text:
    614 A.2d 722
    Kirit K. JOSHI, v. Mohan NAIR, Appellant.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed Sept. 10, 1992.

      George Baillie, Burgettstown, for appellant.
    Cary D. Jones, Washington, for appellee.
    Before CAVANAUGH, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order denying appellant’s petition to strike a foreign judgment that was transferred to and duly entered in Pennsylvania.

Appellant presents the following issues for our review: (1) whether Alabama properly exercised in personam jurisdiction over appellant; (2) whether the ex parte amendment of the judgment without notice to appellant violated appellant’s right to due process; (3) whether enforcement of the judgment against appellant is fundamentally unfair; and (4) whether the foreign judgment is entitled to full faith and credit in the Pennsylvania courts. For the reasons set forth below, we affirm. Before discussing these issues, we will briefly recount the relevant facts of this case. Appellant, Mohan Nair was an employee of M-R Labs, Research & Development, Inc. (M-R Labs). Appellant contacted appellee, Kirit Joshi, seeking to interest him in the purchase of investment securities in M-R Labs. In response to the information supplied by appellant, appellee agreed to invest in the corporation. Appellant subsequently traveled to Alabama to meet with appellee and to accept appellee’s investment of $10,-000.00.

After relinquishing his funds to appellant, appellee entertained doubts as to the wisdom of his investment and asked appellant for a guarantee of the debt. To appease appellee, a promissory note signed by Frank Ramesh, in his capacity as president of M-R Labs, was sent to appellee. The note, which was executed on January 17, 1989, promised to repay appellee the sum of $10,000.00 with an interest rate of twelve percent (12%) per annum. See Motion for Rule to Show Cause why Judgment Should not be Stricken, Exhibit B (copy of promissory note). The note was not due until January 15,1992. See id. Appellee was dissatisfied with the form of the promissory note and requested that appellant execute a new note as well as a personal guarantee by appellant and his partners. In addition, appellee asked appellant to supply him with the names and addresses of other individuals who had invested in the corporation. Appellee also advised appellant that the investment would be withdrawn if appellant did not send the requested documentation. Although appellant promised to send his personal guarantee to appellee, appellee never received anything further from appellant and accordingly demanded a return of his funds. Neither appellant nor the corporation ever refunded appellee’s money.

In an attempt to recoup his investment, appellee tried to contact the corporation, Frank Ramesh and appellant at the address and telephone number identified on the corporate letterhead which appellant had utilized in his communications with appellee. Appellee was not successful as telephone service had been disconnected and he was unable to obtain a forwarding address. Appellee then contacted the appropriate New Jersey authorities who advised him that M-R Labs was not in operation. See Reply to Motion for Rule to Show Cause Why Judgment Should not be Stricken, at section IIC paragraph 35A. Appellee subsequently discovered that appellant had moved to Pennsylvania and traced appellant to his Pennsylvania address. Appellee then contacted appellant, who again agreed to return appellee’s funds. Appellant did not perform as promised.

On March 2, 1990 appellee instituted suit in Alabama against M-R Labs, Frank Ramesh and appellant. Because neither M-R Labs nor Frank Ramesh could be located, service could not be made on either of these defendants. However, appellant was served with and personally accepted a copy of the complaint. See Nair v. Joshi, 578 So.2d 1296, 1298 (Ala.1991). Appellant elected not to appear and defend the Alabama litigation, allegedly due to the receipt of improper legal advice from Pennsylvania counsel. See id. Because a response to the complaint was not filed within the requisite time period specified by the Alabama procedural rules, appellee obtained a default judgment against all of the defendants. See Alabama Rules of Civil Procedure (Ala. R.C.P.), Rule 12(a), Code of Alabama 1975 (requiring an answer to be filed within thirty days after service of the complaint); Ala. R.C.P., Rules 55(a) and (b), Code of Alabama 1975 (discussing the method of obtaining a default judgment). Judgment was then formally entered by the Alabama lower court on May 18,1990. See Ala. R.C.P., Rules 55 and 58, Code of Alabama 1975.

In entering judgment, the Alabama trial court did not address appellee’s claim for punitive damages even though such damages had been specifically requested by appellee in his complaint. Consequently, appellee filed a timely petition to amend the judgment as authorized by Ala. R.C.P., Rule 59(e), Code of Alabama 1975. Due to the lack of service on M-R Labs and Frank Ramesh, appellee also requested that the judgment be set aside as to these defendants. The Alabama trial court granted appellee’s motion and awarded appellee $75,000.00 in punitive damages in addition to compensatory damages of $10,000, plus interest in the sum of $1,600.00, costs and attorneys’ fees in the amount of $2,000.00. The award was then entered as a final judgment in the sum of $88,600.00 on May 30,1990. See Ala. R.C.P., Rule 58, Code of Alabama 1975.

Appellee duly transferred to and entered the judgment in Washington County, Pennsylvania, pursuant to the requirements of the Uniform Enforcement of Foreign Judgments Act (UEFJA), codified at 42 Pa.C.S.A. § 4306. See Praecipe for Entry of Judgment, filed August 14, 1990. Appellant was notified of the entry of the judgment in Pennsylvania. In response to the entry of judgment, appellant filed a timely motion in Alabama to have the judgment set aside. See Ala. R.C.P., Rule 60(b), Code of Alabama 1975 (indicating the grounds upon which a judgment can be set aside and the time limitations within which such motion can be filed). The Alabama trial court denied appellant’s motion on the basis that appellant had not satisfied the requisites set forth in subsection (b)(1) of the rule. This ruling was ultimately affirmed by the Alabama Supreme Court. See Nair v. Joshi, 578 So.2d at 1298.

After his lack of success in Alabama, appellant sought to attack the transferred judgment by filing a motion to strike on May 28, 1991. The trial court denied appellant’s request on August 5, 1991. This timely appeal followed.

As a preliminary matter, we observe that appellant has failed to include in his brief a statement of jurisdiction and a table of citations in contravention of Pa. R.A.P., Rules 2111(a) and 2114, 42 Pa.C.S.A. (requiring a statement of jurisdiction in an appellant’s brief) and Pa. R.A.P., Rule 2174(b), 42 Pa.C.S.A. (mandating the inclusion of a table of citations in all briefs). Appellant’s failure to include a table of citations is a relatively minor deficiency which does not substantially impinge upon our ability to engage in effective and meaningful appellate review. We may therefore disregard this irregularity. See Pa. R.A.P., Rule 105(a), 42 Pa.C.S.A. However, the lack of a jurisdictional statement poses a more serious problem, since we cannot entertain this appeal if jurisdiction is found to be lacking. Although not discussed by either of the parties, we must ascertain whether we may exercise jurisdiction over this appeal. See Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1184 (1990) (en banc) (providing that because the question of appealability concerns the jurisdiction of the appellate court, we may raise such an issue sua sponte even where the parties have not done so).

In reviewing the certified record, it appears that this is an appeal from an order refusing to vacate or strike off a judgment. Such orders are appealable as of right pursuant to Pa. R.A.P., Rule 311(a)(1), 42 Pa.C.S.A. See also 42 Pa.C.S.A. § 702(a) and § 5105(c) (authorizing appeals from certain classes of interlocutory orders as specified by law). Jurisdiction over this appeal is thus vested in this court and we will proceed to review the merits of appellant’s claims.

In evaluating the trial court’s refusal to strike, or more properly, vacate the judgment, our scope of review is limited to ascertaining whether the trial court manifestly abused its discretion or committed an error of law. Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 132, 564 A.2d 1299, 1301 (1989). We will scrutinize the trial court’s decision and appellant’s arguments in accordance with this standard.

Before addressing the issues posed by appellant, it is necessary to consider the context in which they arise and the relevant principles relating, thereto. Tandy Computer Leasing v. DeMarco, supra. The judgment at issue in this case was transferred to Pennsylvania and entered as a judgment here pursuant to the UEFJA. As recognized by this court, the UEFJA “is grounded in the constitutional obligation of each state to give full faith and credit to the judgments of other states. [See ] U.S. Constitution], art. IV, § 1[ ] ...” Tandy Computer Leasing v. DeMarco, supra (footnote, which recites the text of the Full Faith and Credit Clause of the United States Constitution, has been omitted). “The provisions of the [UEFJA] have been interpreted to mean that any foreign judgment properly filed in Pennsylvania must be accorded full faith and credit unless there is a particular overriding reason that requires us to deny full faith and credit to the judgment.” First Fidelity Bank v. Standard Machine & Equipment Co., 398 Pa.Super. 607, 611, 581 A.2d 629, 631 (1990), allocatur denied, 527 Pa. 593, 588 A.2d 914 (1991), citing Tandy Computer Leasing v. DeMarco, 388 Pa.Super. at 133, 564 A.2d at 1301-1302. Accord Greate Bay Hotel & Casino, Inc. v. Saltzman, 415 Pa.Super. 408, 413-415, 609 A.2d 817, 819 (1992). Further,

[a] lack of personal jurisdiction on the part of the court which originally awarded the judgment or a lack of due process on the part of that court are reasons why the principle of full faith and credit would be denied and the subsequent Pennsylvania judgment stricken. On the other hand, such a transferred judgment cannot be stricken or opened simply because the party seeking to open or strike can demonstrate that he/she would have a valid defense to the action if brought in Pennsylvania. [Rather,] [o]nly those defenses, like a lack of personal jurisdiction by the rendering court, which destroy the full faith and credit obligation may form the ground for refusing that judgment full faith and credit.

