author:
BROSKY, Judge:
      WIEAND, Judge,

text:
    489 A.2d 782
    Albert John LEHMICKE, Appellant, v. Nancy Sipe LEHMICKE.
    Superior Court of Pennsylvania.
    Argued March 29, 1984.
    Filed Feb. 1, 1985.
    Reargument Denied April 11, 1985.

      Michael P. Dignazio, Media, for appellant.
    Joseph L. London, Philadelphia, for Lehmicke, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   BROSKY, Judge:

The issue before us on this appeal is whether the trial court erred in awarding to appellee, appellant’s former wife, compensation for her contributions to her former husband’s medical education.

The parties were divorced on July 7, 1981 under the terms of the Pennsylvania Divorce Code. Pursuant to an order for Pre-Trial Conference, discussion of Mrs. Lehmicke’s request for alimony, equitable distribution of property, counsel fees and costs was held on August 18, 1981. Because no settlement was reached on those issues a special Master was appointed who held hearings late in 1981. The Master recommended that appellee be awarded $1,525 in counsel fees and costs, that alimony be denied, that appellant’s medical degree be considered marital property and that appellee be awarded $64,790.00 as her share of that property. Exceptions were filed to the Master’s Report and the trial court affirmed the recommendations as to alimony, counsel fees and costs and awarded Mrs. Lehmicke $64,-790.00 on equitable principles. This appeal followed.

Dr. and Mrs. Lehmicke were married on June 8, 1968. One child was born of the marriage. Dr. Lehmicke graduated from college shortly before the marriage. He was drafted in January, 1969 and served in the Army for approximately seventeen months during which time the parties resided in Baltimore, Maryland where Dr. Lehmicke was stationed. In July, 1970 the couple moved to Ohio where Dr. Lehmicke embarked on a three year accelerated program at Ohio State Medical School.

Mrs. Lehmicke testified that while her husband attended medical school she worked as a waitress five or six nights a week, earning between $30 and $40 a night. In the summers she also was employed as Recreational Assistant. Previous to the marriage she had worked as a nurse’s aide. The monies Mrs. Lehmicke earned were used to support the family and possibly to some extent, to pay certain medical school tuition and expenses of her husband.

Dr. Lehmicke testified that while he was in medical school he received $240.00 per month in G.I. benefits. This money was used to make monthly payments on a car the couple had purchased. Dr. Lehmicke also borrowed $8,600 to help finance his education and received a $1,000 scholarship and $1,000 as payment for research projects he performed.

Dr. Lehmicke graduated from medical school in June, 1973 at which time the parties moved to Philadelphia where he began an internship. While the couple lived in Philadelphia Mrs. Lehmicke did not have a paying job.

The parties had been having marital difficulties since Dr. Lehmicke’s second year in medical school and in May, 1974 they separated.

In September 1976 Mrs. Lehmicke began a two year nursing program at Philadelphia Community College. Her tuition and books were paid for by financial aid and scholarships. After she graduated Mrs. Lehmicke continued her education and in May, 1980 received a Bachelor’s Degree in nursing.

At the time of the hearing Mrs. Lehmicke worked 3 or 4 days a week as a registered nurse. She and her son live in an apartment in Philadelphia. Dr. Lehmicke is a Board Certified pediatrician in private practice.

During their marriage the parties did not accumulate any significant property. Mrs. Lehmicke urges us to find, however, that the value of her former husband’s medical degree and the consequent increase in earning capacity it promises should be divided between them based on equitable principles or in the alternative viewed as marital property subject to equitable distribution.

We will first address the question of whether Dr. Lehmicke’s degree or future earning capacity is an assignable asset subject to equitable distribution.

Our research discloses that most jurisdictions that have considered the question have concluded that neither an advanced degree nor increased earning capacity is actually “property.” For example, in In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75, 77 (1978) the Colorado Supreme Court opined and we agree that:

An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of the concept of “property.” It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term.

In Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982) the New Jersey Supreme Court while noting that “[rjegarding equitable distribution, this Court has frequently held that an “expansive interpretation [is] to be given to the word ‘property’ (Id. at 495, 453 A.2d at 531), nevertheless the court observed also that it “has subjected to equitable distribution an asset whose future monetary value is as uncertain and unquantifiable as a professional degree or license.” Id. at 496, 453 A.2d at 531.

The Court concluded that equitable distribution of the value of a degree or increased earning capacity would be improper. The Court noted the following problems: A professional license or degree is a personal achievement of the holder. It cannot be sold and its value cannot readily be determined. (Id. at 495, 453 A.2d at 531); Equitable distribution of a professional degree would similarly require distribution of “earning capacity” — income that the degree holder might never acquire. (Id. at 497, 453 A.2d at 532); Moreover, any assets resulting from income for professional services would be property acquired after the marriage; the statute restricts equitable distribution to property acquired during the marriage. (Id. at 497, 453 A.2d at 532); Valuing a professional degree in the hands of any particular individual at the start of his or her career would involve a gamut of calculations that reduces to little more than guesswork and even if such estimates could be made, there would remain a world of unforeseen events that could affect the earning potential of the degree holder. (Id. at 497, 453 A.2d at 532). See also Hughes v. Hughes, Fla. App., 438 So.2d 146 (1983); Lira v. Lira, 68 Ohio App.2d 164, 428 N.E.2d 445 (1980).

Most recently this Court in Hodge v. Hodge, 337 Pa.Super. 151, 486 A.2d 951 (1984) held that increased earning capacity is neither real nor personal “property” in the usual sense of the word. While we concluded that our Legislature did not intend increased earning capacity to be a divisible asset, we nonetheless were able to consider the increased earning capacity of one spouse in determining the amount and duration of alimony to be paid the other spouse. See Section 501 of the Divorce Code; 23 P.S. § 501.

Other jurisdictions have likewise considered the support given by one spouse in awarding alimony or maintenance payments. See e.g. Zohler v. Zohler, Conn., 8 Fam.L.Rep. 2694 (1982); In Re Lundberg, 107 Wis.2d 1, 318 N.W.2d 918 (1982); Lira v. Lira, supra; Graham v. Graham, supra.

In this case, however, Mrs. Lehmicke did not contest the denial of her request for alimony and we are not in a position to make such an award.

The trial court though, fashioned a remedy by relying on Section 401(c) of the Act which provides:

(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.

Appellant contends that the court erred in relying on Section 401(c) since, appellant argues, that section was intended to provide only pendente lite remedies. We do not agree.

While Section 401(c) clearly does provide in part for protection during the pendency of an action, we find no indication that it is limited solely to such a purpose. Instead, the Section provides in pertinent part that “the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to ... effectuate the purposes of this act____” Among the stated purposes of the Act is to “effectuate economic justice between the parties who are divorced or separated----” 20 P.S. § 102(a)(6). Moreover, the statute expressly states that the objectives of which the above is one shall be considered in construing its provisions. 23 P.S. § 102(b).

See also Rounick, Pennsylvania Matrimonial Practice, § 18:6 in which the authors note; “Section 401(c) is, perhaps, the most far-reaching power heretofore given to a court in a matrimonial cause in order to protect the interests of the parties and to effectuate the purposes of the New Divorce Code. This provision should be applied liberally.”

Section 401(c) is the same as § 601(2) of the Code proposed by the Joint State Government Commission and the comment to that section states in part that it is “... intended to give emphasis to the equity power and jurisdiction of the court and to make sure that it has effective power to deal with any problem which arises during the course of litigation:... ”

Keeping in mind the purpose of the Act we construe § 401(c) as granting the full equity powers for which it provides and therefore affirm the trial court’s use of such power because we agree that the facts of this case compel such an exercise of equitable power.

The parties had not accumulated marital property at the time of separation and Mrs. Lehmicke could not therefore be reimbursed for her contributions to her husband’s education through a distribution of property. In another case the distribution of property might provide a full remedy. See 23 P.S. § 401(d)(4).

Similarly alimony was denied here. While the propriety of the denial is not before us as an issue we note that the lower court could properly have concluded that an equitable remedy was necessary in this case because of the unavailability of alimony to Mrs. Lehmicke. This is so because unlike the alimony provisions of some of the states whose cases were cited earlier in this opinion, our statute provides only for “rehabilitative alimony”. An award of alimony in a case like the present one would be in the nature of “reimbursement” rather than “rehabilitation” and would therefore be inappropriate under the terms of the statute.

The trial court could not fashion an equitable distribution or an alimony award and yet the facts before it compelled some recompense for Mrs. Lehmicke who sacrificed for several years so that her husband could obtain his medical degree. Shortly after the degree was received the marriage failed and Mrs. Lehmicke was unable to see any benefit for her sacrifice. Dr. Lehmicke, on the other hand, was able to pursue a career as a physician.

While we therefore agree with the trial court’s exercise of its equitable power we do believe that a different measure of the amount of the award should have been used. The trial court awarded Mrs. Lehmicke a one-sixth share of the estimated value of her husband’s degree which in turn was valued based on his estimated earning capacity. We find no explanation of the decision to award that amount and believe that instead of awarding a percentage of the estimated value of the degree, that Mrs. Lehmicke should be compensated for the financial support she gave Dr. Lehmicke while he was a student; although, as we have said, the award is not an alimony award.

