author: MONTEMURO, Judge:

text:
    547 A.2d 362
    Jessie B. FITZPATRICK, Appellee, v. Barclay W. FITZPATRICK, Appellant. Barclay W. FITZPATRICK, Appellant, v. Jessie B. FITZPATRICK, Appellee.
    Superior Court of Pennsylvania.
    Argued March 8, 1988.
    Filed July 19, 1988.
    Reargument Denied Sept. 9, 1988.

      Jean B. Green, Norristown, for appellant.
    Lyn B. Schoenfeld, Media, for appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is a consolidated appeal from a decree of equitable distribution in a complex, and seemingly endless, bifurcated divorce action. The groundwork for the current procedural morass was laid innocuously enough in 1978 when, after four years of marriage, appellee filed a petition for spousal support.

The trial court denied the application on the grounds that appellee had committed adultery which appellant had neither connived at nor condoned, and that appellee had departed the marital residence without adequate reason at law, all of which served to vitiate any claim of entitlement to financial contribution from appellant. No appeal was taken from this order. In March 1979 appellant filed for divorce on grounds of adultery. In April of the same year appellee filed applications for alimony pendente lite, counsel fees and costs, and a discovery petition in the divorce suit, and, in addition, commenced an equity action. The discovery request was denied in October, 1979, and the request for alimony pendente lite, and attendant costs was denied in March of 1980. An appeal followed to this court which dismissed in July 1980 on the basis that the Order appealed from was interlocutory. One week after the dismissal, appellee filed first a petition to proceed under the Divorce Code of 1980, 23 Pa.S.A. § 101, et seq., and a month thereafter a complaint in divorce pursuant to the Code. In 1981 all outstanding matters were consolidated, and, in May of 1982, the equity action was tried, resulting in an adjudication from which both parties appealed to this court. In December of 1983 the divorce action was bifurcated and a decree in divorce entered. Economic issues were heard by the master, whose findings were reviewed in the trial court, and the Order issued from which the instant appeals are taken.

Appellant has presented us with eight claims which we will address seriatim.

Appellant argues that the trial court ácted improperly in proceeding under the Divorce Code of 1980, 23 Pa.S.A. § 101 et seq. To understand the import of this claim a brief examination of its particular procedural context is necessary. Appellant filed for divorce under the 1929 Divorce Law, 23 Pa.S.A. § 1 et seq. (repealed April 2,1980). In July of 1980, after the effective date of the new Code, appellee unsuccessfully petitioned the court for permission to proceed thereunder. The trial court took no action on a timely request for reconsideration in letter form. Three months later the case was reassigned to another judge, who upon receiving a communication from appellee’s counsel to the effect that the reconsideration matter remained open, invited the submission of a formal reconsideration petition. The petition was granted, and the matter proceeded to hearing before the master who granted appellant’s request for bifurcation.

Appellant bases his objections to proceeding under the 1980 Divorce Code on several grounds. However, he principally relies on the argument that because the petition for reconsideration was not granted within thirty days, the trial court thereafter lacked jurisdiction to enter the Order, leaving appellee with the sole option of taking an appeal to this court. The necessary corollary is that judges of the same court may not overrule each other.

In support of his argument, appellant cites 42 Pa.C.S.A. § 5505 which states that:

Except as otherwise provided or prescribed by law, a court may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

While the principle is correct as stated, we find that it is inapplicable here. In Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986), an en banc panel of this court found that a trial court’s attempt to open a judgement subsequent to the thirty day appeal period, even though no appeal had been taken, was error where no fraud or extraordinary circumstance justifying its action had been shown. See also Loomis Lake Association by Hughes v. Smith, 366 Pa.Super. 612, 531 A.2d 1152 (1987) (judgement becomes final after thirty day appeal period although no appeal is taken).

Herein the trial court premised its action in overturning the prior order upon its obligation to fulfill the objectives of the new Code, and relied for its authority to correct perceived error upon Great American Credit Corp. v. Thomas MiniMarkets, Inc., 230 Pa.Super. 210, 326 A.2d 517 (1974). In that case a trial judge vacated its own order more than thirty days subsequent to entry after discovering that a crucial document had been misplaced in transmission through the court system. An en banc panel of this court found that equity would allow correction of the error under the facts of that case. However, a determination of the propriety of the former order in this instance was not for the trial court. First, there were no extenuating circumstances such as occurred in Great American.

Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgements is very limited. Generally, judgements cannot be opened or vacated after they have become final unless there has been fraud or some other circumstance ‘so grave or compelling as to constitute “extraordinary cause” justifying intervention by the court.’

Simpson, supra, 350 Pa. at 245, 504 A.2d 337 (citations omitted). A final appealable order had already been entered, Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff'd. 498 Pa. 570, 449 A.2d 1378 (1982), and an application for reconsideration had been tacitly denied. Therefore, contrary to appellee’s assertion, the matter was not unresolved at the time it was transferred. Rather the failure of the original judge to rescind its own order, or indeed to act at all, was itself a response, and as such was referable to this court for the determination of whether error had occurred. Further, it is settled law that a trial judge may not overrule an interlocutory order by another judge, Reed v. Reed, 354 Pa.Super. 284, 511 A.2d 874 (1986), nor clearly, under the same circumstances may a co-equal judge overrule a fellow judge’s final order, however mistaken he believes it to be. Therefore appellee’s failure to approach this court for examination of her claim was an error compounded by the trial court’s assumption of that responsibility sua sponte.

Appellant is therefore accurate in his assertion that the trial court was without competence to proceed further with the reconsideration matter. However, despite the trial court’s misjudgment we find that the Code is applicable. In 1983 appellant motioned for bifurcation of the Divorce action then in train, albeit against his wishes, under the 1980 Code. At that time appellant also filed an amended complaint which specifically included a count under 23 Pa. S.A. § 201(d), which requires an averment that the marriage is irretrievably broken, and that the parties have lived separate and apart for three years. In so doing, that is in presenting the court with a new cause of action under the Code, as authorized by Pa.R.C.P. 1033, appellant circumvented the jurisdictional defect created by the granting of appellee’s reconsideration petition beyond the thirty day time period. In effect, appellant placed himself squarely within the trial court’s cognizance where its power of inquiry was unquestionable. 23 Pa.S.A. § 301(a). Having done so, he will not now be heard to complain.

Appellant’s remaining claims concern specific items of property. In reviewing the trial court’s method of allocation, we utilize an abuse of discretion standard, Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987), that is, we will not usurp the trial court’s authority as finder of facts, nor adopt guidelines and presumptions beyond those supplied by the legislature. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

It is first argued that the trial court erred in pronouncing a certain automobile, as well as its immediate predecessors, to be marital property subject to distribution. The vehicle in question, a 1978 Oldsmobile station wagon, was registered to a corporation solely owned by appellant. On appeal to this court after trial on appellee’s equity action, the vehicle was found not to have been a gift to appellee because the common law elements of such a transaction were not all present. On remand the master determined, echoed by the trial court, that despite its nominal ownership, the automobile was used 99% of the time for family and personal rather than business purposes. As a result, the ear was accounted marital property subject to distribution. Appellant now contends that because the title to the automobile was held by this court to be in the corporation, appellee is collaterally estopped to assert any interest in it except insofar as she may have an interest in the corporation as a whole. We disagree.

As appellant correctly advises, collateral estoppel operates to prohibit relitigation of a fact previously decided in a court of competent jurisdiction. Lebeau v. Lebeau, 258 Pa.Super. 519, 393 A.2d 480 (1978). While we did conclude in Fitzpatrick v. Fitzpatrick, supra, that the car was titled in the corporation, we declined specifically to decide whether it was, nevertheless, marital property. Since that question was not previously decided, appellee is not estopped from posing it.

We must also decide whether the trial court erred in concluding that the vehicle was marital property.

23 Pa.S.A. § 401(f) defines marital property as follows: All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by showing that the property was acquired by a method listed in subsection (d).

None of the methods of acquisition which permit exclusion of certain items from the rubric marital property can be tortured to mean registration in the name of a corporation owned wholly by one of the parties.

In Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986), this court in commenting upon § 401, albeit in a different context, held that “it is the time, rather than the manner, of acquisition that determines whether property is marital property.” Id., 355 Pa.Superior Ct. at 592, 514 A.2d 93. Moreover, the financial or other contributions of the respective parties are “not germane to the definition of marital property under the Code.” Id. Nor is the source of the property the controlling factor. We have found that even an inheritance, normally precluded by definition from distribution, is nevertheless subject to treatment as marital property where it had been placed into a joint account. Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986). See also Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144, appeal granted, 515 Pa. 615, 530 A.2d 868 (1987); contrast Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) appeal denied, 515 Pa. 598, 528 A.2d 955 (1987) (no intention by recipient of gift to donate it to entireties entity). Finally, “the Code presumes that all property, of any nature acquired during marriage is marital property.” Buckl v. Buckl, 373 Pa.Super. 521, at 525, 542 A.2d 65 (1988).

The principle to be extrapolated from the Code’s language, in conjunction with those cases which comment on § 401(f), lead us to the conclusion that it is the parties’ demonstrated intent which dictates the characterization of marital property; if the property is accessible, available to both parties, and/or placed in a position where both have use or enjoyment of the property, it is to be treated as the property of both. This is the intention behind the equitable distribution provision from its inception, that is, that bare title may be not used as a shield to protect for the benefit of one party that which in reality belongs to the marriage. Where, as here, tax considerations dictate ostensible ownership, title to the vehicle is as determinative as the monetary subscription of the parties to purchase or upkeep, which is to say, not at all. Rather, we look to the intent of the parties made manifest in the uses to which the automobile was put. We find, as did the master, that it was placed at the service of the marriage, and is therefore marital property.

Appellant next contends that the valuation given the marital residence, which had been purchased by appellant prior to the marriage, was without basis in fact. This argument rests on the thesis that although a figure of $145,000, acceptable to both parties, was posited for the value of the house at the date of the marriage, the trial court failed to set forth its reasoning for reaching the figure of $271,430 given for value at time of separation.

Appellant relies for support on Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). In that case our supreme court remanded for further proceedings, holding that the record was inadequate where the trial court ignored expert opinion testimony, and assigned an unexplained value to real property. Herein, appellant’s specific complaint concerns the $44,150 valuation placed by the trial court on appellee’s improvements to the property. The trial court ascribes this figure to its Adjudication in appellee’s equity action. As appellant points out, the attribution is incorrect. In actuality the figure emanates from the master’s acceptance of information supplied by appellee’s expert and appellee herself. Relying on testimony which he expressly found to be credible, the master included in the value of the improvements appellee’s replacement salary, since she left her job to do the renovations. The value of this labor was calculated at twenty (20) hours per week, fifty-two (52) weeks per year for four and one half (4V2) years at a rate of $6.50 per hour, totalling $27,000. In addition, the master attributed $5,000 of the increase to paint and other materials, and $12,150 to a new pool apron and heating system. The remainder of the increase in value of the house rests upon the use of a 43.5% inflation rate to which appellee’s expert testified. The trial court applied this rate to the original value of the property plus improvements, the $44,-150, and arrived at the objectionable value. Given that there is a foundation for these calculations, we find no violation of the rule in Semasek.

It is next argued that the trial court’s finding with respect to the valuation of appellant’s business should be disregarded because the value placed on the enterprise at time of separation was arrived at by a different method than that used to calculate worth at the time the parties married. Since the data supplied by appellant’s expert was adopted, reluctantly, by the master for valuation at the time of the parties’ marriage, appellant’s complaint is directed toward the variant method, and information, utilized for time of separation.

In addressing a claim concerning the reliability of a valuation method, although in the context of realty, this court stated that;

The Divorce Code does not include a specific method of valuing assets. We have previously held that the court must exercise its discretion, relying upon the estimates and inventories submitted by both parties, the records of purchase prices, and appraisals. In determining the value of marital property, the court is free to accept all of the testimony, portions of the testimony, or none of the testimony regarding the true and correct value of the property.

Aletto v. Aletto, 371 Pa.Super. 230, 242, 537 A.2d 1383, 1389 (1988) (citations omitted).

Here the master rejected the analyses provided by both parties’ experts of the financial data supplied by appellant. Instead, the master made his own calculations using the capitalization of earnings method as described in Revenue Ruling 59-60, C.B. 1959-1237. By this system, the valuator determines the average net earnings of the corporation over a five year span, then multiplies this figure by an appropriate capitalization rate. The trial court accepted the results thus obtained. Appellant’s charge that the number arrived at was the trial court’s invention has, as the master’s report demonstrates, no validity. Further, appellant has nowhere pointed to an error in either base figures or the arithmetic imposed upon them. “Moreover, it is an accepted principle of law that when evidence of a particular fact at issue is peculiarly within the the control of a party, that party may be subjected to a burden of production.” Id,., 371 Pa.Superior Ct. at 237 n. 5, 537 A.2d 1386 n. 5. Appellant has failed to meet this burden.

It is next argued that the trial court erred in awarding interest, to be calculated from date of separation, on appellee’s equitable distribution allotment. Appellant claims that interest is inappropriate because delays in the proceedings could be attributed to appellee, and because the award itself consisted only of a share in the increased value of non-marital property. It is contended that because the interest award was justified on the basis that appellant had had use of all assets since date of separation, and since the property was adjudicated to be his own and therefore non-marital, he is being penalized for appellee’s dilatory behavior.

We agree that under the particular facts of this case, the award of interest was inappropriate. Although there is precedent for the award of reparations to a dispossessed spouse, it is customarily for the fair rental value of the marital residence, Hutnik, supra, the purpose being to compensate the party out of possession for his or her “rights and interests in the land.” Gee v. Gee, 314 Pa.Super. 31, 35 n. 2, 460 A.2d 358, 360 n. 2 (1983). There is no Pennsylvania authority for extending the Gee principle to include personal as well as real property. Further, as appellant points out, there is no Pennsylvania authority for the proposition that interest is forthcoming on an equitable distribution award otherwise than pursuant to the court’s equitable powers under § 401(c). In Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986), we found that the trial court correctly denied the appellee’s claim for delay damages because she was receiving support which “adequately compensated her for the delay in receiving her share of the marital assets.” Id., 357 Pa.Superior Ct. at 352, 516 A.2d 17. Herein, appellee was denied support at the inception of the action by reason of infidelity. Further, without the delays in proceeding, the divorce would have proceeded under the 1929 Law, leaving appellee in receipt of little or nothing. Having impeded resolution of this case, appellee is entitled to equitable compensation under the Code; she need not be doubly rewarded for acting to her own advantage. We therefore reverse the award of interest.

Finally, appellant assigns error to the court’s award of counsel fees. Our standard of review in this regard was recently reiterated in Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987).

In determining the propriety of an award of counsel fees, we also utilize an abuse of discretion standard of review. However, counsel fees are not awarded automatically. “Actual need must be shown in order to justify an award.” Counsel fees are appropriate when necessary to put the parties “on a par” in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce.

Id., 365 Pa.Superior Ct. at 415, 529 A.2d 1126 (citations omitted).

Herein the trial court, adopting the master’s assessment of appellee’s legal debts, awarded appellee $10,000 in counsel fees, an amount representing less than costs incurred. The master, while noting the large amount of cash forthcoming to appellee under the distribution scheme, nevertheless found that

“a substantial amount of the time and effort expended by Mrs. Fitzpatrick’s attorneys (and experts) was related to an investigation of Mr. Fitzpatrick’s income and business interests, the records for which were admitted by Mr. Fitzpatrick’s accountant to be inaccurate. Said inaccuracies were not merely negligent but were intentional in an effort to deceive the Internal Revenue Service and other taxing authorities.”

(Second Report of Special Master and Examiner at 52-53).

Appellee’s prospective receipt of a large amount of cash vitiates what would otherwise constitute need, which is the proper basis on which attorney’s fees and court costs are to be recompensed. Vadja v. Vadja, 337 Pa.Super. 573, 487 A.2d 409 (1985). Here, the award was made because of appellant’s reprehensible bookkeeping practices. Without discussing appellee’s role in protracting this litigation, we find that the award of attorney’s fees was unjustified, and we accordingly reverse this provision of the decree.

The order of the trial court is affirmed in part and reversed in part.

WIEAND, J., concurs in the result.