Tandy Computer Leasing v. DeMarco, 388 Pa.Super. at 133, 564 A.2d at 1302 (citations omitted). Thus, “the party challenging the foreign judgment may not attack the transferred judgment by raising any and all defenses [thereto, as it] is entitled to full faith and credit in the transferee state even though the underlying claim would not be enforced in that forum.... ” First Fidelity Bank v. Standard Machine & Equipment Co., 398 Pa.Super. at 611, 581 A.2d at 631, citing Tandy Computer Leasing v. DeMarco, supra. Accord Greate Bay Hotel & Casino, Inc. v. Saltzman, 415 Pa.Super. at 414, 609 A.2d at 820. Mindful of these considerations, we direct our attention to appellant’s claims.

Appellant first contends that the judgment is not entitled to full faith and credit because Alabama could not properly exercise personal jurisdiction over appellant. In addressing this issue, we must necessarily look to the law of the state which rendered the judgment, which in this case is Alabama. See First Fidelity Bank v. Standard Machine & Equipment Co., 398 Pa.Super. at 612, 581 A.2d at 631 (examining New Jersey law), citing Tandy Computer Leasing v. DeMarco, 388 Pa.Super. at 138, 564 A.2d at 1303 (reviewing Texas law). Rule 4.2 of the Alabama Rules of Civil Procedure sets forth Alabama’s entire basis for exercising personal jurisdiction over a non-resident defendant. See Ala. R.C.P., Rule 4.2 and Rule 4.4, Committee Comments to Rule 4.2, Code of Alabama 1975; Murray v. Alfab, Inc., 601 So.2d 878, 883-84 (Ala.1992); Keelean v. Central Bank of the South, 544 So.2d 153, 156 (Ala.1989). This rule permits out-of-state service of process to be made upon a non-resident person when the person has sufficient contacts with Alabama so that prosecution of the action against the person is not inconsistent with either the Alabama Constitution or the Constitution of the United States. Ala. R.C.P., Rule 4.2(a)(1)(A) and (a)(1)(B), Code of Alabama 1975. Subsection (2) of the rule further defines sufficient contacts in the following terms:

(2) Sufficient Contacts. A person has sufficient contacts with this state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s:
(A) Transacting any business in this state;
(B) Contracting to supply services or goods in this state;
(C) Causing tortious injury or damage in this state by an act or omission in this state____
(D) Causing tortious injury or damage in this state by an act or omission outside this state if the person regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in this state;
(E) Causing injury or damage in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person might reasonably have expected such other person to use, consume, or be affected by the goods in this state, provided that the person also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(F) Having an interest in, using, or possessing real property in this state;
(G) Contracting to insure any person, property or risk located within this state at the time of contracting;
(H) Living in the marital relationship within this state, notwithstanding subsequent departure from this state, as to all obligation arising from alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state; or
(I) Otherwise having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the Constitution of this state or the Constitution of the United States.

Ala. R.C.P., Rule 4.2(a)(2)(A)-(I), Code of Alabama 1975.

As made clear by both the commentary to the rule and the decisions interpreting it, the Alabama long-arm statute extends the jurisdiction of the Alabama courts to the permissible limits of the current interpretation of federal due process. See Ala. R.C.P., Committee Comments following Rule 4.4, Code of Alabama 1975; Murray v. Alfab, Inc., 601 So.2d at 884; Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 461 (Ala.1986); Shrout v. Thorsen, 470 So.2d 1222, 1224 (Ala.1985). Accordingly, the Alabama Courts have followed and relied upon the holdings of United States Supreme Court decisions in determining whether Alabama can properly exercise jurisdiction over non-resident defendants. See, e.g., Murray v. Alfab, Inc., 601 So.2d at 884; Clemons v. Gearbulk, Ltd., 581 So,2d 462, 465 (Ala.1991); Keelean v. Central Bank of the South, 544 So.2d at 156-158; Dillon Equities v. Palmer & Cay, Inc., 501 So.2d at 461-462; Shrout v. Thorsen, 470 So.2d at 1225 (all of which discuss and apply the jurisdictional principles enunciated by the United States Supreme Court).

The Alabama Supreme court has recognized that: “ ‘[djue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, [that] he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” McGee v. International Life Ins. Co., 355 U.S. 220, [222,] 78 S.Ct. 199, [201,] 2 L.Ed.2d 223[, 225-226] (1957), quoting International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95[, 102] (1945).

Dillon Equities v. Palmer & Cay, Inc., 501 So.2d at 461. Accord Clemons v. Gearbulk, Inc., 581 So.2d at 465; Shrout v. Thorsen, 470 So.2d at 1224; Cagle v. Lawson, 445 So.2d 564, 566 (Ala.1984). To determine whether a defendant’s contacts are sufficient, the Alabama courts have examined the relevant facts of each case. Clemons v. Gearbulk, Inc., 581 So.2d at 464; Shrout v. Thorsen, 470 So.2d at 1224. In conducting this analysis, Alabama has primarily focused on the requisite of foreseeability or “fair warning” to the defendant, i.e., whether the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. See Dillon Equities v. Palmer & Cay, Inc., 501 So.2d at 462; Clemons v. Gearbulk, Inc., 581 So.2d at 464-465, quoting Duke v. Young, 496 So.2d 37, 39 (Ala.1986) and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980); Keelean v. Central Bank of the South, 544 So.2d at 156-157; Shrout v. Thorsen, 470 So.2d at 1225; Cagle v. Lawson, 445 So.2d at 566. Where the plaintiffs cause of action is directly related to or arises out of the defendant’s contacts with the forum, as in the case sub judice, the foreseeability/fair warning requirement “is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 79 L.Ed.2d 790[, 797], 104 S.Ct. 1473[,] 1478 (1984), and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities[.] Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414, 80 L.Ed.2d 404, [411,] 104 S.Ct. 1868[,] 1872 [ (1984) ].” Keelean v. Central Bank of the South, 544 So.2d at 158, quoting Burger King v. Rudzewicz, 471 U.S. 462, 472-473, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528, 540-541 (1985). See also Murray v. Alfab, Inc., 601 So.2d at 884 (providing that where a defendant’s contacts are not sufficient to sustain the exercise of general jurisdiction, specific jurisdiction over the defendant can be obtained if the defendant has sufficient contacts with the forum state in relation to the cause of action). The Alabama Supreme Court has further observed that jurisdiction cannot be based upon the unilateral activities of the plaintiff. Murray v. Alfab, Inc., 601 So.2d at 884-85; Dillon Equities v. Palmer & Cay, Inc., 501 So.2d at 462, quoting Burger King Corp. v. Rudzewicz, 471 U.S. at 474-475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542 and Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-1240, 2 L.Ed.2d 1283, 1298 (1958). Rather, “ ‘it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.’ ” Murray v. Alfab, Inc., 601 So.2d at 884, quoting Hanson v. Denckla, supra. Accord Dillon Equities v. Palmer & Cay, Inc., supra.

Evaluation of appellant’s contacts in accordance with the above considerations persuades us that Alabama properly asserted personal jurisdiction over appellant. Appellant deliberately contacted appellee, an Alabama resident, for the purpose of selling him investment securities in M-R Labs. Nair v. Joshi 578 So.2d at 1296. Further, appellant personally travelled to Alabama to obtain appellee’s funds. Id., 578 So.2d at 1297. Appellant also made numerous representations to appellee which concerned the expected return on appellee’s investment, the fact that appellant and his partner would supply personal guarantees to appellee, and that the investment would be returned. Id., 578 So.2d at 1296-1297. Appellant’s conduct supports a finding that he purposefully availed himself of the privilege of conducting activities within Alabama, thus invoking the benefit and protection of Alabama?s laws. See Murray v. Alfab, Inc. and Dillon Equities v. Palmer & Cay, Inc., supra. Moreover, appellant specifically directed his business activities at an Alabama resident, and therefore,- he ought to have reasonably anticipated being haled into Alabama’s courts to defend against his misconduct when appellee discovered the fraudulent nature of appellant’s misrepresentations and the fact that appellant had absconded with the invested funds. Appellee’s cause of action also arose out of or was directly related to appellant’s specific contacts with Alabama. Under these circumstances, appellant had sufficient minimum contacts with Alabama to support the exercise of specific personal jurisdiction over appellant. See Murray v. Alfab, Inc.; Dillon Equities v. Palmer & Cay, Inc.; Clemons v. Gearbulk, Inc.; Keelean v. Central Bank of the South; Shrout v. Thorsen; Cagle v. Lawson, supra.

Having reached this conclusion, we must next ascertain whether Alabama’s assertion of personal jurisdiction comports with “traditional notions of fair play and substantial justice.” Dillon Equities v. Palmer & Cay, Inc.; Clemons v. Gearbulk, Inc.; Shrout v. Thorsen; Cagle v. Lawson, supra. In determining whether this requirement has been met, the Alabama courts consider the same factors associated with the doctrine of forum non conveniens. Cagle v. Lawson, 445 So.2d at 565; Ala.R.C.P., Rule 4.4, Committee Comments to Rule 4.2, Code of Alabama 1975. These factors include “the convenience of the parties and witnesses, and the interests of justice.” Keelean v. Central Bank of the South, 544 So.2d at 158, quoting Code of Alabama 1975, § 6-5-430. See also Dillon Equities v. Palmer & Cay, Inc., 501 So.2d at 462 (discussing the defendant’s inconvenience in litigating in Alabama); Shrout v. Thorsen, 470 So.2d at 1225-1226 (discussing Alabama’s interest in providing an effective means of recovery for its residents who have been damaged by a defendant’s fraudulent loan scheme where the defendant deliberately minimized his contacts with Alabama to avoid Alabama’s exercise of personal jurisdiction); Cagle v. Lawson, 445 So.2d at 556 (also discussing inconvenience to the defendant). “We must also keep in mind that when a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” First Fidelity Bank v. Standard Machine & Equipment Co., 398 Pa.Super. at 615, 581 A.2d at 633, quoting Burger King v. Rudzewicz, 471 U.S. at 477, 105 S.Ct. at 2184-2185, 85 L.Ed.2d at 544.