We will remand this case with instructions that the lower court consider Mrs. Lehmicke’s contribution to her husband’s attainment of his degree.

We recognize that Mrs. Lehmicke may not have actually paid much, if any, actual tuition, but it cannot be doubted that her financial support of her former husband and their child enabled him to pursue his education.

The award to her is in the nature of recompense for her contribution and ought to be related to it. In this respect we agree with the approach taken by the New Jersey Supreme Court in Mahoney v. Mahoney, supra in which the court awarded what it termed “reimbursement alimony.” While the lower court’s award in this case is not in the form of alimony, it is based on the same equitable principles on which the Mahoney court relied. The Mahoney court rejected a measure of damages based solely on the cost of educational assets, but instead said that the supporting spouse should be compensated for all financial contributions towards her former spouse’s education including household expenses, educational costs, school travel expenses and other contributions used by the supported spouse in obtaining his or her degree or license. We would add that in this case in which the couple had a child while Dr. Lehmicke pursued his education, the trial court should also consider the parties’ relative contributions to the support of that child.

We favor an award based on Mrs. Lehmicke’s contributions, rather than the estimated value of the degree because we believe that such an award more fairly compensates the spouse for her contributions. It is her contributions that are being reimbursed, not a piece of property that is being awarded.

We believe that such an award also avoids the speculation and uncertainty involved when an award is based on estimated value of a degree. For a similar approach to valuation see DeLarosa v. DeLarosa, supra; Zohler v. Zohler, supra; Inman v. Inman, supra.

Order affirmed in part and reversed in part and case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

McEWEN, J., concurs in the result.

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

WIEAND, Judge,

concurring and dissenting:

Although I concur with portions of the majority opinion, I am unable to agree with the majority’s decision to remand. The evidence showed that the wife-appellee did not contribute to the cost of the husband-appellant’s medical school education; and to the extent that she contributed to the support of the family while appellant attended classes, neither the Divorce Code nor principles of equity require restitution. Therefore, I would vacate and set aside the order directing appellant to pay appellee the sum of $64,-790.00.

Albert J. Lehmicke and Nancy Sipe Lehmicke were married on June 8, 1968, following Albert’s graduation from college. After a seventeen month stint in the army, Albert and his wife moved to Ohio, where Albert matriculated at Ohio State Medical School. Following graduation in June, 1973, both husband and wife moved to Philadelphia, where Albert served a medical internship. The parties separated in May, 1974, one child having been born of their marriage. A decree in divorce was entered on July 7, 1981. By that time, Dr. Lehmicke had become a Board Certified Pediatrician and, after two years of employment by the Media Clinic, had entered private practice in April, 1980. Nancy Lehmicke, meanwhile, had completed a two year nursing program at Philadelphia Community College and, in May, 1980, had earned a Bachelor’s Degree in nursing. At the time of the divorce, she lived with the parties’ son in an apartment in Philadelphia and was working as a registered nurse.

During their brief marriage the parties did not accumulate any significant marital property. The divorce court, however, determined that Dr. Lehmicke’s medical degree was marital property and awarded Mrs. Lehmicke the sum of $64,790.00 as her distributive share thereof. The majority concludes that the medical degree was not marital property. It remands, however, for a hearing to determine, on equitable principles, what amount should be awarded to Mrs. Lehmicke to reimburse her for contributions to family support made while her husband was attending medical school. I agree with the majority that Dr. Lehmicke’s medical degree was not marital property. I disagree that Mrs. Lehmicke is entitled to recover, on either equitable or legal grounds, the contributions which she made to the family’s support while her husband was unable to work because he was pursuing a degree in medicine.

. The Divorce Code does not compel or even recommend that an advanced academic degree be deemed marital property. An academic degree is personal to the holder; it can neither be transferred nor inherited. It does not have an exchange value. A person who has earned an advanced degree may or may not parlay it into a successful career in the same field. Thus, a value cannot readily be placed upon a degree which, in substance, is nothing more than a recognition of academic achievement. In short, the degree lacks any and all of those attributes which are usually associated with property.

An advanced degree, of course, creates a potential in the holder to earn money and acquire property in the future. A potential for increased earnings, however, “is not limited to situations involving formal education. [It] can be a result of on-the-job training, in-job experience, apprenticeships or a host of other factors which make the labor of an individual more valuable____” Hodge v. Hodge, 337 Pa.Super. 151, 156, 486 A.2d 951, 953 (1984). Whether the potential for increased earnings will be realized, of course, must necessarily depend upon personal variables not readily ascertainable in advance, such as industry, diligence, integrity, ability and intelligence.

In Hodge, a panel of this Court held that an advanced degree in medicine was not property. For similar reasons, most courts which have considered the issue have concluded that advanced, educational degrees are not marital property and cannot be divided between spouses. See: In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978) (master’s degree in business administration); Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792 (1977) (future salary of college professor with Ph.D.); Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982) (master’s degree in business administration); Frausto v. Frausto, 611 S.W.2d 656 (Tex. Civ.App.1981) (medical degree); DeWitt v. DeWitt, 98 Wis.2d 44, 296 N.W.2d 761 (1980) (law degree).

It does not follow that a divorce court can ignore the investment which one spouse has made in the education or training of the other. The Divorce Code requires that a court which is called upon to divide marital property in an equitable manner shall consider “[t]he contribution by one party to the education, training, or increased earning power of the other party.” Divorce Code of April 2, 1980, P.L. 63, § 401, 23 P.S. § 401(d)(4). In the instant case, the parties were involved in a relatively short marriage during which little or no marital property was accumulated. Thus, there is no marital property to be distributed.

In the usual case, an advanced degree will also manifest itself in an increased earning capacity of the holder. In a sense, the spouse who contributes to the other’s obtaining of a degree has made a marital investment. One spouse has “postponed, as it were, present consumption and a higher standard of living, for the future prospect of greater support and material benefits.” Mahoney v. Mahoney, supra 91 N.J. at 501, 453 A.2d at 534. This investment will make it possible for the holder of the degree to contribute more substantially to the support of the family, including the other spouse, whether in the form of support or alimony payments. See: Hodge v. Hodge, supra. This too failed to provide a satisfactory solution in the instant case, however, for Mrs. Lehmicke had achieved an educational degree in her own right and was able to support herself. Therefore, the court held that she was not entitled to an award of alimony. Mrs. Lehmicke did not appeal from that determination.

I also agree with the majority that where one spouse has contributed to the cost of an advanced degree or to training acquired by the other, a court may rely upon equitable principles to fashion a remedy. Where, as in the instant case, the investment has not manifested itself in acquired marital property and cannot be returned in the form of enhanced support, a court charged with doing equity may nevertheless order reimbursement to the investing spouse in order to avoid unjust enrichment of the student spouse. This, as Judge Brosky has pertinently noted, is authorized by the provisions of Section 401(c) of the Divorce Code which direct that courts shall have the power to do equity in all matrimonial cases. That courts shall enter orders as equity and justice may require is also suggested by Section 102(a)(6) which mandates that the Divorce Code be interpreted and applied by a court so as to “[ejffectuate economic justice between parties who are divorced or separated.” The courts of other jurisdictions have achieved similar results. See: Moss v. Moss, 639 S.W.2d 370 (Ky.App.1982); Mahoney v. Mahoney, supra; O’Brien v. O’Brien, 114 Misc.2d 233, 452 N.Y.S.2d 801 (1982); Hubbard v. Hubbard, 603 P.2d 747 (Okla.1979). See also: 24 Am.Jur.2d, Divorce and Separation § 898; Annot., 4 A.L.R.4th 1294.

It must be emphasized, however, that there is no absolute right to reimbursement merely because one spouse has made contributions to the other’s education or training. Such contribution is merely a factor to be considered, among others, as a court seeks to achieve economic justice between the parties. If the contributing spouse’s investment in the education of the other has been realized by acquired marital property or the contributing spouse has shared in the fruits of the other’s education or training during long years of marriage, it is possible that economic justice can be effectuated solely by a division of marital property or by an award of support or alimony. In such instances, a separate reimbursement for contributions made to the other’s education will most likely be unnecessary to achieve economic justice. See: Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (1981); Todd v. Todd, 272 Cal.App.2d 786, 78 Cal.Rptr. 131 (1969). See also: Divorce Code § 401(d)(4).

I am compelled to disagree with the majority, however, when it remands for the trial court to determine the amounts which the wife contributed to the support of the family while the husband was attending medical school. Since adoption of an Equal Rights Amendment to the Constitution in Pennsylvania, it is clear that each spouse owes to the other and to the children born of their marriage a duty of support. This “right of support depends not on the sex of [the spouse] but rather upon the need in view of the relative financial circumstances of the parties.” Henderson v. Henderson, 458 Pa. 97, 101, 327 A.2d 60, 62 (1974). When spouses decide to separate or divorce, a nonworking spouse is not required to reimburse a working spouse for contributions previously made by the working spouse to support the nonworking spouse and children born of the marriage. This is true whether the idleness of the nonworking spouse was caused by illness, by physical or mental disability, because of the need to care for children, or because, for reasons of sloth, the spouse was unwilling to work. Why, then, should there by a different rule where the inability of a spouse to work is brought about by the need to attend classes? Or, to state it differently, if a working spouse can recover contributions made to the family while the nonworking spouse is pursuing an academic degree, why shouldn’t a working spouse be entitled to recover such contributions upon divorce whenever the other spouse, for whatever reason, failed or was unable to work? Logic suggests that the duty of spousal support should not be treated differently merely because contributions of support are unequal while one spouse seeks an advanced degree or undergoes training intended to increase his or her earning power.

