text:
    664 A.2d 1005
    Peter SINAIKO, Appellant, v. Patricia SINAIKO, Appellee.
    Superior Court of Pennsylvania.
    Argued June 28, 1995.
    Filed Aug. 24, 1995.

      Joel W. Todd, Philadelphia, for appellant.
    Gene E.K. Prather, Philadelphia, for appellee.

      Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

Peter Sinaiko (Husband) appeals from the order of court which held him in civil contempt for failure to abide by the February 18, 1994 order of court directing him to pay $39,-936.00 in counsel fees to his former wife, Patricia Sinaiko (Wife). The court ordered Husband to immediately pay the counsel fees or spend fourteen days in the Bucks County prison. We affirm.

The parties in this case were married on July 29, 1965. In 1990 the parties separated and consented to a divorce. In an effort to equitably distribute the marital property and provide for the support of their children after the divorce, the parties executed a property settlement agreement on October 1,1990. This agreement was subsequently incorporated but not merged into a final decree in divorce on October 5, 1990. Husband refused to abide by the terms of the agreement thus forcing Wife to file contempt petitions on November 14, 1990, January 22, 1991, May 23, 1991, and December 16, 1991. On May 6, 1992, the court held Husband in contempt of court for failure to pay $41,000.00 he owed Wife for his son’s law school expenses. Wife reduced the judgment against Husband and attempted to execute against Husband’s Porsche. To avoid attachment of his Porsche, Husband agreed to resolve the dispute and pay the amount Wife demanded. The parties eventually resolved all outstanding financial issues except for the payment of Wife’s counsel fees. Wife sought counsel fees from Husband pursuant to the terms of paragraph seventeen of the property settlement agreement which provided that a party who failed to comply with the terms of the agreement would be liable for the legal expenses incurred by the non-breaching party when enforcing the agreement.

After five hearings with the court on the issue of counsel fees, the parties failed to reach an agreement. Wife filed a petition for counsel fees on August 19, 1992. After a hearing on February 18, 1994, the court ordered Husband to pay $39,936.00 in counsel fees to Wife within 120 days. Husband filed an untimely appeal from this order which was quashed by this Court. Husband continued to ignore the court order and refused to pay Wife counsel fees. On June 23, 1994, Wife had the order reduced to a judgment against Husband. Wife made two attempts to satisfy the judgment against Husband. Initially Wife attempted to execute against Husband’s Porsche. Husband, however, had changed the title of the automobile into a joint one between himself and his new wife, thus frustrating Wife’s attempts to attach the Porsche. Wife then attempted to garnish reimbursements from Blue Cross/ Blue Shield which were due to Husband’s medical profession. Again Wife was unsuccessful in satisfying the judgment since the disbursements from Blue Cross were only payable to Husband’s professional corporation.

Wife then filed an emergency petition for contempt, payment of counsel fees and supplementary relief in aid of execution pursuant to Pa.R.C.P. 3118, 42 Pa.C.S.A. In the emergency petition Wife’s counsel requested that Husband’s stock in his professional medical corporation be transferred to Wife until the judgment was satisfied, or in the alternative, that Husband be found in contempt of court and jailed for failure to comply with the court’s order. Husband filed a response to Wife’s emergency petition in which he claimed that he was financially unable to pay the counsel fees. Husband claimed that his personal income had substantially declined over the past few years and that he had no liquid assets to transfer to Wife. The trial court conducted a hearing on Wife’s petition on December 9, 1994. The court determined that Wife was not entitled to hold stock in Husband’s professional corporation because she was not a licensed physician. After hearing testimony from Husband regarding his financial status, the court concluded that Husband had the present ability to pay Wife the $39,936.00 in counsel fees. Specifically, the Court stated:

I find you are in contempt. I find your prior financial information shows that you had more than sufficient ability to pay the $40,000; in other words, the $39,936.
The financial information you have provided today to sustain — to try and sustain your point that you don’t have the present financial ability is woefully inadequate. The 1040 you provided doesn’t show where that $86,000 went. You don’t have the corporate return.
‡ ‡ ‡ ‡ ‡
I have your testimony that you are making a lot less money. And I have incomplete documents which are of little weight to back that up. So I find that you have the present ability to pay.
In addition, you have the ability to pay from monies that you have testified you have taken out of your pension fund to pay other obligations. You are paying a $2,800-a-month mortgage. All of these factors combined with which I will enumerate in more detail if necessary at some future point (sic).
So, I find that you’re remanded to the Bucks County Prison for a period of fourteen days. You may be purged upon the payment of $39,936.

N.T., 12/9/94, at pp. 107-08. After the court issued this order, Husband was removed from the courtroom in handcuffs and taken directly to the Bucks County prison.

On December 13,1994, Husband filed an emergency petition for reconsideration of the December 9, 1994 order and an application for stay pending appeal. Husband requested the court to immediately release him from the Bucks County prison and allow him to practice medicine. Husband claimed that the court exceeded its statutory powers by imposing a punitive sanction of imprisonment in a civil proceeding. Husband also claimed that the court abused its discretion by incarcerating him for non-payment of counsel fees. Finally, Husband argued that Wife failed to prove that he willfully disregarded the court’s order to pay counsel fees.

The court denied Husband’s petition to reconsider the December 9, 1994 order; however, the trial court directed that Husband be granted work release during the weekdays so that he may attend to his scheduled patients. Husband filed a timely notice of appeal to this Court and a motion for stay of the incarceration on December 15, 1994. This Court issued a per curiam order on December 16, 1994 directing that Husband be released from prison and be permitted to resume his medical practice on the condition that he pay Wife’s counsel $1,000.00 immediately and $1,000.00 per month thereafter until the entire balance of counsel fees was paid.

On appeal Husband raises four issues for our review:

I. Did the lower court abuse its discretion by disregarding evidence of Husband’s present inability to pay and by ordering Husband to liquidate his pension contrary to the provisions of Federal Statutory law?
II. Did the lower court abuse its discretion when Husband was jailed at 5:00 p.m. on Friday, December 9, 1994 under circumstances where the real purpose was to punish Husband?
III. Did the lower court commit an error of law by jailing Husband without statutory authority to do so under the Domestic Relations Code?
IV. Did the lower court commit an error of law when it jailed Husband for breach of a contract contrary to the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Pennsylvania Constitution?

Husband’s Brief, at p. 3.

Husband’s first issue on appeal is whether the trial court abused its discretion when incarcerating him for failure to comply with the court’s order of February 18, 1994. When a party appeals a court’s order holding them in contempt of court, our review is very narrow. We are limited to determining whether the trial court committed a clear abuse of discretion. Mueller v. Anderson, 415 Pa.Super. 458, 460, 609 A.2d 842, 842-43 (1992). This Court must place great rebanee on the sound discretion of the trial judge when reviewing an order of contempt. Goodman v. Goodman, 383 Pa.Super. 374, 398-99, 556 A.2d 1379, 1391 (1989).

“The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution.” Colbert v. Gunning, 368 Pa.Super. 28, 30, 533 A.2d 471, 472 (1987). The court may order civil or criminal contempt.

The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of contempt by complying with the court’s directive. If he is given an opportunity to purge himself before imposition of punishment, the contempt order is civil in nature. If the purpose of the order is to punish despite an opportunity to purge, the order is criminal in nature.

Id.

A court may exercise its civil contempt power to enforce compliance with its orders for the benefit of the party in whose favor the order runs but not to inflict punishment. Id. A party must have violated a court order to be found in civil contempt. Goodman, 556 A.2d at 1391. The complaining party has the burden of proving by a preponderance of evidence that a party violated a court order. C.R. by the Guardian of her Estate, Dunn v. The Travelers, 426 Pa.Super. 92, 99-100, 626 A.2d 588, 592 (1993). However, a showing of non-compliance is not sufficient in itself to prove contempt. Wetzel v. Suchanek, 373 Pa.Super. 458, 460-62, 541 A.2d 761, 762 (1988). “If the alleged contemnor is unable to perform and has in good faith attempted to comply with the court order, contempt is not proven.” Id. (emphasis in original). The alleged contemnor has the burden of proving the affirmative defense that he has the present inability to comply with the court order. Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Super. 400, 402-03, 469 A.2d 682, 683 (1983). A court cannot impose a coercive sentence conditioned on the contemnor’s performance of an act which is incapable of performance. Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 131-33, 560 A.2d 133, 137 (1989). To impose civil contempt the trial court must be convinced beyond a reasonable doubt from the totality of evidence presented that the contemnor has the present ability to comply with the order. Wetzel, 541 A.2d at 764.

In Husband’s first two questions presented he alleges that the trial court abused its discretion when it held him in contempt of court since he did not have the present ability to comply with the order of February 18, 1994 by paying nearly $40,000.00 in counsel fees. Husband argues that the court ignored evidence that proved he lacked the financial resources to comply with the February 18, 1994 order. Husband contends that the court in effect imposed criminal contempt since its main purpose was to punish him for his non-compliance.

