text:
    541 A.2d 775
    W.I. SNYDER CORP., Appellee, v. Charles CARACCIOLO, d/b/a Charles Caracciolo Steel and Metal Yard, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1988.
    Filed May 2, 1988.

      Michael J. Betts, Pittsburgh, for appellant.
    Thomas E. Lippard, Pittsburgh, for appellee.
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

Presented for our consideration in this appeal is a question of whether an oral contract is enforceable under an exception to the Statute of Frauds, 13 Pa.C.S. § 2201. Since we conclude the contract is enforceable because partial payment was made and accepted for the goods, we must also examine Appellant’s contention that Appellee should not have been entitled to recover the price of the goods which were the subject of the contract. Appellant alleges that Appellee failed to establish that it had made a reasonable effort to resell the goods as required under 13 Pa.C.S. § 2709. Finding this second claim to also be meritless, we affirm the Judgment entered by the trial court.

A brief review of the factual background of this case is necessary to a discussion of Appellant's claims. The facts relayed at trial, when read in a light most favorable to Appellee as the verdict winner, establish the following. Appellee, W.I. Snyder Corp., was in the business of purchasing high grade metals to sort and prepare for later resale to local steel mills. For approximately three to four years prior to the time the parties entered into the subject contract they engaged in business dealings. During this period of time, Appellant would generally telephone William Snyder about scrap metal Appellant had for sale. In a January, 1984 phone conversation Appellant mentioned to William Snyder that he was looking for some equipment. Mr. Snyder indicated that he had recently purchased a nearby facility, had removed all the equipment he needed and was willing to sell all the equipment remaining at the facility, which included cranes, bulldozers and bobcats as well as hundreds of small tools and parts, as a package for $120,000.00. Appellant responded that he was interested in such a deal and inquired whether Mr. Snyder would take a few loads of scrap as payment. Appellant also relayed that he could ship at least “two or three loads ... right away as a downpayment.” N.T. 5/12/86 at 24. It was decided that Mr. Snyder would make a trip to Appellant’s plant to see the scrap which Appellant wished to use as a downpayment.

At Appellant’s plant Mr. Snyder was met by Appellant and his son Charles Caracciolo, Jr. Mr. Snyder was shown the scrap and he stated that it was acceptable to him. The parties then discussed arrangements for enabling Appellant’s son to inspect the equipment. It was agreed that Appellant’s son would travel to Appellee’s plant with a load of scrap to be used as the first downpayment for the equipment. This load was to consist of material which Mr. Snyder had purchased from Appellant in the past. Two subsequent loads of material, a type which Mr. Snyder had never before purchased, were also to be sent at a later time as partial payment.

As arranged, Appellant’s son and a truck driver traveled to Appellant’s plant and brought with them a load of stainless steel. A Bill of Lading was stamped and signed as received and a receiving memorandum which detailed the weight and price of the shipment, $10,409.59, was sent to Appellant. Upon his arrival, Appellant’s son was escorted to the plant where the equipment was housed. He remained there for less than an hour before he returned to Mr. Snyder’s office and informed him that he liked what he saw and he would call Mr. Snyder shortly. The next day Appellant’s son telephoned Mr. Snyder asking if he could have his experts look at the equipment. Mr. Snyder responded that this would be fine with him and three or four days later Appellant’s son returned to Appellee’s plant along with two other individuals. The men examined the equipment for approximately three hours but did not start any of the engines. Appellant’s son then returned to Mr. Snyder’s office and informed him that once he spoke to his father they would probably go through with the deal. Mr. Snyder and Appellant’s son again discussed the payment plan which included two loads of material never before purchased by Appellee which was to serve as a down payment.

Two loads were subsequently shipped to Appellee on February 21 and March 1, 1984. The materials contained in this shipment were of a type which Appellee had never before purchased from Appellant. A receiving memorandum was sent to Appellant which listed the total price of the two shipments as $10,211.72. Shortly thereafter, on March 7, Mr. Snyder received a call from Appellant who expressed satisfaction with the equipment and stated that they would go ahead with its purchase. Two days later Appellant again called Mr. Snyder and stated that he would pick up the equipment on Monday and that he would bring trucks and mechanics to facilitate this. Mr. Snyder expressed a desire to have the terms of their agreement detailed in a written contract, but Appellant stated that he believed such a writing was unnecessary since Appellee already had three truckloads on account. Appellant and Appellee further agreed that Appellant would ship Appellee scrap for the remainder of the year and if the loads did not meet the $120,000.00 contract price for the equipment Appellant would settle the account at that time.

On Monday, March 12, 1984 Appellant’s son arrived at the warehouse with trucks and men and was admitted by Appellee’s employee. Approximately five hours later Appellant’s son went to Mr. Snyder’s office and announced: “You better send somebody over there to lock up, you know, the place is wide open. We are not taking anything. We pulled out. We are not taking any of the equipment.” N.T. 5/12/86 at 60. Appellant’s son also refused to take with him a written contract which Mr. Snyder’s attorney had drafted.

Appellant first argues that “the oral contract alleged by Snyder is unenforceable under the Statute of Frauds.” The Statute of Frauds requires that a contract for the sale of goods priced at $500 or more must be in writing and be signed. 13 Pa.C.S.A. § 2201(a). There are, however, statutory exceptions to this requirement. At trial the jury was charged in accordance with the following exceptions to the formal requirements of the statute of frauds:

A contract which does not satisfy the requirements of the subsection (a) [requiring a contract for the sale of goods for a price of $500 or more to be in writing and signed] but which is valid in other respects is enforceable:
(3) with respect to goods for which payment has been made and accepted or which have been received and accepted.

13 Pa.C.S.A. § 2201(c)(3).

In the instant case, the jury was also instructed that the alleged contract was indivisible and, therefore, if the jury should find that part payment on the account was made by the buyer and accepted by the seller, the entire contract would be valid and enforceable. The jury found the contract to be enforceable and it is this finding which Appellant disputes.

Appellant provides this court with three reasons why an exception to the Statute of Frauds cannot apply in this case for goods for which payment was made and accepted.

First Appellant asserts that Appellee “expressly admitted in paragraph 5 of its Reply to New Matter that Appellant did not make payment for the goods.” Appellee was permitted by the court to amend this pleading to provide that partial payment in the form of the delivered scrap metal valued at $20,621.31, was accepted by Appellee. Both the original paragraph and the amendment were read to the jury. The trial court provided the following rationale for permitting the amendment:

In the present case, the allowance of the amendment caused no prejudice to Defendant. Plaintiff wanted to amend their Reply to New Matter because counsel constructed the word “payment” to mean money paid. Because Defendant never paid any money to Plaintiff, Plaintiff admitted that there was never any “payment” made. Moreover, counsel for Defendant, at trial, admitted that there was no prejudice.

(citation and footnote omitted.)

It is important to note that a decision to permit an amendment to a pleading is a matter committed to the discretion of the trial court. General Machine Corp v. Feldman, 352 Pa.Super. 180, 185, 507 A.2d 831, 834 (1986). The right to amend is generally liberally granted unless the adverse party would be prejudiced or an error of law would result. Sands v. Forrest, 290 Pa.Super. 48, 434 A.2d 122, 124 (1981). The type of prejudice that would prevent the grant of an amendment must be greater than a mere detriment to the other party “since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party”. Id., 290 Pa.Superior Ct. at 53, 434 A.2d at 125, quoting, Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 394, 300 A.2d 900, 901-902 (1972).

Based upon the trial court’s conclusion that no prejudice resulted from the amendment, the fact that both the original and the amended pleadings were read to the jury, and the Appellee’s justification for seeking an amendment, we find the trial court did not abuse its discretion by permitting the amendment. Accordingly, we must reject Appellant’s claim that the partial payment exception was inapplicable due to an admission contained in Appellee’s pleading.

The second argument advanced by Appellant must likewise be rejected. Appellant posits that the “payment” requirement of the exception found in 13 Pa.C.S.A. 2201(c)(3) was not met in this case since the facts established only an existing debt relationship between the parties, and a mere agreement to apply an existing debt in payment cannot constitute payment. H. Feldman’s Sons Co. v. Netsky, 348 Pa. 237, 240, 35 A.2d 305, 307 (1944).