The duty of support is imposed by rule of law on both spouses. Compliance with this legal duty does not result in unjust enrichment to the other. Marriage is for better or worse. It is not entered with a conscious intent that at some future time there will be an accounting of and reimbursement for moneys contributed to the support of the family. To inject such a concept would, in my judgment, have far-reaching and unfortunate consequences. If I am correct in my view regarding the duty of spousal support, then it is difficult to perceive good reason for creating an exception which would reimburse a spouse for support contributed while the other is attending an institution of higher learning or otherwise obtaining advanced training.

The imposition of an equal duty on both spouses to pay nonrecoverable support to the other does not deny the financial sacrifices made by a working spouse while the other spouse acquires an education. Those sacrifices are real and, at times, burdensome. The working spouse may have foregone his or her own educational goals; both spouses may have reduced their standard of living for a time; and the experience may have been financially and emotionally draining. The decision to take that route in preference to another, however, is a decision born of the marriage. That the marriage subsequently proved unsuccessful does not permit a court to turn back the clock and return the parties to the same positions in all respects which they occupied before they assumed the mutual obligations of marriage. Return to the status quo which existed prior to marriage is not one of the goals of the Divorce Code.

I would hold that a nonworking spouse is liable to reimburse a working spouse only for sums advanced in excess of the legal duty of support imposed by law upon the working spouse. In most cases where the nonworking spouse is engaged in obtaining an education, this will, be the amount contributed by the working spouse to the cost of educating the other spouse. Such a limit on the right to obtain restitution on equitable grounds is consistent with the contract of marriage, the legal duty of spousal support, and the purpose of the Divorce Code to effectuate economic justice between the parties upon divorce.

In the instant case, the evidence established that Mrs. Lehmicke’s contributions while her husband was attending medical school were limited to spousal and child support. She worked as a waitress five or six nights a week and earned between thirty and forty dollars per night. She also worked summers as a recreation assistant. Her earnings were used to pay rent and to purchase food and clothing for the family. Although some tips were kept in a jar and may have been used on occasion to purchase books for her husband, it seems clear that Dr. Lehmicke’s financial resources were in excess of the cost of his medical education. His education cost $1,877.00 per year for three years or a total of $5,631.00. During this three year period he earned $1,000.00 by doing research work, received $1,000.00 in scholarships, and borrowed $8,600.00. He also received $240.00 per month in veteran’s benefits, which were used to make monthly payments on a car. Moneys received in excess of the annual cost of his education were used to pay household expenses.

This evidence does not establish that Mrs. Lehmicke paid for Dr. Lehmicke’s medical education. It does show that she contributed to the support of the family, including her son, while Dr. Lehmicke was unable to work full time because he was attending medical school. These were support contributions which she was legally obligated to make. She was obligated to support her husband, as well as her son, while her husband was unemployed for any reason provided, only, that he had not forfeited the right of support by his conduct. Because appellee was obligated by law to provide spousal support she is not entitled to reimbursement therefor upon dissolution of the marriage. She was no more entitled to restitution for supporting her husband than he would have been if he had been the working spouse and had supported her while she stayed at home to care for their son. In either case, the spouses would have been building and investing for the future of their family. In either case, there would have been no unjust enrichment because of support payments made to benefit the family.

For the foregoing reasons, I would reverse and set aside the order of the trial court which awarded appellee the sum of $64,790.00 as compensation for her interest in appellant’s medical degree.

      . 23 P.S. §§ 101 et seq.

      . The Pennsylvania Divorce Code similarly defines "marital property” as property acquired during the marriage. See 23 P.S. § 401(e).

      . But see In re Marriage of Horstmann, Iowa, 263 N.W.2d 885 (1978); (increased earning capacity is a distributable asset); Inman v. Inman, Ky.App., 578 S.W.2d 266 (1979) (there are certain instances in which treating a professional license as marital property is the only way in which a court can achieve an equitable result). The Inman holding, however, is apparently limited. See Leveck v. Leveck, Ky.App., 614 S.W.2d 710 (1981) (where there was some marital property there is no need to treat a medical degree as a marital asset).

      . See also 23 P.S. § 401(d)(4) which provides that one of the factors to be considered in distributing marital property is "the contribution by one party to the education, training, or increased earning power of the other part/'. Unfortunately in neither the Hodge case nor in the present appeal did the parties acquire any significant amount of marital property.

      . The New Jersey alimony statute for example, provides that the court can order alimony or maintenance as the circumstances of the parties and nature of the case shall render fit, reasonable and just. See N.J.S.A. 2A:34-23.

      . Dr. Lehmicke’s medical degree was given an estimated present value of $388,740.00 based on his earning capacity. Mrs. Lehmicke was awarded a one-sixth interest, or $64,790.00, payable in six yearly installments.

      . 23 Pa.C.S. § 101 et seq.


source: Caselaw Access Project

author: MONTEMURO, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    489 A.2d 791
    Cynthia D. WILSON, Administratrix of the Estate of Keith L. Wilson, Deceased, and all others similarly situated v. STATE FARM MUTUAL INSURANCE COMPANY. Appeal of Richard A. NEYHARD, Individually and as Administrator of the Estate of Christopher K. Neyhard, Deceased, and all others similarly situated.
    Superior Court of Pennsylvania.
    Submitted Jan. 12, 1984.
    Filed Feb. 1, 1985.
    Reargument Denied April 15, 1985.

      Morris M. Shuster, Philadelphia, for appellant.
    Neil J. Rovner, Harrisburg, for Wilson, appellee.
    James J. McCabe, Jr., Philadelphia, for State Farm, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

Before us are consolidated appeals from orders entered on June 9, 1982, denying Richard Neyhard’s [hereinafter “appellant”] petition to intervene in the above-captioned class action and dismissing his objections to the proposed settlement therein. The appellant further challenges the order entered on June 10, 1982, approving the settlement as to subclass three. All three orders were entered by the Honorable William W. Lipsitt of the Court of Common Pleas of Dauphin County.

On November 14, 1978, Cynthia Wilson, as administratrix of the estate of Keith Wilson, her deceased husband, [hereinafter “Wilson”] commenced an action against State Farm Mutual Insurance Company [hereinafter “State Farm”] seeking to recover postmortem work loss benefits due from State Farm as a result of the death of her husband in a motor vehicle accident. These benefits were sought pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act. On November 3, 1980, Wilson filed a class action complaint on behalf of herself and all previously employed Pennsylvania residents, insured by State Farm, who sustained fatal injuries in motor vehicle accidents within two years prior to the date of her husband’s death.

By order of the Court of Common Pleas of Dauphin County, dated July 20, 1981, the following two subclasses were “conditionally” certified pursuant to Pa.R.Civ.P. 1702:

(1) When a deceased motor vehicle accident victim is survived solely by a spouse or solely by a spouse and minor children or solely by minor children, these survivors shall constitute a subclass.
(2) When a deceased motor vehicle accident victim is not survived by a spouse or by minor children, but is survived solely by other “survivors” delineated in § 103 of the Act and these other “survivors” have been recognized by the insurance carrier as dependent, either by the carrier’s having paid them “survivor’s loss” benefits or otherwise, then these other survivors shall constitute a subclass.

Wilson v. State Farm Mutual Insurance Company, 103 Dauph.C.Rep. 25, 28 (1981). The court further stated, “Our organization of the class into these subclasses has been carefully scrutinized to sift out cases in which an initial inquiry on dependency is necessary.” Id at —. The court’s reluctance to include cases in which a claimant’s dependency was in question stemmed from a recognized lack of commonality of law and fact between these cases and those of the certified subclasses and from the uncertainty of the law regarding the recoverability of post mortem work loss benefits by estates and nondependents.

Following this certification, State Farm provided Wilson with a list of the names of individuals who State Farm believed fell within the two subclasses. The court approved a notice which was sent to all the individuals appearing on the list. The notice informed the recipients that they might be entitled to benefits if they were a spouse, dependent child, or dependent relative of an insured person killed in a motor vehicle accident within approximately a six (6) year period. Unfortunately, fifty-three (53) individuals mistakenly received identical notices' despite the fact that those individuals were not within the enumerated categories. These fifty-three (53) recipients are best described as persons representing decedents who had no “survivors” as that term is defined in the Pennsylvania No-Fault Motor Vehicle Insurance Act.

Meanwhile, the appellant instituted a separate class action in the Court of Common Pleas of Philadelphia County, Neyhard v. State Farm Mutual Insurance Company, March Term 1981, No. 608. The appellant is the father and administrator of the estate of Christopher Neyhard, an employed young man who, following a fatal automobile accident, left no dependent “survivors”. The Neyhard complaint sought recovery of post mortem work loss benefits for all estates and/or survivors of decedents killed in motor vehicle accidents and insured by State Farm. This action has been temporarily stayed.