Appellant has not established a compelling case that these additional considerations would render Alabama’s exercise of jurisdiction unreasonable in this case. Appellant does not contend or otherwise demonstrate that litigation in Alabama would have been unduly burdensome. More importantly, Alabama has a strong interest in providing an effective means of recovery for its citizens who are defrauded by non-residents. See Shrout v. Thorsen, supra. It is also unfair to permit appellant to avoid the consequences of his improper conduct, and Alabama undoubtedly would not permit appellant to use the due process clause as a shield to escape the obligations which he voluntarily created. Id. We therefore conclude that Alabama’s assertion of personal jurisdiction over appellant comported with the fundamental requisites of., due process and that maintenance of the suit in Alabama would not have offended traditional notions of fair play and substantial justice.

In his second issue, appellant claims that the Alabama judgment should not be given full faith and credit by Pennsylvania because the judgment was obtained through the violation of appellant’s due process right to notice. Appellant admitted in the Alabama litigation that he actually received a copy of appellee’s complaint. Nair v. Joshi, 578 So.2d at 1298. Appellant also indicates that he received notice that a default judgment had been entered. Appellant’s Brief at 10. Appellant thus does not contest the notice of either of these events. Rather, appellant complains of the fact that he was not notified of appellee’s motions to amend the judgment to include punitive damages and to have the judgment against Frank Ramesh and M-R Labs set aside. Id. For support, appellant relies, in part, upon Pennsylvania’s notice provisions. As explained by this court,

[t]he [rendering state’s] proceedings are not governed by Pennsylvania’s procedural rules. Pa.R.C.P., Rule 237.1, [42 Pa.C.S.A.,] upon which appellant] appears to rely and which requires notice before the entry of a default judgment, does not have an extra-territorial effect. It does not have [an] effect on [the rendering state’s] actions and cannot be used to measure the validity of [default] judgments obtained in [the transferor state]. So long as [the transferor state’s] procedure complies with fundamental concepts of due process, its judgments are entitled to full faith and credit.

Create Bay Hotel & Casino, Inc. v. Saltzman, supra, 415 Pa.Super. at 413, 609 A.2d at 819. Because Pennsylvania’s notice provisions governing entry of default judgments are inapplicable to Alabama proceedings, we must examine Alabama’s procedural rule.

The Alabama Rules of Civil Procedure define when service is and is not required. Rule 5 specifically states:

(a) Service: When required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

Ala.R.C.P., Rule 5(a), Code of Alabama 1975 (emphasis added). As made clear by the Committee Comment, “Rule 5(a) thus requires all papers to be served on all parties to the action with the following exceptions: ... (1) orders and judgments not required by their terms to be served; (2) ex parte motions; [and] (3) any pleadings, motions, notices or other papers when the opposing party is in default for failure to appear, and no new or additional claim for relief is asserted.... ” Id., Committee Comment.

As applied here, appellant was served with the original complaint. Once appellant defaulted by failing to enter an appearance and file a response to the complaint, no further service was mandated, unless appellee asserted a new or additional claim for relief. In this case, appellee did not assert a new or additional claim for relief because appellee had previously requested punitive damages in his complaint. Thus, appellant was not entitled to additional notice of appellee’s motion to amend the judgment.

Our inquiry is not at an end as we must nevertheless consider whether Alabama’s rule violates appellant’s due process right to notice. In resolving this question, we observe that this court was presented with a virtually indistinguishable issue in Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986). In Noetzel v. Glasgow, Inc., we reviewed a similar due process challenge to West Virginia’s Rule 5(a), which is identical to Alabama’s Rule 5(a). In rejecting the defendant’s due process claim, we stated:

We are not called upon to review the wisdom of procedural rules which permit such a result.[] We must determine only whether the procedure established by rule in West Virginia violated rudimentary principles of due process. Notice, the most basic requirement of due process, must “be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections. The form of the notice required depends on what is reasonable, considering the interests at stake and the burdens of providing notice.” ... The ... service ... in this case ... was in fact reasonably calculated to inform Glasgow of the action and was adequate to satisfy due process requirements. Moreover, the notice in this case was received in fact by Glasgow’s representatives. The failure to act in pursuance thereof was attributable either to inadvertence or carelessness. Due process did not require that Glasgow receive repeated notices thereafter. When Glasgow failed to appear in response to initial service, due process did not require that it again be invited to participate in the proceedings. Appellees were not required to obtain Glasgow’s permission to proceed further. Due process did not require notice of appellee’s intent to take a default judgment or of their intent to take procedural steps to reduce their judgment to a monetary amount. When Glasgow failed to evidence an interest in defending the action following service of initial process, due process did not require that appellees invite them to join the proceedings thereafter.

Noetzel v. Glasgow, Inc., 338 Pa.Super. at 469-470, 487 A.2d at 1377-1378 (footnote omitted) (emphasis added).

As stated above, appellant admittedly received actual notice of the original complaint. Due to his own actions or the alleged misadvice of Pennsylvania counsel, appellant failed to respond thereto. In view of appellant’s demonstrated refusal to participate in the proceedings, due process did not obligate appellee to obtain appellant’s permission before taking further action. Due process likewise did not require appellee to notify appellant of further proceedings after appellant defaulted by his willful failure to appear and defend. Consequently, appellant’s due process rights were not violated.

Appellant’s third claim suggests that the judgment is not entitled to full faith and credit because it violates principles of fundamental fairness. More specifically, appellant asserts that the judgment should not be enforced because:

1. The Note is a Corporate, not Personal Debt.
2. The Note is Not Due.
3. MR LABS Exists.

Appellant’s Brief at 11-12. The essence of appellant’s claim appears to be that it is fundamentally unfair to enforce a judgment against him where appellee’s underlying cause of action was based on a promissory note issued by the corporation which appellant did not sign or otherwise personally guarantee. We disagree.

First, appellee’s underlying cause of action was not solely based upon the promissory note. Rather, appellee’s underlying action was premised upon appellant’s own violation of Alabama’s securities laws and intentional and outrageous misrepresentations regarding the status of M-R Labs and the expected return on appellee’s investment. See Nair v. Joshi, 578 So.2d at 1297 and 1298. Because appellee’s cause of action was premised upon appellant’s intentional misconduct, it is not fundamentally unfair to enforce the Alabama judgment.

More importantly, we observe that the reasons offered by appellant constitute defenses to appellee’s underlying cause of action. As indicated above, only those defenses, such as a lack of subject matter jurisdiction, a lack of jurisdiction over the parties, a violation of appellant’s due process rights, or a lack of a meaningful opportunity to appear and defend, can be considered as a basis for denying a foreign judgment full faith and credit. See Greate Bay Hotel & Casino, Inc. v. Saltzman, 415 Pa.Super. at 413, 609 A.2d at 819 and Tandy Computer Leasing v. DeMarco, supra. Thus, “the party challenging the foreign judgment may not attack the transferred judgment by raising any and all defenses [thereto, as it] is entitled to full faith and credit in the transferee state even though the underlying claim would not be enforced in that forum.... ” First Fidelity Bank v. Standard Machine & Equipment Co., citing Tandy Computer Leasing v. DeMarco, supra. Further, “a transferred judgment cannot be stricken or opened simply because the party seeking to open or strike can demonstrate that he/she would have a valid defense to the action if brought in Pennsylvania.” Greate Bay Hotel & Casino, Inc. v. Saltzman, supra, 415 Pa.Super. at 414, 609 A.2d at 820, quoting Tandy Computer Leasing v. DeMarco, supra. If appellant believed that he had meritorious defenses to appellee’s complaint, appellant’s sole remedy was to assert them in the Alabama action. Greate Bay Hotel & Casino, Inc. v. Saltzman, supra, 415 Pa.Super. at 413, 609 A.2d at 819. Appellant chose not to do so and any valid defenses which he may have had with respect to the underlying cause of action cannot now be utilized to deny full faith and credit to the Alabama judgment. See Greate Bay Hotel & Casino, Inc. v. Saltzman; First Fidelity Bank v. Standard Machine & Equipment Co.; Tandy Computer Leasing v. DeMarco, supra.

Appellant’s fourth issue asserts that the judgment is not entitled to full faith and credit. Appellant does not offer any new grounds which would require us to deny full faith and credit to the Alabama judgment. Instead, he merely reiterates his prior claims relating to lack of personal jurisdiction and lack of notice. We have thoroughly addressed these matters and we will not repeat our discussion here.

In sum, we conclude that Alabama’s assertion of specific in personam jurisdiction over appellant was proper because appellant had sufficient minimum contacts with Alabama such that maintenance of the suit there comported with traditional notions of fair play and substantial justice. Moreover, the Alabama judgment was not obtained in violation of appellant’s due process rights. Because appellant has failed to demonstrate any defense which would preclude us from enforcing the Alabama judgment, it must be accorded full faith and credit by the Pennsylvania courts. We therefore affirm the order of the lower court which upheld the judgment.

Order and judgment affirmed.

CAVANAUGH, J., notes his dissent.

      . We observe that the fourth issue raised by appellant is not specifically included in his statement of questions in violation of Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A. (providing that ordinarily no point will be considered which is not set forth in the statement of questions involved and that the requirements of the rule are mandatory). However, appellant’s brief contains argument on this specific issue. Moreover, appellant's fourth claim is inextricably related to his first and second questions. Because our ability to effectively review this claim has not been compromised by appellant's failure to include it in his statement of questions, we will disregard this defect and proceed to evaluate its merits. See Pa.R.A.P., Rule 105(a), 42 Pa.C.S.A. (permitting this court to disregard the requirements of the rules in the interests of justice).

      . Appellant is currently a Pennsylvania resident.