We disagree that the trial court abused its discretion by finding Husband in contempt of court for failing to comply ■with the February 18, 1994 order of court. The trial court found that Husband failed to meet his burden of proving that he lacked the financial means to pay Wife’s counsel fees. According to his own testimony Husband’s assets and sources of income included: (1) personal income of nearly $160,000.00; (2) a $2,000.00 in interest, dividends and partnership income; (3) a one-half interest in a GMC Jimmy vehicle; (4) a house worth approximately $315,000.00; (5) variable bonds worth an unspecified amount; (6) a condominium where his professional medical corporation operates; and (7) approximately $30,-000.00 in pension and profit sharing plans. Based on the combination of these assets, as well as Husband’s failure to provide complete and adequate records detailing his expenses and liabilities, the trial court’s determination that Husband had the present ability to pay was not an abuse of discretion. Husband could have avoided the finding of contempt by arranging to pay Wife the money she was entitled to under the terms of the separation agreement. Husband had nearly ten months to comply with the terms of the February 18, 1994 order and arrange a suitable payment plan with Wife. Instead, Husband ignored the order and told Wife that he would never comply with the trial court’s order. Husband admitted at the December 9, 1994 hearing that he made no attempt to contact Wife between February 18, 1994 and December 9, 1994 to discuss a suitable payment plan. Husband also admitted that he made no attempt to refinance, sell or liquidate any assets in order to meet his obligation to Wife. Under these circumstances it is clear that Husband did not make a good faith attempt to comply with the court’s order. Wetzel, 541 A.2d at 762.

Husband challenges the court’s determination that he had the present ability to pay the counsel fees. Husband claims that the court imposed an unreasonable condition which could not be met at 5:00 p.m. on a Friday afternoon when he had no access to any funds since all banks were closed. Husband ignores the fact that he had ten months to comply with the court’s order directing him to pay the counsel fees. Husband would not have been held in contempt if he had made a good faith effort to comply with the court’s order prior to Friday, December 9,1994 at 5:00 p.m.

Next, Husband argues that the court violated the Employee Retirement Income Security Act (ERISA), amended by the Retirement Equity Act of 1984 (REA), 29 U.S.C.A. section 1056(d), when it allegedly attempted to force a liquidation of his pension. At the December 9, 1994 hearing on Wife’s petition for contempt, the trial court inquired as to whether Husband had funds in a pension plan. Husband admitted that he had a pension plan and a separate profit-sharing plan worth approximately $30,000.00. Husband also acknowledged that he had previously withdrawn money from these pension funds in order to pay his son’s school tuition and other obligations to Wife. Based on this testimony, as well as other evidence regarding Husband’s financial capabilities, the trial court found that Husband failed to prove his inability to financially comply with the terms of the February 18, 1994 order. As support for its decision the trial court stated, “In addition, you have the ability to pay from moneys that you have testified you have taken out of your pension fund to pay other obligations.” N.T., 12/9/94, at p. 107. Husband alleges that the trial court may not force him to liquidate his pension funds to comply with the February 18, 1994 order without violating section 1056(d) of ERISA. Section 1056(d) provides:

(d) Assignment or alienation of plan benefits
(1) Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.

29 U.S.C.A. § 1056(d)(1). This statute, which immunizes an employee’s pension plan from garnishment and attachment, was enacted to protect an employee from his own financial improvidence in dealing with third parties. Stinner v. Stinner, 520 Pa. 374, 382-84, 554 A.2d 45, 49 (1989), cert. den., 492 U.S. 919, 109 S.Ct. 3245, 106 L.Ed.2d 591 (1989).

We do not find it necessary to address the merits of Husband’s argument that the trial court violated the alienation clause of ERISA since the court did not order Husband to liquidate his pension. The trial court inquired as to whether Husband had funds available in a pension plan and asked if he had ever used these funds to pay his obligations under the support agreement to Wife. We are not presented with the issue of whether the trial court may attach Husband’s pension plan in order to satisfy the February 18, 1994 order. The court did not issue a writ of execution attaching his pension funds. Compare Hollman v. Hollman, 515 Pa. 288, 528 A.2d 146 (1987). The Court was merely trying to obtain a complete understanding of Husband’s financial assets and liabilities in order to determine whether he had the present ability to comply'with the court’s order by paying Wife $39,936.00 in counsel fees.

Furthermore, the Court did not rely exclusively on the $30,000.00 available in Husband’s pension and profit-sharing plan to support its finding that Husband had the present ability to comply with the February 18, 1994 order. In addition to the money available from the pension plans, the court relied on Husband’s personal and corporate income, as well as his variable bonds, expensive house, condominium, and automobile.

Husband also claims that the court was not authorized to impose a prison sentence as a sanction for civil contempt. He cites this Court’s en banc decision, Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), for the proposition that a court may not impose confinement for failure to abide by the terms of a separation agreement which is incorporated but not merged into a divorce decree.

In Sonder the parties entered a marital property settlement agreement on November 28, 1973 which provided that the husband would pay $800.00 per week for child and spousal support to his wife. Subsequently the court entered a decree in divorce which incorporated the terms of the settlement agreement. The parties specifically provided in the settlement agreement that it was not to be merged with the divorce decree.

This Court certified the case for an en banc review to determine the precise issue of whether a property settlement agreement executed pursuant to a divorce, which was incorporated into a divorce decree but not merged, is subject to modification by the court as an alimony or support order entered through the court. Id. 398 A.2d at 158. A second issue in that case was whether the trial court erred when it held the husband in contempt and ordered him to pay $10,-000.00 “forthwith” or commitment to jail for ninety days. The husband argued that incarceration was not an appropriate sanction for failure to comply with a support agreement.

The majority of the Court agreed with the husband and held that even if the husband had willfully failed to pay the support order when he had the present ability to do so, “the order could not be enforced by an attachment of the person of appellant.” Id. 398 A.2d at 171. The majority explained:

We, therefore, hold that any agreement which speaks of incorporation but rejects merger was intended by the parties not to be brought under the provisions of sections 401, 501(e) and (f) and 503[] for the enforcement of separation agreements. Only by an Order which does not reject merger, or requires court enforcement of the agreement, does it become part of the decree and have the effect of an Order. By renouncing merger and failing to have language in the decree requiring enforcement as a court Order, the contract survives. In doing so, the parties reject the benefit of the provisions developed under the Divorce Code and the divorce procedures enunciated in the Civil Procedural Rules for contempt, attachment and payment of alimony on divorce.

Id. 398 A.2d at 165.

The majority continued:

[Ejnforcement cannot be pursuant to attachment of the person, as permitted by properly merged agreements, under current law____ It, therefore, is governed by contract law; breach creates a “debt”, debts may not be enforced by jailing under the Pennsylvania Constitution and statutes, supra.... Thus the enforcement provisions for failure to comply with an agreement, not merged into a support Order or divorce decree, are those available in any other civil action, at law or in equity for payment of money-judgments and execution or attachment of property.

Id. 398 A.2d at 173.

We do not agree with Husband that the decision in Sonder controls the present case. Husband overlooks the fact that the majority in Sonder did not apply the 1988 amendments to the Divorce Code which specifically authorize the incarceration of a party for failure to comply with the terms of a separation agreement. In Sonder the parties executed their separation agreement prior to 1988 and were thus not bound by the terms of the amendments. See Sonder, 549 A.2d at 183 n. 2 (Judge Beck in her concurring and dissenting opinion acknowledges that the 1988 amendments were not applied to resolve the appeal since neither party argued that the amendments should be retroactively applied). Sections 3105(a) and 3502(e) of the Divorce Code specifically authorize the trial court to order commitment of the person for a period of less than six months. Section 3105 provides in pertinent part:

§ 3105 Effect of agreement between parties
(а) Enforcement. — -A party to an agreement regarding matters within the jurisdiction of the court under [the Divorce Code], whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in [the Divorce Code] to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.

23 Pa.C.S.A. § 3105(a).

Section 3502 of the Divorce Code delineates the powers of the court when a party fails to comply with the terms of an order of equitable distribution or with the terms of a private agreement between the parties. That section specifically provides:

(e) Powers of the court. — If, at any time, a party has failed to comply with an order of equitable distribution, as provided for in this chapter or with the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available under this part, in order to effect compliance with its order: * * * * *
(б) issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that the person named as having failed to comply with the court order be brought before the court, at such time as the court may direct. If the court finds, after hearing, that the person -willfully failed to comply with the court order, it may deem the person in civil contempt of court and, in its discretion, make an appropriate order, including, but not limited to, commitment of the person to the county jail for a period not to exceed six months[.]