Given the definition of the two certified subclasses, the appellant was patently not a member and it appeared that neither he nor the class of other nondependents he represented would be impacted by a resolution of the Wilson proceedings.

On February 11, 1982, Wilson filed a motion for partial summary judgment and, at about this time, the respective parties commenced settlement negotiations. Settlement terms were reached and were set forth in a stipulation of settlement dated May 17, 1982.

Under the terms of the stipulation of settlement, class one encompassed ninety-six (96) claims in which each class member was admittedly or presumptively dependent upon the decedent and no statute of limitations defense existed; class two encompassed one hundred and thirty-three (133) claims in which dependency was similarly admitted or presumed yet the statute of limitations may not have been properly tolled; class three was comprised solely of the fifty-three (53) “nondependent” claims. It was agreed that class one members would receive in settlement the full value of the applicable policy limits plus two years of interest at the statutory rate of 18% per year, totaling an individual estimated payment of $20,400.00. Class two members would receive one-half of their policy limits plus one and one-half years’ interest at the 18% rate, totaling an individual estimated payment of $9,525.00. Class three members would receive individual payments of $6,000.00.

In accordance with Pa.R.Civ.P. 1714(c), the parties prepared a notice of proposed settlement which was submitted to, and approved by, the lower court. This notice included a description of the third new subclass and set forth the terms of each class’ recovery. The members of all three classes received this notice.

A public hearing on the proposed settlement in Wilson was held on June 9, 1982. At this hearing, the appellant presented his petition to intervene and his objections to the proposed settlement. The lower court denied the petition and dismissed the objections. This timely appeal followed.

Pa.R.Civ.P. 2327 speaks directly to the issue of who may intervene in a civil action:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
(2) such person is so situated as to be adversely affected by distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

The burden is on the petitioner to satisfy the requirements of Rule 2327. See Startzell v. Montgomery Plaza, Inc., 96 Mont.C.Rep. 1 (1972), aff'd per curiam, 451 Pa. 585, 303 A.2d 824 (1973).

Additionally, we are mindful that the question of intervention is a matter within the sound discretion of the trial court. Unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review. See Darlington v. Reilly, 363 Pa. 72, 69 A.2d 84 (1949); see also Marion Power Shovel Co. v. Fort Pitt Steel Casting Co., 285 Pa.Super. 45, 426 A.2d 696 (1981).

The appellant’s brief addresses itself, without expressly so stating, to Rule 2327(4)’s allowance of intervention in cases where the petitioner possesses a legally enforceable interest, which will be affected by the determination of an action. The appellant argues that, having commenced a separate action on behalf of himself and a class of individuals allegedly inclusive of class three members in the Wilson action, he, as their representative, possesses a legally enforceable interest compelling his intervention. In light of the particular facts before us, we agree.

The rule as to what constitutes a legally enforceable interest is unclear. See Application of Biester, 487 Pa. 438, 442 n. 2, 409 A.2d 848, 850-51 n. 2 (1979). The lower court found:

Because Mr. Neyhard was not listed as a member of the plaintiffs’ class and, in view of the fact that there has been no certification of a class which Neyhard purports to represent nor approval of his counsel as counsel for the class, this Court was compelled to deny the motion for intervention.

Lower Court Opinion at 5.

The lower court’s emphasis upon the appellant’s class’ lack of certification was misplaced. Pa.R.Civ.P. 1701(a) states:

“Class action” means any action brought by or against parties as representative of a class until the court by order refuses to certify it as such or revokes a prior certification under these rules.

In Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), the supreme court observed:

When an action is instituted by a named individual on behalf of himself and a class, the members of the class are more properly characterized as parties to the action. A subsequent order of a trial court allowing an action to proceed as a class action is not a joinder of the parties not yet in the action. The class is in the action until properly excluded.

Id., 465 Pa. at 229, 348 A.2d at 736; see also Goodrich-Amram 2d § 1701:1 (Supp.1984).

In March of 1981, the appellant commenced his class action as a nondependent survivor of his insured son. The action was commenced to recover work loss benefits on behalf of himself and all others similarly situated. On July 20, 1981, two Wilson subclasses were provisionally certified. Those two subclasses did not sweep within their ambit the “nondependents” who were ultimately included in the Wilson action. The fifty-three (53) individuals who later comprised the Wilson class three were, in March of 1981, “properly characterized as parties” to the Neyhard action. We find, therefore, that the appellant bears a duty to “fairly and adequately assert and protect the interests of the class” he represents, Pa.R.Civ.P. 1702(4), inclusive of the Wilson class three members. As a representative of the individual members of class three, the appellant’s legally enforceable interest in the Wilson action was sufficient to satisfy Rule 2327(4).

“[T]he exact boundaries of the ‘legally enforceable interest’ limitation ... are not clear.
It owes its origin to the desire of the courts to prevent the curious and meddlesome from interfering with litigation not affecting their rights. The result is a flexible, although uncertain rule....”

Pennsylvania Railroad Co. v. Hughart, 422 Pa. 615, 222 A.2d 736, 738 (1966).

The appellant need not have been one of the individuals mistakenly included in the Wilson action to be possessed of a legally enforceable interest. Such an argument ignores the appellant’s representational status. Further, the Wilson class three members were previously parties to the pre-certification Neyhard action represented by the appellant. The appellant was, by no means, simply “curious and meddlesome” in attempting to intervene in the Wilson action. Therefore, the lower court improperly denied the appellant’s petition to intervene.

Order of June 9, 1982, denying the appellant’s petition to intervene, is reversed. Order of June 9, 1982, dismissing the appellant’s objections to the proposed class action settlement, is not reached. Order of June 10, 1982 is not reached. Order of June 25, 1982 is not reached.

DEL SOLE, J., files dissenting opinion.

DEL SOLE, Judge,

dissenting:

The majority holds that Appellant Neyhard’s status as representative of an uncertified class similarly situated to subclass three members in the instant action per se confers on Neyhard a “legally enforceable interest” compelling intervention under Rule 2327(4) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 2327(4). While I would agree that Neyhard’s class representative status would give him standing to petition for intervention on behalf of subclass three in the instant action, I do not believe that such status per se gives him a “legally enforceable interest” in the instant class action absent a showing that subclass three is not being adequately represented by the class representative in the instant case, Cynthia Wilson. Since I would require a showing of inadequate representation to establish a “legally enforceable interest”, I respectfully dissent. In addition, while the trial court erroneously held that Neyhard had no standing to intervene, I would affirm its denial of Neyhard’s petition to intervene based upon the trial court’s overall finding that subclass three was adequately represented and that Neyhard’s objections to the settlement were meritless. . •

There is no question that a trial court can permit intervention in a class action under Rule 1713(a)(3) of the Pennsylvania Rules of Civil Procedure. In addition, Rule 1713(a)(3) provides that intervention be allowed in accordanee with the rules governing intervention, specifically Rules 2326-2330 of the Pennsylvania Rules of Civil Procedure. Rule 2327 sets forth which persons may intervene:

Rule 2327. Who May Intervene

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if

(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

Pa.R.C.P. 2327. It is worthy to note that Appellant Neyhard has failed to cite in his brief the specific subsection of Rule 2327 under which his intervention would be permitted. A close reading of his brief reveals that his argument on intervention is merely conclusory. Despite this fact, the majority finds that Neyhard essentially argues that he possesses a “legally enforceable interest” allowing his intervention under subsection four of Rule 2327. While I do not agree that Neyhard has made a compelling appellate argument, I do agree that under the facts Neyhard could only intervene under subsection four of Rule 2327. However, as I initially noted, I disagree with the majority’s interpretation of what constitutes a “legally enforceable interest” in the procedural context of the instant case.

The instant case poses, I believe, a unique procedural issue not yet addressed by any court of this Commonwealth nor any other court. In most cases, a person seeks to intervene because his or her rights will be affected in some manner. In the class action setting, a person, already a named member of a class, seeks to intervene on grounds that the class representative is not adequately protecting his or her interests. However, in the instant case a person, Neyhard, not a member of a class in the instant action, seeks to intervene not on his behalf but on behalf of the persons comprising subclass three. The thrust of Neyhard’s attempted intervention is that the interests of of subclass three are not being adequately protected by the class representative as evidenced by an alleged defective settlement. Indeed, if the record revealed that the interests of subclass three were being adequately protected then there would be no reason for the trial court to allow Neyhard’s intervention.

The case law in this Commonwealth gives little guidance on issues concerning intervention in class actions. It would seem, however, that intervention should be liberally allowed assuming the requirements for intervention have been met. See Goodrich-Amram § 1713(a):4. See also McMonagle v. Allstate Ins. Co., 227 Pa.Super. 205, 212-214, 324 A.2d 414, 419-420 (Opinion of Cercone, J., in Support of the Order Per Curiam) (1974). However, intervention has been denied on a finding that the petitioner’s interest were already adequately represented by the class representative. See Goodrich-Amram § 1713(a):4. As previously noted, this is a case of someone other than a named class member attempting to intervene on behalf of named class members. This changes the focus of the intervention analysis. Normally, the focus is on the proposed intervenor and whether his or her interest is being adequately protected by the named class representative. In the instant case, the focus is not on the intervenor, Neyhard, but on the class members for whom intervention is sought and whether their interests are already adequately represented. Assuming a person has standing to intervene because he or she is similarly situated to the class members on whose behalf intervention is sought, only upon a showing that the interests of the class members are not already adequately represented by the named class representative would there arise in the person a “legally enforceable interest” permitting intervention under Rule 2327(4). In the instant case, Neyhard had standing to intervene because he was similarly situated to the members of the subclass three, but the record reveals a failure to establish that the interests of subclass three were not already adequately protected by the named class representative, Cynthia Wilson.