      . By means of the equity action, appellee sought the imposition of a constructive trust on realty titled solely in appellant’s name, or in the alternative, compensation for the reasonable value of services performed in renovating the marital residence. Appellee also claimed that a certain automobile had been presented to her as a gift by appellant. In a Memorandum filed January 16, 1985, Fitzpatrick v. Fitzpatrick, 340 Pa.Super. 625, 490 A.2d 15 (1985), a panel of this court affirmed the chancellor’s finding that neither constructive trust or nor a monetary award was justified. We reversed as to the issue of the automobile, concluding that no valid gift had been made.

      . Appellant concedes that his final two claims have been addressed by the decisions handed down in Bachetta v. Bachetta, 498 Pa. 227, 445 A.2d 1194 (1982) (Divorce Code applies retroactively to property acquired prior to effective date of Code), and Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986) (increased value of property acquired prior to marriage is marital property). We therefore see no reason to examine appellant’s arguments on these matters.

      . We note that appellant was not placed in a similar situation as the the Order allowing the action to proceed under the 1980 Code is interlocutory and unappealable. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981), aff’d., 498 Pa. 536, 448 A.2d 1379 (1982).

      . The trial court attempts to distinguish Leonard v. Andersen Corp., 300 Pa.Super. 22, 445 A.2d 1279 (1982) (trial court’s jurisdiction to act on applications for reconsideration is lost after thirty days) on the basis that Leonard is dependent on Pa.RX.P. 1701(a) which divests a court of jurisdiction once an appeal is taken. However, case law, See Simpson, and Loomis, supra, makes no such distinction.

      . The trial court argues that because its predecessor did not have the benefit of Gordon, supra, which is supportive of its own action in granting appellee's request for reconsideration, the decision was properly taken. However, we find this contention unpersuasive.

      . § 301 Jurisdiction
      (a) The courts of this Commonwealth ... shall have original jurisdiction in cases of divorce____

      7. § 401(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
      (1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
      (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
      (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
      (4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
      (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
      (6) Veterans’ benefits____
      (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.

      . There is no dispute that appellant’s initial interest in the business was a gift from his father, and that the gift predates the marriage. The corporation under consideration is a direct successor to the original enterprise, and was found by the master not to constitute marital property. It is therefore only the increase in value during coverture in which appellee has an interest.

      . For a discussion of Revenue Ruling 59-60, C.B. 1959-1237, see J.A. Rounik, I Pennsylvania Matrimonial Practice § 18:22 (1986).

      . One of the major difficulties encountered by the master was in dealing with appellant’s own creative accounting methods, the result of a policy to devise an artificially favorable tax situation.

      . 23 Pa.S.A. § 401(c) In all matrimonial causes the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

      . Even assuming that there were entitlement under equitable principles, the court improperly structured the award. “The general rule is that a party is entitled to interest on a judgement from the date of verdict." Garbish v. Malvern Federal Savings and Loan Assoc., 358 Pa.Super. 282, 305-306, 517 A.2d 547, 559 (1986); Sands v. Pennsylvania Insurance Guaranty Assoc., 283 Pa.Super. 217, 423 A.2d 1224 (1980). In the context of divorce, for verdict, read decree of equitable distribution. Here interest was computed from date of separation, prior to any determination in appellee’s favor.

      . The master found that as of the Report, submitted in May of 1983, appellee had incurred total legal expenses of $26,521.54. These have doubtless increased.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    547 A.2d 370
    COMMONWEALTH of Pennsylvania v. Richard E. MAJOR, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1988.
    Filed Aug. 23, 1988.

      George T. Dydynsky, Palmerton, for appellant.
    James G. Caravan, Assistant District Attorney, Schuylkill Haven, for Com., appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from Judgment of Sentence entered by the Court of Common Pleas of Schuylkill County. We affirm.

Ten months after Richard E. Major escaped from the Schuykill County Prison in Pottsville, Pennsylvania, he was apprehended on February 25, 1987. He was charged with escape, theft by unlawful taking, receiving stolen property and criminal conspiracy.

Appellant pleaded guilty to the charges of escape and criminal conspiracy to escape. All remaining charges were nol prosed. The trial court imposed concurrent sentences of 24 to 48 months on the charge of escape and 24 to 48 months on the charge of conspiracy to escape, to be served consecutive to the 18 to 48 months sentence which Appellant was serving for robbery. A timely motion for modification of sentence was denied. This appeal followed.

Appellant presents two issues for our review on appeal: (1) Where the information by which Appellant was charged with escape made no reference to the offense as a felony or a misdemeanor, should Appellant be sentenced to a sentence allowed for escape as a misdemeanor of the second degree rather than a felony of the third degreé; and, (2) If the court finds that the charge of escape listed in the information filed against Appellant should be graded as a misdemeanor of the second degree for sentencing purposes, should a conspiracy to escape charge arising out of the same incident also be graded as a misdemeanor of the second degree.

Thus, on appeal, Appellant challenges the legality of his sentences on the charges of escape and criminal conspiracy to escape.

In the instant case, Appellant was convicted of escape and conspiracy to escape in a non-jury trial. The trial court graded both offenses as felonies of the third degree and sentenced Appellant to concurrent terms of 24 to 48 months imprisonment.

18 Pa.C.S.A. § 5121 states:

(a) Escape — A person commits an offense if he lawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
(d) Grading—
(1) An offense under this section is a felony of the third degree where:
(1) the actor was under arrest for or detained on the charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

Appellant contends that the trial court erred when it graded his escape as a felony of the third degree pursuant to 18 Pa.C.S.A. § 5121(d)(1) rather than as a misdemeanor pursuant to 18 Pa.C.S.A. § 5121(d)(2). Appellant argues that his sentence is illegal because the Information by which he was charged with escape made no reference to the offense as a felony or a misdemeanor and, thus, should be categorized as a misdemeanor. 18 Pa.C.S.A. § 5121(d)(1) and (2).

The first count of the Information filed to No. 328 of 1987 accused Appellant of escape in that he “did intentionally, knowingly and unlawfully remove himself from official detention from the Schuylkill County Prison, following conviction of a crime. All of which is against the Act of Assembly and peace and dignity of the Commonwealth of Pennsylvania.” The record shows that the Information did not specifically set forth the degree of the offense, i.e., a felony or a misdemeanor.

In Commonwealth v. McNeill, 293 Pa.Super. 319, 322, 439 A.2d 131, 133 (1981) (Popovich, J., dissenting), (citation omitted), this Court held that “if an indictment or information fails to set forth the degree of the offense, a conviction for escape must be graded as a misdemeanor of the second degree.” See Commonwealth v. Nixon, 328 Pa.Super. 250, 476 A.2d 1313 (1984). See also and compare: Commonwealth v. Jones, 279 Pa.Super. 93, 420 A.2d 1046 (1980) and Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979). In Commonwealth v. McNeill, Id., 293 Pa.Superior Ct. at 322, 439 A.2d at 133, the first count of the Information read:

First count — that on on or about February 24, 1979 in Philadelphia County, Reginald McNeill did unlawfully remove himself from official detention following temporary leave granted for a specific purpose or limited period.

In McNeill, a panel of this Court stated that the wording of the first count of the Information, i.e., the escape charge, did not contain any information which would permit the defendant’s escape to be graded as a felony. 293 Pa.Super. at 321-22, 439 A.2d at 132-33. The McNeill court explained that the count in question was an almost verbatim recitation of thé statutory definition of escape pursuant to 18 Pa. § 5121(a) but was silent on the grade of the offense. 293 Pa.Super. at 322, 439 A.2d at 133.

However, we find the instant case to be clearly distinguishable from the McNeill case. Wherein the count in question in the McNeill contained a recitation of the statutory definition of escape but no information on the grade of the offense, the first count of the Information in the case at bar, i.e., the escape charge, contains both types of information. The first count contains a recitation of the statutory definition of escape. In addition, although the first count does not specifically use the word “felony” in describing the grade of the offense, it does contain wording taken directly from 18 Pa.C.S.A. § 5121(d)(l)(i) sufficient to show that the escape charge falls clearly within the classification of a third degree felony. The count states that Appellant:

“... did intentionally, knowingly and unlawfully remove himself from official detention from the Schuylkill County Prison, following conviction of a crime.” (Emphasis added).