23 Pa.C.S.A. § 3502(e)(6).

Unlike the parties in Sonder, Husband and Wife in the present appeal executed their property settlement agreement in October of 1990 when the 1988 amendments were in effect. Therefore, the trial court properly applied the enforcement provisions and imposed a lawful term of incarceration.

We find our Supreme Court’s decision in Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977), controlling. In Barrett the trial court imposed a conditional sentence of imprisonment in order to coerce the appellant into paying $500.00 arrearages in child support. Prior to issuing that order the trial court conducted an evidentiary hearing to determine if the appellant willfully failed to comply with the court’s support order and if he was capable of complying with such order. Only after finding that the appellant could have paid the support obligations did the trial court find him in civil contempt and sentence him to conditional incarceration. Id. 261, 368 A.2d at 620.

On appeal, the appellant claimed that he should not have been imprisoned for civil contempt. This Court modified the order of the trial court by limiting the term of appellant’s imprisonment if he failed to purge himself, but otherwise affirmed the trial court’s order. See Barrett, 259, 368 A.2d at 619. Our Supreme Court rejected the appellant’s argument that he should not have been held in contempt but agreed that the sentence of imprisonment was improper under the circumstances. The Supreme Court explained its analysis as follows:

It is plain, therefore, that in determining whether Barrett was properly imprisoned for civil contempt, the crucial question is not whether he willfully and contemptuously violated the original orders, but whether he had the present ability to comply with the conditions set by the court for purging himself of his contempt.

Id. 262, 368 A.2d at 620. The Supreme Court then held:

We now hold, however, that where, as here, the court in civil proceedings finds there has been willful noncompliance with its earlier support orders constituting contempt but the contemnor presents evidence of his present inability to comply and make up the arrears, the court, in imposing coercive imprisonment for civil contempt, should set conditions for purging the contempt and effecting release from imprisonment with which it is convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply.

Id. 263-264, 368 A.2d at 621 (emphasis in original).

Applying the test set forth above, the Supreme Court found insufficient evidence that Barrett had the present ability to comply with the conditions set by the court for purging himself. Id. 267, 368 A.2d at 623.

In the present case, Wife initially filed a petition in equity seeking to specifically enforce the provisions of paragraph seventeen of the separation agreement which obligated Husband to pay her counsel fees. The court then conducted a hearing on February 18, 1994 on the issue of counsel fees. After this evidentiary hearing, the court issued its order directing Husband to pay $39,936.00 in counsel fees to Wife. When Husband failed to comply with this order and Wife was unable to satisfy the judgment by attaching Husband’s personal property, Wife was forced to file an emergency petition for contempt. The trial court then conducted a hearing on December 9, 1994 where Husband was given ample opportunity to prove that he was unable to comply with the terms of the February 18, 1994 order. After concluding that Husband did have the financial ability to comply, the court followed the dictates enunciated in Barrett and imposed a conditional sentence of incarceration which Husband could purge himself of by paying Wife the $39,936.00 in counsel fees. Unlike the appellant in Barrett, we find sufficient evidence to support the trial court’s determination that Husband had the present ability to comply with the conditions for purging himself.

Husband raises an additional argument challenging his fourteen day incarceration. He claims that the trial court violated sections 4132 and 4133 of the Judicial Code. These sections provide:

§ 4132 Attachment and summary punishment for con-tempts
The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4132.

§ 4133 Commitment or fine for contempt
Except as otherwise provided by statute, the punishment of commitment for contempt provided in section 4132 (relating to attachment and summary punishment for contempts) shall extend only to contempts committed in open court. All other contempts shall be punished by fine only.

42 Pa.C.S.A. § 4133.

We do not find that these statutes apply to Husband’s case. These statutes apply when a party is in direct criminal contempt of court; that is when a party engages in misconduct in the presence of the court with the intent to obstruct the judicial proceeding which actually obstructs the administration of justice. In Re Adams, 435 Pa.Super. 202, 204-06, 645 A.2d 269, 271 (1994), alloc. den., 539 Pa. 686, 653 A.2d 1225 (1995). See Bruzzi v. Bruzzi, 332 Pa.Super. 346, 353-55, 481 A.2d 648, 652 (1984) (“[D]irect criminal contempt consists of misconduct of a person in the presence of the court or so near thereto to interfere with its immediate business[.]”). In the present case, the trial court imposed a term of incarceration as a sanction for Husband’s civil contempt premised on Husband’s failure to abide by the February 18, 1994 order of court. The court was not imposing summary punishment for Husband’s misconduct committed in the presence of the court. As such, sections 4132 and 4133 do not apply.

Finally, Husband argues that the court’s order imposing fourteen days incarceration violates the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Husband also contends that the court violated Article 1, Section 16 of the Pennsylvania Constitution which provides:

§ 16 Insolvent Debtors
The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.

PA. CONST, art. 1, § 16.

We reject Husband’s argument. Husband was found in civil contempt, not criminal contempt, after the court gave him notice and an opportunity to be heard. The court conducted an evidentiary hearing where Husband was given the opportunity to present his defense to Wife’s contempt petition. Likewise, Husband was not jailed for failing to pay a debt contrary to the provisions of the Pennsylvania Constitution. Husband was sentenced to a conditional term of imprisonment as a coercive sentence for civil contempt based on his failure to abide by a court order. The court order was entered after the court found that Husband was obligated to comply with the terms of the separation agreement he voluntarily entered into with Wife. As stated earlier, the trial court acted within its statutory authority under the terms of the Divorce Code when it sentenced him to fourteen days in prison. Wife is more than just a creditor as that term is used in the Constitutions. Husband’s debt to her arose as a result of a court order — not just a private agreement betwéen the parties. The court had the power to enforce its order by means of contempt and incarceration.

Order affirmed.

      . Even if the Court had attached the funds in Husband’s pension plan, it is uncertain if this order would violate the anti-alienation clause of ERISA based on several decisions of this Court and our Supreme Court which rejected a similar argument. See Graham v. Graham, 396 Pa.Super. 166, 578 A.2d 459 (1990) (state employee's pension was subject to attachment through a qualified domestic relations order (QDRO)); Hollman, supra (pension payments of former spouse could be attached to satisfy judgment of arrearages under a support agreement); Hopkinson v. Hopkinson, 323 Pa.Super. 404, 470 A.2d 981 (1984), rav’d on other grounds, 378 Pa.Super. 474, 549 A.2d 155 (1988) (pension and profit-sharing plans are gamishable for the purpose of fulfilling the husband’s support obligations under a consent decree); Commonwealth ex rel. Magrini v. Magrini, 263 Pa.Super. 366, 398 A.2d 179 (1979) (ERISA qualified pension plan was not immune from attachment to pay for the support of a participant’s family).

      . Those sections are now found at 23 Pa.C.S.A. sections 3502, 3701, and 3703, respectively.

      . These sections were originally enacted on February 12, 1988 and codified at 23 Pa.C.S.A. sections 401.1 and 401 of the Divorce Code. On December 19, 1990, the Divorce Code was repealed and replaced by Part IV of the Domestic Relations Code. Section 3105(a) and section 3502(e) of the Domestic Relations Code contain the exact language as sections 401.1 and 401 as written in the 1988 amendments.

      . Neither party in this appeal raised the issue of whether the 1988 or 1990 amendments governed their case. Since the language is verbatim in both versions, we need not address that issue.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    664 A.2d 1015
    Ursula JOBE, Individually and as Administratrix of the Estate of James H. Jobe, Deceased, Appellant, v. W.P. METZ REFINING, Handy and Harman, and United Chemicals, Inc., Chemply, Inc., Carmac Chemical Company, Amax Lead & Zinc, Inc., Amax, Inc., Asarco, Inc., Federated Metals Corporation, and Metz Metallurgical Corporation, Appellees. Ursula JOBE, Individually and as Administratrix of the Estate of James H. Jobe, Deceased, Appellant, v. W.P. METZ REFINING, Handy and Harman, and United Chemicals, Inc., Chemply, Inc., Carmac Chemical Company, Amax Lead & Zinc, Inc., Amax, Inc., Asarco, Inc., Federated Metals Corporation, and Metz Metallurgical Corporation, Appellees. Ursula JOBE, Individually and as Administratrix of the Estate of James H. Jobe, Deceased, Appellant, v. W.P. METZ REFINING, Handy and Harman, and United Chemicals, Inc., Chemply, Inc., Carmac Chemical Company, Amax Lead & Zinc, Inc., Amax, Inc., Asarco, Inc., Federated Metals Corporation, and Metz Metallurgical Corporation, Appellees. Ursula JOBE, Individually and as Administratrix of the Estate of James H. Jobe, Deceased, Appellant, v. W.P. METZ REFINING, Handy and Harman, and United Chemicals, Inc., Chemply, Inc., Carmac Chemical Company, Amax Lead & Zinc, Inc., Amax, Inc., Asarco, Inc., Federated Metals Corporation, and Metz Metallurgical Corporation, Appellees. Ursula JOBE, Individually and as Administratrix of the Estate of James H. JOBE, Deceased, Appellant, v. W.P. METZ REFINING, Handy and Harman, and United Chemicals, Inc., Chemply, Inc., Carmac Chemical Company, Amax Lead & Zinc, Inc., Amax, Inc., Asarco, Inc., Federated Metals Corporation, and Metz Metallurgical Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued May 18, 1995.
    Filed Aug. 28, 1995.