A review of the record reveals that the persons who comprise subclass three were mistakenly included in the instant action. Nevertheless, a settlement was reached was included a provision for payment of $6,000 to each member of subclass three not opting out of the settlement. The record also reveals that notice of the settlement was given to as many subclass three members as possible and that some decided to accept the settlement. The only objections to the settlement were raised by Neyhard which the trial court dismissed as meritless and in which finding I concur. In addition, the trial court explicitly found that the settlement was vigorously negotiated and was fair in light of serious doubts that subclass three members would prevail at trial and the further expenses of litigation given the unlikelihood of success. While the trial court did not explicitly frame its findings in terms of adequate representation it is apparent that the trial court found that subclass three was well served by the settlement despite the difference in interest between subclass three and other two classes. My review of the record convinces me that the interests of subclass three were adequately represented by the named class representative, Cynthia Wilson, and thus no “legally enforceable interest” arose in Neyhard to permit his intervention under Rule 2327(4). Accordingly, I would affirm the trial court’s denial of Neyhard’s petition to intervene.

      . In addition to these three orders, the appellant’s notice of appeal, filed on July 7, 1982, evidenced an intent to appeal a fourth order entered on June 25, 1982. However, no arguments relating to this order have been presented to us and therefore we will consider the issue waived.

      . 40 P.S. § 1009.101 et seq.

      . [40 P.S. § 1009.103]

      . But see Freeze v. Donegal Mutual Insurance Company, 504 Pa. 218, 470 A.2d 958 (1983).

      . 40 P.S. § 1009.103.

      . State Farm faces more than eleven hundred (1,100) potential claims for work loss benefits on behalf of decedents who left no dependent “survivors". Neyhard v. State Farm, Defendant’s Answers to Interrogatories, paragraph 5 and 6.

      . On June 10, 1982, the court entered orders approving the overall settlement as fair, reasonable, and adequate. However, due to the possibility of the appellant’s appeal, class three was severed from classes one and two for separate disposition. The appellant has, at no time, raised objections to the proceedings or settlements involving classes one and two.

      . The absence of a grant of the appellant's petition to intervene created confusion as to whether or not the appellant’s objections were properly before the lower court. This is apparent in the record of the settlement hearing held on June 9, 1982. Counsel for the appellant requested as follows:
      MR. SHUSTER: Your Honor, please, just for clarification of the record, in light of your severance, I would request that Your Honor approve the petition for intervention since Your Honor has overruled the objections so that we have a standing to proceed.
      THE COURT: Does anybody have any objections to this intervention?
      MR. REATH: Your Honor, we do.
      THE COURT: The real problem that we have is that we have a case, at least in my opinion, which is against you; however, I think that you should have a ruling on the petition to intervene so you can take an appeal on that case, [petition denied]
      N.T. Settlement Hearing, June 9, 1982, at 38-39.
      Having denied the appellant’s petition to intervene, the appellant was without standing to raise objections to the proposed settlement. The lower court improperly entertained, and improperly ruled upon the apparent merits of, the appellant’s objections. In analogous situations, courts have held:
      A third person cannot appear and file preliminary objections in an action to quiet title without first intervening and becoming a party. Only by intervention can the third person acquire standing. No stranger may be permitted to file an answer to a complaint unless he has first intervened in the action and became a party. An outsider cannot move to strike off or to open a judgment until he has first intervened. (Footnotes omitted).
      Goodrich-Amram 2d § 2327:1.
      If a petitioner for intervention has no other adequate means of asserting his rights, the denial of his/her petition is a final and appealable order. See Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Super. 101, 403 A.2d 113 (1979). Given the specific nature of the appellant’s alleged status as representing the individual members of class three in Wilson, the denial of the appellant’s petition to intervene in the Wilson action foreclosed the only means by which the appellant could assert his claim. This was an appealable order.
      In light of the foregoing analysis, our review of the instant case will be confined to a determination of whether the lower court acted properly in denying the appellant’s petition to intervene. We therefore do not reach the merits of the appellant’s challenge to the June 9, 1982 dismissal of his objections to the proposed settlement or the merits of the appellant’s related challenge to the June 10, 1982 approval of the settlement as to subclass three.

      . Pa.R.Civ.P. 1710(d)

      . Under Pa.R.Civ.P. 2329(2), a court may refuse an application for intervention despite the satisfaction of Rule 2327, if “the interest of the petitioner is already adequately represented.” See Straud v. Harper, 66 Mont.C.Rep. 313, 81 Pa. D & C 233 (1950). Since it may be argued that Wilson was already adequately representing the interests of the appellant in the Wilson action, we feel it is necessary to redress this contention. We do so simply by making reference to the findings of the lower court in the opinion filed following that court’s original class certification hearing, Wilson v. State Farm Mutual Insurance Co., 103 Dauph.C.Rep. 25 (1981). At that time, the court refused to certify as a subclass the claims of survivors whose dependency was disputed. The court stated, “We are unable to conclude with certainty that the plaintiff herein [Wilson] truly represents the interests cf said ‘other’ survivors.” Id. at 28.


author: BECK, Judge: TAMILIA, Judge,

text:
    489 A.2d 798
    Jalal FATEMI v. Linda Brodbeck FATEMI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1984.
    Filed Feb. 27, 1985.

      Joseph P. Lenahan, Scranton, for appellant.
    Richard M. Goldberg, Wilkes-Barre, for appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   BECK, Judge:

Appellant mother challenges the lower court’s denial of: (1) her petition for custody of her sons; (2) her petition for more liberal partial custody, and (3) her petition for partial custody privileges in the presence of male companions. With one modification, we affirm.

Appellant Linda Fatemi (“mother”) and her divorced husband, appellee Jalal Fatemi (“father”), have two sons: Kevin born in 1975, and Curt in 1977. The parties separated early in 1980. The mother retained custody of the two children.

In April 1980 the father went to Iran to be with his family and took the children with him without informing the mother. She did not see the children again until December 1980 when he returned to Wilkes-Barre with them. At his insistence, the parties met in Switzerland in August 1980 and reached an agreement which was incorporated into their divorce. The agreement provided that the father would retain custody of the children, with the mother having visitation privileges each day in his home. Both parties found this arrangement unworkable.

On September 15, 1982, the mother filed a petition for modification. On October 14, 1982, the parties, both represented by counsel, met with a master and entered into a stipulated agreement (“stipulated agreement”) which was converted into a court order on October 15, 1982. The order confirmed custody in the father. The mother was awarded partial custody two weekends a month, with overnight privileges on one of those weekends, and three hours every Tuesday and alternating Mondays.

Problems arose immediately with this schedule. In December 1982, the mother filed a petition for contempt, and the father filed a petition to modify. After unsuccessfully attempting to resolve the matter through conferences with the parties, the court entered an interim order. It also ordered evaluations of the children, the parties, and their homes.

The parties continued to experience problems with the schedule. In April 1983, the father filed a contempt petition. The mother filed an answer and new matter requesting custody be transferred to her.

The trial court held hearings on May 26 and 31, and June 7, 1983. In order to consolidate the numerous petitions before it, the court with the agreement of the parties, treated the matter as a custody hearing on the merits. N.T. 5/26/83, 4-6. On June 8, 1983, the trial court issued an order confirming custody in the father, granting the mother expanded partial custody on weekends as well as holidays, and one week in the summer. The order prohibited the mother from having male companions present while she was enjoying partial custody. The mother appeals this order.

Initially we note that the trial court fulfilled its responsibility to provide a complete record. The judge also wrote a thorough and well considered opinion. In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984). Both parties were afforded full opportunity to present evidence on all aspects of the dispute before the court. The trial court interviewed both children in chambers, and the following witnesses testified: appellant, appellant’s mother, appellant’s sister, appellee, and appellee’s housekeeper.

The appellant contends that the trial court erred in awarding custody to the father. Alternatively she argues that the trial court erred in not granting her more liberal partial custody. In addition, she maintains it was error for the trial court to prohibit her from having male companions present when she is with the children.

We disagree with the mother’s first contention that the trial court erred in affirming custody in the father. She asserts that uncontradicted testimony reveals that the father initially obtained custody by taking the children to Iran without her knowledge and thereafter frustrated her partial custody privileges by taking the children to Bermuda without informing her.

The trial court heard the case on the merits and properly concluded that the mother had not met her burden of showing that the best interests of the children necessitated a shift in custody. Although her arguments were manifold, the mother centered them on the father’s obstruction to her partial custody. Since the October 15, 1982, order the father has on one occasion violated her partial custody privileges by taking the children to Bermuda during a portion of her partial custody time.

The obstruction of a non-custodial parent’s right to contact with her child is an extremely serious matter, especially when it violates court-ordered visitation or partial custody. Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). Isolated violations, however, must be viewed within the framework of the entire custody arrangement. An isolated violation will not automatically trigger transfer of custody. Our independent review of the record reveals that the children are thriving in their present environment and that the trial court correctly concluded they should not be removed from the home where they had lived for three years at the time of the hearing. See Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982).

