province of the trial judge, sitting without a jury, to assess the credibility of the witnesses and to weigh their testimony. Allegheny County v. Monzo, 509 Pa. 26, 500 A.2d 1096 (1985).

Initially, Mr. Rock alleges that part of his 1987 income constituted a one-time severance pay. Upon review, it is clear that Mr. Rock testified with regard to this allegation, but offered no additional evidence to support this allegation. As such, the trial court was forced to judge Mr. Rock’s credibility and decide the issue accordingly. Since credibility determinations are within the sole province of the trial court and there exists no evidence which would hint at an abuse of discretion, this Court will not disturb the trial court’s finding.

Mr. Rock also alleges that the trial court erred in interpreting his 1987 tax return. This Court disagrees. The trial court correctly took Mr. Rock’s total income as was exhibited by his tax return, added depreciation, and then subtracted the federal, state, and local taxes. There is nothing in the record to indicate that the trial court erred in performing its calculations. As such, Mr. Rock’s claim is meritless. Further, Mr. Rock’s additional, interrelated allegations with regard to the trial court’s failure to consider certain other expenses are also meritless as they remain unsupported by the record.

Finally, Mr. Rock contends that the trial court erred in calculating the child’s reasonable needs, since they are based on speculative future projections rather than present actual expenses. Mr. Rock contends that the law mandates that the calculation of reasonable needs must be based on circumstances as they exist at the time of the hearing rather than on speculation as to what may occur in the future.

In determining support payments, the trial court has ample discretion and its decision will not be disturbed on appeal unless it has clearly abused that discretion. Bower v. Hoover, 370 Pa.Super. 321, 536 A.2d 426 (1988). In calculating child support, the trial court must consider both the Melzer formula and county support guidelines. Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988). In determining the amount of child support, reasonable expenses are not limited to the bare necessities of life, but are inclusive of those articles which are reasonably necessary for the proper and suitable maintenance of the child in light of her and her parents’ life style. Id. Also included in child support may be reasonable mortgage payments, property taxes, insurance costs, and utility fees as well as the cost of maintaining an automobile. Id. Support orders are for the purpose of providing present needs, and orders providing for the accumulation of funds for future needs are improper. Commonwealth ex. rel. Giamber v. Giamber, 255 Pa.Super. 111, 386 A.2d 160 (1978).

Instantly, the record shows that the trial court comported with both the Melzer formula pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), and the county guidelines. The record further shows that at the time of this appeal, Mrs. Rock and Jamie are residing at the home of a friend of Mrs. Rock’s. Her living situation is temporary, and her need to find housing is a present and not a future concern. As such, the trial court did not err in granting support for rental payments and related expenses. Further, there is no evidence in the record to support Mr. Rock’s allegation that the rental and related expenses projected by Mrs. Rock are unreasonable. Similarly, with regard to the automobile expenses, the child’s clothing and food expenses, and the child’s miscellaneous expenses, the same result is warranted since the expenses are reasonable and are in accordance with the county guidelines and the Melzer formula.

Mr. Rock also contends that the after-school expenses for child care should be eliminated since Mrs. Rock’s earning capacity was calculated on a minimum-wage basis so that she would not be forced to incur the cost of child care. Since child care is considered to be a reasonable expense, Funk v. Funk, 376 Pa.Super. 76, 545 A.2d 326 (1988), however, the trial court did not abuse its discretion in incorporating it into the child’s expenses. In sum, the record clearly supports the trial court’s determinations and demonstrates that the trial court thoroughly considered the appropriate factors in making said determinations.

Accordingly, this Court affirms the order of the trial court.


author: DEL SOLE, Judge:

text:
    560 A.2d 204
    COMMONWEALTH of Pennsylvania v. Dennis L. YOUNG, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 29, 1989.
    Filed June 13, 1989.

      Ellen B. Sheehan, West Chester, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before DEL SOLE, MELINSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

In this appeal we are asked to assess the implications of an approximately three and a half (3V2) year delay between the conclusion of Appellant’s non-jury trial and the rendering of the verdict of guilty on the charge of driving under the influence of alcohol or controlled substance. 75 Pa.C. S.A. § 3731(a)(1).