      Michael E. Lang, Pittsburgh, for appellant.
    Kenneth J. Cammarato, Pittsburgh, for Amax Lead, Amax, Inc. & Asarco, Inc., appellees.
    Eric Home, Pittsburgh, for Federated Metals, appellee.
    Before: POPOVICH, HUDOCK and OLSZEWSKI, JJ.

      . Hudock, J. did not participate in the consideration or decision of this matter.

   POPOVICH, Judge:

We are asked to review the grant of motions for summary judgment in favor of defendants/appellees, Amax, Inc., Amax Lead & Zinc, Inc., Asarco, Inc. and Federated Metals Corp. We affirm.

In reviewing the grant of a motion for summary judgment, we, as an appellate court, are to examine the record in a light most favorable to the non-moving party. Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 528 A.2d 203, 205 (1987). Further, this Court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, and give the non-movant the benefit of all reasonable inferences which may be drawn therefrom. Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372, 1373 (1987). All doubts and ambiguities are to be resolved in the nonmovant’s favor. Wheeler v. Johns-Manville Corp., 342 Pa.Super. 473, 493 A.2d 120, 123 (1985).

Consistent with the preceding, the record discloses that James H. Jobe was employed as a machinist from 1964 until 1984 at a plant in Delmont, Pennsylvania, operated by Gibson Electric, Inc., which was succeeded in interest by GTE Products Corp. Upon Jobe’s death, his wife, individually and as administratrix of his estate, filed an eight-count complaint alleging Jobe’s exposure to carcinogenic material (e.g., cadmium) manufactured, distributed, sold and/or supplied to Jobe’s employer by the appellees caused his death.

After the submission of numerous pleadings (e.g., preliminary objections, answer with new matter, replies, interrogatories, production of documents and amended complaint) and depositions, the appellees filed motions for summary judgment; Amax Lead & Zinc, Inc. and Amax, Inc. (successor to Amax Lead & Zinc, Inc.) had their motions granted June 10, 1994, and July 11, 1994, respectively; and Federated Metals Corp. and Asarco, Inc. (successor to Federated Metals Corp.) had their reconsideration motions for summary judgment granted August 18, 1994, and September 1, 1994, respectively. An appeal was perfected after the last motion for summary judgment was granted on October 11,1994.

The first four issues posed claim court error in granting the appellees’ motions for summary judgment on the ground that “a reasonable question of fact [existed regarding whether] th[e] decedent was exposed to the [appellees’] cadmium containing products.” Appellant’s Brief at 7.

In this jurisdiction, regarding products liability suits, a plaintiff must establish that his/her injuries were caused by the product of a particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, what was stated in a trilogy of cases concerning the sufficiency of the evidence to withstand a motion for summary judgment in asbestos suits we find to be applicable here.

We begin with Bushless v. GAF Corp., 401 Pa.Super. 351, 585 A.2d 496 (1990), wherein the rulings of Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989) were capsulized as establishing that generalized product identification was insufficient to withstand summary judgment. Also, each plaintiff failed to establish a genuine issue of fact as to the “regularity and frequency” with which each was exposed to the defendants’ asbestos products. In doing so, this Court wrote:

In Eckenrod, plaintiff filed suit against various defendant manufacturers, alleging that her husband’s death was caused by exposure, during his employment with Babcock & Wilcox (“B & W”) to various asbestos products manufactured by the defendants. Defendants filed motions for summary judgment based on plaintiffs lack of product identification. The trial court granted defendants’ motions, and plaintiff appealed. This court affirmed ... [stating]:
.Eckenrod contends that her decedent used asbestos gloves supplied by A-Best for twenty years, asbestos cloth supplied by A-Best for fifteen years, and asbestos cloth supplied by Porter for eight years while employed by B & W in the furnace area of the Wallace Run Facility. In support of her assertion, [Eckenrod] claims that traveling requisition forms place both companies as a supplier of the products to B & W. In order to place her husband in the vicinity of the asbestos products and to detail his work activities, [Eckenrod] relied on affidavits of three coworkers. The affiants indicated that they had worked with the decedent “upon occasion” at the Wallace Run Facility[.]

375 Pa.Super. at 191, 544 A.2d at 52. This court determined that Eckenrod’s evidence was insufficient to withstand the grant of summary judgment. Despite the affiants’ statements that the decedent was exposed to asbestos there was no statement that the decedent

worked exclusively or continuously at the Wallace Run furnace during his period of employment. Further, each [affiant] indicated “exposure” to asbestos products but did not elaborate on the nature or length of the exposure or brand of products available. Additionally, ... none clarified the proximity of the products to the workers or that [defendants] were the manufacturers/suppliers of the products being used. In fact, the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B & W. Each of those depositions indicates that various [defendants] sold asbestos products to B & W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product.

375 Pa.Super. at 191-92, 544 A.2d at 52-53. See Berkebile, swpra. The court ... concluded that summary judgment was proper where there was no evidence “as to the regularity or nature of decedent’s contact with asbestos.” Moreover, [the court noted that] “the mere fact that [defendant’s] asbestos products came into the facility d[id] not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered.”

Likewise, in Samarin, the defendant manufacturers filed motions for summary judgment, claiming that the plaintiffs could not establish that they or their decedents were exposed to the particular products of the defendants. The plaintiffs’ responses to the summary judgment motions merely listed co-workers’ names and the names of asbestos manufacturers and suppliers that each person could apparently identify as having supplied asbestos-containing products to the workplace. In addition, plaintiffs’ answers to interrogatories listed names of persons who would testify that the plaintiffs or their decedents were exposed to certain asbestos products manufactured by defendants. Defendants argued in their summary judgment motions that the plaintiffs had failed to establish the necessary connection between their products and any alleged injury. The trial court granted summary judgment in favor of defendants, and plaintiffs appealed. We affirmed ... [stating]:

These responses to the interrogatories do not include any information on the relationship of any of the persons listed to appellants or their decedents or the relationship of the listed asbestos containing products to appellants or their decedents. Under Roland v. Kravco, Inc., supra, it is appellants’ burden to be more specific and to reveal the relevant facts that these witnesses would testify to. From these facts, the trier of fact should be able to deduce that the listed person had some knowledge of the appellant’s workplace and some knowledge that appellants were exposed to appellees’ products which contained some asbestos. It is not appellees’ burden to depose each potential witness for the purpose of showing that they are not able to establish a relationship between appellants or their decedents and appellees’ products. Not having established this relationship themselves, appellants leave themselves exposed to summary judgment in favor of appellees.

391 Pa.Super. 348, 571 A.2d at 403; see also Pa.R.C.P. 1035.

Having reviewed the relevant law, we will apply the principles of Eckenrod and Samarin to ... cases on appeal.
******
[The Bushless court] note[d] initially that Plaintiffs’ statements and statements of [co-employees] Krukenberg and Funkhouser pertaining to their knowledge that the pipecovering contained asbestos, [we]re insufficient to show that there exist[ed] a genuine issue of fact. * * * In addition, merely listing the names of various co-workers who could allegedly identify the asbestos-containing products in his workplace is insufficient to establish the existence of a genuine issue of fact. Id. After a careful review of the record, we are unable to find that the trial court committed a clear abuse of discretion or an error of law in its conclusion that no genuine issue of fact existed. Although the evidence indicates that Plaintiffs may have had some exposure to asbestos, the pleadings, depositions, interrogatories and affidavits of record do not provide a sufficient nexus to link any particular Defendant’s product to the Plaintiffs’ work vicinity. [Emphasis in original]

401 Pa.Super. at 358-60, 363-64, 585 A.2d at 500-501, 503 (Citations omitted).

What is to be garnered from the Bushless, Samarin and Eckenrod line of cases regarding asbestos suits is applicable to the sufficiency of a complaint seeking damages for alleged exposure to carcinogens (e.g., cadmium) against a motion for summary judgment. To-wit, that the employee/decedent/Jobe was at a particular worksite; that the employee/decedent/Jobe was exposed to carcinogenic-containing products at that site; and that a defendant’s carcinogenic-containing products was at that particular worksite at or about the same time as the employee/decedent/Jobe. Bushless, supra, 401 Pa.Super. at 359-61, 585 A.2d at 501, citing Eckenrod, supra, 375 Pa.Super. at 191, 544 A.2d at 52.