Thus, we conclude that the Information on its face contains facts sufficient to show that Appellant was charged with a felony of the third degree. See Commonwealth v. McNeill, Id.

Moreover, the McNeill court held that the Commonwealth could not rely on the second and third counts of the indictment in that case to upgrade the conviction to a felony because the trial court failed to find the defendant guilty of those counts. Thus, the court ruled that the sentencing court was limited to the trial court’s finding of guilt only on the first count and was, therefore, restricted to the language of the first count. 293 Pa.Super. at 323, 439 A.2d at 133.

In the case at bar, Appellant pleaded guilty to the charge of criminal conspiracy as set forth in the Information. The fourth count of the Information reads:

THE DISTRICT ATTORNEY OF SCHUYLKILL COUNTY by this information charges that on (or about) April 28, 1986, in said county, Richard E. Major, with the intent of promoting or facilitating the commission of a crime of Escape, Receiving Stolen Property and Theft by Unlawful Taking at Second and Sanderson Street, Potts-ville, Pennsylvania, unlawfully and feloniously did agree with Charles Verano that they or one of them would engage in conduct which would constitute such crime, and did an over (sic) act in pursuance thereof, namely: they did escape through a cell window of the Schuylkill County Prison.

We find that the Information clearly categorizes the agreement entered into by the Appellant and his co-conspirators as felonious. The wording of count four of the Information gives sufficient notice to Appellant that he is charged with a felony conspiracy to escape. Thus, the Commonwealth may rely on the fourth count of the Information, i.e., the conspiracy to escape charge, to upgrade the conviction on the escape charge to a felony since Appellant pleaded guilty to the charge. Therefore, in the instant case, the sentencing court is not restricted to the language of the first count in determining whether Appellant should be sentenced for felony escape or misdemeanor escape. It may also look to count four for facts to determine whether Appellant was charged with felony escape. See Commonwealth v. McNeill, supra, 293 Pa.Super. at 323, 439 A.2d at 133.

Pursuant to our holding with regard to the felony escape charge, we also determine that Appellant was properly sentenced on the felony conspiracy to escape charge. Criminal conspiracy is the same grade offense as the most serious offense which is the object of the conspiracy. 18 Pa.C.S.A. § 905. Commonwealth v. Perkins, 302 Pa.Super. 12, 17, 448 A.2d 70, 72-3 (1982).

Judgment of Sentence is affirmed.


author: HESTER, Judge:

text:
    547 A.2d 372
    Andrew J. KUCHAK, Administrator of the Estate of Susanne A. Kuchak, Deceased v. LANCASTER GENERAL HOSPITAL, John H. Shertzer, M.D., David P. Hughes, M.D., and David L. Newcomer, M.D. Appeal of LANCASTER GENERAL HOSPITAL.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1988.
    Filed Aug. 30, 1988.

      Wiley P. Parker, Lebanon, for appellant.
    William A. Atlee, Jr., Lancaster, for Kuchak, appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an August 7, 1987 order wherein delay damages were awarded to appellee, administrator of the estate of Susanne A. Kuchak, deceased. Pursuant to the reasoning in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the trial court determined that appellee was responsible for eight of the forty-eight month delay between the filing of the complaint and the verdict in favor of appellee. It awarded delay damages accordingly. We affirm the imposition of delay damages as set forth in the order.

Appellee instituted this medical malpractice action against Lancaster General Hospital, appellant, and three physicians for allegedly negligently causing the death of fifteen-year-old Susanne Kuchak. Susanne sustained leg fractures in a motor-vehicle-bicycle accident on October 12, 1978, and died a week later in Lancaster General Hospital, where she was being treated. She died as a result of fat emboli syndrome wherein fat emboli entered her lungs, heart and brain. The fat emboli entered the vital organs from bone marrow exposed as a result of the fractures.

The action was instituted on October 10, 1980, by writ of summons, with the complaint being filed one and one-half months later, on December 2, 1980. The parties conducted discovery over a three and one-half year period. Appellee took twenty-two depositions and filed numerous interrogatories and requests for production of documents. Appellant made no settlement offer prior to trial; appellee made a settlement demand of $300,000, which was the exact amount the jury awarded December 12, 1984.

The trial court awarded delay damages in the amount of $120,821.91 on February 4, 1985. An appeal followed the January 16, 1986 denial of appellant’s post-trial motions. The issue was whether delay damages had been properly awarded, and we remanded for proceedings consistent with the recent decision in Craig v. Magee Memorial Rehabilitation Center, supra.

On August 7, 1987, the trial court entered an order wherein it attributed eight months of the delay to appellee and awarded delay damages accordingly. It stated:

It is the considered opinion of this Court that Plaintiff proceeded expeditiously in preparing a very complex medical malpractice action for trial but that not providing the initial expert medical report diminished the possibility of an offer of settlement. Therefore, the Court ascribes the period between the dates of both parties’ initial expert medical reports to a time span for which Plaintiff should not benefit and Defendant Hospital should not be penalized. This result is not only fair and reasonable but also equitable.
This case involved complicated medical evidence in explanation of an untoward result to a simple occurrence: death caused by fat embolism syndrome following a long bone fracture of the leg as a result of an automobile striking Plaintiff’s decedent while on her bicycle. All of the Defendants originally sued were health care providers, necessitating expert as well as factual discovery. Concomitant with such extensive discovery were many delays in scheduling.

Trial court order, 8/7/87, at 1-2. This appeal followed.

Initially, we discuss the Craig opinion, where the supreme court reconsidered its opinion in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). Laudenberger had upheld the constitutionality of Pa.R.C.P. 238, which called for the automatic imposition of delay damages if the jury verdict was 125 percent more than the defendant’s settlement offer. The court noted that this experimental and automatic rule was both reasonable, as it had been adopted to clear dockets overcrowded by unreasonable refusals to offer what was due, and salutary, in that it provided a penalty for profiting from denials of money due. The Craig court noted the rationale for the rule: there was deliberate and profitable delay by tortfeasors in failing to settle cases since they retained the use of the money during delay caused by overcrowded dockets.

The Craig court rejected the Laudenberger court’s reasoning that a refusal to settle is always prompted by these motives. It suspended Rule 238’s incontestable presumption that all fault for delay is attributable to the defendant, and announced the following rule:

In making a decision on a plaintiff’s entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Craig v. Magee Memorial Rehabilitation Center, supra, 512 Pa. at 66, 515 A.2d at 1353 (emphasis added) (footnote omitted).

In this case, the trial court determined that the delay was not the fault of appellee, who had proceeded expeditiously in preparing a complex medical malpractice action. Appellant argues that the trial court was incorrect in three respects.

First, appellant argues that all delays must be attributed to appellee since all requests for continuances were made by him. This allegation states the obvious and misses the point. As appellant aptly notes in his brief, in a medical malpractice action, it is a plaintiffs burden to present expert medical testimony to establish the standard of care to be applied and to demonstrate that the standard has not been achieved. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980).

Accordingly, appellee had to depose each medical provider who participated in the care of the decedent. He took twenty-two depositions. He then had to have the care providers’ actions analyzed and compared to standard medical procedure. There were three physicians involved. Many of the delays in discovery resulted from their unavailability or from their scheduling conflicts with the attorneys. These normal delays are always present and naturally affect the length of discovery. We refuse to categorically impute natural delays in discovery to plaintiffs unless it is demonstrated that the plaintiff failed to take reasonable and normal steps to prepare his case and proceed to trial. The trial court in this case specifically found that appellee had expeditiously prepared his case. The continuances were necessary as discovery was incomplete, and the trial court determined that the state of discovery did not result from appellee’s failure to proceed diligently. Accordingly, appellee is not responsible for the continuances as the Craig court intended responsibility to be placed.

Next, appellant argues that appellee failed to comply with the rules of discovery by failing to identify his expert and his expert’s testimony as requested in its interrogatories filed on December 10, 1980. We disagree. Initially, appellee could not know of the substance of his expert’s trial testimony until he had completed his depositions of the health care providers and knew what actions they had taken. He provided the initial report, but his expert’s trial testimony would be wholly dependent on a full knowledge of all the defendants’ actions with respect to Susanne’s care. Furthermore, the trial court specifically ruled that appellee could provide his experts’ opinions at anytime prior to the first pretrial conference. Reproduced Record at 61a. Appellee complied with this order, which was entered because one of the defendants had tried to compel appellee to reveal the substance of his expert’s testimony in January, 1983. The trial court reasonably ruled then that appellee had until the conclusion of his discovery to comply with this request. Thus, appellee did not violate the rules of discovery.