Appellant alternatively argues that the trial court’s order allows her less time with the children than she had under the prior October 15, 1982, order. We disagree. Although the trial court eliminated the disruptive mid-week visits, it granted her expanded partial custody on weekends and provided a holiday schedule and one week during the summer. Overall, the trial court expanded, not curtailed, appellant’s time with the children.

The child’s best interest constitutes the standard by which a trial court crafts and enters a partial custody order that permits relatively extended periods of parent-child contact. Dena Lynn F. v. Harvey H.F., 278 Pa.Super. 95, 419 A.2d 1374 (1980); Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976) (Spaeth, J., concurring). We must now consider the standard by which a trial court may fashion and impose restrictions on an award of partial custody. In other words, when may the court impose a restriction and what may be the nature of the restriction?

We begin by noting that usually an award of partial custody will not contain any restriction. A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.

It is important for courts to impose restrictions sparingly. See Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 1282 (1982). Courts ought not to impose restrictions which unnecessarily shield children from the true nature of their parents unless it can be shown that some detrimental impact will flow from the specific behavior of the parent. The process of children’s maturation requires that they view and evaluate their parents in the bright light of reality. Children who learn their parents’ weaknesses and strengths may be able better to shape lifelong relationships with them.

Once a court concludes that the imposition of a restriction is necessary, it must phrase the restriction in the least intrusive language reasonably needed to safeguard the child. Somers v. Somers, 326 Pa.Super. 556, 474 A.2d 630 (1984); Dile v. Dile, 294 Pa.Super. 459, 426 A.2d 137 (1981); Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979). Broad or nonspecific restrictions will be invalidated in favor of narrowly focused, precise restrictions that are directed toward the child’s welfare. Somers; Dile. This principle underscores the policy that it is preferable for parent-child relationships to be defined by and developed according to the personalities and character of the child and parent, unhampered, to the extent possible, by restrictions imposed by the court.

The trial court imposed the following restriction in the case sub judice: “At no time when the mother has partial custody of the children shall she be in the company of any male companion.” Appellant claims that this restriction is invalid because its comprehensive prohibition is unreasonable in light of the evidence and inconsistent with the parties’ stipulated agreement. Having carefully reviewed the parties’ evidence, we find that the record does not support as extensive a restriction as the trial court placed on appellant’s partial custody.

As we explained in Pamela J.K., 277 Pa.Super. at 593, 419 A.2d at 1309, “[i]t has long been against our public policy to limit or destroy the relationship between parent and child____ Every parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.” Therefore, to avoid unduly impinging upon a parent-child relationship, a court must sparingly impose restrictions on the relationship, see Ferencak, and must furthermore impose the least intrusive restriction(s) reasonably necessary to assure the child’s welfare.

We hold that the party moving for the restriction on partial custody must show that the restriction is necessary to avoid detrimental impact on the child and that the content of the restriction manifests a reasonable relationship between the restriction and the avoidance of detrimental impact. See Somers; Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 397 A.2d 1192 (1979).

In the instant case the record does not support the broad restriction imposed. The testimony at trial supporting the restriction was weak. The father claimed that the mother’s pattern of nonmarital associations with men caused the mother to neglect the children during periods of partial custody. However, the father’s testimony in this regard consists of nothing more than vague and general allegations. Recognizing the unsubstantiated nature of the father’s allegations, the hearing court accorded “little weight to the allegations of the father of the immoral conduct of the mother,” Opinion at 39, and admitted its reluctance “to hold that the father has even established of record through competent evidence that any affairs did in fact occur, let alone that there is an adverse impact on the children.” Id. Accordingly, we cannot uphold the hearing court’s broad restriction as .being reasonably required by the evidence of record. Indeed, it would be difficult to uphold any restriction based on the testimony at trial.

The parties’ stipulated agreement, however, reveals that the parties mutually assented to some restriction on the mother’s contact with the children. We agree with appellant that the stipulated agreement should not be interpreted as imposing a blanket prohibition on the presence of all men at all times during partial custody.

In conformity with the parties’ stipulated agreement and the trial judge’s intent as expressed in his written opinion, we reform the restriction on the mother’s partial custody as follows: “The mother shall not have a boyfriend present when the mother has partial custody of the parties’ children.”

As modified, the order of the hearing court is affirmed.

TAMILIA, J., files concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

I would affirm the Order of the trial judge as I see no abuse of discretion either in the expansion of the mother’s right of partial custody or the court’s restriction on exposure of the children to the mother’s contact with different men while the children are in her custody. The court properly did not view this as a question of the mother’s morality, but one of the children’s best interest in that being with the mother in the presence of different men at different times can only have a destabilizing effect on them. The situation would obviously be different if the mother was keeping company with one man in a relationship that had stability and promise of permanancy. It does not solve the problem to posit that the children should know their parents for what they are, for better or worse (majority view), when the effect on the children is likely to be harmful.

I also take exception to the majority’s basis for evaluating the lower court’s finding applying an independant scope of review which is enunciated by Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984).

The proper scope of review is that enunciated in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, 806 (1984) in which our Supreme Court quoted Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295-6, 368 A.2d 635, 637 (1977) and said:

(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ... * # * * * *
However, we have also taken great care to stress: “... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge ...”
j)S % >¡í JjC sjc *
(but, instead, is to remain) within the proper bounds of its review and (base a decision) upon its own independent deductions and inferences from the facts as found by the hearing judge. (Citations omitted; emphasis added.)

The Supreme Court concluded by saying:

Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings. Bohachevsky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951); and, thus, represent a gross abuse of discretion, Carson.5
(Footnote omitted; explained infra)

Footnote 5 in Robinson is the key to the intendment of the Supreme Court in distinguishing the “independent scope of review” from the “broad scope of review” standard. Broad scope of review is implicitly recognized in these Superior Court decisions, including the present one, requiring common pleas courts to explain fully the reasons for their decisions. See, e.g., Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976); Commonwealth ex rel. Lettie H.W. v. Paul T.W., 281 Pa.Super. 262, 422 A.2d 159 (1980). Were an appellate court to act with absolute independence of a trial court’s conclusions in reaching its own decision, the trial court’s conclusions would be irrelevant and a remand for further explication of those conclusions would be erroneous, as well as logically absurd. Robinson, supra.

Thus, in this case we exercise a “broad scope of review” in evaluating the case as it made its way through the trial court; and upon such review, determine the appropriateness of the judgment of the trial court, ultimately tested on the abuse of discretion standard.

In this case, it would have been appropriate for the trial court to dismiss the petition for modification of partial custody as the record shows and the court rightly concluded there were no changes of circumstance that warranted a modification of the final custody Order of October 15, 1982. However, by agreement of the parties, the trial court treated the contempt petition and petition for modification by each party as properly raising issues which would be considered and after hearing, modified the Order of October 15, 1982 by Order dated June 8, 1983, from which this appeal was taken. Since neither party raised the issue as to the appropriateness of the June 8, 1983 Order for failure to establish change of circumstance, that issue is waived and may not be considered sua sponte by this Court. Robinson, supra. However, the desired finality of custody orders will only be achieved by adherence to the tried and tested standards reaffirmed in Daniel N.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982).

The trial court clearly explained in his Opinion the understanding of the parties and the court when the “male visitors” clause was inserted into the order. I would defer to his knowledge and superior opportunity to evaluate and observe the needs of the children and the capacity and intention of the parents.

I would, therefore, affirm the Order of the court below, with directions to make more specific, and consistent with his Opinion, language relating to the mother’s contact with male friends while the children are in her control.

      . Ordinarily, a trial court will not conduct a hearing to reconsider the merits of a previous custody order absent a showing of changed circumstances. See English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). However, here, there were several petitions before the court. By agreement of the parties, amounting to a stipulation of changed circumstances, the court consolidated the several petitions and heard the matter on the merits correctly applying the best interest of the child standard. See Daniel K.D.

      . In matters such as visitation hours, this court will defer to the trial judge provided that the judge’s determination is based on findings supported by the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978). The trial court correctly eliminated mid-week visits based on record evidence that they interfered with the children’s school work and were disruptive.

      . The party requesting a restriction on parent-child interaction has the burden of proving that a restriction is reasonably necessary to protect the child’s welfare and that the requested restriction is the least intrusive restriction consonant with the child’s welfare in the context in which the interaction happens. Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979); Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 397 A.2d 1192 (1979) (Spaeth, J., dissenting).


author: PER CURIAM:

text:
    489 A.2d 804
    COMMONWEALTH of Pennsylvania ex rel. Patricia A. COCHRAN a/k/a Patricia Avery Keuther, Appellee, v. W. Peter COCHRAN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 19, 1984.
    Filed Feb. 27, 1985.