In the instant case there was evidence presented from which the jury could determine that payment was made. The jury heard testimony regarding the delivery and acceptance of three separate shipments of scrap which was alleged to have been received as a down payment or partial payment for the purchase of the equipment package. It was for the jury to determine whether one or all of these shipments constituted a payment or whether there was merely an existing debt relationship between the parties which Appellee sought to apply as a payment. We will not usurp the fact-finding function of the jury since there is evidence to support their verdict in this regard. Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

Appellant also provides this court with a third reason for concluding that the partial payment exception is inapplicable in this case. Appellant relies upon the Court of Common Pleas decision in Williamson v. Martz, 11 D. & C.2d 33 (1956), which held that partial payment cannot take an indivisible contract out of the Statute of Frauds. Appellant urges this court to make a similar ruling, which we decline to do.

The Uniform Commercial Code does not answer the question at hand; what is the effect of partial payment on an indivisible contract. It is clear under the Code that partial payment will render the contract enforceable with respect to the goods for which payment has been made. “Receipt and acceptance ... of the price constitutes an unambiguous overt admission by both parties that a contract actually exists. If the court can make a just apportionment ... the seller can be forced to deliver an apportionable part of the goods.” Uniform Commercial Code, Comment 2. to Section 2-201. However with respect to an indivisible contract the court in Williamson v. Martz, supra, ruled: “The Code ... den[ies] the enforcement of the contract where in the case of a single object the payment made is less than the full amount.” Id. at 35.

This Pennsylvania case was the first to deal with this problem under the Uniform Commercial Code. Beane, The Partial Payment Exception to the UCC Sale of Goods Statute of Frauds, 13 UCC L.J. 135 (1980). Since its decision the courts of many other jurisdictions have passed on the question at hand, nevertheless, the appellate courts of this Commonwealth have not considered the effect of partial payment on an indivisible contract. However, the courts of other jurisdictions which have examined the issue, and commentators in the field, have often criticized the decision reached in Williamson v. Martz. See: Beane, Partial Payment Exception to UCC Sale of Goods Statute of Frauds, supra, and 97 ALR3d 908, (which collect cases); Murray, Murray on Contracts, 687-689 (Revised ed. 1974); White & Summers, Uniform Commercial Code, 68 (2d ed. 1980). We conclude it is appropriate for Pennsylvania to follow the weight of authority in this area and rule that part payment of an indivisible contract takes the entire contract outside of the requirements of the Statute of Frauds.

Prior to the enactment of the Code, “under the repealed Uniform Sales Act, the entire 'contract’ was made enforceable on receipt of only part, or payment of any part of the price.” Pennsylvania Bar Association Notes following 13 Pa.C.S.A. 2201. Such a rule enabled the parties to establish the existence of a deal by providing the court with evidence of a down payment. The details of the deal could later be developed in court from the testimony of the parties. Beane, Partial Payment Exception to UCC Sale of Goods Statute of Frauds, supra, at 143. We believe the same logic should apply in the case where an partial payment is made on an indivisible oral contract. To read the Code as requiring otherwise would be “unduly restrictive”. Murray, Murray on Contracts, supra, at 687. Part payment is a sufficiently reliable indicator that a contract does in fact exist. The quantity of goods in such an agreement would not be the matter of dispute in an indivisible contract. See: 97 ALR3d 908 at 915. Accordingly, we find no need to depart from the established authority in this area. We hold that partial payment of an indivisible oral contract enables the contract to be enforced despite the provisions of the Statute of Frauds.

Since we find support for the jury’s verdict which established that an enforceable contract was created, we must also review Appellant’s claim that the damage award was inappropriate. It is Appellant’s position that Appellee failed to satisfy the requirements of 13 Pa.C.S.A. § 2709. The relevant portion of the statute provides:

When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages the price of ...
(2) goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.

13 Pa.C.S.A. § 2709(a)(2).

A determination of whether the seller made a reasonable effort to resell the goods at a reasonable price or whether the circumstances reasonably indicate that such an effort would be fruitless is a matter properly left for the jury to decide. See: Cohen v. La France Workshop, 112 Pa.Super. 309, 171 A. 90 (1934). It is the jury’s responsibility to evaluate the evidence and determine, facts. Riddle Memorial Hosp. v. Dohan, 504 Pa. 571, 578, 475 A.2d 1314 (1984). It is not the function of this court to determine whether we would reach an opposite conclusion from the evidence or whether some other jury might reach a different conclusion. Mapp v. Wombucker, 421 Pa. 383, 385, 219 A.2d 681 (1966). So long as sufficient evidence has been offered to establish that reasonable persons may differ as to the verdict, this court will not superimpose our own beliefs for that o.f the jury. Riddle Memorial Hosp. v. Dohan, supra.

The evidence adduced at trial was sufficient to support the jury’s finding. Mr. Snyder testified that his attorney, Mr. Lippard handled the attempted resale. When questioned Mr. Lippard indicated:

Well, I specifically contacted a number of people who are in the business of liquidating industrial equipment, auctioneers, and then a series of letters which I wrote specifically to such people; among those was a fellow Dan Park whom I knew personally, whose family business is Park Corporation which is a major liquidator of plant equipment.

N.T. at 134-135.

Only two individuals responded to these letters and Mr. Lippard referred them to Mr. Snyder. Although these individuals came to the plant and examined the equipment no deal was consummated. As Mr. Snyder recounted:

Yes, we explained to them everything about the equipment, but these people were not willing to guarantee us one penny. All they wanted was to be guaranteed a fee to hold a sale and, you know, we would have to guarantee them amounts of dollars to go ahead and sell the equipment, and the equipment could bring nothing or it could bring hundreds. It could bring one hundred or two hundred thousand with zero guarantees. They couldn’t guarantee anything. They wanted to be guaranteed the amount of money to hold the sale.

N.T. at 64.

We find there was sufficient evidence from which the jury could conclude that Appellee was unable to resell the goods at a reasonable price after making a reasonable effort to do so.

Order affirmed.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    541 A.2d 780
    COMMONWEALTH of Pennsylvania v. Richard SHIFFLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 9, 1987.
    Filed May 9, 1988.

      Dennis I. Turner, Pittsburgh, for appellant.
    Sean K. Code, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, McEWEN and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal from the judgment of sentence imposed on a jury conviction for operating a motor vehicle in violation of 75 Pa.C.S. § 3731(a)(4), Driving Under the Influence. This case presents a novel question: Whether a defendant, whose application to suppress the results of an intoxilyzer test is denied as being untimely, is barred from presenting evidence at trial concerning an alleged history of malfunctions of the intoxilyzer unit where such evidence goes to the weight of the test results, rather than their admissibility. Having thoroughly reviewed the record and arguments, we vacate the judgment of sentence and remand for a new trial.

In the early morning hours of June 28, 1987, appellant was involved in a two-car accident in the Borough of Green Tree. At the scene, Officer James Markle of the Green Tree Police Department detected an odor of alcohol on appellant’s breath. Appellant was given a field sobriety-test, which he failed. Officer Markle then drove appellant to the Public Safety Building in Pittsburgh, where appellant performed field sobriety tests in front of Officer David Waddle, a certified intoxilyzer operator. When appellant failed these tests, Officer Waddle administered an intoxilyzer test on appellant. Officer Waddle ran the test twice, resulting in readings of .110 and .119. Based upon these results, appellant was charged with two counts of Driving Under the Influence of Alcohol or a Controlled Substance, 75 Pa.C.S.A. §§ 3731(a)(1) and (4).

Appellant was formally arraigned on September 25, 1986. On October 24, 1986 appellant filed a timely Motion to Suppress Evidence alleging, inter alia, that (a) statements by him were not knowingly, intelligently and voluntarily made; (b) he did not receive his Miranda rights; (c) there existed no probable cause for his arrest; (d) he did not consent to the intoxilyzer test; (e) the test results were fruit of an illegal arrest; and (f) his constitutional rights were violated. Counsel for appellant admitted that he knew precisely which machine had been used to test his client, yet he did not challenge the accuracy of the machine in his motion. Argument on the Motion to Suppress was set for November 25, 1986, immediately after which, trial on the charges would proceed.

At argument on November 25, immediately prior to trial, appellant’s counsel presented an Amended Motion to Suppress alleging that the intoxilyzer device on which appellant had been tested had malfunctioned at least eleven times during the two-month time period, April 19 through June 19, 1986. Appellant argued that the intoxilyzer machine should have been removed from service pursuant to 67 Pa.Code § 77.24(b)(2) . The Commonwealth argued that the Amended Motion should be denied because it was not timely filed. Appellant’s counsel responded by stating that the information contained in the Amended Motion had only become available to him on the previous day. Although not definitively described in the Amended Motion, the information concerning malfunctions appears to have been derived from accuracy and calibration log books kept pursuant to 75 Pa.C.S.A. § 1547(c)(1).