      . M-R Labs was incorporated as a New Jersey Corporation. See Motion for Rule to Show Cause why Judgment Should not be Stricken, filed May 28, 1991, Exhibit E (Certificate of Incorporation). The certificate identifies Frank Ramesh and Michael Nair as directors of the corporation. See id. Neither the certificate of incorporation nor other documentation in the record discloses whether there is a relationship between appellant and Michael Nair or whether' they are in fact the same individual. Aside from this certificate, other proof that the corporation actually existed is lacking. See Reply to Motion for Rule to Show Cause why Judgment Should not be Stricken, at section IIC paragraph 35A and section IIIC paragraph 48 (describing appellee’s efforts in attempting to locate the corporation and inability to obtain proof that the corporation existed).

      . Appellee is a resident of Alabama.

      . Appellee allegedly paid appellant by a check that was made payable to M-R Labs. Nair v. Joshi, 578 So.2d 1296, 1297 (Ala.1991). The certified record does not indicate the disposition of these funds other than that they were given to appellant.

      . Appellee’s complaint contained multiple counts, the essence of which seemed to be premised upon fraudulent or intentional misrepresentation of the sale of securities. See Nair v. Joshi, 578 So.2d at 1297. Appellee also requested both compensatory and punitive damages in the complaint. Id.

      . The Alabama rule clearly permits a void judgment to be set aside. Ala.R.C.P., Rule 60(b)(4), Code of Alabama 1975. Lack of jurisdiction over the parties is recognized by the Alabama Courts as a basis for granting a party relief under Rule 60(b)(4). Ex parte Personnel Board of Jefferson County, 513 So.2d 1029, 1031 (Ala.Civ.App.1987). Curiously, appellant did not seek to have the judgment set aside on this ground, but opposed the judgment under Ala.R.C.P., Rule 60(b)(1), Code of Alabama 1975, which permits a judgment to be set aside as a result of a party’s mistake, inadvertence, surprise or excusable neglect. See Ala. R.C.P., Rule 60(b)(1), Code of Alabama 1975 and Nair v. Joshi, 578 So.2d at 1297-1298 (discussing appellant's arguments for setting aside the judgment under Rule 60(b)(1)).

      . The Uniform Enforcement of Foreign Judgments Act only refers to vacating, opening or staying a foreign judgment. See 42 Pa.C.S.A. § 4306(b). As noted by this court, it does not refer to the striking of such a judgment. See Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 144-145, 564 A.2d 1299, 1308 (1989). If the trial court found that Alabama lacked jurisdiction over appellant, the proper remedy therefore would have been to vacate rather than strike the judgment. Id.

      . Appellee suggests that appellant has waived or should be precluded from litigating his jurisdictional claim in this state. Appellant responds to this argument by asserting that lack of personal jurisdiction is a nonwaivable defense. Appellant’s Brief at 9. Appellant is in error, as the defense of lack of personal jurisdiction is a waivable right in both Pennsylvania and Alabama. See, e.g., Pa.R.C.P., Rule 1032(1), 42 Pa.C.S.A. (providing that a party waives all defenses and objections which he or she does not present by preliminary objection, answer or reply) and Ala.R.C.P.Rule 12(h), Code of Alabama 1975 (stating that the defense of lack of personal jurisdiction is waived if omitted or not raised in an appropriate motion or responsive pleading).
      In this case, appellant had the opportunity to raise his jurisdictional claim in Alabama when he instituted the action in Alabama to have the judgment set aside. As noted above, Alabama expressly permits a void judgment to be set aside. Ala.R.C.P., Rule 60(b)(4), Code of Alabama, Title 23 (1975). Further, lack of jurisdiction would entitle a party to have the judgment set aside pursuant to Rule 60(b)(4). Ex parte Personnel Board of Jefferson County, 513 So.2d at 1030. However, appellant did not challenge the judgment on jurisdictional grounds but sought to have the judgment set aside on the basis of mistake, inadvertence or excusable neglect. See Nair v. Joshi, 578 So.2d at 1297. Because appellant had the opportunity to fully litigate his jurisdictional challenge in Alabama and elected not to do so, it appears that litigation of the jurisdictional issue should be precluded pursuant to the doctrine of res judicata. See Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 467, 487 A.2d 1372, 1373 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986) (in which we observed that res judicata bars the relitigation of issues previously raised as well as arguments which might have been raised). The interests of justice nevertheless require us to review the jurisdictional issue, as the Alabama judgment should not be accorded full faith and credit if Alabama indeed lacked jurisdiction over appellant.

      . Although appellant does cite a few Alabama cases for broad principles which generally relate to the concept of jurisdiction, the parties inexplicably have failed to discuss or otherwise reference Alabama’s long-arm provision and the relevant authorities which interpret it.

      . Subdivisions (2)(F), (2)(G) and (2)(H) are clearly inapplicable and will not be further discussed. With respect to subdivisions (2)(D) and (2)(E), it is questionable whether jurisdiction may be exercised pursuant to these grounds, as there is nothing in the certified record which would indicate that appellant either regularly conducted or solicited business in Alabama or derived substantial revenues from goods used in Alabama. However, appellant’s conduct in contacting appellee might arguably be deemed a persistent course of conduct so as to permit the assertion of jurisdiction under either of these provisions. We need not specifically determine whether jurisdiction under either of these subdivisions is proper, since we find that one of more of the remaining subdivisions clearly provide an adequate basis for Alabama’s exercise of jurisdiction.

      . Appellant refers us to Pa.RX.P., Rule 1037, 42 Pa.C.S.A. While this provision governs the entry of default judgments, the specific rule regarding the notice of a party’s intent to enter a default judgment is found at Rule 237.1(a) of our rules of civil procedure.


source: Caselaw Access Project

author: KELLY, Judge: TAMILIA, Judge,

license: Public Domain

text:
    614 A.2d 733
    Bonnie L. SCHOENFELD, Appellant, v. Kenneth S. MARSH, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1992.
    Filed Sept. 4, 1992.

      Thomas M. Junker, Pittsburgh, for appellant.
    Kenneth S. Marsh, appellee, pro se.
    Before TAMILIA, KELLY, and MONTGOMERY, JJ.
   KELLY, Judge:

In this Opinion we are called upon to determine whether the trial court properly modified a registered foreign order for child support and alimony, based on the foreign court’s reduction of the father’s support obligation, to a date occurring prior to the father’s Pennsylvania petition to modify the registered foreign order. We find that the trial court did not abuse its discretion. Therefore, we affirm.

The relevant facts and procedural history, succinctly stated by the trial court, are as follows:

[t]his support case originated in 1985 in West Virginia, the state of the parties’ last marital domicile. On February 23 of that year, Mother filed a complaint for divorce in the Circuit Court of Harrision County, West Virginia. Prior thereto, the parties had entered into a marital settlement agreement, pursuant to which Father agreed to pay $200 per month alimony to Mother and $1,000 per month child support for the parties’ two children, Amy (now age 11) and Beth (now age 8). (See January 22,1985 Agreement). This agreement was later incorporated into the final divorce decree entered by the West Virginia court on March 21, 1986.
In July of 1987, Father filed a petition for modification, seeking termination of his alimony obligation and a reduction in his child support obligation. The basis of Father’s petition was his recent loss of employment with Georgia Pacific Corporation, where he had been earning approximately $32,000 per year.
An initial hearing on Father’s petition was held before West Virginia Family Law Master Cornelia Reep on July 6, 1987. A second hearing was held on October 11, 1987, following which the Family Law Master recommended that Father’s petition be held in abeyance until certain financial information was provided to the court.... A third and final hearing on Father’s petition was held on December 10,1987. For reasons unknown to this court, [the Family Law Master] did hot issue her final recommendation on the merits of Father’s modification petition until ten months later, in September of 1988. By that time, Father apparently had moved to Pennsylvania and Mother had registered the divorce decree and the West Virginia support orders with Allegheny County Family Division for enforcement pursuant to the Revised Uniform Reciprocal Enforcement of Support Act. By order dated July 18, 1988, Allegheny County court confirmed the West Virginia orders [of] 3-21-86; 5-19-87; 10-2-87, and calculated arrears owing under those orders at $12,975.00, as of June 2,1988. The Pennsylvania order also provided for wage attachment and contempt proceedings in the event Father failed to comply with this order.
On August 8, 1988, Father petitioned this court to stay enforcement of the Pennsylvania order until the West Virginia court had ruled on his modification petition, arguing that the modification, if granted by the West Virginia court, would substantially reduce the arrears enforceable under the Pennsylvania order. Father’s petition was denied. (August 11, 1988 Pennsylvania order).
Several months after registration of the West Virginia orders with this court, the West Virginia court finally rendered a decision on the merits of Father’s petition. By order dated December 16, 1988, the West Virginia court granted Father’s petition and terminated Father’s alimony obligation, retroactive to June 1988 (due to Mother’s May 1988 remarriage), and reduced Father’s monthly child support obligation from $1,000.00 to $510.00, effective October 1, 1988. Arrears were reset at $7,000 as of December 3, 1988.
Almost one year later, on September 14, 1989, Father filed an appeal with the West Virginia Supreme Court of Appeals on the issue of retroactivity only. On appeal, Father argued that the child support reduction should have been made retroactive either to June 3, 1987 (date of filing petition) or to December 12, 1987 (date of final hearing on petition). Father’s appeal was pending for almost one year before the appellate court finally rendered a decision denying the appeal and confirming the effective date of the December 16, 1989 order as being October 1, 1988. (See July 16, 1990 appellate decision).
While Father’s appeal had been pending in West Virginia, the Pennsylvania order continued to run the same as it had since the registration of the original West Virginia support orders in July of 1988. When the West Virginia appellate court issued its decision, Father filed his petition with this court on August 29, 1990 to change the July 18, 1988 order consistent with the West Virginia appellate decision. This court granted Father’s petition by order dated October 17, 1990, which provides in relevant part:
AND NOW, this 17th day of October, 1990, upon consideration of defendant’s Petition to Modify Alimony and Support Obligation in Accordance with West Virginia State Supreme Court of Appeals ruling, the argument thereon, it appearing that the defendant has been under an order of the Circuit Court of Harrison County, West Virginia, dated March 21, 1986, to pay $1,000.00 per month in child support and $200.00 per month in alimony, such order being transferred to this court by this court’s order dated July 19, 1988, (which order included acceptance by the court of all arrearages due and owing at that time, plus a judgment entered by the West Virginia Court against defendant and in favor of plaintiff in the amount of $2,575.00 plus interest of 10% as of July 6,1987); and it appearing that on July 16, 1990, the Supreme Court of Appeals of West Virginia at No. 19269, issued its opinion confirming the West Virginia Family Court Master’s finding that the defendant’s monthly child support obligation was to be reduced to the amount of $510.00 effective October 1, 1988, and it also appearing that plaintiff remarried in May, 1988, and therefore the alimony payments of $200.00 per month should have ceased as of June 1, 1988;
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that the current order for child support shall be modified to provide that defendant is to pay $510.00 per month, retroactive to October 1, 1988. Further, the order that defendant is to pay alimony of $200.00 is hereby suspended retroactive to June 1, 1988. The Wage Attachment is to be modified accordingly-
It is this order that forms the basis for Mother’s present appeal.