At bar, given the decedent’s death prior to the institution of this lawsuit, the plaintiff relies solely upon the deposition testimony of former employees at Gibson Electric to establish the “identification” of the carcinogenic-containing product, the seller/manufacturer of the product and the “frequency and regularity” with which the decedent was exposed to cadmium-related products while on the job site.

For example, Chester Zielinski was employed by Gibson Electric from 1968 to 1984 as a “header operator” in that department making rivets. However, when work was slow, Zielinski would work in other areas of the plant as well, to-wit:

On a typical day [Zielinski and decedent] would be ... working in the header department ... in inspection, tool room, furnace room, ... shipping, and receiving if you had to go in there for any reason * * * when work was slow if they needed help in the [powder room]-foreman told [you] where he would want you to go work ... either sometime work in powder room breaking down powder, could be cleaning room, degreasing material for inspection or you would be loading tumblers ... [and] Jobe d[id] similar type work.

RR. 131a-132a. The remaining portion of Zielinski’s testimony failed to indicate the source of the cadmium or that in its powdered state it was used in the “header department,” wherein he claimed he and Jobe spent 70% of their work-day and “did not create dust there.” RR. 139a.

Joseph D’Aurora worked for Gibson Electric from 1956 to 1984 in the powder room. He recalled using various products including cadmium, none of which was supplied by the appellees whose summary judgment motions had been granted. RR. 144a. Nor did the witness state the basis for his remark that cadmium was used more than silver and copper in the product mix. RR. 149a.

The third former employee whose account had been transcribed was Joseph Bauroia. He indicated working with Jobe 99% of the time, but he did not know if any of the appellees whose summary judgment motions were granted had their products on site or the frequency with which exposure occurred regarding cadmium.

Lastly, the individual who purchased materials for Gibson Electric from 1973 until July of 1984 (Albert Walter) was deposed by phone. He recalled that no records existed as to the product orders for cadmium-containing materials.

However, Walter had a personal recollection that silver cadmium oxide wire and cadmium oxide powder were purchased from 1973 until 1980 from Amax Corp. and from 1980 to 1984 from Asarco. As far as where the cadmium was used, Walter indicated the “powder mix” and “powder metal” areas. RR. 173a. He stated that the silver cadmium oxide wire was used in the “header department,” but Walter did not know the physical location of the wire. RR. 169a.

Having reviewed all of the evidence in a light most favorable to the non-moving party/plaintiff, we find there is an insufficient nexus between any of the appellees’ products and Jobe’s worksite:

The mere fact that [appellees’ cadmium] products came into the facility does not show that the [decedent] ever breathed the [] specific [cadmium] product [] or that he worked where these [cadmium] products were delivered.....Ab-
sent testimony of record that identifies [appellees’] products as being present in the [vicinity in which decedent worked], there is not even a reasonable inference that [decedent] was exposed to [appellees’ cadmium] products.

Bushless, supra, 401 Pa.Super. at 365, 585 A.2d at 503, quoting Eckenrod, supra, 375 Pa.Super. at 192-93, 544 A.2d at 53.

Therefore, having failed to show the relationship between the plaintiffs decedent and the appellees’ products, the plaintiff has left herself vulnerable to a summary judgment being entered for the appellees. Id. at 365-66, 585 A.2d at 504. The affirmance of the ruling is enhanced with the absence of sufficient evidence regarding the “frequency and regularity” with which the decedent was exposed to the appellees’ products. In light of such a deficient record, we affirm the orders appealed.

Orders affirmed.

HUDOCK, J., did not participate in the consideration or decision of this matter.

      . The appellant also alleged that carcinogenic supplies were sold to her husband’s employer by W.P. Metz Refining, Handy and Harman, United Chemicals, Inc., Chemply, Inc., Carmac Chemical Co. and Metz Metallurgical Corp., each of which was named as a defendant but none are parties in the instant appeal. Further, the appellant included the successor-in-interest employer/GTE Products Corp. in the suit. However, with GTE’s motion for summary judgment being granted by order of July, 1989, it was not a party with the perfection of this appeal thereafter.

      . October 11, 1994, was the date that the motion for summary judgment of the defendants-UCI Holdings, Inc., Chemply, Inc. and Carmac Chemical Co. was granted. This October 11th order made all other orders in this case final pursuant to Pa.R.App.P. 341(b)(1), i.e., all claims and/or all parties had not yet been disposed of until October 11th. Until these defendants had their motions for summary judgment resolved, the earlier disposed of motions for summary judgment under review here did not become final for appeal purposes (per Rule 341) until October 11, 1994, when the last remaining defendants were granted summary judgment.

      . With our affirmance of the orders on the basis of the appellant’s failure to withstand the rigors of a motion for summary judgment, the last of her complaints — court error in not compelling the appellees to answer interrogatories as to precautionary measures taken at their worksites against cadmium — is held to be moot and/or meritless.


author: CERCONE, Judge: BECK, Judge,

text:
    664 A.2d 1020
    Helen TWILLA, Appellant, v. Carl TWILLA.
    Superior Court of Pennsylvania.
    Submitted March 27, 1995.
    Filed Sept. 5, 1995.

      Helen Twilla, pro se, appellant.
    John Gagliotti, Public Defender, Meadville, for appellee.
    Before McEWEN, BECK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final decree of divorce and distribution of the parties’ marital property. We affirm in part and vacate in part.

The parties were married on July 23, 1987 and separated on May 15, 1990. Appellant (wife) filed a complaint in divorce on May 21, 1990. A master’s hearing was held on January 9, 1991, and on February 19, 1991, the master filed his report. Both parties filed exceptions to the master’s report. On September 20, 1993, appellant filed a praecipe to place her exceptions on the lower court’s argument list. The trial court ordered an evidentiary hearing on matters which had occurred after the master’s hearing. The trial court conducted this hearing on February 3, 1994, March 30, 1994, and April 27, 1994. The trial court filed a final decree of divorce and equitable distribution of property on September 2, 1994. Appellant then filed this timely appeal.

In its final decree, the lower court determined, inter alia, that appellant was entitled to receive alimony from appellee in the amount of $200.00 per month for sixty months. The lower court found that appellee’s pension benefits were not marital property subject to equitable distribution, and that appellee had caused the parties to lose the equity in their marital residence by failing to keep up with the mortgage payments, causing the home to be sold at a foreclosure sale. The lower court also directed the parties to transfer the title to their 1986 Chevrolet Nova to a -wrecking company which currently is in possession of the automobile, and to split the proceeds of the sale of the automobile to this company equally. Appellant raises the following issues on appeal:

1. Did the lower court err in awarding a payment termed “periodic alimony” when the intent of the court was to equitably distribute the marital property, and the court had knowledge which would make alimony inappropriate?
2. Did the lower court err in not providing for equitable distribution of property with regard to appellee’s (husband’s) possession and use of the marital residence and the jointly owned automobile when the court had knowledge that husband wasted this marital property?
3. Did the lower court err in disregarding the master’s recommendation for division of husband’s civil service retirement benefit and instead made its own calculation based on information provided after the master’s hearing?

Before addressing these issues, we first set forth our standard of review.

The trial court has broad discretion in fashioning an award of equitable distribution which will be overturned only for abuse of that discretion. Oaks v. Cooper, 536 Pa. 134, 638 A.2d 208 (1994); Gordon v. Gordon, 436 Pa.Super. 126, 647 A.2d 530 (1994). “In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law or failure to follow proper legal procedure, abused its discretion.” Perlberger v. Perlberger, 426 Pa.Super. 245, 265, 626 A.2d 1186, 1197 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993).

“Our standard of review of an Order granting or denying alimony is abuse of discretion by the trial court, which will be found where the trial court fads to follow proper legal procedure or misapplies the law.” Baker v. Baker, 425 Pa.Super. 237, 239, 624 A.2d 655, 656 (1993). “The purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.” Nemoto v. Nemoto, 423 Pa.Super. 269, 275, 620 A.2d 1216, 1219 (1993). “Alimony following a divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill.” Id. at 275-76, 620 A.2d at 1219. “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay.” Perlberger v. Perlberger, 426 Pa.Super. at 277-78, 626 A.2d at 1203. “Necessity is the only requirement in determining the propriety of an alimony award and that necessity is judged by numerous considerations only some of which have to do with the rehabilitation of the recipient spouse.” Zullo v. Zullo, 395 Pa.Super. 113, 122 n. 3, 576 A.2d 1070, 1074 n. 3 (1990), affirmed, 531 Pa. 377, 613 A.2d 544 (1992). In determining the necessity of an award of alimony, the court is to consider all relevant factors, including:

(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in the determinations relative to alimony.
(15) The Federal, State, and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

23 Pa.C.S.A. § 3701(b).

In the instant case, the trial court awarded appellant $200.00 per month alimony for sixty months. Appellant contends that the award of alimony to her was improper because she is presently cohabiting with a member of the opposite sex and has been since December, 1993. Appellant also testified that she had signed a motion to withdraw her claim for alimony because of this circumstance, although the motion was not filed. Appellant contends that the trial court’s alimony award to her should have been designated as equitable distribution.