A reading of the record in its entirety reveals that the “previously unavailable" information concerning malfunctions came to light in the following manner. Based upon a purported ruling by Judge Little [the trial judge in this case] in a previous matter, counsel for appellant believed that information concerning the log books “was not discoverable,” so he did not request the information. Nevertheless, Charles H. Roberts, an expert retained by appellant's counsel to aid in defense of an unrelated DUI case before Judge Dauer, examined the intoxilyzer log books pursuant to a discovery order issued by Judge Dauer. During that review of the log books Roberts purportedly found evidence of malfunctions of the machine used to test appellant.

The suppression court ultimately refused to entertain the Amended Motion. In so ruling, the court focussed on counsel’s failure to seek discovery pursuant to Rules 305 and 306. An extended dialogue occurred between appellant’s counsel and the court, ending with this statement by the court:

Once the discovery phase begins, at that point, if you are going to challenge the accuracy of the machine, you had all the opportunities at that point in time to come in with your expert, file the necessary documents, and have ... the Commonwealth put on notice; as to the expert, just test the machine for accuracy, and do whatever you have to do under the regulations of the Department of Transportation. It has to be done within the time frame of the discovery. The only issue is whether or not you had knowledge, what machine was used to be tested, and that’s clear that the machine was tested.

N.T. at 13. Thus, the court appears to have denied the Amended Motion to Suppress on the grounds of failure to comply with the thirty-day period set forth in Rule 307. The court apparently did not accept as valid counsel’s reason for the untimeliness, that the log books were not discoverable, and told counsel that he should have complied with the discovery provisions of the Criminal Rules within the specified time period.

At this point, just prior to trial, discussion shifted to a subpoena. Earlier in the argument, appellant’s counsel had stated that he served a subpoena on Officer Waddle, asking the officer to bring to trial the log book containing entries relating to the malfunctions. The Commonwealth moved to quash the subpoena, after which the following discussion took place:

MR. TURNER [Appellant’s counsel]: If I may make a comment on that and take testimony from Officer Waddle?
THE COURT: I am going to quash it.
MR. TURNER: The procedure that the Public Safety Building—
THE COURT: I made my ruling. I quashed the subpoena. You may proceed on the original [Suppression Motion].

N.T. at 13-14. It appears from the record that the suppression judge quashed the subpoena requesting Officer Waddle to bring the log books to trial solely because appellant’s counsel had chosen not to request the log books in discovery. Testimony then was taken at the suppression hearing, the judge denied the motion, and the trial commenced after a jury was chosen. At the close of trial, appellant was convicted of violating § 3731(a)(4) only.

Appellant raises three issues on appeal. We need not address his first and second issues because of our disposition of the third issue: Whether the trial court erred in precluding at trial the testimony of Mr. Roberts concerning the log books. The trial court unequivocally stated its position concerning Mr. Roberts’ testimony at a sidebar immediately following the opening statements:

In your opening, you made reference to the fact if there was any testimony that would show that the machine was not operable and not taken out of service. This Court has ruled on its issue in preliminary matters in discovery. I am going to sanction at this point, counsel, any testimony as to the fact that the machine should not have been in service at the time, it is not going to be proper. I am going to sanction at this point to elicit any testimony from any Commonwealth witness or defense witness, if this case should get that far. ... [A]ny elicitation from any witness, Commonwealth or defense witness, will subject you to contempt of proceedings.

N.T. at 88-89. The trial court again warned counsel a few moments later: “I sanction you, based on my pretrial rules, as to any elicitation of any testimony as to the findings that the machine should not be in service will subject you to personal contempt in this court.” N.T. at 90 (emphasis added).

We hold that the trial court abused its discretion in precluding the defense from offering at trial any testimony going to the weight of the evidence against appellant. This Court has held that “[i]f a defendant wishes to contest the reliability of the blood alcohol test results proffered by the Commonwealth, he is statutorily permitted to do so.” Commonwealth v. Speights, 353 Pa.Super. 258, 266, 509 A.2d 1263, 1267 (1986) (emphasis added). In the earlier case of Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977), this Court held: “At trial, the results of a test, as indicative of intoxication at a relevant point in time, may be attacked or contradicted by any competent evidence. The weight to be accorded test results then properly rests with the finder of fact.” Id., 249 Pa.Superior Ct. at 130, 375 A.2d at 793 (footnote omitted). In a case such as this, where appellant has only been convicted of § 3731(a)(4), the accuracy of the test becomes crucial. It is imperative that a defendant, in order to receive a fair trial, must be permitted to attack reliability of the test results.

In the case at bar, appellant was precluded from attacking the reliability of the intoxilyzer tests at trial, because of rulings the trial court had made in the suppression hearing. To reiterate, appellant’s Amended Motion, alleging malfunctions, was denied as untimely. The government subsequently entered the results into evidence at trial. Appellant does not now complain that admission of the test results was error. He merely seeks to use, at trial, evidence which he would have proffered at the suppression hearing, in order to attack the reliability of the machine that produced the results.

Specifically, appellant sought to place Mr. Roberts on the stand at trial and have him testify as a fact witness that he had read the police certification logs for this particular machine and that the logs showed that certain malfunctions occurred. While such testimony would not ordinarily constitute “the best evidence,” and would be properly excluded as hearsay, the trial judge in this case had quashed the subpoena to produce the logs at trial. Appellant had no other avenue open to him. See E. Cleary, ed., McCormick on Evidence, § 230 (1984). Competent evidence of the machine’s malfunction is certainly relevant and material because it has a direct impact upon the weight the fact-finder would accord to the evidence.

Moreover, Pa.R.Crim.P. 323(j) specifically provides that where a defendant has moved for the suppression of evidence prior to trial, he shall not be precluded from challenging that evidence once it has been introduced at trial:

If the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its suppressibility.

Pa.R.Crim.P. 323(j), 42 Pa.C.S.A. In the record-of the case before us, the trial court repeatedly made reference to its rulings at the suppression hearing, as the basis for precluding Mr. Roberts testimony. Under Rule 323(j), this was clearly error.

Judgment of sentence is vacated. The case is remanded for a new trial. Jurisdiction is relinquished.

      . 67 Pa.Code § 77.24(b)(2) states in relevant part:
      [T]he breath test device will be removed from service ... if one of the following occurs:

        (i) If the difference between the results of the two actual alcohol breath tests is .02 or more, for machines read to the second decimal place, or .020 or more for machines read to the third decimal place.
      (ii) If the simulator test yields a result less than .09% or greater than .10% when the breath test device is read to the second decimal place, or if the simulator test yields a result less than .090% or greater than .109% when the breath test device can be read to the third decimal place.
      Additionally, 67 Pa. Code § 77.25(b)(4) provides:
      Breath test equipment which has malfunctioned or which fails an accuracy inspection test shall be placed out of service and shall be serviced or repaired, as necessary, by the manufacturer or its authorized representative or a person who has received comparable training or instruction and shall be tested under § 77.26(b) (relating to periodic calibration of Type A breath test equipment) prior to being placed back into service.

      . 75 Pa.C.S.A. § 1547(c)(1) states in relevant part:
      A certificate or log showing that a device was calibrated and tested for accuracy and that the device was accurate shall be presumptive evidence of those facts in every proceeding in which a violation of this title is charged.

      . Appellant’s counsel stated for the record that the subpoena had been stamped by the police department’s intake officer, Chief Moser, and that counsel had a copy of the subpoena in court. The subpoena was never entered as evidence.

      . § 3731(a)(4) states: “A person shall not drive, operate or be in actual physical control of the movement of any vehicle while ... the amount of alcohol by weight in the blood of the person is 0.10% or greater.”


author: HESTER, Judge:

text:
    541 A.2d 784
    COMMONWEALTH of Pennsylvania v. Joseph AULISIO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1988.
    Filed May 16, 1988.