(Tr.Ct.Op. of 5/2/91 at 1-5).

The mother filed a motion for reconsideration. The trial court denied her motion, finding that 23 Pa.C.S.A. § 4352(e), prohibiting retroactive modification of arrears to a date prior to the date a petition for modification had been filed, did not bar the trial court’s actions in this case. It reasoned that the October 17, 1990 order granting the father’s petition to modify was “merely a nunc pro tunc order consistent with the December 1988 West Virginia order” aimed at recalculating the Pennsylvania court’s July, 1988 registration order to reflect the reduction warranted by the West Virginia order. (Tr.Ct.Op. of 5/2/91 at 6-7). The trial court also concluded' that a hearing on the father’s petition was unnecessary and contrary to both parties’ expectations, given their knowledge that the December, 1988 order of the West Virginia court reduced father’s support obligation to $510 per month, and that the Pennsylvania registration order would be modified to reflect that reduction. (Tr.Ct.Op. of 5/2/91 at 7-8). This timely appeal followed.

On appeal, the mother raises the following issues for our review:

1. DID THE LOWER COURT HAVE JURISDICTION TO RETROACTIVELY MODIFY ARREARAGES WHICH ACCUMULATED UNDER A PENNSYLVANIA REGISTERED SUPPORT ORDER, PRIOR TO FATHER’S FILING A PETITION TO MODIFY SUCH ORDER IN PENNSYLVANIA?
2. ASSUMING THE LOWER COURT HAD JURISDICTION, DID THE LOWER COURT ABUSE ITS DISCRETION IN REDUCING THE AMOUNT OF THE PENNSYLVANIA SUPPORT ORDER ON OCTOBER 17, 1990, RETROACTIVE TO OCTOBER OF 1988, WITHOUT CONDUCTING A HEARING ON THE MERITS TO DETERMINE THE APPROPRIATE AMOUNT OF CHILD SUPPORT OWED BY THE FATHER DURING THIS PERIOD?

(Wife-appellant’s Brief at 4).

The mother raises issues on appeal which challenge the trial court’s reduction of support arrears due her under Pennsylvania law, but based on a registered West Virginia support order, to give effect to the West Virginia court’s modification of its original support order. Initially, we note that our standard of review over a child support order, or modification of such an award, is well settled. Neither will be overturned absent an abuse of discretion, namely, an unreasonable exercise of judgment or a misapplication of the law. DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). See also Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990).

Article IV, § 1 of the United States Constitution mandates that each state give “full faith and credit to the ... judicial proceedings of every other state.” This mandate applies only to final orders. Thus, our courts have held that modifiable foreign decrees for child support are not entitled to full faith and credit by Pennsylvania courts. See Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984), citing Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973). See also Silverstein v. Silverstein, 246 Pa.Super. 503, 371 A.2d 948 (1977).

In an effort “to improve and extend by reciprocal legislation the enforcement of [modifiable] duties of support,” our legislature has adopted the Revised Uniform Reciprocal Enforcement of Support Act, 23 Pa.C.S.A § 4501 et seq. (RURESA). 23 Pa.C.S.A. § 4501(b). Among other things, the RURESA allows our courts to enforce modifiable foreign support orders through a registration process. See 23 Pa.C.S.A §§ 4536 through 4540. The RURESA specifically provides that a foreign support order registered in Pennsylvania has the same effect and deserves the same treatment as a support order issued by a Pennsylvania Court. 23 Pa.C.S.A. § 4540(a).

The Support Act, 23 Pa.C.S.A. §§ 4301 through 4366, governs support proceedings initiated in this state. According to that statute, the court making a support order retains jurisdiction to modify it. 23 Pa.C.S.A. § 4352(a). See also Bliss v. Bliss, 343 Pa.Super. 17, 493 A.2d 780 (1985) (Pennsylvania court with jurisdiction to enter valid support order did not lose jurisdiction merely because parties moved from issuing county, but retained jurisdiction to enforce order). Also, Pennsylvania courts may not modify their own support orders retroactively to a date prior to the filing of a petition to modify. 23 Pa.C.S.A. § 4352(e). Further, arrearages accruing pursuant to a support order issued by a Pennsylvania court are entitled to Full Faith and Credit. 23 Pa.C.S.A § 4352(d).

Our legislature, through the RURESA, clearly requires that our courts treat foreign support orders as if issued by a Pennsylvania court. 23 Pa.C.S.A. § 4540(a). However, our courts must also be aware that the registered order is subject to modification by the foreign court which made the registered support order. 23 Pa.C.S.A. § 4352(f) (Pennsylvania court may modify registered foreign decree when foreign court declines to do so).

This case involves the interaction between the RURESA and the Full Faith and Credit Clause, as they apply to a modification, by a Pennsylvania court, of a registered foreign order for support based on the foreign court’s modification of its original support order after registration in Pennsylvania. The question presented here is: where the foreign court modifies an order previously registered in Pennsylvania under the RURESA, how does the Pennsylvania court give effect to the modification? This Court has not addressed this specific issue. See Ross v. Ross, 359 Pa.Super. 357, 366, 518 A.2d 1274, 1279 (1986).

The mother contends on appeal that our trial court lacked jurisdiction to modify arrears which had accumulated under the registered West Virginia order prior to the date the father filed his petition with the Pennsylvania court to modify the registered order. She argues that because, upon registration, the West Virginia support order must be treated as if it were issued by a Pennsylvania court, our Courts cannot give effect to a modification which would result in a retroactive reduction of arrearages which had accrued under the registered West Virginia order before the date on which the father filed his petition with the Pennsylvania trial court for modification. The mother further argues that in order to have the registered order modified in Pennsylvania, the father must petition the Pennsylvania courts for modification and submit to a hearing in Pennsylvania on the merits of the petition. She asserts that there is no support for the trial court’s entry of a nunc pro tunc order which recognized the modification granted by the West Virginia court, and which altered the amount of arrearages due in Pennsylvania pursuant thereto. We do not agree.

There is strong support for the action taken by the trial court to give effect to the modification entered by the West Virginia Court. In Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981), our Supreme Court suggested that where a Pennsylvania court recognizes a foreign money judgment, and thereafter, action taken by the foreign court which issued the judgment alters the amount owed the obligee, our trial court should amend the registered foreign judgment to comply with that action, and should enter a new order nunc pro tunc. Id., 494 Pa. at 358-59, 431 A.2d at 894.

In Everson, a couple living in Arizona, a community property state, obtained a divorce and property distribution from that state’s court. 494 Pa. at 354, 431 A.2d at 892. Both the husband and the wife appealed the distribution, and the appellate court remanded the case to the trial court to redetermine whether certain assets were community property or the spouses’ separate property. Id., 494 Pa. at 355, 431 A.2d at 893. On remand, the trial court found that the husband had commingled the property in question, and that it was unable to trace the separate funds or assets. Id., 494 Pa. at 356, 431 A.2d at 893. The trial court entered an order giving the wife a lien against all the assets until the husband satisfied a $596,628.02 judgment in her favor. Id. The husband filed a second appeal and requested a stay of execution, but he failed to file an appeal bond. Id. The Arizona court denied the stay. Id.

While the husband’s second appeal was pending, the wife transferred the Arizona judgment, pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306, to Lehigh County, Pennsylvania, the situs of trust property in which the husband had an interest. 494 Pa. at 356, 431 A.2d at 891. The husband requested a stay of execution on the transferred judgment based on his second appeal from the underlying Arizona judgment. The Pennsylvania trial judge denied the stay because the husband failed to post the bond required to stay the proceedings in Arizona. Id., 494 Pa. at 353, 431 A.2d at 891. Thereafter, the Pennsylvania trial court entered a judgment on the pleadings against the trustee of the trust and in favor of the wife to the extent of the judgment. Id., 494 Pa. at 353-54, 431 A.2d at 892. This Court affirmed on appeal. Id., 494 Pa. at 354, 431 A.2d at 892. Our Supreme Court granted the husband’s petition for allowance of appeal. Id. Thereafter, the Arizona appeals court reversed in part the Arizona trial court’s original order and remanded the case. Id., 494 Pa. at 356, 431 A.2d at 891. Our Supreme Court held that the Pennsylvania trial court should have stayed execution on the transferred judgment pending the Arizona trial court’s compliance with the directive issued by its appeals court, and the Arizona court’s entry of a new judgment, which could alter the amount the husband owed the wife. Id., 494 Pa. at 359-60, 431 A.2d at 895. The Everson court stated that, while a stay of the enforcement proceedings was not technically required, “general principles of law relating to the enforcement of judgments suggest that the execution ... be stayed on equitable grounds due to the proceedings in Arizona subsequent to appellee’s [the wife’s] transfer of the judgment to Pennsylvania.” Id., 494 Pa. at 359-60, 431 A.2d at 895.