Finally, appellant argues that the purpose of Rule 238 is not being served with the imposition of delay damages since appellee withheld the expert report until trial. Appellant argues that this was material it needed to engage in meaningful negotiations. Appellant at no time submitted an offer, even after it received the report of appellee’s expert. Meanwhile, it had the initial report. Again, we must repeat that this trial report could not have been prepared until completion of discovery. Also significant is that appellant, as defendant, already had knowledge of its actions and did not require the benefit of discovery to analyze its culpability in Susanne’s death. Thus, it always had the information it characterizes as so meaningful to settlement negotiations. It refused to negotiate and now attempts to shift the responsibility to appellee’s failure to provide a report appellee could not have and was not required to provide until the pretrial conference.

Since neither party is responsible for the continuances and both parties complied with the rules of discovery, we must look to other “pertinent factors” in deciding whether to uphold the imposition of delay damages in this case. In so doing, we apply the rationale for the rule, and look to whether appellant was unreasonable in failing to settle. If so, it is more appropriate to require appellant to pay to appellee the interest that it has earned from the $300,000 that it thus would have owed to appellee since October 19, 1978, when Susanne died.

In determining whether a party’s decision regarding settlement of a case is unreasonable or in bad faith, we turn to Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981). In Shearer, we adopted certain factors to be used in analyzing whether an insurer’s failure to settle within its policy limits was a good faith decision. These factors, which focus on the strengths and weaknesses of the parties’ positions, are appropriate to apply here in that they enable us to determine if the defendant was reasonable in refusing to offer an amount that the evidence establishes was, in fact, due. If the refusal was not reasonable, it will be appropriate to penalize the defendant from profiting from the denial of money. The factors, adopted for our circumstances, are: 1) the strengths and weaknesses of all the evidence, including evidence of liability, to be presented on both sides; 2) the anticipated range of the verdict; 3) the relative appearance, persuasiveness and appeal of the plaintiff, defendant and various witnesses; 4) whether the plaintiff has engaged in reasonable negotiations and 5) the amount of any offers compared to the jury award.

Our review of the evidence reveals the following. Susanne was admitted to the hospital at 9:05 p.m. on October 12,1978, with three bone fractures. She was at high risk to develop fat emboli syndrome (“f.e.s.”) due to both her age (the disease strikes younger people more frequently), and the nature of her trauma, bone fracture. F.e.s. results from bone marrow throwing out fat emboli into the bloodstream. Initially, there are three symptoms which result from the emboli invading the heart, lung and brain: increased pulse, increased breathing rate, and confusion or sleepiness. Later, the patient will develop splotches or a rash. Elevated temperature may also accompany f.e.s.

When admitted to the hospital, Susanne was alert, conversant and her pulse was normal, 60, for a fifteen-year-old girl. Normal range for her age and sex is 55-80. During October 12 and 13, 1978, Susanne’s pulse rate and treatment was as follows:

October 12, 1978 Pulse Rate
9:05 p.m. 60
9:15 p.m. 58
9:45 p.m. 60
10:00 p.m. 80
10:15 p.m. 84
10:30 p.m. 88
10:45 p.m. 11:00 p.m. 84 84
11:15 p.m. 116
11:30 p.m. 100
12:10 p.m. — 1:15 a.m. Operation on fractures
October 13, 1978
1:20-2:00 a.m. Pulse taken four times, all 120
2:15 a.m. 120
2:30 a.m. 120
2:45 a.m. 128
3:00 a.m. 120
3:15 a.m. 120
3:45 a.m. 124
4:15 a.m. 128
4:45 a.m. 112
5:15 a.m. 120
6:15 a.m. 120
8:00 a.m. 104
12:00 p.m. 128
4:00 p.m. 132
4:30 p.m. Patient examined by Dr. David P. Hughes, who eliminated f.e.s. by clinical observation of patient
5:50 p.m. Patient examined by Dr. David R. Newcomer, who eliminated f.e.s. by clinical observation
8:00 p.m. 150
8:30 p.m. 150
9:00 p.m. Susanne found unconscious, Dr. Cooke called. He ordered the standard blood gas test that is used to determine the existence of f.e.s.

At 9:00 p.m. Susanne was administered steroids and placed on a ventilator, the standard treatment for f.e.s. She was restless in the morning of October 14, 1978, and to prevent the ventilator from being dislodged, valium was prescribed. The valium was not administered, and Susanne subsequently dislodged the ventilator, resulting in decreased heart rate and absence of oxygen for sixty seconds. Susanne never recovered consciousness and died on October 19, 1978.

Susanne’s mother testified that Susanne was alert and able to converse in the emergency room and following her operation at 8:30 a.m. on October 13,1978. She noticed that Susanne was losing alertness throughout the day, but was told by nursing staff this was normal post-operative behavior.

Dr. Michael P. Casey testified for the plaintiff as an expert regarding the existence of malpractice in Susanne’s case. He attended Fordham University and University of New York Medical School, and performed three years of internal medicine at the latter. He also performed a two-year pulmonary fellowship at the University of Pennsylvania. Subsequently, he became director of the respiratory intensive care unit at Thomas Jefferson Hospital for one year and was then appointed head of pulmonary medicine at Pennsylvania Hospital in Philadelphia.

He testified that appellee’s treatment of Susanne deviated from accepted medical practice in several respects. First, the patient’s abnormally high pulse rate indicated that there was a complication and tests should have been performed to determine the reason for the elevated pulse. A standard arterial blood gas test reveals f.e.s. Also, the vital signs were not monitored in accordance with established medical procedure. Notable are the four hour gaps in pulse monitoring, even though Susanne’s pulse was elevated following surgery. Third, the nursing staff improperly failed to inform physicians regarding the elevated pulse. Particularly relevant is the failure to inform them of the 150 pulse rate, which is a “significant” deviation from normal. N.T. 12/3-12/84, vol. 1, at 219. Finally, when Susanne went on a ventilator, steps should have been taken to ensure that she did not extricate it. Appellant’s employees failed to perform any of the four standard methods of securing the ventilator tube to Susanne, resulting in extrication of the ventilator, depression of vital signs and increased risk of death.

The doctor’s testimony was very convincing regarding appellant’s failure to investigate the elevated pulse, since vital signs are monitored in order that they can be investigated if abnormal. He stated that from 1:30 a.m., on October 13, 1978, when surgery was complete, to 9:00 p.m. that evening, when Susanne became stuporous or comatose, her pulse rate was abnormal, it continued to increase and that “nothing” was done to explain the phenomenon. Id. at 221-22. His testimony on appellee’s malpractice was unequivocal:

[Q.] Doctor, assuming all of those facts which I have just given to you to be reasonably true and accurate, do you have an opinion which you can state to a reasonable degree of medical certainty as to whether the conduct of Dr. Hughes in failing to order an arterial blood gas for Susanne Kuchak at or about the time of his examination of her on October 13,1978 was in accordance with accepted standards of medical practice in effect in 1978?
A. Yes, I do.
Q. What is your opinion, Doctor?
A. I do not think that was in accord with accepted medical practice.
Q. Would you explain your answer, please.
A. The patient had an abnormally high pulse rate. Something was wrong with the patient, and I think steps should have been taken to investigate why the pulse rate was abnormal.
Those steps were not instituted and, therefore, I think it was wrong.
Q. Doctor, are you telling us today that Dr. Hughes did not act in accordance with accepted standards of medical practice because he didn’t diagnose fat embolism at 4:30 on the afternoon of the 13th of October, 1987?
A. No. I’m not saying that.
Q. Okay, what you are saying is that he did not undertake to do anything confronted with the signs and symptoms? Is that my understanding?
A. That is correct.
Q. And what of those signs and symptoms that I outlined to you and those facts, is the one that stands out as the most important?
A. The high pulse rate. The patient had a high pulse rate since the time of the surgery in the early morning hours, and that pulse rate had persisted at an elevated level throughout the day, and I think steps should have been taken to explain why that pulse rate was elevated. Q. Doctor, what are the steps which in your opinion would have been in accordance with the accepted standard of medical practice in 1978 for Dr. Hughes to have taken, given the status of the patient at the time you saw her at 4:30 on the afternoon of the 13th?
A. A number of things should have been done.
First of all, there are a number of different reasons someone can have a high pulse rate, but in a situation like this, it is my feeling that the physician is obligated to anticipate potential complications.
And two complications that should have been anticipated in a patient who was just in an automobile accident were one, a respiratory complication such as fat embolization — a very common cause and frequent cause of a high pulse rate is a low blood oxygen. I think steps should have been taken to investigate that.
The other possible cause of a high pulse rate in a situation like this is that the patient may have been bleeding internally. A repeat measurement of the patient’s blood count, such as a hemoglobin, should have been obtained. The high pulse rate that day could have been due to internal bleeding as well as it could have been due to a respiratory complication.
It is my feeling that certain things should have been done to ascertain why the pulse rate was persistently elevated.