      Rose A. McGowan, Assistant Public Defender, Moscow, for appellant.
    Francis P. Sempa, Assistant District Attorney, Pittston, for Com., appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Joseph Aulisio appeals from the judgment of sentence entered on July 21, 1987, in the Court of Common Pleas of Lackawanna County. Appellant was found guilty in 1982 by a jury of two counts of murder of the first degree and two counts of kidnapping. Originally, he was sentenced to death on the murder charges and to two consecutive terms of imprisonment of seven and one-half to fifteen years on the kidnapping charges. On direct appeal to the Pennsylvania Supreme Court, the court affirmed the two murder convictions, but found insufficient evidence to sustain the kidnapping convictions. Inasmuch as the death sentence imposed was based on, inter alia, the aggravated circumstance of a killing while in perpetration of felonies (the kidnappings), the court vacated the death sentence and remanded to the Court of Common Pleas “for appellant to be sentenced to life imprisonment.” Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987). On remand, the Court of Common Pleas entered a sentence of two consecutive terms of life imprisonment. In this appeal, appellant argues that the sentence exceeded the remand order, and that a sentence of consecutive terms of life imprisonment is not allowed by statute. We affirm.

Appellant first argues that in imposing consecutive sentences, the trial court abused its discretion by going beyond the supreme court’s remand order. That order states:

On consideration whereof, it is now here ordered and adjudged by this Court that the convictions of the Court of Common Pleas, Lackawanna County, be and the same are affirmed as to the two counts of murder of the first degree. The sentence of death is vacated, and the case is remanded to the Court of Common Pleas of Lackawanna County for appellant to be sentenced to life imprisonment. The convictions as to the two counts of kidnapping are reversed, and the sentences vacated.

According to appellant, by directing the sentencing court to sentence appellant “to life imprisonment,” the supreme court precluded a sentence of two consecutive terms of life imprisonment. Moreover, he contends that even if the remand order is open to interpretation, “the interests of justice would dictate that if two equally plausible interpretations may be inferred, the appellant should be given the benefit of the least harmful interpretation.” Appellant’s brief at 9.

This assertion is meritless. We have held that a sentence of two consecutive terms of life imprisonment does not contravene the statutory sentencing scheme. Commonwealth v. Button, 332 Pa.Super. 239, 481 A.2d 342 (1984). In the instant case, we do not believe that the supreme court, in remanding the case for resentencing, intended to foreclose the sentencing court from imposing consecutive life sentences. While the remand order directed imposition of a sentence of “life imprisonment,” we must view this language in the context of the court’s opinion. The opinion focused on whether the death sentence was appropriate and whether the kidnapping convictions were supported by sufficient evidence. The remand order, quoted supra, set forth the court’s holding with respect to these two questions; it should not be interpreted as addressing issues not discussed by the supreme court or to limit the sentencing court’s discretion in matters not addressed. The supreme court’s opinion simply did not discuss the appropriateness of consecutive life sentences in this case. Therefore, it would be unreasonable to hold that the remand order forbade the sentencing court from imposing an otherwise permissible sentence of consecutive terms of life imprisonment.

Appellant also argues that a sentence of consecutive terms of life imprisonment contravenes the statutory sentencing scheme. He acknowledges that Commonwealth v. Button, supra, held that such a sentence is proper, but argues that Button’s rationale is erroneous.

Commonwealth v. Button, supra, held, inter alia, that while 42 Pa.C.S. § 9711, which governs procedure in cases of first degree murder, does not expressly provide for imposition of a sentence of consecutive life terms, it must be read in conjunction with 42 Pa.C.S. § 9757, as the two are in pari materia. 42 Pa.C.S. § 9757 allows consecutive sentences for multiple offenses in general. Therefore, we concluded that a sentence of consecutive terms of life imprisonment is permissible under the statutory sentencing scheme.

In arguing that Button is erroneous, appellant points to the following language of 42 Pa.C.S. § 9757: “[Tjhe court shall indicate the minimum sentence to be served for the total of all offenses____ Such minimum sentence shall not exceed one-half of the maximum sentence imposed.” Appellant argues that application of this statute to life sentences is impossible as the minimum and maximum sentences are the same; therefore, contrary to the statute, one who is sentenced to consecutive life terms cannot receive a minimum that is one-half of the maximum sentence imposed.

We reject this argument on the basis of the analysis set forth in Button. Button did not rely exclusively on the holding that the two statutes, cited above, are in pari materia, but cited the following grounds in support of the proposition that a sentence of consecutive terms of life imprisonment is permissible.

This result finds an analogue in cases where a (mandatory) consecutive life sentence is imposed upon a person already serving a life term who is convicted of assault by a life prisoner, Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976), or where definite terms consecutive to a life sentence are imposed for offenses other than murder, Commonwealth v. Burgess, 500 Pa. 224, 455 A.2d 631 (1983) (possession of an instrument of crime); Commonwealth v. Boyd, 271 Pa.Super. 88, 412 A.2d 588 (1979) (prohibited offensive weapons, criminal conspiracy and robbery); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982) (burglary). If, as appellants assert, consecutive life sentences are not implicated much less mandated by the sentencing statute, then the discretion of the trial court is necessarily the controlling factor____
We may derive some guidance too from the fact that in at least seven other jurisdictions consecutive life sentences have been imposed without challenge, and that in two other jurisdictions such sentences have withstood constitutional attack. [Citations omitted.]
Further, despite the obvious limitations dictated by human mortality, there is no statutory provision restricting the length of possible sentences. As the ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968) observes:
It is very rare for there to be a legislative ceiling on the sentences which may be piled on top of each other. It is the rule rather than the exception that there is literally no limit to the term which can be imposed on the multiple offender. Id. at 174.
In short, the uniqueness of the statutory homicide provisions, which in appellants’ view limits the flexibility of the court in pronouncing sentence, refers only to the type of penalty deemed appropriate by the legislature. Beyond this the court’s discretion is subject to no limitation other than that inherent in the term "manifestly excessive” which is inapplicable here.

Id., 332 Pa.Superior Ct. at 244-45, 481 A.2d at 344-45.

Judgment of sentence affirmed.


author: OLSZEWSKI, Judge:

text:
    541 A.2d 1141
    COMMONWEALTH of Pennsylvania, Appellee, v. Richard HAMAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1988.
    Filed May 9, 1988.

      David R. Dautrich, Reading, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and MELINSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered following appellant’s conviction for speeding. We affirm.

On March 8, 1987, a citation was issued charging appellant with driving at an excessive speed in violation of Section 3362(a)(2) of the Motor Vehicle Code. Appellant was found guilty of the charge at a summary trial before a district justice. A timely appeal to the court of common pleas was filed and, on August 25, 1987, a trial de novo was held.

Evidence at that trial essentially consisted of the testimony of the arresting officer, Trooper Robert D. Rossi of the Pennsylvania State Police. Trooper Rossi stated that he was operating a Customs KR-10 SPS Traffic Safety Radar System at the time of the arrest and that the radar system indicated appellant was driving at 65 m.p.h. in a 55 m.p.h. speed zone.

Appellant objected to the trooper's testimony, claiming that the Commonwealth had failed to present an adequate foundation for the statements regarding the speed of appellant’s vehicle. Specifically, appellant argued that the testimony was inadmissible because Trooper Rossi had failed to conduct the four field checks for speed accuracy which were outlined in the radar system operator’s manual. The objection was overruled and a finding of guilt was made by the court.

On September 3, 1987, appellant filed post-trial motions for a new trial and in arrest of judgment raising challenges to the weight and the sufficiency of the evidence. Both motions were denied and, on September 25, 1987, appellant was sentenced to pay a fine in the amount of $55. This timely appeal followed.

Appellant’s sole claim on appeal attacks the trooper’s failure to follow the radar manufacturer’s guidelines to insure accuracy. On this basis, appellant asserts that the evidence was insufficient to support the conviction.

Initially, we note that this claim was raised in boilerplate fashion in appellant’s post-trial motions. An issue must be raised with specificity in the lower court or it is not preserved for appellate review. Commonwealth v. Pyett, 372 Pa.Super. 291, 293, 539 A.2d 444, 445 (1988); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). In the absence of a specific attack on the sufficiency of the evidence, appellant’s claim is waived.