The facts leading to this delay are as follows. Appellant was tried non-jury by President Judge Sugarman on July 7, 1983. Following the trial, and at the request of the parties, closing argument was deferred until August 4th, 1983. Then nothing further occurred in this case until December 19,1986, three years and four months later, when the court, again with the President Judge on the bench, rendered the verdict of guilty as charged. No reason for the delay appears on the record, and it was apparent that neither party’s counsel brought the delay to the trial court’s attention. After a hearing, post-trial motions, including a motion based upon Appellant’s claimed deprivation of his speedy trial rights, were denied, and the Appellant was sentenced to one year non-reporting probation, payment of a $300.00 fine, and payment of the costs of prosecution.

Appellant raises several issues on appeal which all concern the excessive delay between trial and verdict. We agree that this delay resulted in the deprivation of Appellant’s right to a speedy trial under the Sixth Amendment of the U.S. Constitution and made applicable to the states through the Fourteenth Amendment, and accordingly we dismiss the charges against Appellant. Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972).

At the outset, we must determine whether the Sixth Amendment applies to delays in rendering a verdict. Neither the Pennsylvania courts nor the United States Supreme Court have expressly held that a delay in rendering a verdict is part of a trial for the purposes of the Speedy Trial clause. However, our court has recently made explicit what was assumed in previous cases in our court and the Pennsylvania Supreme Court, that the Sixth Amendment applies to delays from the time the accused is arrested or criminally charged, up through the time the accused is sentenced. Commonwealth v. Greer, 382 Pa.Super. 127, 554 A.2d 980 (1989), also see, Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983); Commonwealth v. Atkinson, 364 Pa.Super. 384, 528 A.2d 210 (1987).

Given that a sentencing delay may cause a deprivation of speedy trial rights, it is clear that a delay in rendering a verdict, which occurs earlier in the proceedings and is a prerequisite for sentencing and post-trial motions, must necessarily implicate those same rights. We will therefore determine whether the three and one-half (3V2) year delay between trial and verdict constituted a violation of Appellant’s right to a speedy trial.

Here, the trial court, after determining that this Sixth Amendment right was at issue, turned to the application of the balancing test first enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the conduct of both the prosecution and the defendant are weighed. Commonwealth v. Glover, supra, 500 Pa. at 528, 458 A.2d at 937; Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). We agree that the application of this test which requires assessing four factors, the length of delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant, was mandated in the present case.

First, the trial court found that the first factor, the length of the delay, which is to some extent a triggering device, was sufficiently long to warrant further inquiry. We note that Pa.R.Crim.P., Rule 1122, 42 Pa.C.S.A., provides that a verdict shall be rendered in all non-jury cases, “within seven (7) days after trial.” It is apparent that a verdict rendered some forty months after the conclusion of a non-jury trial not only constitutes a gross violation of the Rule, but is certainly sufficient to trigger further inquiry.

Next, the trial court noted that the responsibility for the delay rested with the Court and the Commonwealth, because although the delay was not deliberate, no reason for the delay appears in the record and the Commonwealth failed to call the matter to the trial court’s attention.

Next, the trial court found that the Appellant affirmatively asserted his Sixth Amendment right. The court noted that at the evidentiary hearing Appellant testified that he called his trial counsel as to the disposition of the case on at least two dozen occasions, and the trial counsel confirmed this testimony. We agree that Appellant’s frequent inquiries constitute affirmative assertions of this right under the circumstances. Individuals with no legal training would naturally and normally turn to their attorney in order to press for the resolution of their case and inquire as to the disposition of the proceedings.

After finding that there was sufficient delay to trigger the balancing test, that the court and the Commonwealth were responsible for the delay through oversight, and that Appellant was diligent in asserting his right, the court then found that there was no deprivation of Appellant’s right to a speedy trial because there was no prejudice to his Sixth Amendment interests. This we believe was error.

Barker v. Wingo and its progeny mandate a balancing test. As was stated in Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973), “Barker v. Wingo, expressly rejected the the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Thus none of the final three factors, including possible prejudice to the Appellant, is either necessary or sufficient to the finding of a deprivation of the right, and each must be considered and weighed together.