Section 3706 of the Divorce Code provides as follows:

No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.

23 Pa.C.S.A. § 3706. Under this statute, the trial court abused its discretion in awarding alimony to appellant. Appellant’s assertion that she is cohabiting with a member of the opposite sex defeats her entitlement to alimony under the statute, and we are unaware of any authority which would permit alimony to be awarded in such a situation.

Appellant contends that the amount the lower court awarded as alimony should have been designated as installment payments of equitable distribution. Appellant refers to Wagoner v. Wagoner, 538 Pa. 265, 648 A.2d 299 (1994) on this point. In Wagoner, the trial court directed that husband pay wife $1000 per month for six years. Id. at 267, 648 A.2d at 300. At the time the payments were ordered, the husband was earning $5000 per month and wife $700 per month. Id. Nine months later, the husband’s employment was terminated and he was unable to obtain similar employment. Id. Husband requested modification of the “alimony” award. The Pennsylvania Supreme Court determined that payments designated as “alimony” should not be considered as such because the lower court in that case specifically awarded such payments “in lieu of granting appellee her share of appellant’s pension, and [were] fashioned to pay out over time appellee’s interest in an asset which would otherwise remain undistributed until appellant’s retirement, some years later than appellee.” Id. at 270, 648 A.2d at 302. The court reasoned that the payments “were calculated to approximate the share of the pension which appellee would receive but in a form which would allow her, prior to distribution of the actual pension, to establish a retirement fund for herself.” Id. at 270, 648 A.2d at 302.

The concept of “equitable reimbursement” to a spouse where the marital assets were insufficient to compensate the spouse for her contribution to the marriage was recognized by the Pennsylvania Supreme Court in Zullo v. Zullo, 531 Pa. 377, 613 A.2d 544 (1992) and Bold v. Bold, 524 Pa. 487, 574 A.2d 552 (1990). In Bold, the lower court awarded wife monthly installments of $550.00 for sixty months, or $33,-000.00. Id. at 490, 574 A.2d at 553. The trial court found that during the first five years of the parties’ marriage, while the husband was in school, the wife had contributed $34,000.00 more than he did to the marriage. Id. at 495, 574 A.2d at 556. The Bold court found that “[bjecause there was insufficient marital property to compensate Mrs. Bold for her financial contributions to the marriage in excess of those made by Mr. Bold, the master and the trial court awarded Mrs. Bold a cash amount which the master called ‘reimbursement alimony’ and which the trial court called ‘equitable reimbursement.’ ” Id. The Pennsylvania Supreme Court upheld the award on the basis that the supporting spouse in a case such as Bold “should be awarded equitable reimbursement to the extent that his or her contribution to the education, training or increased earning capacity of the other spouse exceeds the bare minimum legally obligated support....” Id. at 496, 574 A.2d at 556. The court further held that the award of “equitable reimbursement” was correct because the property available for distribution did not equal “the amount of Mrs. Bold’s equitable distribution plus the amount of her equitable reimbursement.” Id. The court concluded that the amount of property to be distributed and the amount of cash payments for equitable reimbursement was “a matter for the sound discretion of the trial court,” and the court found no abuse of discretion by the lower court. Id. at 497, 574 A.2d at 556-57.

In Zullo, the lower court awarded the wife $300.00 per month “alimony” payments for forty-eight months ($14,400.00) to repay wife for husband’s portion of a marital debt which wife herself had paid. Zullo v. Zullo, supra, 531 Pa. at 379, 613 A.2d at 545. Husband sought to terminate these payments upon wife’s remarriage. Id. The Pennsylvania Supreme Court, relying on Bold, held that “wife was not receiving alimony in the traditional sense, but rather as a way to compensate her for the lack of property needed to satisfy joint obligations.” Id. at 382, 613 A.2d at 546. The Supreme Court concluded that the trial court had abused its discretion in granting husband’s petition to terminate the wife’s monthly payments. Id.

The court in Wagoner relied on Zullo and Bold for the “fairness” principle expressed in those cases. Id. The Wagoner court concluded that husband should not continue to be required to pay an obligation he was unable to pay, but that the lower court should consider certain stock holdings which had not yet been equitably distributed as a source of achieving the equity the lower court had sought to achieve by use of the “alimony” payments. Id. at 272-73, 648 A.2d at 303.

In the instant case, the lower court determined that it would award appellant “alimony” at the rate of $200.00 per month for five years. The trial court listed the following reasons for its decision:

1. [Appellant] meets some of the alimony criteria (23 Pa. C.S.A. 3701 et seq.)
2. We cannot make a proper equitable distribution of marital property award because there is not enough marital property to distribute.
3. [Appellant] received very little of the marital property, largely because of the husband’s conduct in causing the equity in the residential real estate to be lost.
4. Alimony escapes the automatic discharge in a bankruptcy proceeding if the husband declares bankruptcy.

Trial Court Opinion, September 1,1994, at 25. The trial court noted that husband’s failure to make the mortgage payments on the marital residence had resulted in appellant’s loss of equity in the house, in the amount of $11,739.00. The court also noted that “[i]f there was sufficient marital property to distribute we could make a distribution that would cover her loss.” Id. at 26. There was, however, according to the lower court, nothing to equitably divide. Id. The lower court then determined that the wife qualified for alimony, and awarded her payments totalling $12,000.00.

As we have already determined, the lower court’s award of alimony was error because appellant is cohabiting with a member of the opposite sex, which precludes such an award. However, it is evident from the lower court’s opinion that the court was seeking, by its award of alimony, to reimburse appellant for the lost equity in the marital home, which could not otherwise be fully compensated because of the lack of available marital assets. The cases previously discussed, Zullo, Bold, and Wagoner, all permitted the use of payments designated as “alimony” for satisfying the demands of equitable distribution. In this case, where the alimony award was improper, but there was insufficient marital property to fashion an equitable distribution award, it would have been appropriate for the lower court to have considered an installment payment arrangement to compensate appellant for her lost equity, similar to those found permissible in the above line of cases.

Accordingly, we will vacate the award of alimony and will remand the case to the lower court for entry of an order which will achieve the goal of compensation to appellant for her lost equity in the marital residence.

Next, appellant contends that the trial court erred in not awarding her equitable distribution of one-half of the equity in the marital residence ($11,737.00). We have discussed this issue in connection with the alimony issue raised on appeal. Therefore, it is not necessary to address it again.

Appellant contends that the trial court erred in determining that appellee’s pension benefits were not available for equitable distribution. The trial court found that appellee is covered by the Civil Service Retirement System (CSRS) for federal employees and is not covered by Social Security. Appellant, on the other hand, is covered only by the Social Security system. Relying on Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990), appeal denied, 526 Pa. 648, 585 A.2d 468 (1991), the trial court determined that it was necessary to offset the amount of Social Security benefits which appellee would have received if he had participated in that system from the present value of his CSRS pension because Social Security benefits are exempt from equitable distribution. In Cornbleth, the court considered a case in which the husband, like appellee, participated in CSRS but the wife did not. The court found:

One of our goals with regard to equitable distribution must be to treat different individuals with differing circumstances in a fashion so as to equate them to one another as nearly as possible, thus, eliminating a bias in favor of, or against, a class of individuals. To the extent individuals with Social Security benefits enjoy an exemption of that “asset” from equitable distribution we believe those individuals participating in the CSRS must, likewise, be so positioned. Consider for example an individual being divorced at approximately age fifty. Assuming a normal work history, that person will likely have accrued a substantial pension as well as a right to Social Security. When the pension is divided in equitable distribution there will be a diminution of the expected retirement income. However, the presence of Social Security will help offset the diminution.

Cornbleth, 397 Pa.Super. at 425, 580 A.2d at 371. The court found that a participant in CSRS is at a disadvantage “when compared to the majority of the work force” because a substantial amount of income which would be used to fund a future Social Security benefit (which would be exempt from equitable distribution), “is not similarly shielded for the CSRS participant.” Id. at 426, 580 A.2d at 372. The Cornbleth court further determined that in order to “facilitate a process of equating CSRS participants and Social Security participants,”

we believe it will be necessary to compute the present value of a Social Security benefit had the CSRS participant been participating in the Social Security system. This present value should then be deducted from the present value of the CSRS pension at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes.

Id. at 427, 580 A.2d at 372.