We, however, have reviewed the merits of appellant’s claim and find it without basis. To sustain a conviction for speeding, the Commonwealth must show beyond a reasonable doubt: (1) that an accused was driving in excess of the applicable speed limit, (2) that the speed timing device was approved by the Department of Transportation and, (3) that it had been tested for accuracy by an approved testing station. See generally Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980). A review of the record reveals that the Commonwealth has sustained its burden of proving these elements. Trooper Rossi testified that while using the radar unit, appellant was “clocked” at 65 m.p.h. in a 55 m.p.h. speed zone. Further, there is no dispute that the device had been approved by the Department of Transportation and that it had been tested at an approved station. Finally, according to the certificate of accuracy, the radar device had been tested approximately ten days prior to the date of the citation. Nothing in the statutes, the Code provisions or case law require that the Commonwealth produce additional proof, and we decline to inject an additional element into the law where there is none. Accordingly, we are satisfied that the evidence was sufficient to sustain the conviction for speeding.

Finally, we find it necessary to comment on appellant’s challenge to the Commonwealth’s evidence. In our view, the question of whether the radar system produced an accurate test result absent corroboration by the four manufacturer-recommended field tests is one concerning the weight — not the sufficiency — of the evidence. Pursuant to Section 3368(d) of the Motor Vehicle Code, “[a] certificate from the [testing] station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facia evidence of those facts in every proceeding in which a violation of [Title 75] is charged.” 75 Pa.C.S.A. § 3368(d). Appellant’s strategy to cross-examine the trooper regarding the failure to perform all of the recommended tests was merely an attempt to discredit the validity and accuracy of the calibration test result. It is the trial court’s function to evaluate and weigh the evidence; such determinations are not lightly disturbed by an appellate court. Rich v. Com monwealth, 74 Pa.Commw. 76, 78-80, 458 A.2d 1069, 1071-1072 (1983).

Having concluded that competent evidence of record supports the conviction, we affirm the order.

      . Section 3362(a)(2) prohibits an individual from driving in excess of 55 m.p.h.

      . The operator’s manual lists the field checks as follows: (1) the automatic circuit test; (2) the tuning fork test; (3) the light test; and (4) the moving vehicle test. Trooper Rossi testified that in preparing to operate the radar system, he conducted the tuning fork test. He also stated that the field test indicated the particular unit was accurate.

      . During the cross-examination of Trooper Rossi, appellant elicited testimony that the other field checks were not performed.

      . According to the docket entries, appellant filed a premature appeal from the order denying the post-trial motions. In a criminal case, an appeal is taken from a judgment of sentence, not the denial of post-trial motions. See "Comment" Pa.R.Crim.P. 1123. We may, however, review this matter as judgment of sentence has been imposed. See Pa.R.App.P. 905(a) (“A notice of appeal filed after the announcement of a determination but before the entry of an appeal-able order shall be treated as filed after such entry and on the day thereof.”). See also McCormick v. Blue Cross of Western Pennsylvania, 360 Pa.Super. 210, 520 A.2d 59 (1987).

      . 75 Pa.C.S.A. § 3362. See Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219 (1983).

      . 75 Pa.C.S.A. § 3368(d).

      . Id.

      . Cf. Commonwealth v. Parish, 138 Pa.Super. 593, 10 A.2d 896 (1940) (pursuant to the Vehicle Code of June 5, 1937, P.L.1718, 75 P.S. § 501(b), the evidence supported the conviction where the arresting officer testified that he was present and observed appellant driving in excess of the legal limit, that the accuracy of his speedometer had been verified within 30 days of the arrest and that he had followed the defendant for the required statutory distance).

      . Although appellant does not directly challenge the admissibility of the certificate of accuracy, we note that it was properly admitted into evidence pursuant to 75 Pa.C.S.A. §.3368(d) and Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980).

      . The applicable provisions of the Pennsylvania Code govern only the calibration and testing of speed-timing devices. See 67 Pa.Code §§ 105.1 et seq. Importantly, Section 105.13 of the Code mirrors Section 3368(d) of the Vehicle Code insofar as it recognizes a presumption that the testing requirements have been fulfilled once a certification of accuracy has been completed.

      . In this appeal, appellant does not pursue an attack on the weight of the evidence. Because appellant has abandoned this claim, we decline to address the merits of a challenge to the weight of the evidence. Our comments in this regard are made only for purposes of completeness.


author:
DEL SOLE, Judge:
      ROWLEY, Judge,

text:
    541 A.2d 1143
    Arthur OTT, Appellee, v. BUEHLER LUMBER COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Filed May 25, 1988.

      James H. DeVittorio, Ridgway, for appellant.
    William P. DeLaney, Erie, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This direct appeal is taken from the judgment entered in the Court of Common Pleas of Elk County. The questions presented for review stem from the discharge of Appellee, Arthur Ott, by the Buehler Lumber Company while Appellee was under a five-year employment contract. For the reasons which follow, we reverse and grant Appellant a new trial.

Buehler Lumber Company, through its president, offered Mr. Ott a written employment contract for employment at its plant. Under the terms of this contract, Mr. Ott was to serve as Plant Maintenance Supervisor for electrical and mechanical maintenance problems for a period of five years. In addition to the recitation of salary and benefits, the contract outlined various preventative and corrective maintenance plans to be implemented by Ott. His work was characterized as instructing, supervising, and participating in plant maintenance functions. Ott accepted employment under these terms.

Approximately seven weeks later, Ott received a written notice from Buehler that he was being temporarily terminated due to a lack of orders. Six months thereafter, during which time Ott received no information regarding when he would be returning to work, he commenced an action in the Court of Common Pleas of Elk County alleging he had been discharged without just cause and in violation of his employment contract.

Buehler Lumber Company answered the Complaint and admitted that a lack orders was one of numerous factors which caused the layoff of several Buehler employees. However, it further stated that its ultimate decision not to recall Ott was reasonably based upon his failure to perform and persistent failure to fulfill the express duties outlined in his employment contract.

Following a trial before a jury, a verdict was returned in favor of Ott. Buehler then filed timely post-trial motions which were subsequently denied.

On appeal, Buehler Lumber Company maintains that the trial court erred when it instructed the jury that it must find both of the following circumstances as a condition precedent to a finding that Appellee’s discharge by Appellant was justified: (1) that the employee’s conduct was a breach of the employment contract, and (2) that an injury or loss to the business or a disorganization of the affairs of the business was likely to follow from such breachful conduct if it was permitted to continue. The contested charge in the instant appeal was given as follows:

I instruct you that, utilizing an objective standard, if from all the circumstances, you find that the Defendant Employer was justified in believing that the employee’s conduct was in breach of the contract and was such that an injury or loss to the business or a disorganization of the affairs of the business was likely to follow from such breachful conduct if it is permitted to continue, the employer would then be warranted in discharging the employee, (emphasis added).

For the following reasons, we find this instruction to be erroneous.

Buehler’s defense to the lawsuit for wrongful discharge was that the employee failed to perform specific duties enumerated in the parties’ written employment contract. Notably, that he failed to stock, organize, maintain and inventory the maintenance rooms; he failed to keep daily or weekly records of the machines’ down time, and he failed to implement a preventative maintenance program. In short, the Appellant defended the action on the basis that Ott breached numerous express, written promises contained in the employment agreement.

“When a formal written contract of employment has been entered into, courts historically have accepted the position that discharge of the employee before the end of the contract can give rise to liability under ordinary breach of contract principles.” Employment Dismissal Law and Practice, 2d., § 4.1 p. 172. The general rule is that a party who has materially breached a contract may not complain if the other party refuses to perform his obligations under the contract. 17 Am.Jur.2d, § 365. A party also may not insist upon performance of the contract when he himself is guilty of a material breach of the contract. 17 Am.Jur.2d, § 425. See also: J. Murray, Murray on Contracts, § 215 (1974). Moreover, where the evidence to sustain the justification for discharge is disputed, the jury must pass on it. Bernstein v. Lipper Manufacturing Co., 307 Pa. 36, 160 A. 770 (1932). As such, the instruction for the jury should have simply focused upon whether Appellee’s conduct amounted to a material breach of the employment agreement.

The charge given in the instant case is an incorrect statement of the law regarding the discharge of an employee for the breach of an express promise in an employment contract. The contested instruction created a two-step standard as a condition precedent to a finding of just cause. The portion of the charge requiring the findings that the employee’s action be detrimental to the business is irrelevant where the discharge is based upon a breach of an express promise in the employment contract.

The court’s instruction may well have caused the jury to incorrectly believe that Appellant was required to show an actual harm to the business entity before Appellee’s dismissal for just cause would be permitted.