Instantly, the trial court made no attempt to balance these factors together. Once it found that the burden of periodically calling the bail agency failed to rise to the required level of prejudice, it held that there was no violation of Appellant’s right to a speedy trial. If all four factors had been considered together, it would have been clear that three of the four weighed heavily for Appellant and in favor of the conclusion that the court and the Commonwealth did not discharge their duty to make a diligent, good-faith effort to make a speedy disposition of the proceedings. Id., at 414 U.S. at 26, 94 S.Ct. at 190; see, Commonwealth v. Glover, supra., 500 Pa. at 530, 458 A.2d at 938.

Moreover, the trial court’s decision rested heavily on the fact that Appellant was free on bail during the 42 month delay, and was only required to periodically report to the bail agency. However, the Court has stated in this regard that the prejudice from inordinate delay may, “seriously interfere with the defendant’s liberty, whether he is free on bail or not and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” Moore v. Arizona, supra., 414 U.S. at 27, 94 S.Ct. at 190, citing, United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Appellant was on bail for three and one-half years. He was required to report by telephone once a week for about two years and subsequently once a month. His liberty and freedom to travel were restricted. Although it is not necessary under Moore and Barker to affirmatively demonstrate the existence of prejudice to the defendant in order to prove a denial of the constitutional right to a speedy trial, Id., 414 U.S. at 26, 94 S.Ct. at 189, there is, in fact, evidence that Appellant’s liberty was restricted. Significantly, Appellant was required to report to the authorities both before the verdict was rendered, as a condition of bail, and after punishment was imposed, as a condition of his year’s probation. Furthermore, the delay created anxiety and embarrassment for a period of some three years.

Most importantly, however, when balancing the factors which must be considered under Barker, we conclude that in light of the inordinate delay, the affirmative assertion of speedy trial rights, the responsibility for that delay resting with the court and the Commonwealth, and the degree that Appellant’s liberty interests were prejudiced, Appellant was denied his constitutional right to a speedy trial.

Accordingly, we vacate Appellant’s conviction and sentence and dismiss the charges.


text:
    560 A.2d 207
    Jacquelyn PARSHALL, Appellee, v. Richard J. PARSHALL, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1989.
    Filed June 9, 1989.

      Thomas S. Talarico, Erie, for appellant.
    Donald W. Grieshober, Erie, for appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   MONTEMURO, Judge:

The appellant, Richard J. Parshall, appeals from a judgment of the Court of Common Pleas of Erie County, entered August 18, 1988. The trial court determined that the appellee, Jacquelyn Parshall, is entitled to a 38% share of appellant’s Military Pension. The appellee is appellant’s former wife. The trial court’s Order provided for the following specific terms and period of payment:

... Defendant, Richard J. Parshall, shall pay Plaintiff, Jacquelyn Parshall, 38% of the military pension or retirement pay received by said defendant from June 25, 1981 through May 19, 1988, which amounts to $29,249.67. An initial payment of $2,500.00 is required immediately. The remaining $26,749.67 may be tendered in full or in installments, as set forth in the following. Installments may be made at a monthly rate of deducting said amount from the monthly amount received from the military pension or retirement pay received by defendant.
... Additionally, the defendant shall have the requirement to pay 38% of said military pension or retirement pay from May 19, 1988 for the future, so long as defendant receives such military pension or retirement pay.

R.R. at 2a. We affirm.

The facts which underlie the present appeal are essentially undisputed. The appellant and the appellee were married on November 30, 1950. In April of 1951, the appellant commenced active military service with the Navy. The appellant continued in his military service throughout the marriage of the parties, retiring on January 31, 1971. The parties thereafter separated in September of 1971. In anticipation of their divorce, which was ultimately granted in December of 1976, the parties executed a Marital Property Settlement Agreement (the “Agreement”). The Agreement, dated September 21, 1976, expressly indicates that the parties intended “to settle and determine for all times to come their respective property rights and obligations arising out of the marriage relationship____” R.R. at 10a. Although specifically providing that the appellant would pay a monthly sum of $250.00 to the appellee for a thirty month period and appellee’s counsel fees, the Agreement was in essence a release agreement:

3. Except as hereinafter provided, the parties hereto mutually release or relinquish unto each other any and all right which they may have acquired by virtue of the marriage relationship in and to the real and/or personal property of the other, including but not limited to, the right to courtesy or dower, the right to be supported by the other, the right to counsel fees, and/or alimony in any divorce action now pending or ever to be instituted by either of the parties, the right to inherit from the estate of the other, whether by way of descent and distribution or by way of election against the will of the other, the right to widow’s exemption or family allowance, and every other property right which may have accrued to either party by virtue of his or her being married to the other; excepting any benefits which may accrue as a result of the Husband being in the military during marriage.