      Donald Brown, Philadelphia, for appellant.
    Judith S. Eden, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   PER CURIAM:

The proceedings in the court below were based on a petition by the appellee, Patricia A. Cochran, for an increase in support for her two children, one of whom was attending college at the time of the petition; a second petition was to hold the appellant, W. Peter Cochran, in contempt for failure to comply with a previously entered support order. The support order in question was entered by agreement by Judge Reed in 1981 and was in the amount of $200.00 per week for the support of two children, one of whom was eighteen and the other was approximately twelve years of age. A hearing was held in the court below before Judge Bloom who entered two orders from which consolidated appeals were taken to this Court. On August 5, 1983, the court entered an order directing the appellant to pay $2,288.00 to the appellee to reimburse her for their daughter’s college expenses for one year. A second order of the same date determined that the appellant was in contempt of court and directed him to pay $1,000.00 to the appellee to purge himself of contempt and also increased child support from $200.00 per week to $225.00 per week.

At the hearing of June 9, 1981, it was agreed between counsel for the parties, among other things, that the appellant would contribute to reasonable college expenses for Jill Cochran, who at that time was contemplating attending college. The appellee was divorced from the appellant and after the June, 1981, hearing she remarried.

At the hearing before Judge Bloom on the basis of appellee’s petition for increased support as discussed above, the record established that the appellant had allowed substantial arrearages to accrue for child support on the support order. In addition, his daughter, Jill, was then attending Kutztown State College. There was extensive testimony concerning college expenses for Jill Cochran. It appeared that her mother, the appellee herein, who had a real estate license, was not working at the time and that she stayed home to take care of her son. When the appellee remarried after the June, 1981, hearing her standard of living improved substantially over what it had been when she was married to the appellant.

The appellant at the time of the hearing was in the real estate and building business which had been in a serious recession. The testimony established that he had been in the real estate business for many years. The appellant introduced W-2 Forms from his own corporations which indicated that he had an earned income of some $14,000.00 in the year 1982. He testified that he had to borrow $5,000.00 from his mother and $10,000.00 from his girlfriend’s mother in order to live. There were various judgments against his building corporation and against him personally. Around this time he had sold a number of buildings for substantial prices but he testified that these were subject to large encumbrances, so that the net proceeds were relatively small. Nevertheless, he admitted that in 1981 he bought his girlfriend a sports car for which he paid $12,000.00 in cash.

Appellant contends that the court below erred in entering an increased support order as the child for whom support was increased was an adult and was not a party to the action. We agree. Pa.R.C.P. 1910.3(4) in dealing with actions for support provides:

Rule 1910.3. Parties
An action shall be brought
(4) by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with the written consent of the child.

Pa.R.C.P. 1910.3, defining who may bring an action for support, includes a petition to increase support brought by a parent of a child over eighteen years of age who is receiving support payments on behalf of such child. Therefore, the Rule should be construed to require the written consent of a child over eighteen years of age when a parent seeks to impose an additional support obligation on the other parent. If through the written consent requirement we have given children over eighteen a role in the decision whether to seek a support order in the courts, there is no reason why that role should exist only if the child was not previously covered by a support order during his or her minority.

In the instant case appellee admitted that she did not have Jill’s written consent to bring an action to increase support. In fact, she stated on the record that her children were not even aware that she was in court concerning their support. See N.T. 15-16. Appellee’s explanation that she did not want to subject the children to the emotional trauma of the proceedings is insufficient, since the Rule requires only Jill’s written consent, not her testimony or even her presence. Therefore, the court below should have dismissed the petition to increase support for failure to conform to Rule 1910.3, insofar as it sought increased support for Jill.

The next issue is whether or not the court below abused its discretion in increasing support as to David. In reviewing support orders, an appellate court will defer to the court below in the absence of a showing of a clear abuse of discretion. Machen v. Machen, 278 Pa.Super, 135, 420 A.2d 466 (1980); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). The scope of review in support cases is very narrow. Commonwealth v. Goodyear, 270 Pa.Super. 326, 411 A.2d 550 (1979). On the other hand, the discretion to be exercised by the hearing court has been described as a “wide discretion.” Boni v. Boni, 302 Pa.Super. 102, 448 A.2d 547 (1982). Nevertheless, support orders must be fair and not confiscatory and must allow for reasonable living expenses for the supporting parent. Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). In this case, the court was modifying an already existing support order and a support order may be modified only upon a showing of a substantial change of circumstances since the entry of the prior order. Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982). The party seeking to increase a support order has the burden of proving by competent evidence the existence of material and substantially changed circumstances. Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981); Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984). The petitioner introduced no evidence to show any change in circumstances in the appellant’s case that would justify an increase in support. On the contrary, the evidence established that the husband’s income and earning capacity were no greater than in 1981 and the court below abused its discretion in increasing the support order from $200.00 to $225.00 per week. We also note that the petitioner at the time she petitioned for increased support was contributing nothing to her children’s support and was not working. She had skills in the real estate business which made her employable in that area. She lived in an expensive home with her present husband. She had taken vacations in Europe, Bermuda, Florida and Colorado with her husband during the short period of time they had been married. The petitioner estimated that she spent at least $5,000.00 a year on clothing and belonged to the Springton Tennis Club where she frequently played tennis. The petitioner’s husband has a substantial income of over $100,000.00 per year. While he clearly has no obligation to contribute to the support of appellant’s children, the record established that the petitioner, who contributed nothing to her children’s support, lives in quite comfortable circumstances. In contrast, the record indicates that the appellant’s fiscal picture is not nearly as bright as that of the appellee’s.

We must next consider whether the court abused its discretion in entering an order directing the appellant to reimburse the appellee in the amount of $4,288.00 for college expenses she incurred for her daughter. This was based on the court’s determination that reasonable college expenses for Jill amounted to $5,588.00 per year and that the appellant should receive credit for a $1,300.00 automobile that he purchased for his daughter. The court overlooked, however, that the appellant was already under an order to pay $5,200.00 per year for his daughter’s support and to direct him to, in effect, pay an additional $5,588.00 for college expenses for his daughter was in our opinion, confiscatory, and amounted to an abuse of discretion. Jill was away at college most of the time and her mother, the petitioner, testified that she was home only about twenty per cent of the time. When Jill was not attending college she worked as a waitress in Wildwood, New Jersey, during the summertime. The existing support order for two children was $10,400.00 and to add $5,588.00 for a total of $15,988.00 for one year was patently unconscionable where the father’s earnings in 1982 were only $14,600.00. The court must consider the parent’s ability to pay support and various factors must be considered including earning power, as well as actual earnings, other sources of income and property owned by the parent. Commonwealth ex rel. Haggerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). In addition, “the duty of a parent to provide a college education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself.” Curtis v. Curtis, 326 Pa.Super. 40, 473 A.2d 597, 599 (1984). In our opinion, the court below abused its discretion in ordering the appellant to pay his wife $4,288.00 as reimbursement for college expenses as he was already obligated to pay support by virtue of the support order of 1981. This order is reversed.

The final issue deals with the order of August 5, 1983, in which the appellant was held in contempt of court and directed to pay the appellee $1,000.00. Appellant was found in contempt because the court below felt that he failed to explain how he fell behind in support payments. Appellant explained that he was in the building and real estate business which had been in a depression in the previous two or three years. His ability to earn money had been severely restricted and he had been in the building business for some twenty years. He testified that he had to borrow money to live, but the court below was impressed, and properly so, with the fact that the appellant was able to buy his girlfriend an expensive car for cash. We find no abuse of discretion in holding the appellant in contempt for falling behind in his support payments as the $12,000.00 used to purchase the sports car could have been used more properly for payment of support.

The order directing the appellant to reimburse the appellee the sum of $4,288.00 is reversed; order holding appellant in contempt of court and directing that he pay $1,000.00 to the appellee is affirmed, and that part of the order increasing support to $225.00 is reversed and the support is to remain at $200.00 per week.

      . Absent agreement, the parents’ duty to support a child in college is enforceable only if it is not an undue hardship on that parent. Since the underlying basis for support of a minor is qualitatively different and requires sacrifice on the part of a parent, while college maintenance does not, the change of circumstances which might require an increase for child support is inoperative as it applies to college expenses. Here, the amount previously awarded for support, $100 a week, if converted to payment for the basic expenses of Jill’s college, is reasonable and non-confiscatory, but will require some effort upon Jill’s part and that of her mother, to provide her with all the amenities the mother believes necessary. Jill apparently recognizes this in her commendable efforts to work during the summer.

      . The court subsequently amended this order on August 17, 1983, and increased the amount to be reimbursed to $4,288.00 after recalculating the amount of college expenses. The court found reasonable college expenses paid by the appellee as follows:
      Tuition, room and board $3,138.00
      Travel 850.00
      Medical 100.00
      Clothing 500.00
      Miscellaneous expenses 1,000.000
      Total 5,588.00
      Credit for car —1,300.00
      Amount to be paid $2,288.00
      The court, by an error in subtraction, arrived at the figure of $2,288.00 rather than $4,288.00.

      . Obviously, the child’s written consent is not required for a petition by the party paying support, in this case appellant, seeking to reduce or terminate the support obligation. Although such a proceeding is technically an "action" as defined in 1 Pa.C.S. § 1991, in the context of Pa.R.C.P. 1910.3 "action” means actions for support, i.e. actions seeking to impose a new or additional obligation of support on another party. This construction is indicated by the references in the Rule to persons “to whom a duty of support is owing.” Therefore Rule 1910.3(4) does not apply to an action to reduce or terminate support brought by a party who is the obligor under an existing support order.