Analogous to the instant case is the case of O’Neil v. Schneller, 63 Pa.Super. 196 (1916). In O’Neil, the plaintiff had been employed for a definite term. The testimony was conflicting on whether he had performed his duties satisfactorily and whether he had conducted himself properly toward his fellow employees. In its charge to the jury, the trial court offered the following instruction which reads, in part:

Now you take his [plaintiff’s] conduct as you got it from the testimony, his language, his demeanor, his behavior when he was in his employment, working for the defendants, to say whether he was reasonably obedient and subordinate or not. You will remember that the defendant must prove that he was disobedient and insubordinate to such an extent as to injure the defendants.

Id. at 198.

In reversing and remanding for a new trial, the court stated:

This [charge] imposed too heavy a burden on the defendants. It was not necessary for the defendants to show that appellee’s conduct caused them to suffer any loss. A master is not compelled to keep an employee, hired for a given term, in his service until the master’s business has suffered pecuniary loss, where the employee is disobedient and quarrelsome with co-employees____ When the master is justified in believing that the employee’s conduct is such that an injury or loss to the business or disorganization of affairs is likely to follow from such conduct if it is permitted to continue, the master would be warranted in discharging the employee.

Id. at 200.

The O’Neil court concluded that the jury should have been instructed that if the charge of incompetence was true, the defendant would have been justified in discharging the plaintiff. With respect to the plaintiff’s breach of the implied provisions of his contract, the O’Neil court held that the defendant was not required to show that the plaintiff’s behavior resulted in actual harm to his business before he may discharge the plaintiff. The rationale in O’Neil, as it pertains to the instant wrongful discharge action, leads us to conclude that if Mr. Ott breached an express term of his employment agreement, his employer was not required to show a deleterious effect on its business in order to justify the termination. Instead, it was only required to establish that Ott was in breach and that the breach was material.

Erroneous instructions may be the basis for a new trial if it is shown that the instructions were fundamentally in error and might have been responsible for the verdict. Hawthorne v. Dravo Corp., Keystone Div., 352 Pa.Super. 359, 508 A.2d 298 (1986). In view of the authority found in O’Neil, we are satisfied that the instant jury instruction was erroneous as a matter of law.

The Judgment is thereby reversed and a new trial is ordered. Jurisdiction relinquished.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I join in the majority’s opinion insofar as it concludes that the jury charge given by the trial court in the instant case included an incorrect statement of the law regarding the discharge of an employee for breach of an express promise in an employment contract, and that the jury instruction should have focussed only on the questions of whether there was a breach and whether or not that breach was material. I do not join in the majority’s discussion of O’Neil v. Schneller, 63 Pa.Super. 196 (1916), and write separately because in my opinion O’Neil is neither analogous nor relevant to the present case. It is factually distinguishable because it involves only breaches of an employee’s implied promises.

      . In light of our disposition of this appeal on the issue of the trial court’s erroneous jury instruction, we will not address Appellant’s remaining assignment of error regarding the exclusion of lay opinion testimony. Through this testimony, Appellant sought to establish that Appellee no longer desired to perform the required maintenance work at Appellant’s place of business.


author:
      CAVANAUGH, Judge:
      CIRILLO, President Judge, BROSKY, Judge, DEL SOLE, Judge,

text:
    542 A.2d 65
    Werner A. BUCKL, Appellee, v. Sally A. BUCKL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed April 6, 1988.
    Reargument Denied May 25, 1988.

      James R. Fiorentino, Bethlehem, for appellant.
    Norman Seidel, Easton, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   CAVANAUGH, Judge:

The primary issue in this case is whether the interest of a spouse in a partnership acquired after marriage is marital property subject to equitable distribution under the Divorce Code, 23 Pa.S. 101 et seq. In this case, Werner A. Buckl, the appellee herein, and Sally A. Buckl, the appellant herein, were married on January 2, 1964 and separated in September, 1983. Mr. Buckl is a licensed professional architect and has been a member of a partnership known as Buckl and Jankowski Architects since 1971. Sally A. Buckl is the sole owner of a business known as Greenskeepers, Ltd.

In December, 1983, Mr. Buckl filed a complaint in divorce against his spouse and a decree in divorce was entered in April, 1984. Subsequently, the court appointed Christopher T. Spadoni, Esq. to hear testimony and make recommendations to the court concerning equitable distribution of marital property, counsel fees, alimony and support. The master conducted lengthy hearings and filed a comprehensive master’s report in which he found inter alia that the husband’s partnership interest in Buckl and Jankowski Architects was marital property subject to equitable distribution. He found the value of the appellee’s interest in the firm to be $86,992.00. The master also valued Mrs. Buckl’s business, Greenskeepers, Ltd., at $1,000.00. He recommended that the appellee’s partnership interest in Buckl and Jankowski Architects and the appellant’s interest in Greens-keepers, Ltd. be divided equally between the spouses.

Both the appellant and the appellee filed exceptions to the master’s report. The wife’s two exceptions were dismissed and the husband’s exceptions were sustained in part and dismissed in part. The court below sustained the husband’s exceptions to the master’s findings that his interest in the professional partnership was a marital asset and to the finding that the good will of the partnership had value. The court also sustained the exception to the master’s admission of testimony of expert witnesses called on behalf of the wife. Sally Buckl filed an appeal to this court. Werner Buckl also filed a cross-appeal which was subsequently discontinued. Husband contends that the appellant’s exceptions to the master’s report did not contest the percentages recommended by the master in his proposed division of the marital property and challenged neither the master’s finding that the appellee’s interest in the partnership was marital property, nor the evaluation of the marital property. The objections raised by the appellant on appeal have not been waived.

The decree of equitable distribution entered in the court below modified the percentages recommended by the master and did not accept the master’s finding that appellee’s interest in the partnership was marital property. The appellant’s arguments on appeal raise issues involving the modifications to the master’s report which were made by the court below. As this court stated in Benson v. Benson, 357 Pa.Super. 166, 169, 170, 515 A.2d 917, 918, 919 (1986):

[N]o exceptions need be filed to preserve for appeal issues which claim the trial court erred when, in response to the opposing party’s exceptions, it entered a final decree which altered the terms of the master’s report and proposed order.
This rule requires a party who is dissatisfied with a master’s report to file exceptions to the report, or waive any such objections. On the other hand, logic dictates that a party who is satisfied with the report need not except to it. When the trial court alters the terms of the report in response to the opposing party’s exceptions, Rule 1920.55(c) provides no motions for post-trial relief may be made. Accordingly, the only occasion to raise objections to this final decree is through a direct appeal, and any issues which claim the court’s ruling was erroneous are preserved because they are raised at the first available opportunity.

The appellant’s failure to file exceptions to the percentages which were proposed by the master and the master’s determination that appellee’s interest in the partnership was marital property, does not result in waiver.

The court below determined that the husband’s “partnership interest in his architectural firm was not marital property.” We find this conclusion to be erroneous. The Divorce Code defines marital property as “all property acquired by either party during the marriage” subject to exceptions not here relevant. 23 Pa.S. § 401(e). Further, the Code presumes that all property, of any nature, acquired during marriage is marital property. Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). An interest in a partnership is a property interest as a partnership is an association of persons to carry on a business as co-owners. Uniform Partnership Act, 59 Pa.C.S. § 311. The indispensible requisites of a partnership are the co-ownership of a business and the sharing of profits. Provident Trust Company of Philadelphia v. Rankin, 333 Pa. 412, 5 A.2d 214 (1939); Northampton Brewery Corp. v. Lande, 138 Pa.Super. 235, 10 A.2d 583 (1940); Tax Review Board v. Lou Green, Inc., 409 Pa. 448, 187 A.2d 572 (1963).

Distribution of marital property is within the sound discretion of the hearing court and we will not interfere with its determination in the absence of a clear abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). Our scope of review is limited to determining whether there is an abuse of discretion in making equitable distribution. Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986); Taylor v. Taylor, 345 Pa.Super. 184, 497 A.2d 1365 (1985). An abuse of discretion occurs if the trial court misapplies the law. Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986). In our opinion, the court below abused its discretion in determining that the husband’s partnership interest was not marital property.