The lower court in this case noted that the master did not perform the calculation required by Cornbleth. Trial court opinion at 7. The court noted that appellee had filed a brief related to his exceptions to the master’s findings, in which he included calculations relative to a Cornbleth computation. The court noted that this information was not part of the record before the master, but decided to consider it rather than remand the proceedings to the master for additional hearing. Id. at 8. The court then made calculations and determined that appellee’s CSRS pension benefit as of the date of separation was less than the portion of his pension which is equal to a Social Security benefit. Id. at 8-9. The court concluded that since the value of the CSRS pension benefit is less than the converted amount of Social Security benefits, none of the CSRS benefit may be considered marital property for equitable distribution. Id. at 9-11. Therefore, no funds for equitable distribution were available from pension benefits under the trial court’s decision.

Appellant contends that the trial court’s decision on appellee’s pension benefits was erroneous because the master considered the wife’s social security benefits in his determination, and therefore, Cornbleth should not be applied because the master treated the parties equally. Appellant cites Elhajj v. Elhajj, 413 Pa.Super. 578, 605 A.2d 1268 (1992) in this regard. In Elhajj, both husband and wife participated in CSRS; neither paid social security taxes. In that case, the court held that the Combleth computation was not necessary because the goal of the Combleth court “was to equate the pensions of the husband and wife by excising the equivalent value of Social Security benefits from the husband’s pension and rendering that portion of the pension non-marital property.” 413 Pa.Super. at 583, 605 A.2d at 1271. The court concluded that since neither husband or wife in Elhajj was entitled to social security benefits, the trial court did not abuse its discretion in not applying Cornbleth. The instant case is different from Elhajj in that only husband and not wife, participated in the GSRS system. Therefore, the lower court was correct in applying Cornbleth to the instant case.

Appellant also contends that the lower court erred in applying Cornbleth because the “evidence” which the lower court used for its calculations was provided after the master’s hearing. Appellant asserts that the lower court should not have considered this evidence. Appellant cites Pavie v. Pavie, 414 Pa.Super. 294, 606 A.2d 1207 (1992) in support of this position. In Pavie, a master heard the parties’ equitable distribution claims and entered a report and recommendation. Within ten days of the master’s report, wife filed exceptions. Id. at 296, 606 A.2d at 1208. The trial court held a “hearing on the Exceptions to Equitable Distribution.” Id. Although the court called the hearing “de novo,” the court only heard argument on the exceptions. Id. No witnesses were sworn and no testimony was taken. Id. On appeal, the Superior Court held that where claims are referred to a master, Pa. R.C.P., Rule 1920.55, 42 Pa.C.S.A., governs the proceedings. Id. at 299, 606 A.2d at 1209. If this procedure is followed, “[a] de novo hearing is not to be held before the trial court, rather the court is to hear arguments on those matters raised in the exceptions.” Id. at 301, 606 A.2d at 1210.

In the instant case, the lower court decided to hold a hearing on the exceptions because of the length of time between the master’s hearing and the date appellant listed her exceptions for argument. The master’s hearing occurred January 9, 1991 and appellant filed a praecipe for argument on her exceptions on September 20, 1993. The trial court, in deciding to conduct an evidentiary hearing, determined that changes in the parties’ circumstances had occurred since the master’s hearing. The trial court specifically indicated that the hearing was to focus solely on matters which had occurred since the master’s hearing.

We find no error in the lower court’s decision. A significant amount of time had elapsed since the master’s hearing; thus it was necessary to take additional testimony in order to properly rule on the parties’ exceptions. In addition, the master improperly considered the wife’s social security benefits in determining the equitable distribution of appellee’s pension. Thus, it was proper for the trial court to reconsider the master’s reasoning as to the pension benefit.

Appellant contends that she is entitled to one-half of the rental value of the marital residence during the time that appellee lived in the marital residence without making mortgage payments. She also asserts that she is entitled to reimbursement of the cost of renting a garage for the Chevy Nova from the time appellee abandoned it until it was taken to a junk yard. Neither of these issues was raised in appellant’s exceptions to the master’s report. Thus, appellant has waived them. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. (issues not raised in the trial court may not be raised for the first time on appeal). The trial court considered appellant’s allegations as to the marital residence but found that appellant had failed to provide sufficient evidence of the fair market value of the residence. For this reason also, the contention is waived.

Appellant also argues in connection with the Chevy Nova that she should be entitled to one-half of the market value of the automobile established by the master. A review of the master’s report indicates that the master valued the car at $2100.00. The lower court indicated that the automobile should be valued at an amount to be determined by the junk yard where the automobile is located. We do not find that the lower court abused its discretion in determining, three years after the master’s hearing, that the car should be given the value assigned by the junk yard. However, in light of the trial court’s findings that appellant lost more than $11,000 in equity due to appellee’s wasting of the marital residence as an asset, and our finding that the lower court’s award of alimony to appellant was an abuse of discretion, the lower court’s award of only one-half the value of the car to appellant is also an abuse of discretion. Because of the lost equity in the house and the unavailability of sufficient marital assets to compensate appellant for this loss, the lower court should have awarded her the entire value of the automobile.

Accordingly, we will vacate the lower court’s order awarding appellant alimony. We will also vacate the award of one-half the value of the 1986 Chevy Nova and order that appellant is entitled to the entire amount of the value of this asset. The lower court’s order is affirmed in all other respects. The case is remanded to the lower court for entry of an order which will compensate appellant for her lost equity in the marital residence, as previously discussed in this memorandum.

Order affirmed in part and vacated in part. Case remanded to lower court for further proceedings in accordance with this memorandum.

BECK, J., files a dissenting statement.

BECK, Judge,

dissenting:

I join in that portion of the majority opinion which affirms the trial court’s treatment of the husband-appellee’s pension.

I agree with the majority that the trial court’s characterization of payments to the wife as alimony is incorrect. In light of the facts of this case and the trial court’s stated reasons for entry of the award, the trial court’s order should more properly have been designated equitable reimbursement rather than alimony. See Wagoner v. Wagoner, 538 Pa. 265, 648 A.2d 299 (1994); Zullo v. Zullo, 531 Pa. 377, 613 A.2d 544 (1992); Bold v. Bold, 524 Pa. 487, 574 A.2d 552 (1990). Unlike the majority, however, I would not remand, but would affirm the payments to the wife and designate them as equitable reimbursement.

The majority’s holding that the payments to the wife are not alimony makes the majority’s discussion of wife’s lack of entitlement to alimony unnecessary and dicta. I therefore do not join in that portion of the majority opinion.

Further, I would affirm the portion of the trial court’s order awarding appellant one-half of the value to be assigned by the junkyard to the parties’ automobile. Appellant’s argument goes to the valuation of the automobile, not to the apportionment of its value. The trial court found that both parties had acted unreasonably in connection with the disposition of this asset, and thus that both parties had contributed to its ultimate waste. This finding is supported by the record, and I thus cannot conclude that the trial court abused its discretion by using the reduced junk value of the automobile rather than the market value assigned by the master, or in dividing that value equally between the parties. Moreover, appellant did not request an award of the entire value of the automobile in compensation for other assets wasted by appellee. In the absence of either an abuse of discretion in the findings of fact upon which the trial court’s order was based or an argument by appellant that the order was improper in light of the overall property distribution scheme, I can see no basis for disturbing the trial court’s order.

Accordingly, I would direct the trial court to redesignate its alimony order as an order for equitable reimbursement. In all other respects, I would affirm the order of the trial court.


author: DEL SOLE, Judge:

text:
    664 A.2d 1028
    COMMONWEALTH of Pennsylvania v. Jon Patrick DECKER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1995.
    Filed Sept. 7, 1995.

      William Braught, Assistant Public Defender, Carlisle, for appellant.
    Jaime Keating, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   DEL SOLE, Judge:

Jon Decker appeals from the judgment of sentence entered following his conviction for simple assault. (18 Pa.C.SA 2701(a)(1)). Appellant was adjudicated guilty after a stipulation of facts was presented at a non-jury trial. A sentence of supervised probation for a period of six months followed by unsupervised probation for six months was imposed upon Appellant. This appeal followed.

On January 12, 1993, Appellant’s spouse, Shirley Decker, obtained a protective order against Appellant under the Protection From Abuse (PFA) Act. The order was entered by consent on behalf of Mrs. Decker and her two minor children Wendy Barrick and Bradley Barrick. The order provided, in part, that Appellant “is enjoined from physically abusing the plaintiff, Shirley M. Decker, and her minor children, or from placing them in fear of abuse,” and that Appellant “is ordered to refrain from harassing the plaintiff or her minor children.” (Trial court op. 1-20-94 at 1-2).

Appellant was charged with indirect criminal contempt on July 25, 1993. The complaint alleged that Appellant violated the PFA order by verbally harassing Mrs. Decker, slapping her across the face, shoving her against a door frame which caused her to strike her head resulting in a lump. Appellant admitted at a hearing held on July 26, 1993 that he violated the PFA order by engaging in the conduct specified in the complaint. The court entered an order adjudicating Appellant in contempt of the PFA order entered on January 12, 1993 and amended on April 8, 1993. Appellant was sentenced to a three month term of imprisonment. Subsequently, Appellant was charged with simple assault for the same episode occurring on July 25,1993. Appellant filed a motion to dismiss the information charging him with simple assault on the grounds that such prosecution was barred by his prior conviction for violating the PFA order under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. The trial court denied the motion to dismiss the information. The case proceeded to trial and defendant was found guilty of simple assault.