      . We recognize that in Commonwealth ex rel, Leider v. Leider, 335 Pa.Super. 249, 484 A.2d 117 (1984), a panel of this court held that a parent has “standing" to bring an action to increase support on behalf of her college-age child. Leider did not raise the issue of the child’s joinder. Our decision today does not conflict with Leider, because we do not dispute that the parent is a proper party. We only hold that when the parent is the party plaintiff, he or she must secure the written consent of any child over age eighteen pursuant to Pa.R.C.P. 1910.3.


author: Per Curiam,

text:
    Commonwealth v. Mackey, Appellant.

      Appeals — Assignments of error — Interrogatories.
    Assignments of error consisting of a series of questions of a general character, which the appellant conceives are involved in the appeal, will not be considered.
    Assignments of error must be so complete in themselves as not to require reference to other parts of the record.
    Argued April 16, 1907.
    Appeal, No. 5, Oct. T., 1907, by defendant, from judgment of Q. S. Blair Co., Oct. T., 1906, No. 23, on verdict for plaintiff in case of Commonwealth v. E. M. Mackey.
    Before Rige, P. J., Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Appeal non-prossed.
    Indictment for violating the pure food law.
    The defendant pleaded nollo contendere upon which judgment of sentence was passed.

      ¡Errors assigned were as follows :
    1. Does the plea of nollo contendere entered by the defendant preclude him from taking an appeal ?■
    2. Is the selling and having for sale, adulterated candy, prohibited by the Act of June 27, 1895, P. L. 817 entitled, “ an act to provide against the adulteration of food, and providing for the enforcement thereof,” or any of its supplements, or is what the appellant charged with doing, anywhere made an offense by statute ?
    8. Does the title of the act of 1895 give any direct notice in immediate connection with the act itself, of the subject, so that a wholesale confectioner may know, or be put on inquiry as to its provisions and their effect ?
    4. Does the word “ food,” as it is used in the act of 1895, include candy upon which the indictment is based, and is not that indictment founded upon an artificial and arbitrary commission of a fictitious crime ?
    5. In a criminal prosecution under a penal statute, is the commission of an act described with sufficient clearness and accuracy, and is it specific enough in describing the substance with which the appellant is charged to bring the indictment within the pale, that the bill of rights, section 9, constitution of Pennsylvania, and the rules of criminal pleading require, when the word candy is used alone without designating the kind?
    6. Does the record of the alderman set out sufficient to enable the court of quarter sessions to determine whether he had jurisdiction to review that fact ?
    7. Is there a sufficient finding by the grand inquest, when they find, “ By having mixed therein and therewith and containing a certain added substance or ingredient poisonous in its nature or injurious to health, to wit: sulphites or a compound thereof, a more particular description of which is to this grand inquest at present unknown,” etc ?
    8. Is it in violation of section 15, article III, of the constitution of Pennsylvania, because diverting money from the state treasury without a specific appropriation ?
    9. Does it curtail the constitutional powers of the secretary of internal affairs in violation of article IV, section 19, of the constitution of Pennsylvania?
    10.. It is not in violation of section 19, article III, of the constitution of Pennsylvania, which prohibits the creation of any state office for the inspection of merchandise, manufacture or commodity, etc.

      W. E. MacTcey, for appellant.

      May 13, 1907 :

      A. H. Woodward, with him J. Banks Kurtz, district attorney, for appellee, filed no printed brief.
   Per Curiam,

The assignments of error are an essential part of the pleadings in this court, and it has been declared repeatedly that they should be so complete in themselves as not to require reference to other parts of the record. There are many reasons for this requirement, but the one that is most commonly given in the reported cases is, that when an appeal is disposed of and the record remitted to the court below the praecipe, assignments of error and plea thereto are all the papers that usually remain of record in the appellate court as the basis of its judgment or decree, as the case may be. The ruling of the lower court must be specified in distinct terms in the assignment in order to question it on appeal. In the present case no ruling, order or judgment of the court below is set forth or specified in the paper filed and printed as assignments of error, but only a series of ten questions, some of them of the most general character, which the appellant conceives are involved in the appeal. Obviously, this is not a compliance, either substantial or formal, with our rules of court or with the general principles of pleading in an appellate court; we are, therefore, constrained to hold that the third, fourth and fifth reasons assigned in support of the motion for non pros are sustained and that the motion must prevail.

Appeal non prossed and record remitted to the court below, to the end that the sentence be carried into effect.


author: Porter, J.,

text:
    Commonwealth v. Spudis, Appellant.

      Criminal law — Embezzlement—Factor—Evidence.
    On the trial of an indictment for embezzlement as a factor or consignee under the 125th section of the Act of March 31, 1860, P. L. 382, the commonwealth is not required to prove as a prerequisite to conviction that the prisoner regularly engaged in the business or occupation of a factor or commission merchant.
    In such a -case a letter sent by the prosecutor to the defendant, and admittedly received by the latter, and containing the terms of the bailment, is admissible in evidence.
    April 15, 1907:
    Argued Feb. 26, 1907.
    Appeal, No. 46, Jan. T., 1907, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1906, No. 655, on verdict of guilty in ease of Commonwealth v. A. R. Spudis.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for embezzlement. Before Ferris, J.
    In addition to the facts set forth in the opinion of the Superior Court it appeared that the letter there mentioned was as follows :
    “ Prince & Company, manufacturing clothiers, Pottsville, Pa., September 21, 1905. Mr. A. R. Spudis, dear sir: We have this day' consigned to you to sell on account the following goods, as per inclosed invoice, amounting to $223.25. These goods are not to be sold at less than the price at which they are hereby invoiced, and your commission must be the difference realized by you in excess of the invoice price. If you sell these goods within sixty days and account for the proceeds within that time, you may deduct six per cent, from the amount of the goods as consigned, otherwise you must account for the goods or proceeds at invoice.
    “ Yours respectfully,
    “A. Prince & Co.”
    Verdict of guilty upon which judgment of sentence was passed.

      ..Errors assigned were (1, 2) instructions submitting the case to the jury, and (3) admission of letter as above.

      James L. Lenahan, and Raphael Levy, for appellant,
    cited: Com. v. Kauffman, 11 Lancaster Law Rev. 247.

      Benjamin, R. Jones, district attorney, with him John T. Lenahan and R. A. Friler, for appellee,
    cited: Com. v. Sober, 15 Pa. Superior Ct. 520 ; Com. v. Hill, 2 Pearson, 432.
   Opinion by

Porter, J.,

The defendant was indicted and convicted of the embezzlement of the proceeds of sale of personal property, of which he had possession, as consignee and factor, with authority to sell the same for the account of the owner. The indictment was drawn under the provisions of the 125th section of the Act of March 31, 1860, P.L. 382, the provisions of which material to the determination of the questions here presented are as follows : “ If any consignee or factor having the possession of merchandise, with authority to sell the same, .... shall deposit, or pledge such merchandise, consigned or entrusted to him as aforesaid, as security for any money borrowed, .... in violation of good faith, with intent to defraud the owner of such merchandise, and if any consignee or factor shall, with like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument raised or acquired by the sale or other disposition of such merchandise, such consignee or factor in every such ease shall be guilty of a misdemeanor.” The appellant contends that, under the provisions of this section, it was incumbent on the commonwealth to offer evidence of other transactions in which the defendant had acted as a consignee or factor, that he was regularly engaged in the business or occupation of a factor or commission merchant, and that, in the absence of such evidence, there could be no conviction.

The power of the legislature to enact a statute regulating the business of factors, or others, who represent themselves to the public as regularly exercising an occupation which involves relations of trust and confidence and invites others to commit property to their care for the purposes of sale, may be assumed. The section of the act of 1860, in question, cannot be considered a regulation of the business of factors. It deals only with the relation of the party, any party, to the property of which he has possession, for a specific purpose, and his duty to account for the proceeds resulting from the exercise of the authority which has been conferred upon him by the owner of the property. The words “any consignee or factor having the possession of merchandise, with authority to sell the same,” define the character of the relation to and authority over the property which bring all persons who stand in that relation and exercise that authority within the operation of the statute. A consignee, within the meaning of this section, is a person to whom merchandise or personal property of any kind is committed, the title to the property remaining in the consignor, with power in the consignee to sell the property for and on account of the consignor: Commonwealth v. Harris, 168 Pa. 619. The appellant would have us write into this section something which does not appear there, and limit its application to professional factors; this we are without authority to do. The legislature, having by apt words 'defined the offense in a manner which makes it dependent only upon the existence of a particular relation between a party and the property of which he is in possession and the violation of a specific duty growing out of that relation, it is only necessary for the commonwealth to prove the existence of the relation between the defendant and the .property and the violation of the duty, as defined by the statute. The first and second specifications of error are overruled.

There was sufficient evidence to warrant a finding that the letter, the admission of which in evidence, is the subject of the third specification of error, had been duly addressed to the defendant and mailed, and that the defendant had subsequently admitted that he actually received the letter. That the letter was, when accompanied by this testimony, properly admitted in evidence is too clear for discussion. The third assignment of error is without merit.

The judgment is affirmed, and it is ordered that the defendant appear in the court below, to the end that he be committed for that part of the sentence which had not expired at the time the appeal in this case was made a supersedeas.