In discussing general principles pertaining to the enforcement of judgments, the Everson court stated that

... the mere fact that a party has made a motion in the trial court to ... modify the judgment ... does not deprive the judgment of its conclusive effect between the parties. Where an execution is issued under a judgment which is subsequently amended or modified, regularity may be imparted to the execution by an amendment of the judgment on which it is based and by its entry nunc proe tunc.

494 Pa. at 358-59, 431 A.2d at 894. These general principles, applicable to the enforcement of judgments, support giving effect to the West Virginia court’s modification of its order by entry of an order nunc pro tunc.

Admittedly, the Everson court dealt with the propriety of a stay of enforcement of a foreign money judgment based on a foreign divorce and property distribution, while we are faced with an obligee-spouse’s attempt to avoid modification of a registered foreign order for child support and alimony. However, there are similarities between that case and the instant case which support following the Everson court’s suggested course of action.

First, the Pennsylvania trial court in both cases was authorized, by similarly worded statutes, to enforce the foreign decree. The Everson court acted pursuant to the UEFJA, which states that upon filing

[t]he clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed ... shall have the same effect and be subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.

42 Pa.C.S.A. § 4306. Instantly, the RURESA authorized our trial court to enforce the West Virginia support order pursuant to a statutory mandate that our courts treat a registered foreign support order “in the same manner as a support order issued by a court of this Commonwealth, give it “... the same effect ... as a support order of this Commonwealth,” and enforce it (the foreign support order) “... in like manner.” 23 Pa.C.S.A. § 4540(a).

Second, the trial court was not required by statute to stay enforcement proceedings in either the Everson case or this case. In Everson, the UEFJA provided that the judgment debtor could preclude execution of the foreign judgment by showing that an appeal would be taken and that security for satisfaction of the judgment was furnished. 494 Pa. at 359, 431 A.2d at 895. Here, the RURESA mandates a stay of registration proceeding upon a showing that an appeal is pending or will be taken in the foreign state which issued the support order, and that the obligor-spouse has posted the requisite bond. 23 Pa.C.S.A. § 4540(c). In neither case was the trial court required to stay its enforcement of the foreign order because neither the husband-judgment debtor in Ever-son, nor the father-obligee in the instant case, had posted the requisite bond. See 494 Pa. at 356, 431 A.2d at 893.

As correctly stated by the mother, this Court “has consistently held that RURESA does not intend an order of support to act as a bar to an entry of an order in another state having jurisdiction.” (Mother’s Brief at 11) (emphasis added). The father does not assert that the petition for modification pending before the West Virginia Master rendered the underlying support order incapable of registration in Pennsylvania pursuant to the RURESA. In fact, the registered West Virginia order continued in effect in Pennsylvania, with arrearages accumulating pursuant thereto, while the father proceeded through the West Virginia court system. However, as suggested by the Everson court, once the West Virginia courts concluded that changes in the father’s economic situation and in the mother’s marital status warranted a modification of their own order, our courts properly recognized the West Virginia court’s authority to do so. See also 23 Pa.C.S.A. § 4352(f).

Third, in both cases, our courts were asked to give effect to an action taken by a foreign court that affected a properly registered foreign order. In Everson, the husband claimed that a Pennsylvania court ought not enforce a judgment based on an Arizona court order making a property distribution following an Arizona divorce, where an appeal was pending at the time of the transfer to Pennsylvania, and, subsequent thereto, the Arizona appellate court reversed their trial court’s determination that certain property was community property. 494 Pa. at 357, 431 A.2d at 893. This claim is analogous to the argument forwarded by the husband in the instant case (and adopted by the trial court) that the order for support entered against him in Pennsylvania, which was based on a West Virginia support order, ought to reflect a modification made by the West Virginia court where the modification procedure was pending at the time the Pennsylvania court registered the original West Virginia support order.

The mother’s argument that recognition of the West Virginia Court’s modification of the support order, and reduction of arrears due pursuant thereto retroactive to 1988, would contravene our statutory ban against retroactive modification of arrears prior to the date a petition for modification is filed fails. First, the cases cited by the mother in support of this argument are distinguishable. Second, the trial court’s action does not violate our statutory prohibition against retroactive modification of arrearages prior to the date a petition for modification is filed. As stated above, the West Virginia court’s action affected only arrearages accumulating under the West Virginia order after the date on which the father filed his West Virginia petition to modify his support obligation. This result was entirely in accord with Pennsylvania law governing wholly domestic support cases, which allows retroactive reduction of support arrears accruing after a petition to modify the support obligation has been filed. See 23 Pa.C.S.A. § 4352(e).

CONCLUSION

We find that the trial court did not err in entering a nunc pro tunc order which recognized the West Virginia court’s modification of the original support order and which modified the registered West Virginia order in compliance therewith.

Order Affirmed.

TAMILIA, J., filed a concurring opinion.

TAMILIA, Judge,

concurring:

I concur in the result as I believe the Order registered in Pennsylvania was dependent upon and must be governed by the final action of the West Virginia Court. The final determination included the Order on appeal and resolution of the support issues and date fixed for modification. The Pennsylvania registered Order is controlled by this action as no independent proceeding occurred in Pennsylvania which would have established an independent result. I differ with the majority which attempts to analogize this proceeding, based upon support law and registration under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), 28 Pa. C.S. § 4501 et seq., which is reciprocal legislation and statutory in nature and not dependent upon the full faith and credit provisions of the Constitution, with Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981), which deals with property and registration of a foreign judgment which is governed by the full faith and credit clause. Reciprocal legislation in support was adopted because of the grey area in support and alimony cases which rendered them unenforceable under the full faith and credit provisions of the Constitution since they were not final judgments and were in personam in nature. In recent years, because of increasing involvement by the Congress in attempting to firm up support obligations, a degree of finality has been introduced in support matters, particularly with regard to vacating arrears. Registered Orders are modifiable and do not take on the true character of final judgments contemplated by the full faith and credit clause. The Arizona judgment in Everson, since it was an in rem judgment dealing with an award of community property, did not constitute a final judgment entitled to full faith and credit because the Arizona courts retained jurisdiction pending appeal. Registration of the trial court Order in Pennsylvania was a nullity since the Order was not final and Pennsylvania lacked authority to enforce it because it lacked jurisdiction. In this case, Pennsylvania did have jurisdiction by virtue of registration to enforce the Order, but it remains subject to modification by the West Virginia Court. Support and alimony Orders are unique in this respect since courts in the domicile of the obligor as well as the domicile of the obligee can effect the amount and duration of the Order. This is not possible under the full faith and credit clause with Orders registered as foreign judgments.

The majority is bringing into this area of law a confusing analysis which is not in accordance with the manner in which RURESA operates, and is confusing its operation with that of registering final judgments, pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306. The provisions of RURESA, section 4540, Effect and enforcement of registered order, (c) Procedure, provides the remedy for cases in which an appeal from the Order of the original state is pending. Here, the problem arose because appellee father failed to take advantage of section 4540(c) to request a stay of the Order due to the pending appeal in West Virginia, and the lack of diligence of the West Virginia Courts in resolving the issue. In cases which are registered, the registering state will proceed with caution whenever there is question as to the finality of the rendering state’s Order. The proceedings in this case simply ignored the clear mandate of the law.

      . This order was later modified to reduce Father’s child support obligation for the summer months during which he exercised full visitation rights. (See May 19, 1987 West Virginia order).

      . Arrearages, which represent rights to support that have already accrued, and which are not modifiable, are entitled to enforcement in Pennsylvania. Oman, supra at 362-63, 482 A.2d at 609. See also Posner, supra at 57 n. 4, 299 A.2d at 312 n. 4; 72 Standard Pennsylvania Practice § 557. In limited circumstances, a modification may be applied to period before the modification petition was filed. See 23 Pa.C.S.A. § 4352(e) (physical or mental disability, misrepresentation of another party, or other compelling reason). See also Benjamin v. Benjamin, 408 Pa.Super. 320, 596 A.2d 877 (1991) (compelling reasons existed for retroactive modification of payments: no proceedings against obligor for seventeen years, obligor unable to read or write and relied on attorney's advice, obligor reduced payments unilaterally as children reached emancipation).

      . We find that the trial court properly entered the nunc pro tunc order recognizing the modification granted by the West Virginia Court, which was based upon evidence heard by a West Virginia master at support hearings in that state. It necessarily follows that no Pennsylvania hearing was required.

      . See also 69 Standard Pa.Practice § 15 (decision by rendering state’s court after judgment transferred to Pennsylvania, resulting in money award substantially different from original award, warrants stay of execution in Pennsylvania until Pennsylvania court enters new judgment in compliance with rendering state court's mandate); Restatement of Judgments (Second) § 82, Comment a (even valid foreign judgment properly denied enforcement where equitable relief therefrom obtained in rendering court, on theory that foreign judgment ought have no greater effect in recognizing state than it would be given in rendering state).

      . Also, the husband in the instant case was not appealing the original order (procedurally he could not have) but was seeking a modification based on changed circumstances, namely, his involuntary loss of employment and his former wife’s remarriage.