R.R. at 11a. The language highlighted above was added in handwriting to the typed Agreement at the request of the appellee, and initialled by both the appellant and the appellee.

At the time the parties executed their counselled Marital Property Settlement Agreement, the concepts of “marital property” and “equitable distribution” were not a part of the law of this jurisdiction. Prior to the effective date of the 1980 Divorce Code, July 1, 1980, “the statutory and common law of the Commonwealth governed the status of the spouses’ assets upon divorce. Hence, propertied spouses seeking to protect assets against loss upon divorce relied upon the expectation that property would remain as it had been legally titled.” Bacchetta v. Bacchetta, 498 Pa. 227, 240, 445 A.2d 1194, 1201 (1982) (Flaherty, J., dissenting). Indeed, the attorney who had represented the appellee during the negotiation of the Agreement testified as follows during a August 21, 1986, hearing:

Q. Did you tell [appellee] that she had no property rights as such to Mr. Parshall’s retirement benefits?
A. I don’t know if in 1975 I would have said that. I have to answer, probably not. Probably not, because I didn’t consider — I don’t think most family lawyers would have considered a pension ... as anything but income in 1975 and treat it and dealt with it in that fashion. We didn’t think of pensions in terms of property rights for distribution purposes. At least I didn’t in 1975 and ’76.

R.R. at 91a. Later, in 1981, the United States Supreme Court held that military pensions were ineligible for inclusion in marital property division because of federal preemption. See McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). However, with the passage of the Uniformed Services Former Spouses’ Protection Act (USFSPA), Department of Defense Authorization Act, 1983, Pub.L. 97-252, § 1006(a), 96 Stat. 737 (1982), effective February 1, 1983, 10 U.S.C. § 1408 note (1982), the law in this area has been set in a different direction. The USFSPA grants authority to the states to determine whether military pensions are to be treated as property of the service member, or marital property of the service member and spouse. See 10 U.S.C. § 1408(c)(1). The USFSPA is retroactive to June 25, 1981. Id.

In Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986), aff'd, 518 Pa. 62, 540 A.2d 529 (1988), this Court held that the clear language of the Pennsylvania Divorce Code includes a military retirement pension as marital property to the extent that it is acquired during the marriage. See 23 P.S. § 401 et seq. In so holding, this Court opined:

... In light of the sacrifices of those families in the armed services, including long periods of separation while on duty or on assignments overseas, the contributions of both spouses to the household enable the enlisted spouse to continue serving until the pension vests after 20 years of service. Thus we reject appellant’s argument that military pension benefits are not marital property.

Id., 359 Pa.Superior Ct. at 350, 518 A.2d at 1270. In Major, we also considered the impact of Section 401(j) of the Pennsylvania Divorce Code, which provides that all property rights not vested as of the date of the divorce are terminated. There, the complaint in divorce had been filed on December 8, 1981, and the divorce had been granted on December 2, 1982, prior to the effective date of the USFSPA. Thus, Clyde D, Major, retired Air Force flight engineer, contended that his former wife had no right to claim any of his military pension benefits as marital property at the time of their divorce and that, thereafter, all property rights not vested were terminated. We held that Judith A. Major’s interest in the military pension did not terminate with the divorce decree:

Essentially, appellant [Clyde D. Major] is requesting that we give McCarty the status of effective law, when the clear Congressional intent is to eradicate the effects, if any, of that decision. The Senate Report accompanying the Act unequivocally expresses the legislative intent to render McCarty a nullity:
The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payment out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation.
S.Rep. 502, 97 Cong., 2d Sess. 5-6, reprinted in 1982 U.S.Code Cong. & Ad.News 1555, 1596, 1599-1600. (Emphasis added). Although prior to the McCarty decision, Pennsylvania courts had not been presented with the issue of the status military pensions, economic justice is clearly furthered by including the pension in the marital property. We believe that, had the issue been raised previously, our courts would have decided as we decide today____ Therefore, we hold that appellee did not lose her right to claim any portion of the interest she held in the military pension merely because McCarty was the law at the time the divorce was entered: the USFSPA, rather than McCarty, applies to all divorce decrees filed after McCarty, from June 25, 1981 to the present.