Id. at 212-15.

The testimony was unshaken on cross-examination. It further established that there were two medical procedures, administration of steroids and oxygen, that, if prescribed early, would have had a high probability of preventing Susanne’s death. Appellee’s expert attributed Susanne’s death to appellant’s failure to diagnose and treat the cause of the increased heart rate and failure to administer the prescribed medication (valium) to prevent the oxygen tube from dislodging. Other medical evidence introduced at trial established that the recovery rate for f.e.s. is approximately eighty percent.

In its defense, appellant’s experts and the two attending physicians testified that their conduct did not deviate from established medical procedure. They noted that Susanne only displayed one of the signs of f.e.s., elevated pulse, and that that sign was not significantly abnormal until it became 140. Dr. Hughes and Dr. Newcomer both testified that tests for f.e.s. were not performed because her pulse, while high, was stable. Both eliminated the existence of f.e.s. based on their clinical observations, absence of rash, during their examinations. They were cross-examined with an article that demonstrated that the early stage of f.e.s. is normally indicated by two symptoms and that a rash appears in the latter stages of the disease.

We believe this evidence establishes the following. Appellee’s evidence of liability was strong and convincing. Appellant had no affirmative defenses such as assumption of the risk or contributory negligence. As the decedent was young, the jury had a highly sympathetic situation to consider. The potential verdict was substantially higher than that entered. Appellee made a reasonable settlement demand. Appellant made no offer.

All these factors support the imposition of delay damages. In light of appellee’s demand of $300,000, it is unquestionable that this case could have been settled for less than the verdict entered, and appellant could have avoided delay damages by engaging in reasonable settlement negotiations in a lawsuit where the evidence of liability was strong.

ORDER AFFIRMED.

      . Appellee did not appeal from that portion of the order.

      . Appellee’s expert projected Susanne’s earnings to be $860,000 to $1,343,000, with forty percent to be spent on living expenses.


text:
    547 A.2d 379
    Lou Ann SCHMUCKER a/k/a Lou Ann Caldwell, Hanna and John R. Hanna, III, v. John R. HANNA, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 6, 1988.
    Filed Aug. 30, 1988.

      Michael R. Sweeney, Media, for appellant.
    William G. Halligan, Media, for appellees.
    Before MELINSON, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

John R. Hanna appeals from the order entered October 29, 1987, awarding $15,402.00 to appellees for the payment of room, board, books and tuition for appellee-son, John R. Hanna, III (hereinafter “John”). Appellant alleges that the trial court erred in concluding that a property settlement agreement obligated him to pay these expenses in light of his son's unwillingness and inability to succeed in college. Further, he claims the trial court erred in refusing to uphold an oral agreement between John and appellant, and that the court erred in awarding appellee-mother reimbursement for room and board. We find no merit to these assertions, and affirm.

In April, 1975, differences arose between appellant and his wife, leading to their separation. In anticipation of divorce, the parties agreed to and signed a post-nuptial agreement which provided, in pertinent part:

13. No modification of this Agreement shall be effective unless embodied in a written instrument executed by the parties. No forbearance to enforce any provision of this Agreement or waiver of any breach hereof shall be deemed a waiver of any such provision or right hereunder or of any subsequent breach or default. This Agreement shall not be deemed to constitute a condonation by either party of any act on the part of the other party, whether occurring prior or subsequent to the parties’ separation from each other.
11. Husband agrees that he will pay for the college education of the children, specifically tuition, room, board, and books. Choice of said college to be that of the children with the consent of the Husband. During the children’s college educational period Wife shall pay to each child Twenty-five Dollars ($25.00) per week for spending money, provided, however, that Husband shall be paying support at the rate of One Hundred Dollars ($100.00) per week for the children as herein provided for.

Reproduced Record at 54(a), 61(a).

In 1980, John graduated from high school. In accordance with the provisions above, appellant agreed to send him to Penn State, refusing his son’s first choice, the University of Maryland, based upon its expense.

John left Penn State in November, 1981, after compiling an uneven academic record. He returned to his mother’s house and found work. He paid his own automobile insurance and $15.00 per week in rent for a limited period. He attended some classes at Penn State, in order to raise his academic average, and thereafter transferred to Widener University. Widener is appellant’s alma mater, as well as his grandfather’s, and it is apparent from the record that appellant did not object to Widener as a choice of college.

At some point, appellant and John entered into an oral agreement limiting the father’s financial obligation to $4,000.00 per year for John’s college education. On or about March 11, 1983, appellant presented John with a document attempting to alter the post-nuptial agreement by providing that appellant’s obligation for educational expenses would be limited to $4,000.00 per year. John signed the document, but testified he felt pressured to do so. Appellee-mother, also presented with the document, refused to sign. Expenses at Widener are $1,600.00 more than the $4,000.00 per year appellant paid.

John graduated after satisfactorily completing studies at Widener University. He and his mother instituted the present action for costs not covered by appellant while John attended Widener. The suit alleged as costs the unpaid tuition, additional book costs, room and board for John while he resided with appellee-mother during his attendance at Widener.

On May 1, 1987, following a hearing, the trial court awarded tuition, costs, and room and board to appellees. Appellant filed a motion for post-trial relief which was denied. This appeal followed.

In its opinion, the trial court analyzed the post-nuptial agreement and found it clear and unambiguous. Further, it found that appellant failed to fulfill his obligations under the agreement. Finally, it rejected John’s emancipation and the validity of the later agreement signed by John and his father as a basis for appellant’s refusal to abide by the original agreement.

In DeWitt v. Kaiser, 335 Pa.Super. 258, 261-62, 484 A.2d 121, 123 (1984), quoting Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981), we stated:

A property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally.

In such a case, “the trial court is the sole determiner of the fact of the record, ... and, absent an abuse of discretion, the Superior Court will not usurp the trial court’s fact-finding function.” Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 507, 535 A.2d 664, 665 (1988) (citation omitted); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

The record is clear that appellant did not abide by the post-nuptial agreement as it related to financing John’s college education. The contract states, “Husband agrees that he will pay for the college education of the children ____” John paid for the education on his own, with the $4,000 from appellant, and with loans and help from appellee-mother.

Appellant first challenges whether an obligation to pay existed. He asserts that he was not obligated to pay the expenses in light of John’s unwillingness and inability to succeed in college. We reject this claim, as there is nothing in the agreement which excuses performance based upon the children’s ability to succeed.

Other contracts of this sort have explicitly held the child to a minimum grade point average. E.g., Leonard v. Leonard, 353 Pa.Super. 604, 510 A.2d 827 (1986). In the instant case, however, there is no such clause, and we will not change the terms of this contract. In re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305 (1977). The record reveals that both parties were represented by counsel when the contract was written. Reproduced record at 53(a). If a minimum level of proficiency had been intended, the parties should have included it in the agreement. In a written contract, the intent of the parties is the writing itself, and when the words are clear and unambiguous, the intent is to be determined only from the express language of the agreement. Robert F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347, 351 (1973).

Similarly, the post-nuptial agreement makes no reference to the children’s emancipation. Their status as adults is important in a typical support case, but their status as independent adults is not a release from the obligations of the post-nuptial agreement.