      . Here, the father initially attempted to avoid the Pennsylvania registration of the West Virginia Order. He argued that the petition for modification of support pending in the West Virginia court (for almost a year at the time the mother first petitioned for registration of the original West Virginia order), if granted, might substantially reduce amounts due and owing the mother pursuant to the original West Virginia order. However, the trial court refused to stay registration of the original West Virginia order.
      There is no allegation that the trial court in the instant case should have stayed registration of the West Virginia Order. We note that this decision is in accord with 23 Pa.C.S.A. § 4540(c) which mandates a stay in proceedings to enforce a foreign support order only when the party challenging the registration shows that an appeal has been or will be taken and that security for payment of the order, as required by the state rendering the support order, has been furnished. Here, the father had filed a petition for modification of child support based on his loss of a $32,000-a-year job. No decision regarding the modification had been made by the West Virginia court at the time the mother petitioned to have the original West Virginia support order registered in Pennsylvania. Thus, procedurally, the father could not have filed an appeal; no stay of registration was required under 23 Pa.C.S.A. § 4540(c).

      . We recognize that the husband in Everson sought a stay of the enforcement proceedings due to his pending appeal. In the instant case, although the father initially attempted to avoid the Pennsylvania registration of the West Virginia support and alimony order, the relief sought below was a modification of the registered order.

      . The appellant cites our decision in Mosier v. McCaughtry, 387 Pa.Super. 405, 564 A.2d 241 (1989), for the proposition that the lower court here lacked jurisdiction to modify arrears which accumulated pursuant to the registered West Virginia order prior to the father’s Pennsylvania petition for modification. The Mosier court admittedly read 23 Pa. C.S.A. § 4352(a) and (d) together to mean that a court making a support order retains jurisdiction to modify it, except with respect to arrearages which accumulated prior to the filing of a petition to modify. 387 Pa.Super. at 409, 564 A.2d at 243 (emphasis added).
      In Mosier the mother obtained a court order allowing her to accumulate arrearages while she attended graduate school. Upon completion of her education, she became employed, but she failed to pay the arrearages. She filed a petition to modify arrearages already owed, asking that anticipated psychiatric bills and parochial school tuition for the parties' only child offset her obligation to pay the father. Id., 387 Pa.Superior Ct. at 407-408, 564 A.2d at 242.' The trial court agreed. On appeal we found that 23 Pa.C.S.A. § 4352(a) and (d) prohibited the trial court from reducing the mother’s arrears that existed at the time she filed her petition to modify. Id., 387 Pa.Superior Ct. at 408-409, 564 A.2d at 243.
      The facts of the Mosier case differ from those in the instant case in two respects. First, the support order involved there was one made by a Pennsylvania trial court, and not a registered foreign support order. Thus, the concern for giving effect to a modification by a foreign court with jurisdiction to do so was not present there. Second, in Mosier, the mother-obligor sought a modification of arrears which accumulated before the date of her petition to modify, 387 Pa.Superior Ct. at 409, 564 A.2d at 243. In contrast, the father in the instant case sought a modification of the support order by the West Virginia court that would become effective on the date his West Virginia petition to modify was filed (or conversely, which would affect only those arrearages which would accumulate following his West Virginia petition).
      The mother also draws our attention to the New Jersey case of Donelan v. Doherty, 227 N.J.Super. 535, 548 A.2d 199 (1988), in support of her argument that modification of the registered West Virginia order can be made only after a hearing on the merits in Pennsylvania, and must be based entirely on facts or circumstances arising after the registration. Initially, we note that this Court is not bound by the decisional law of the state of New Jersey. More importantly, the Donelan case differs from the instant case. The obligorfather in Donelan chose not to file an appeal in Maryland, the state where the support order was made. Instead, he chose to seek modification of the Maryland order in New Jersey, where it had been registered pursuant to the RURESA. The husband argued that changes in his and his wife's respective incomes warranted a reduction in the registered Maryland support order. In disallowing the modification, the New Jersey court held that the father was not entitled to retroactive or prospective modification of an order originating in Maryland (but registered in New Jersey) based on facts occurring before registration in New lersey because such facts could not constitute “changed circumstances” under New Jersey law. 548 A.2d at 200 (emphasis added). The Donelan court called the father’s petition for modification "a veiled attempt ... to pursue an appeal from the Maryland support order in New Jersey.” Id. It noted that a New Jersey court lacks jurisdiction over such an appeal.
      In contrast, the father in the instant case did not attempt to seek modification in Pennsylvania in lieu of an appeal from the original West Virginia support order. First, the father filed a petition to modify the support order one year after it was entered, based on his involuntary loss of employment following the making of the support order. An appeal would not have been proper procedure. Second, the father’s modification petition had been pending in West Virginia for nearly one year when the mother had the West Virginia support order registered in Pennsylvania. It is the modification by the issuing court, based on facts occurring in the issuing jurisdiction, and applied to arrears which accrued following the West Virginia petition to modify, that the father here seeks to have recognized by our courts.

      . Appellant cites cases where, because the underlying action taken by the foreign court contravenes our public policy, our courts have refused to recognize even final foreign decrees regarding child support. See Powell v. Conway, 386 Pa.Super. 1, 562 A.2d 324 (1989) (Florida order barring college-age child’s action for support not bar Pennsylvania claim for support for college expenses); Oman, supra (Pennsylvania court not bound by Virginia order terminating duty to pay support at child’s eighteenth birthday); Myers v. Young, 285 Pa.Super. 254, 427 A.2d 209 (1981) (Virginia order suspending support duty until parents arrange visitation satisfactory to obligor not bar entry of Virginia support order in Pennsylvania pursuant to RURESA). These cases are distinguishable from the instant case and do not undermine the propriety of the trial court’s actions.


author: POPOVICH, Judge:

text:
    614 A.2d 742
    Eugene HARASYM, Appellant, v. Beverly Ann HARASYM, Appellee.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed Sept. 15, 1992.

      James T. McHale, Scranton, for appellant.
    David Ratchford, Scranton, for appellee.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order denying appellant’s exceptions to the Master’s recommendations in equitable distribution matters entered in the Court of Common Pleas of Lackawanna County on August 2, 1991. Appellant argues on appeal that the trial court erred in its valuation of stock which he owns in Lakawanna Medical Group, P.C., in its award of alimony, and, in awarding counsel fees to appellee (wife). We affirm.

Appellant and appellee were married on June 28, 1978, and have two daughters from their marriage, Alyssa, born January 20, 1980, and Adrianna, born May 4, 1983. The parties separated in July of 1988, and appellant instituted a divorce action on February 27, 1989. On July 13, 1990, appellee filed a petition for alimony pendente lite, spousal support, alimony, equitable distribution and counsel fees and expenses. Appellant has not had any contact with his children since the separation other than sending support payments. Appellant is a physician. Appellee has returned to work after the separation and is a speech therapist.

Appellant filed a motion for bifurcation which was denied on December 20, 1990. The trial court concluded that litigation pending at the time against appellant individually and as a principal in Lackawanna Medical Group, P.C. could threaten appellee’s economic claims.

The Master conducted three days of hearings and submitted his report to the trial court on January 3,1991. Child support was continued in the amount of $1,429.95 per month. Alimony was awarded in the amount of $1,300.00 per month for a period of 120 months. Appellee’s claim for counsel fees and expenses was denied. Equitable distribution was recommended as follows:

TO [APPELLEE] WIFE:

(a) The marital home at Grouse Hill, Waverly, Lackawanna County, Pennsylvania, together with all furnishings, appliances and personalty therein and together with assumption of the first Mortgage and home equity loan in favor of the Northeastern Bank of Pennsylvania. [Appellee] to make such arrangements as necessary to hold the [Appellant] harmless for any sums due to the said Northeastern and home equity loan. It is the Master’s understanding that the balance due on said debts total approximately $183,000.00:
—value of home $245,000.00
—value of contents $ 7,000.00
$252,000.00
Less obligations: 183,000.00
NET: $ 69,000.00
(b) 1988 Audi Quatro vehicle — value $15,500
(c) IRA in [Appellee’s] name — value $ 1,022
(d) Prudential Bache account — value $2,319.38
(e) In addition to the aforesaid first Mortgage and home equity loan, the [appellee] wife is charged with the following debts and will hold the [appellant] harmless for all sums due on said debts:
(i) O.K. Tires — $592.00
(ii) Mermelstein’s — $ 97.00
(iii) Dr. David Oven — $170.00
(iv) Costa’s Drugs — $172.16
After deducting the liabilities from the value of the assets distributed in kind to the [appellee], the Master arrives at a sum of $86,810.22.

TO [APPELLANT] HUSBAND:

(a) Lackawanna Medical Group stock value — $ 34,600.00
(b) Lackawanna Medical Group 401(k) value — $ 46,693.00
(c) Lackawanna Med. Group Pension value — $ 16,457.00
(d) 1982 Subaru and 1987 BMW value — $ 13,100.00
(e) Prutex I & II value — $ 10,000.00
(f) Legg Mason account value — $ 958.00
(g) IRA in [Appellant’s] name value — $ 7,433.00
TOTAL: — $129,241.00
(h) [Appellant] husband is charged with the payment of the following debts and will hold [Appellee] wife harmless for all sums due on said debts:
(i) Northeastern Bank of Pennsylvania credit line — $19,000.00
(ii) Penn Security Master Card — 1,628.75
(iii) Penn Security Visa — 1,628.75
(iv) Northeastern Bank of Pennsylvania Master Card — 5,965.00
(v) Temple University — 870.00
(vi) T. Harasym loan — 6,000.00
(vii) E.L. Harasym loan — 5,000.00
(viii) Guido Boriosi, M.D. — 530.00
(ix) Encyclopedia Britannica — 2,000.00
(x) Clarks Green Garage — 150.14
TOTAL: $42,813.25
After deducting liabilities from the value of the assets distributed in kind to the [appellant], the Master arrives at a sum of $86,427.75. As previously noted the [appellant] has requested that the Master find that the debt due to the United States Government of $10,000.00 is a marital debt and it is the conclusion of the Master that such debt is not in fact marital![]

Report of Master, January 3, 1991, pp. 71-2.