While no appellate court in Pennsylvania has expressly ruled that an interest in a partnership is marital property subject to equitable distribution, we noted in Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984) that a wife’s interference with her husband’s legal practice was an intentional dissipation of marital property. This impliedly recognizes that a law practice is marital property and the interest in a professional architectural firm conducted by a partnership would similarly be such property. The Supreme Court remanded the case to the Court of Common Pleas for further proceedings which do not relate in any way to Mr. Samasek’s law practice. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). Other jurisdictions recognize that the interest of a partner in a professional partnership is such property. 74 ALR 3rd 624, 625 states:

It has generally been held that upon dissolution of a marriage, the interest therein of the party who is a member of a law firm or medical partnership may be evaluated with respect to his share of a combination of the following partnership assets: capital investment, capital accounts, accrued equity, and accounts receivable, ... any other fixed share of partnership worth carried on the partnership books, the value of work in progress, any appreciation of the true worth of tangible personalty over and above book value, goodwill, if any, or cash on hand and partnership life insurance.

It was held in Grayer v. Grayer, 147 N.J.Super. 513, 371 A.2d 753 (1977) that the matter of valuation of a law practice for purposes of equitable distribution is not dependent on form, and the same principles apply whether the practice is conducted as a professional corporation or a partnership. The Supreme Court of Delaware found that a lawyer’s interest in his practice which he conducted as a sole proprietor was marital property subject to equitable distribution. E.E.C. v. E.J.C. 457 A.2d 688 (Del.Sup.1983). Similarly, the Supreme Court of New Jersey in Dugan v. Dugan, 92 N.J. 423, 457 A.2d 1 (1983) determined that the husband’s interest in his law practice which he conducted through the means of a professional corporation in which he was the sole owner, was marital property.

While the general principle that an interest in a partnership is marital property presents no particular difficulty, the valuation of such interest is frought with problems. The Supreme Court of New Jersey stated in Stern v. Stern, 66 N.J. 340, 331 A.2d 257, 260 (1975):

Placing a precise or even an approximately accurate value upon an interest in a professional partnership, when the partner whose interest is in question intends to continue as a member of the firm is no easy matter. Circumstances preclude our customary resort to market value. Some other method of determining worth must be employed. Here the terms of the partnership agreement are of help.

Cases from other jurisdictions illustrate the difficulty in evaluating a partnership interest. In Mori v. Mori, 124 Ariz. 193, 603 P.2d 85 (1979), the court held that accounts receivable by a husband’s professional law corporation, as of the date of the decree, were marital assets includable in distribution of property. This case must be compared with McClennen v. McClennen, 11 Ariz.App. 395, 464 P.2d 982 (1970) which held that the trial court did not err in dividing community property in divorce proceedings when it evaluated the husband’s interest in a law partnership even though the valuation did not take into consideration the husband’s share of accounts receivable. In Cronin v. Cronin, 372 N.W.2d 778 (Minn.App.1985) it was held that the trial court properly determined the value of the husband’s stock in his law firm based on a book value formula in the law firm’s by-laws, testimony from the controller of the law firm, and evidence of the law firm’s recent purchase of stock held by two of the founding members. Fraase v. Fraase, 315 N.W.2d 271 (N.D.1982) held that in a divorce action the court properly included an increase in value of the husband’s law firm, in which he was a partner, in marital estate for purposes of distribution of marital property where the husband’s interest in the law firm included at the minimum, his interest in office equipment, furniture, fixtures and accounts receivable in the absence of an agreement between the parties as to the rights of partners who leave the firm. It was held in Stolowitz v. Stolowitz, 106 Misc.2d 853, 435 N.Y.S.2d 882 (1980) that in a divorce action, for purposes of equitable distribution of the husband’s interest in his law firm, the agreement between members of the firm as to the amount to be paid to the estate of a member of his firm on death, was presumptively reflective of actual present value, provided that a fixed sum was periodically reviewed by members of the firm on the basis of accurate and reliable record keeping.

In the instant case the court below erroneously determined that the husband’s interest in the partnership was not marital property. Although the master found that the partnership interest was marital property and placed a value on it for equitable distribution, we must remand to the court below for a valuation of this marital property as the findings of the master are advisory only and are not controlling or binding on the court. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Valerio v. Valerio, 298 Pa.Super. 262, 444 A.2d 1166 (1982). It is the duty of the court to perform a complete and independent review of all the evidence presented in the action. Rollman v. Rollman, 280 Pa.Super. 344, 421 A.2d 755 (1980); Riley v. Riley, 246 Pa.Super. 265, 369 A.2d 1314 (1976); Decker v. Decker, 192 Pa.Super. 234, 160 A.2d 242 (1960).

In placing a valuation on the interest in the partnership, the master followed the precepts of Hodge v. Hodge, 337 Pa.Super. 151, 486 A.2d 951 (1984) and excluded any value due to the appellee’s advanced degree and architectural license. We held in Hodge, supra, that the legislature did not intend increased earning capacity to be a marital asset. Lehmicke v. Lehmicke, 339 Pa.Super. 559, 489 A.2d 782 (1985) was to the same effect. In the instant case the parties stipulated that the husband’s architectural license was not marital property.

The master did include the partnership’s goodwill in placing a value on the appellee’s interest. We find no error in this. The concept of goodwill is nebulous at best and consequently the placing of a dollar valuation is most difficult. In Beasley v. Beasley 359 Pa.Super. 20, 43, 518 A.2d 545, 556 (1986), we held that “... in this case goodwill is not a factor in terms of the value of the sole proprietorship for purposes of equitable distribution ...” (Emphasis added.) In Beasley, supra, the husband was a lawyer practicing as a sole proprietor employing some 15 attorneys and the court stressed the aspect of sole proprietorship stating at 359 Pa.Super. at 35, 518 A.2d at 552:

A sole proprietorship can be distinguished from a partnership, or a professional corporation, in which an ascertainable value can be ascribed for the purpose of buying into or withdrawing from the relationship; but it is the association, or some share of it, that is valued and not the individual partner upon which the value is placed. See Geesbreght v. Geesbreght, 570 S.W.2d 427 (Tex.Civ.App.1978).

(Emphasis in original)

In DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), we held that the goodwill of a professional corporation in which two physicians were each fifty percent shareholders had no present value for equitable distribution purposes under the circumstances in that case. The court held that the husband’s medical practice was similar to that of a lawyer who was a sole practitioner and applied the law of Beasley v. Beasley, supra, that the goodwill of the spouse’s medical practice had no present value and was not marital property.

In the instant case, the master properly determined that goodwill was a factor to be considered in placing a value on the husband’s marital property. The court below is not bound by the valuation reached by the master, but it should consider goodwill as a factor in determining value. “Goodwill is the favor which the management of a business has won from the public, and probability that old customers will continue their patronage.” White v. Rairdon, 52 D. & C. 558, 559 (Delaware County 1944). 38 Am.Jur.2d Goodwill, § 3 states:

Good will is property of an intangible nature and constitutes a valuable asset of the business of which it is part, unless in the particular instance it is of too uncertain and contingent a nature to be appraised. Often a large portion of the intrinsic marketable or assessable value of a business consists of its good will. However, good will cannot be separated from the business in which it inheres, nor can it be disposed of independently from the business. It has no existence as property in and of itself, as a separate and distinct entity, but only as an incident of a continuing business having locality or name.

The goodwill of a dental practice has been considered marital property in distribution proceedings Re Marriage of Goger, 27 Or.App. 729, 557 P.2d 46 (1976); Re Marriage of Nichols, 43 Colo.App. 383, 606 P.2d 1314 (1979). Also an osteopath’s professional goodwill was deemed to be marital property in Re Marriage of Lukens, 16 Wash.App. 481, 558 P.2d 279 (1976). While most of the cases we have considered in this opinion have dealt with medical or legal practices, we believe that the same principles apply to an architectural firm.

There was evidence introduced at the master’s hearing dealing with the valuation of the appellee’s interest in the partnership. Evidence was introduced concerning the firm’s earnings, and goodwill of the partnership as a going concern. On the other hand, evidence concerning cash, tangible personal property, accounts receivable was absent. The court below, upon remand, may receive additional evidence pertaining to the factors to be considered in placing a value on appellee’s interest in his firm. Prior to this decision it has not been expressly stated that a partnership interest in a professional partnership is marital property. In the interest of justice, appellant should be permitted to introduce evidence concerning the various factors set forth below to be considered in determining value.

In determining the valuation of the partnership interest, the court below should consider the partnership agreement and the Uniform Partnership Act which sets forth the rights and duties of the partners subject to any agreement of the partners. There was extensive testimony before the master concerning the capitalization of earnings of the architectural firm and an expert witness for the appellant placed a value on the architectural business and explained in detail how he arrived at the value.