The query raised is whether the Double Jeopardy Clause of the Fifth Amendment bars a prosecution on the charge of simple assault where Appellant was convicted of indirect criminal contempt based upon the same set of facts.

The Double Jeopardy Clause, applicable to the States through the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. ConstAmend 5. Furthermore, the Double Jeopardy Clause:

protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

The trial court and the Commonwealth both cite Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985), as controlling in this case. There, the defendant’s wife obtained a PFA order directing defendant to refrain from physically abusing her or their children. One month later, the defendant forced his way into her new residence and physically abused his wife. A criminal complaint was filed against the defendant by the police charging him with simple assault and trespass. Defendant’s wife then requested that defendant be charged with contempt. The defendant was arraigned on the contempt charge, and remained in jail for nine days until the contempt hearing since he was unable to post bail. At the hearing, defendant was found in contempt of the PFA order and he was ordered to pay a fine and costs, and he was discharged from prison.

Police later filed another complaint against Allen for raping his wife on the same evening that the other charges arose. All three charges were consolidated for trial and defendant filed an Omnibus Pretrial Motion to Quash the three criminal informations on the grounds that they were barred by double jeopardy. The motion was denied and the superior court affirmed the trial court on the trespass and rape charge, but reversed on the simple assault charge.

Our Supreme Court granted both parties’ petitions for allowance of appeal. The court applied the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) to determine whether the protections against second prosecutions or multiple punishments for the same offense have been violated:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....”

The court found the dissent’s reasoning in People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (1977), cert. denied sub nom. Illinois v. Gray, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978) to be persuasive. The court determined that even though an assault was involved in the indirect contempt proceeding, the contempt proceeding involved elements not required for a finding of simple assault. The contempt conviction was based on the fact that Allen willfully committed a particular act which violated the PFA order. The court placed emphasis on the willful disobedience element of the contempt proceeding and considered it a material factor in distinguishing criminal contempt from other criminal offenses. The court elaborated that criminal contempt tends to lessen the dignity of the court or impede the process of the court, and contempt proceedings are instituted to vindicate the court’s authority. The contempt process serves as an instrument to discourage abuse of the judiciary and demands that the judge not be required to consider the effects of foreclosing subsequent criminal prosecutions. The court held that, under the test enunciated in Blockburger, indirect criminal contempt and simple assault contain separate elements and vindicate different interests; therefore, Allen’s double jeopardy rights were not violated by the prosecution on the assault charge after a finding of contempt in violating the PFA order by physically abusing his wife.

Following Commonwealth v. Allen, supra, we have held that a conviction of criminal contempt, direct or indirect, does not preclude a subsequent criminal prosecution for the same conduct underlying the contempt proceeding. See e.g. Commonwealth v. Aikins, 422 Pa.Super. 15, 618 A.2d 992 (1993); Commonwealth v. Manney, 421 Pa.Super. 244, 617 A.2d 817 (1992); Commonwealth v. Warrick, 415 Pa.Super. 385, 609 A.2d 576 (1992) (Warrick II). The Warrick II court commented that “[ujntil either the Pennsylvania Supreme Court or the United States Supreme Court clearly indicates that a conviction of direct criminal contempt triggers double jeopardy protections for additional criminal charges based on the same conduct, we cannot grant the type of relief sought by appellant.” Id. 415 Pa.Super. at 392, 609 A.2d at 580.

Appellant asserts that this court is no longer bound by the double jeopardy analysis in Commonwealth v. Allen, supra, in light of the United States Supreme Court’s decision in U.S. v. Dixon and Foster, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The fact pattern in Dixon and Foster resembles those in the case sub judice. In that case, one of the Respondents, Michael Foster, had a civil protection order (CPO) against him as a result of the physical attacks upon his estranged wife. The CPO consented to by Foster required him not to molest, assault or physically abuse his wife. Over a period of eight months, Foster’s wife filed three, motions to have Foster held in contempt for numerous CPO violations consisting of threats and assaults on separate occasions. A hearing was held on the matter. With respect to the assault charges, Mrs. Foster had to prove: 1) that there was a civil protection order; and 2) that the assault as defined by the criminal code actually occurred. Foster was found guilty of four counts of criminal contempt, including two of the assault counts. He was sentenced to a total of 600 days imprisonment.

The United States Attorney’s Office subsequently decided to obtain an indictment charging Foster with simple assault, two counts of threats and assault with intent to kill. The simple assault and assault with intent to kill charges were based on the same events for which Foster had been held in contempt. Foster filed a motion to dismiss on double jeopardy grounds which the trial court denied. Foster appealed to the District of Columbia Court of Appeals. Relying on Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the Court of Appeals held that Foster’s subsequent prosecution was barred by. the Double Jeopardy Clause.

On appeal, the U.S. Supreme Court held that, under Block-burger, a subsequent prosecution for simple assault was barred by the Double Jeopardy Clause, but the remaining counts for assault with intent to kill and threats were not. The simple assault was barred because the indictment charging Foster with assault under § 22-504 of the District of Columbia crimes code was based upon the same event that was the subject matter of his prior contempt conviction for violating the provision of the civil protection order prohibiting Foster to commit simple assault under § 22-504. The underlying substantive criminal offense — simple assault — is a species of lesser-included offense of Foster’s contempt violation. The Court also noted that the text of the Double Jeopardy Clause focuses on whether the offenses are the same, not the interests that the offenses violate. The Court concluded that the offense of simple assault does not include any element not contained in Foster’s previous contempt violation, therefore, the second prosecution fails Blockburger.

Recently, in Commonwealth v. Caufman, — Pa.-, 662 A.2d 1050 (1995), (Cappy, J. dissenting), the Pennsylvania Supreme Court quoted Dixon and Foster as reapproving the Blockburger test. Caufman then cites Allen, supra, solely for the proposition that Blockburger has long been the double jeopardy test applied in this Commonwealth. However, since Dixon rejected the reasoning expounded in Allen, we recognize that the result reached in Allen is no longer valid.

Instantly, since the United States Supreme Court clearly spoke on the issue of a criminal contempt conviction triggering double jeopardy protections for additional criminal charges based upon the same conduct, we will apply the Court’s analysis in Dixon and Foster to the case before us. Appellant was ordered by the PFA to abstain from abusing his wife. The Pennsylvania Protection From Abuse Act defines abuse as “[attempting to cause or intentionally, knowingly or recklessly causing bodily injury ...” 23 Pa.C.S.A. § 6102. In the indirect criminal contempt proceeding, the court found that Appellant willfully disobeyed the PFA order by abusing his wife. Appellant was later found guilty of simple assault based upon the same conduct. Section 2701(a)(1) of the crimes code states that a person is guilty of assault if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” The two statutes contain identical language. Under the same elements Blockburger test, the criminal contempt offense contains one element that the simple assault does not — wilful disobedience of the PFA order; but, the offense of simple assault, under the facts of this case, does not contain any elements not included in the criminal contempt offense. Because simple assault is a lesser-included offense of the criminal contempt, the subsequent prosecution is barred by the Double Jeopardy Clause.

Judgment of sentence vacated and Appellant is discharged. Jurisdiction relinquished.

      . 23 Pa.C.S.A. §§ 6101-6117.

      . On April 8, 1993, Appellant had previously been adjudicated in contempt of the PFA order dated January 12, 1993. At that time, he was sentenced to unsupervised probation for six months, and no petition to revoke the probation was filed as a result of the second adjudication of contempt on July 26, 1993.

      . We shall not address the Article I, Section 10 double jeopardy provision set forth in our state constitution since Appellant only inquires whether his prosecution is barred under the Fifth Amendment of the United States Constitution.

      . In Grady v. Corbin, the Supreme Court held that in addition to satisfying the Blockburger test, a subsequent prosecution must also pass the "same conduct” test to avert the bar of double jeopardy. The Grady test provides that, "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted,” the second prosecution will not be permitted. U.S. v. Dixon and Foster, 509 U.S. at-, 113 S.Ct. at 2856, quoting, Grady, 495 U.S. at 510, 110 S.Ct. at 2087. The Supreme Court in Dixon, however, specifically overruled the Grady "same conduct” test, determining that it was inconsistent with earlier Supreme Court precedent and lacked constitutional roots, and it reinstated the Blockburger test.

      . The dissent in Caufman, supra, comments that Dixon and Foster holds that a conviction for criminal contempt for violating a protection from abuse order bars a subsequent prosecution for simple assault based upon the same event. Dixon explicitly disapproved the rationale advanced in Alien, supra.