Appellant next argues that the trial court erred in refusing to uphold the oral agreement, later reduced to writing, between John and appellant concerning the payment of college tuition, as a valid and binding agreement or novation which extinguished appellant’s duties under the earlier agreement. The subsequent agreement states as follows:

Mr. John R. Hanna, III

11 Medbury Road

Wallingford, PA 19086

RE: College Expenses

Dear John:

In discussing this matter with your father, I am advised that you have reached an agreement regarding a support arrangement for you while enrolled at Widener. As such, I have drafted this letter, and I am requesting you and your father to approve and countersign it. The letter will serve as a binding contract regarding your college expenses.

Your father advises me that your agreement is as follows:

Mr. Hanna will pay to you the sum of $4,000.00 each year to be applied to your tuition expense at Widener so long as you maintain an average of “C” or above in each course you enroll in. Mr. Hanna will not be responsible to contribute towards your living, communting, [sic] or books and fee expenses at Widener University over and above the $4,000.00. This provision will continue until you reach the age of twenty-four (24), and then shall terminate. Should you become a part time student at Widener, should you transfer to another school, or should you terminate your college education at Widener, this Agreement will become null and void.

After you have reviewed this letter, please sign your name above where your name appears to indicate your agreement, and approval.

Very truly yours,

MICHAEL R. SWEENEY

Signature Signature

JOHN R. HANNA, III JOHN R. HANNA, JR.

The elements of a successful novation are “the displacement and extinction of a valid contract, the substitution for it of a valid new contract, ... and the consent of the parties____” Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 317, 478 A.2d 484, 486 (1984) (emphasis in original). The party asserting a novation or substituted contract has the burden of proving the parties intended to discharge the earlier contract. Id.

In the present case, the record contains no clear evidence of the parties’ intention to supplant the earlier agreement. Indeed, the record supports the contrary conclusion. An attempt to procure appellee-mother’s consent was made, but failed. Reproduced record at 238(a). Further, as noted previously, John testified that he felt pressured to sign the letter sent by his father’s attorney, claiming it was the only way he could continue to attend college. Id. at 178(a), 197(a). Moreover, John was a beneficiary of the original contract, not a party to it. It is thus clear that the subsequent agreement was not a novation, and the earlier agreement remains in effect.

The third issue raised is whether the trial court erred in awarding appellee-mother the sum of $6,840.00 for room and board for expenses which are traditionally associated with college dormitory and cafeteria costs. This issue concerns appellant’s agreement to provide college costs for the children, as specified in paragraph 11 of the post-nuptial agreement set forth supra.

The clause specifically obligates appellant for his children’s education. It also obligates him to pay for the room and board of the child when the child attends college. Appellant’s argument requests that the court establish “room and board” as synomonous with “room and board at college.” Without a showing of proof to the contrary, this court will not change the effect of a contract nor will we establish “room and board” as a term of art.

Based on the foregoing, we reject appellant’s claims and affirm the trial court’s award.

ORDER AFFIRMED.


author: BECK, Judge:

text:
    547 A.2d 382
    Kathryn GUIDRY, Executrix of the Estate of Gilbert Guidry, Deceased, and Kathryn Guidry, Widow in her own Right, Appellee, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sale Corporation, Raybestos Manhattan, Inc., Forty-Eight Insulation, Inc., Pittsburgh Corning Corporation, GAF Corporation, Armstrong Cork, Company, Unarco Industries, Inc., H.K. Porter Company, Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Keene Corporation, Turner Newall, Ltd., Keasbey Mattison Company, Certain-Teed Products Corporation, U.S. Rubber Co., Inc., Pacor, Inc., Celotex Corporation, Philip Carey Manufacturing Co., Amatex Corporation, Owens-Corning Fiberglas Co., Inc., Asbestos Textile Institute, Inc., Uniroyal, Inc., Carolina Asbestos Company, Asbestos Textile Company, Thermoid Company, Asten Hill Manufacturing Co., Ruberoid Company, Inc., Garlock, Inc.—Precision Seal Division. Appeal of GAF CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 2, 1988.
    Filed Sept. 1, 1988.

      Stuart J. Agins, Philadelphia, for appellant.
    Howell K. Rosenberg, Philadelphia, for Guidry, appellee.
    Before BROSKY, BECK and CERCONE, JJ.
   BECK, Judge:

This is an appeal from an order of the Court of Common Pleas for Philadelphia County granting plaintiffs’ Motion for New Trial as to damages only.

This action was commenced in 1979. Plaintiffs were Gilbert Guidry and his wife, Kathryn. For a number of years Mr. Guidry had been employed at job sites, including the Philadelphia Naval Shipyard, where he had been exposed to asbestos. He also had a long history of smoking. At the time of suit, Mr. Guidry had not been diagnosed as suffering from lung cancer. However, in 1980, this diagnosis was made and six months later, Mr. Guidry died. He was then 50 years old. Mrs. Guidry was substituted as a plaintiff, suing as executrix of her husband’s estate. The complaint alleged negligence and strict liability. It named thirty-seven defendants, all allegedly responsible for Mr. Guidry’s asbestos-related injuries. Of these thirty-seven, thirty had settled prior to trial. Six others were dismissed from the suit for various reasons not relevant here.

Thus, at the time of trial, only appellant GAF remained as a non-settled defendant. The trial court ordered the trial of GAF’s cross-claims against the settled defendants severed from the trial of plaintiffs’ action against GAF. A jury trial resulted in a verdict for plaintiffs and an award of $185,000 to Mrs. Guidry as executrix and $10,000 in her own right.

Plaintiff filed a Motion for New Trial as to Damages Only, alleging that the damages award was inadequate. GAF filed Cross Post Trial Motions consisting of a Motion to Mould the Verdict, Motion for Judgment N.O.V., and Motion for New Trial on Liability. In the Motion to Mould the Verdict, GAF asserted that since plaintiff admittedly had already received settlement payments from the settled defendants in an amount exceeding the amount of the verdict, GAF had no liability to plaintiff and the verdict should be molded and marked satisfied to indicate this fact. In the Motions for Judgment N.O.V. and New Trial as to Liability, GAF alleged a variety of trial errors, including errors in the court’s charge and evidentiary rulings.

In the preface to these motions, GAF described its., position as follows:

Defendant GAF Corporation requests that the Court dismiss and deny any and all requests made in the Plaintiffs Post Trial Motions. In addition to disputing plaintiffs assignments of error, defendant asserts that the issues of liability and damages are so interwoven that a new trial as to damages only would constitute a complete denial of justice. Further, Defendant GAF moves that the Court consider Defendant GAF’s Cross Post Trial Motions re: Motion to Mould the Verdict to reflect settlements reached with joint tortfeasors. In the event the Court denies Plaintiff’s Post Trial Motions, Defendant’s Motions for Judgment N.O.V. and New Trial should be disregarded and only GAF’s Motion to Mould the Verdict should be considered. However, without waiver of this position, and only if the Court intends to grant Plaintiff a new trial as to damages, GAF Corporation moves that the Court consider Defendant GAF Corporation’s Cross Post Trial Motions re: Judgment N.O.V. and New Trial as to Liability-

In the prayer for relief at the end of GAF's Cross Post Trial Motions, this position was reiterated, as follows:

... [GAF requests] that the Court dismiss and deny Plaintiff’s Post Trial Motions. Further, it is requested that the Court grant the appropriate Cross Post Trial Motion of Defendant GAF Corporation re: Motion to Mould the Verdict. In the alternative and only in the event that the Court grants Plaintiff’s Post Trial Motions, then it is respectfully requested that the Court grant the appropriate Cross Post Trial Motions of Defendant GAF Corporation re: Judgment N.O.V. and New Trial as to Liability.

Thus, GAF’s post-trial position was clearly that its motions for judgment n.o.v. and new trial, based on allegations of error in the trial court’s handling of the liability aspect of the trial, were to be considered only if the trial court granted plaintiffs motion for a new trial as to damages. If the trial court denied plaintiffs motion, then GAF wanted the court to consider only GAF’s Motion to Mould the Verdict.