Many factors come into play in determining the value of a spouse’s interest in a partnership. Initially, consideration must be given to the partnership agreement, if any, although it is most unlikely that the agreement will deal with valuation of a partner’s interest vis a vis equitable distribution upon dissolution of the marital relationship. Generally, a partnership agreement will deal with valuation upon the voluntary withdrawal, death of a partner or dissolution of the firm. Nevertheless, the partnership agreement is a factor. Stern v. Stern, supra, 331 A.2d at 261 lists other factors which must be considered:

Generally speaking the monetary worth of this type of professional partnership will consist of the total value of the partners’ capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible personalty over and above book value, together with good will, should there in fact be any; the total so arrived at to be diminished by the amount of accounts payable as well as any other liabilities not reflected on the partnership books.

See also E.E.C. v. E.J.C., supra, and Pennsylvania’s Equitable Distribution, Progress or Confusion?, 60 Temple Law Quarterly 293 (1987). While the Divorce Code provides for the equitable distribution of marital property, it gives no guidance on determining the manner of valuing such property. The method of valuation depends on the nature of the property interest involved, and the court must look at the realities of the situation and avoid an unrealistic valuation. The Divorce Code, 23 Pa.S. § 102 states that it is the policy of the Commonwealth to “[ejffectuate economic justice between parties who are divorced ... and insure a fair and just determination and settlement of their property rights.”

Order reversed and case remanded to the court below to determine the value of the appellee’s interest in the partnership known as Buckl and Jankowski Architects and after determining the value of the marital property, the court shall equitably distribute the property. Jurisdiction relinquished.

CIRILLO, President Judge, files concurring in part and dissenting in part Opinion.

MONTEMURO, J., joins concurring in part and dissenting in part opinion, by CIRILLO, President Judge.

BROSKY and DEL SOLE, JJ., file concurring opinions.

KELLY, J., joins concurring opinion by BROSKY, J.

CIRILLO, President Judge,

concurring, in part, and dissenting, in part:

I respectfully concur, in part, and dissent, in part. While I agree with the majority’s holding that this case should be remanded for a valuation of the tangible assets of the husband’s architectural partnership, i.e., cash, accounts receivable, personal property and past earnings, I would find that under the facts of this case, there is no “good will” that would constitute marital property subject to equitable distribution.

As noted by the majority, the concept of good will is nebulous at best, and I can find no discernable reason for attributing this characteristic to the architectural partnership of Buckl & Jankowski in this circumstance. The only good will subject to distribution is that attributable to the partnership. An individual’s value does not constitute good will. Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986). I would hold that this architectural partnership’s only ascertainable value is the unique talents, skill and experience of its individual partners. This value could not be transferred and would be extinguishable if either partner left the firm, therefore, it cannot be considered good will.

MONTEMURO, J., joins.

BROSKY, Judge,

concurring:

I join in the majority opinion to the extent it holds that the appellee’s interest in the architectural firm is marital property and subject to equitable distribution, and also in remanding the case to the trial court for a valuation of that interest. However, I feel that any determination that goodwill should be included in this valuation is premature on this record.

It is my position that the value placed on the partnership interest for equitable distribution purposes should be one which will be realizable to the individual possessing the interest. If this happens to include goodwill then it should be included in the valuation. For instance, if the partnership agreement allows for a sale of the interest to a third party, or for a buy out upon leaving based upon the partnership’s value as a going concern, then goodwill would appear to be encompassed and should be reflected in the valuation.

However, if there are limitations in the partnership agreement which would prevent any of the value of the goodwill from accruing to appellee, or if the goodwill is not truly realizable to the partners because of the nature of the business then I believe it would be inappropriate to include goodwill in the valuation. See DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 n. 4 (1986).

Accordingly, I feel the trial court should make the initial determination of whether the valuation should include any value for goodwill, and, if so, to what extent, when it values the interest upon remand.

DEL SOLE, Judge,

concurring:

I join my colleagues in the majority in the determination that the partnership interest of the plaintiff acquired during the term of the marriage is marital property for the purposes of distribution. I also join the holding of the majority that the goodwill attributable to that partnership interest is marital property subject to distribution.

I write separately to express my view that this holding is in keeping with our determination in Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986) where we stated:

We, therefore, hold that goodwill of a sole proprietorship under these facts is not an element of present value; we also hold that the records of the firm may not be appraised to determine present value and to evaluate earning capacity.

However, I believe that we are by implication overruling the holding of this court in DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987) wherein a panel of this court held that a husband-physician's fifty percent interest in a corporation which provided medical services, where the husband was one of two physicians servicing patients, had no present value and was not marital property to be divided.

Factually and functionally there is no difference between the partnership in the case sub judice and the interest of the professional in DeMasi. It is my view that DeMasi is implicitly overturned, and if not, severely limited in its application.

Since I join the majority in its determination that the partnership interest is a marital asset subject to distribution, I would remand to the trial court for the purposes of determining whether or not the master's evaluation is fair and reasonable under the circumstances of record.

      . Mr. Buckl has a fifty percent interest in the partnership although the written partnership agreement, if any, was not introduced into evidence.

      . The master considered various factors in arriving at his valuation of the appellee’s interest in the firm. The master stated:
      The most troubling determination to the Master is the valuation of the Plaintiffs interest in this architectural practice, and based upon the above, the Master would respectfully suggest that the valuation be found via a valuation of assets of the practice i.e. cash, equipment, accounts receivable, notes payable, etc. and additionally, good will. No such evidence was presented in the case at bar. (Emphasis in original).

      . The court below stated at slip opinion, page 4:
      Since no evidence was presented on the value of partnership assets at time of separation other than past earnings of the architectural firm, we conclude that the business has no value other than the earning capacities of the members of the firm, which is attributable to their professional licenses.
      The above overlooks the fact that the appellee admitted that the partnership had a book value of §22,000.00. (Plaintiff s exceptions to master’s report.)

      . The court also noted in Beasley v. Beasley, 359 Pa.Super. at 35, 518 A.2d at 552:
      It would appear to be incontrovertible that good will is a valuable asset and in proper context must be considered in valuation of a property.
      The court further stated at footnote 4, 359 Pa.Super. at 42, 518 A.2d at 556:
      4. That is not to say that good will expressed as a share of a partnership or professional corporation, with an ascertainable value which can be purchased or transferred, is to be excluded. Such is not the case here.

      . In DeMasi v. DeMasi, supra, the court stated at 366 Pa.Super. at 43-44, 530 A.2d at 883:
      Presumably, special circumstances may justify holding that the goodwill of a professional sole proprietorship is marital property while the goodwill of a professional corporation is not.

      . The court below approved the division of marital property as recommended by the master except as to the husband’s interest in Buckl and jankowski Architects and the interest of the parties in Greenskeepers, Ltd. The court determined that a fair valuation of Greenskeepers, Ltd. was $11,200.00 and in view of the disparate earning capacity of the parties, awarded 65% to the appellant and 35% to the appellee rather than an equal distribution as recommended by the master. We find no abuse of the court’s valuation of Greenskeepers, Ltd. and the equitable distribution of that property.

      . 59 Pa.C.S. § 331 provides, inter alia:

      § 331. Rules determining rights and duties of partners

        The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
      (1) Each partner shall be repaid his contributions, whether by way of capital or advances to the partnership property, and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and must contribute towards the losses, whether of capital or otherwise, sustained by the partnership, according to his share in the profits.

      . Appellant’s expert witness testified "... people that are buying businesses, they look at earnings. They look at grossearning figures. Some apply earnings multiples to it and to assume that a business like this is worth nothing, is, in my professional opinion, ludicrous." (Emphasis added).

      . In re Marriage of Morris, Missouri Ct. of Appeals, 588 S.W.2d 39, 44 (1979) the court stated:
      However, it would seem the factors mentioned in Annotation Divorce — Value of Interest in Partnership, 74 A.L.R.3d 621, 623 (1976) would be appropriate to consider in corporation stock valuation along with any other relevant factors. The annotation states assets such as capital investments, capital accounts, other fixed shares of partnership worth, accrued equity, accounts receivable, as adjusted, the value of work in progress, appreciation of tangible personalty, goodwill, cash on hand and partnership life insurance should be considered in determining the value of a partner's interest.

      . That is not to say that goodwill expressed as a share of a partnership or professional corporation, with an ascertainable value which can be purchased or transferred, is to be excluded. Such is not the case here.