Cross-exceptions to the Master’s report were filed, the appellee contesting the Master’s recommendations with regard to alimony pendente lite, counsel fees and expenses, and, the appellant contesting the Master’s recommendations involving equitable distribution and alimony. The trial court denied appellee’s petition for alimony pendente lite; however, it concluded that appellant should pay appellee’s counsel fees and expenses. Additionally, the trial court found no error in the Master’s distribution of the marital property, but, adjusted appellee’s alimony award to $2,000.00 for a period of four years. The Master’s report was adopted in all other respects.

Appellant raises three issues on appeal:

I. Was the plan of equitable distribution of a minority interest in closely held corporate stock a “buy out” at a value not realizable and “accrued” debt a marital estate obligation?
II. Does an award of alimony fail when it imposes on a supporting spouse the duty to see that the dependent spouse’s lifestyle remains unchanged from previous practices?

III. May counsel fees be awarded where neither actual financial need or legal necessity has not [sic] been shown? Brief for appellant, p. 11.

Our scope of review in equitable distribution matters is limited. An award of alimony, counsel fees, and property distribution are within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Berrington v. Berrington, 409 Pa.Super. 355, 361, 598 A.2d 31, 34 (1991) citing Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of discretion “is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that [an] appellate court is of [the] opinion that there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment — one that is clearly against logic and [the] effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law.” Berrington, 598 A.2d at 34 quoting Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991).

Appellant’s first issue raises two separate questions. He first argues that the court improperly valued stock which he owns in the Lackawanna Medical Group through his employment with that corporation. Appellant points out that he is no longer employed by the Lackawanna Medical Group and contends that he left because of wage reductions and its inability to pay its employees. He argues that because of the corporation’s “serious” financial difficulties and outstanding lawsuits, the value of his stock is worthless.

This issue was briefly raised in appellant’s exceptions to the Master’s, report as part of his objection to the equitable distribution scheme. The trial court reviewed the record and considered all of the factors set forth in 23 Pa.C.S.A. § 3502(a)(1)-(11), (formerly 23 P.S. § 401(d)(1) - (11)), and concluded that it would not disturb the Master’s recommendations with regard to the equitable distribution of the marital property. The court did not specifically discuss whether the valuation of appellant’s stock was proper nor was it necessary for the court to do so. Appellant has offered no evidence that his stock is worthless. There is no dispute that appellant’s stock is marital property and, therefore, subject to equitable distribution. The value was assessed by the Master in accordance with the stockholder’s agreement as our supreme court directed in McCabe v. McCabe, 525 Pa. 25, 575 A.2d 87 (1990) (Partnership agreement governing appellant’s law firm is preeminent factor in valuing a partner’s rights and method set forth in agreement for determining realizable value of partner’s share is controlling.) If it is in fact true that it will be difficult for appellant to obtain the value of his stock, we are still unpersuaded that such difficulty renders the stock worthless.

Appellant also argues that the marital estate should have been reduced by the amount of $10,000.00 which represents a settlement by him with the U.S. government. The U.S. Attorney’s office filed an action against appellant, among others, alleging Medicare fraud and conspiracy. Appellant asserts that because appellee shared in the benefits of the income generated by his billing through Lackawanna Medical Group, that she is likewise liable for such debt arising out of this settlement obligation. We disagree.

The Master stated in his report that the “aforesaid $10,-000.00 debt is not a marital debt and in fact is a settlement of a claim against the Plaintiff, Eugene Harasym, for fraud and conspiracy he conducted against the United States Government and should not be considered marital even though the [appellee] may have unwittingly and unknowingly been a peripheral beneficiary of the acts of her husband.” Master’s Report, January 3, 1991, p. 67. Appellant presents no evidence that the $10,000.00 settlement represents the over-billed amount by which he and appellee may have benefited. That amount appellant agreed to pay could have been in large part a penalty and may have no relation to any amount which may have inured to appellee. Additionally, appellee played no part in the settlement agreed to by appellant. We do not find it improper that the $10,000.00 settlement by appellant, agreed to by him in connection with allegations of Medicare fraud, was not considered a marital debt.

Our standard of review in assessing the propriety of a marital property distribution is whether the trial court.abused its discretion by a misapplication of the law or failure to follow proper legal procedure. “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Zollars v. Zollars, 397 Pa.Super. 204, 579 A.2d 1328 (1990) allocatur denied 527 Pa. 603, 589 A.2d 693. The legislative intent of the Divorce Code is to “[e]ffectuate economic justice between parties who are divorced or separated and ... insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). We are satisfied that all of the appropriate factors were considered by the Master and the trial court and find no abuse of discretion in the distribution of marital property.

Appellant’s second issue states that the award of alimony imposes upon him the duty to support appellee in a lifestyle which is unchanged from that which she enjoyed during marriage. The standard of review with regard to the issue of alimony is whether the trial court abused its discretion. Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989). “In determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties’ earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.” Edelstein v. Edelstein, 399 Pa.Super. 536, 539, 582 A.2d 1074, 1076 (1990); 23 Pa.C.S.A. § 3701(b).

It was the Master’s recommendation that appellant pay to appellee alimony in the amount of $1,300.00 for a period of 10 years. The trial court found this to be excessive noting that the purpose of alimony is rehabilitative in nature and to effectuate economic justice between the parties. It was stated in the trial court’s review of this issue, that appellee was back in the workforce with a “moderately well-paying job” and that she was awarded the marital residence in the equitable distribution scheme. It was also considered that appellant’s earning potential is much greater than that of appellee. The trial court felt that some alimony was appropriate and modified the Master’s recommendation with regard to alimony to the amount of $2,000.00 per month for a period of 48 months.

We find no evidence that alimony was awarded in this case with the purpose of maintaining appellee’s pre-divorce lifestyle. Clearly, the record shows that her lifestyle has and will continue to change. While we recognize that appellant will suffer some hardship and his standard of living will be somewhat reduced for a time, we cannot say that the trial court abused its discretion in the amount or duration of the alimony award.

The final issue raised by appellant is whether the trial court erred in its award of over $10,000.00 in counsel fees to appellee. Appellant argues that neither financial need nor legal necessity has been shown which would warrant such an award.

Our standard of review with regard to an award of counsel fees is a narrow one, such standard being an abuse of discretion by the trial court. Kohl v. Kohl, 387 Pa.Super. 367, 372, 564 A.2d 222, 225 (1989) affirmed 526 Pa. 263, 585 A.2d 463 (1991) citing Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989). Counsel fees are awarded only upon a showing of actual need. “Counsel fees are appropriate when necessary to put the parties ‘on par’ in defending their rights or in allowing an action for divorce.” Id. The purpose of such an award is to enable the dependent spouse to maintain the action without being placed at a financial disadvantage. Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599, 600 (1984).

In his report, the Master recommended that appellee’s claim for alimony pendente lite and counsel fees be denied and her claim for costs and expenses be granted. The trial court agreed with the Master’s recommendation with regard to alimony pendente lite, but disagreed with his recommendation with regard to counsel fees, granting appellee’s request. In its opinion, the trial court noted that appellee had ample funds to support herself and maintain this action while she received spousal support payments and a monthly contribution from appellant toward the mortgage. Thus a denial of alimony pendente lite was appropriate. The trial court further observed that such support payments have ceased upon the granting of the divorce. Appellee, however, will be receiving alimony which amount exceeds that of the spousal support. While we find some inconsistency in the trial court’s reasoning, the large disparity in the income of both parties was considered as was the Master’s recommendation that appellant pay costs and expenses with regard to the Master’s hearings. In comparing the gross income of the two parties along with their expenses, appellee is certainly in a disadvantageous position and we are unable to say that the trial court abused its discretion in its award of counsel fees.

Order affirmed.

      . This $10,000.00 debt due to the United States Government represents a settlement with the U.S. Attorney’s office with regard to allegations of Medicare fraud.

      . The master also recommended that appellee’s petition for alimony pendente lite as well as her claim for counsel fees and expenses be denied.

      . We note that the trial court, in its opinion of August 2, 1991, awarded alimony to appellee in the amount of $2,000.00 for a period of five years. However, in its order and decree of the same date the alimony award is for a period of 48 months. Neither appellant nor appellee dispute that the award is for 48 months, and we will accept that as the proper period.

      . Appellant also argues that the trial court was required to consider an "in kind” distribution of the stock as well as a "buy out” remedy. This argument was never raised in his exceptions to the Masters report. Appellant has maintained throughout the proceedings that the stock in question has no value because he will be unable to receive its value without bringing suit against the corporation. He now argues that •where there is difficulty valuing closely held stock, an in kind distribution is more appropriate, citing Ryan v. Ryan, 528 Pa. 186, 596 A.2d 140 (1991) in support of this proposition. We disagree with this reading of Ryan. In that case our supreme court stated only that it was appropriate for the trial court to consider both methods of distribution but did not show any preference for either method.
      Additionally, we fail to understand appellant’s assertion that because he may have difficulty redeeming the value of his stock, no value can be placed on it. The value of the stock was computed by using the formula agreed upon by the parties and as provided in the stockholder's agreement. We see absolutely no reason why it would be more appropriate to divide ownership of the stock between the parties.

      . Appellant earns approximately $139,000.00 per year as a physician and appellee earns approximately $22,000.00 per year as a speech therapist in the public school system. Appellee is not employed in a permanent position at the present time and is the custodial parent for two young daughters.

      . We also find no evidence that the award of alimony was punitory or that appellant’s extra-marital relationship was given great weight, if any, by either the Master or the trial court in their determinations.

      . The trial court also stated: "It is clear that [appellee’s] counsel’s efforts in trying to determine the value of [appellant's] stock interest in Lackawanna Medical Group, P.C. were skillfully done and necessitated by [appellant’s] own conduct.” Trial court opinion, August 2, 1991, p. 3.