Major, supra, 359 Pa.Superior Ct. at 351-352, 518 A.2d at 1271-1272.

The trial court in the instant case correctly determined that the appellee cannot establish an interest in appellant's military pension based upon the provisions of the USFSPA or the Pennsylvania Divorce Code of 1980. As the above discussion of the USFSPA and the Major decision makes clear, the USFSPA applies only to divorce decrees entered after June 25, 1981. The Divorce Code of 1980, 23 P.S. § 101 et seq., became effective in 1980 and therefore has no practical effect on a divorce decree entered in 1976. See 23 P.S. § 801. The trial court, however, did grant appellee an equitable remedy: specific performance of the 1976 Marital Property Settlement Agreement. It is well established that the contractual remedy of specific performance may be invoked to enforce the provisions of a marital property settlement agreement, executed in anticipation of a divorce. See Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Balter v. Balter, 284 Pa.Super. 350, 425 A.2d 1138 (1981); Sarsfield v. Sarsfield, 251 Pa.Super. 516, 380 A.2d 899 (1977); Olivieri v. Olivieri, 242 Pa.Super. 457, 364 A.2d 361 (1976). Consequently, the only issue is whether the trial court erred in interpreting the terms of the 1976 Agreement executed by the parties in the case at bar.

Initially, it is the role of the trial court to determine, as a matter of law, whether written contract terms are clear or ambiguous. In construing the terms of a property settlement between husband and wife, as with any type of contract, the intention of the parties is paramount. See Conrady v. Conrady, 379 Pa.Super. 426, 550 A.2d 231 (1988). “A contract is not ambiguous if the court can determine its meaning with a knowledge of the facts on which its meaning depends. The fact that the parties do not agree upon the proper interpretation does not necessarily render the contract ambiguous.” Vogel v. Berkley, 354 Pa.Super. 291, 297, 511 A.2d 878, 881 (1986) (citation omitted). In the present case, after a hearing which outlined the circumstances of the execution of the 1976 Agreement, the trial court determined that the language of the Agreement is not ambiguous where it states “excepting any benefits which may accrue as a result of the Husband being in the military during the marriage.” The trial court states the following in its Opinion of May 19, 1988:

Plaintiffs final claim concerns the language contained within the property settlement agreement which apparently preserves plaintiffs right to an interest in the military pension. It is clear from the agreement that this term was specifically bargained for and that there was a meeting of the minds as to its inclusion into this agreement____ Having determined the contract and the aforementioned contract term to be valid, this court finds that plaintiff is entitled to some form of relief as a matter of contract law.

Op. of Trial Court, May 19, 1988, at 4 (emphasis added). The trial court concluded that appellee’s interest in appellant’s military pension accrued on the retroactive date of the USFSPA: June 25, 1981.

We agree that the language of the 1976 Agreement, wherein the appellee specifically preserved any benefits which may accrue to her because of her role as a military wife for twenty years, is not ambiguous. The trial court’s interpretation of this term as including appellee’s interest in her former husband’s military pension, which became available to her for the first time in 1981, is a reasonable one. In her role as a military wife, appellee was required to sacrifice a portion of the family income when that income was placed into her husband’s military pension. There can be no doubt that both the appellant and the appellee coped with a reduction in disposable income during most of their married years in order to create the military pension fund for their mutual benefit, enjoyment, and security in the future. The normal reading of the words of the 1976 Marital Property Settlement Agreement, in light of the circumstances of a twenty-six year marriage wherein one spouse was an active member of the military for twenty of those twenty-six years, amply supports the trial court’s construction of the Agreement. ,

Finding no error of law on the part of the trial court, we affirm.

Order affirmed.

      . The issue of whether other types of pensions are marital property was not decided in Pennsylvania until well after the date of the execution of the Marital Property Settlement Agreement at issue in the case at bar. See Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

      . The USFSPA also provides the following:
      ... A court may not treat the disposal retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.
      10 U.S.C. § 1408(c)(4).

      . In view of the fact that the appellee’s interest in appellant’s military pension did not become available to her until after June 25, 1981, appellee’s action seeking specific performance, instituted in December of 1983, was timely. Appellant’s contentions to the contrary are meritless.