In an Order dated January 7,1986, the trial court granted plaintiffs’ Motion for a New Trial as to damages only. No trial court opinion in support of this order was authored. The court did not specifically refer to either GAF’s Motion to Mould the Verdict or to GAF’s Cross Post Trial Motions for Judgment N.O.V. or New Trial. However, since the court granted a new trial as to damages only, we can assume that the court impliedly also denied GAF’s Cross Post Trial Motions for Judgment N.O.V. and New Trial as to liability. No action appears to have been taken regarding the Motion to Mould the Verdict, presumably because this motion could not be acted upon until the conclusion of the new trial when damages were finally determined. GAF filed this timely appeal.

On appeal, GAF takes a position materially different from that it took in its post-trial filings. Before us, GAF not only argues that the trial court erred in granting plaintiff a new trial as to damages only but also argues that even if we reverse this decision, GAF is nevertheless entitled to a new trial as to liability. In other words, GAF now argues that even if we determine that the damages award should stand, a new trial as to liability alone is warranted.

As we will more fully discuss below, we agree with GAF that the trial court erred in granting a new trial as to damages. Given this determination, we will reverse the trial court’s order. However, we will not consider GAF’s remaining arguments in support of a new trial as to liability. As we have repeatedly stated, an appellant cannot assert one theory of error at trial and a different one on appeal. See Commonwealth v. Gordon, 364 Pa.Super. 521, 534-535, 528 A.2d 631, 638-9 (1987), and cases cited therein. At trial, GAF clearly indicated that its request for judgment n.o.v. or new trial as to liability was completely contingent upon a grant of a new trial as to damages. On the other hand, if damages were to be fixed in the amount of the jury’s original verdict, i.e., $195,000, then GAF did not wish to allege any errors as to liability.

Since we have determined that in fact no new trial as to damages is warranted, we will hold GAF to its post-trial position and not consider its arguments in support of a new trial on liability. However, we will also remand to the trial court with an instruction that it consider GAF’s Motion to Mould the Verdict in light of our decision.

Turning now to a discussion of GAF’s challenge to the trial court’s grant of a new trial as to damages only, we begin by recognizing that the grant of a new trial is within the discretion of the trial court and will be reversed only where there has been a gross abuse of that discretion. Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969). See also Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). Nevertheless, appellate courts do not abdicate their power of review and will reverse where a clear abuse of discretion has occurred. Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982).

The standard that guides the trial court’s exercise of discretion is clear. As stated in Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970):

A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence was conflicting and the jury might have found for either party.

Id., 438 Pa. at 289, 265 A.2d at 518 (quoting Carroll v. Pittsburgh, 368 Pa. 436, 445-6, 84 A.2d 505 (1951).

More specifically, the grant of new trial as to damages on the ground that the verdict is inadequate is appropriate only where “[t]he injustice of the verdict ... stand[s] forth like a beacon.” Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238 (1959). The verdict must bear no reasonable resemblance to the damages proved. Id. Thus, the verdict must appear to have resulted from

passion, prejudice, partiality or corruption, or that the jury disregarded the instructions of the court, or, in some instances where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or according to some, where, otherwise, there has been an evident failure of justice to the plaintiff ...

Morris v. Peckyno, 202 Pa.Super. 490, 492, 198 A.2d 396 (1964) (quoting 15 Am.Jur. § 231).

The fact that a verdict is low, standing alone, does not indicate that the verdict is inadequate. Id. If the low verdict can be explained by viewing it as a compromise verdict, then it should not be disturbed on appeal. Id. Where the evidence is conflicting and the resulting verdict is low, the verdict may be regarded as a compromise verdict, i.e., “one where the jury, in doubt as to defendant’s negligence or plaintiff’s freedom from contributory negligence, brings in a verdict for the plaintiff but in a smaller amount than it would have if these questions had been free from doubt.” Stokan v. Turnbull, 480 Pa. 71, 78, 389 A.2d 90 (1978) (citations omitted) (quoting Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 60 n. 3, 192 A.2d 689, 692 n. 3 (1963). Such verdicts are not only “allowed” but are “expected” and the compromise can arise either “out of damages or negligence or the balance of evidence concerning either or both, and the grant of a new trial may be an injustice to the defendant rather than an act of justice to plaintiff.” Elza, 396 Pa. at 115, 152 A.2d at 240. See also Fierman v. SEPTA, 277 Pa.Super. 252, 419 A.2d 757 (1980).

In a very recent pronouncement by our Supreme Court, these principles were reaffirmed. In Boggavarapu v. Pon ist, 518 Pa. 162, 542 A.2d 516 (1988), plaintiff was bitten by a dog and subsequently received tetanus shots as part of his treatment for the dog bite. He sued the owners of the dog, who joined as defendants the treating physician and hospital. The damages requested included medical expenses of $9,000 and damages for pain and suffering. The jury returned a verdict for plaintiff and against the owners only in the amount of $42.60, the cost of emergency room treatment. The other defendants were exonerated. The trial court ordered a new trial because no damages for pain and suffering were awarded. Id., 518 Pa. at 166-167, 542 A.2d 516.

The Supreme Court reversed, noting that plaintiffs evidence of pain all related to pain allegedly resulting from the administration of the tetanus shots. The Court concluded from the verdict that the jury must have disbelieved plaintiffs evidence in this regard, choosing rather to believe defendant’s medical testimony that the shots could not have caused the alleged pain. This it was the jury’s prerogative to do. Since the jury had disbelieved plaintiff’s evidence as to the cause of the pain, they were free to refuse to award pain and suffering damages. Id., 518 Pa. at 167-168, 542 A.2d 516.

In the instant case, GAF contends that there is an equally supportable explanation for the facially low verdict. Here, GAF argues, the immediate cause of decedent’s death was lung cancer. There was medical expert testimony that decedent suffered from pleural asbestosis, resulting from exposure to asbestos, and from lung cancer. The expert testimony was conflicting as to whether the lung cancer resulted from decedent’s exposure to asbestos or smoking or both. In fact, plaintiffs’ medical expert testified that both asbestos exposure and smoking contribute to the development of lung cancer and that their precise interaction is not yet fully understood.

Moreover, there was evidence of the fact that decedent suffered from both diabetes and hypertension and that both of these conditions may decrease an individual’s life expectancy. In fact, decedent’s mother was a diabetic and died at age 52 and his father died of heart disease at age 58.

Thus, although the plaintiffs’ damages witness set decedent’s loss of future earning capacity at between $367,106 and $643,068, based on U.S. Government life expectancy tables and a variety of assumptions regarding decedent’s projected working life and compensation, the jury’s award of a total of $195,000 can be explained as resulting from the jury’s attempt to reach a compromise based on conflicting evidence as to the cause of decedent’s pain and death. “It was the province of the jury below to resolve inconsistencies and contradictions, to disbelieve all or part of the testimony of the witnesses, and to thereafter compromise the verdict or establish an amount which it determined would justly compensate the plaintiff for his loss.” Fierman, 277 Pa.Super. at 255, 419 A.2d at 759.

The order of the trial court granting a new trial as to damages only is reversed and the jury’s verdict is reinstated. The matter is remanded for further proceedings not inconsistent with this Opinion. Jurisdiction is relinquished.

      . We also note that GAF’s briefs in support of its post-trial motions contained full argument in support of GAF’s opposition to a new trial on damages and as to its Motion to Mould the Verdict, but did not present full argument as to GAF’s allegations of error as to liability. As to these allegations, the brief contains merely a numbered list of the allegations, each supported by a single citation.

      . In Martin v. Owens-Coming Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987), the Supreme Court was similarly confronted with an asbestos case brought by a smoker plaintiff. The trial judge had specifically instructed the jury to apportion damages between the plaintiffs conduct and the defendant’s. The Supreme Court disapproved this instruction because it found that the expert medical testimony in the case regarding the relative roles of smoking and asbestos exposure in causing plaintiffs disease was too indefinite to permit apportionment. The Court remanded the case for a new trial as to damages, finding that the apportionment instruction had resulted in an inadequate verdict.
      The lead opinion in Martin was joined by two other justices. Justices Nix, Zappala and Hutchinson dissented. Justice McDermott separately concurred, clarifying that the majority opinion should not be construed as excluding consideration by the jury of the plaintiff s conduct in an asbestos case and indicating that on remand, the jury could return an even lower verdict if the evidence so warranted. The dissenters felt that the jury verdict, although low, should stand, having resulted from the jury’s consideration of all of the evidence before it.