text:
    673 A.2d 382
    Rigmor B. LITMANS, Appellant, v. Murray I. LITMANS. Rigmor B. LITMANS v. Murray I. LITMANS, Appellant.
    Superior Court of Pennsylvania.
    Argued October 26, 1995.
    Filed March 20, 1996.

      Susan Curran, Pittsburgh, for Rigmor Litmans.
    Chris F. Gillotti, Pittsburgh, for Murray Litmans.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the lower court’s order denying in part and granting in part the parties’ exceptions to its decree of equitable distribution. We affirm in part and reverse in part.

The lower court comprehensively stated the facts underlying the instant case:

Plaintiff [appellant] Rigmor Litmans (“Wife”) and defendant [appellee/cross-appellant] Murray Litmans (“Husband”) were married on July 8, 1967. On September 18, 1985, the parties separated and Wife left the family residence. The parties were divorced on March 10, 1992. The parties had two children during the marriage: Ian, who was born on December 22, 1969, and was 23 years old at the time of the hearing; and Brian, who was born on May 20, 1972, and was 21 years old at the time of the hearing [June 21-23,1993].
Husband’s mother died in May 1969 and Husband inherited from her estate a residence at 5512 Dunmoyle Street, Pittsburgh, Allegheny County. Husband also inherited the majority .of the furnishings in the residence and certain jewelry. From January 1969 through September 1985 the parties lived together in the Dunmoyle Street residence. Husband and the parties’ children continued to live there even after Wife had left the residence. During the marriage Wife handled the family finances and paid all of the bills. Wife was a heavy drinker in the 1970’s and all parties agree [that] she was a problem drinker by 1980.
Wife was 52 years old at the time of the hearing. She is a graduate of a university in Sweden and has the equivalent of a Master’s Degree in French. Since November 1988 she has been employed as a secretary at TYK Refractories. Her starting salary was $12,000 per year and she now earns approximately $12,500 per year. Wife enjoys her job and does not want to look elsewhere for employment that pays more. In 1993, Wife was involved in a serious automobile accident. She has since recovered and is working again.
Husband was 56 years old at the time of the hearing. He is an attorney. In 1981, Husband incorporated the private practice of M.I. Litmans, P.C. of which he is the sole shareholder and manager. In 1985, Husband suffered a heart attack and underwent by-pass surgery. After his recovery, in April 1986, he left private practice to become a partner at Eckert Seamans Cherin & Mellot (hereinafter “Eckert Seamans”) where he grossed over $123,000 the first year. Husband left Eckert Seamans in December 1989. In January 1990 he joined the Karlovitz firm which dissolved shortly thereafter. In 1990, Husband became a partner with Meyer, Darragh, Buckler, Bebenek & Eck (hereinafter “Meyer Darragh”) and stayed there for a year. At Meyer Darragh he made $10,000 per month. From 1990 until June 30, 1992, Husband was a partner with Frank Bernstein, et al. in Maryland and was earning $12,000 per month. This firm dissolved on June 30, 1992. In the summer of 1992, Husband became a partner with the Washington D.C. firm of Schnader, Harrison, Segal and Lewis at a contract salary of $240,000 per year. He is currently employed with Schnader, but now is compensated pursuant to a point system which grosses him $140,000 per year.
When the parties separated their son Ian was enrolled in the Cardigan Mountain school in New Hampshire and their son Brian was enrolled at Shadyside Academy. After separation, Husband continued to maintain the children in private schools as had been the intention of both parties____
Following the separation, an Order was entered requiring Husband to pay Wife alimony pendente lite (“APL”) in the amount of $685 per month plus $100 per month for medical expenses. From June 21 through June 23, 1993, a hearing was held to determine equitable distribution of the parties’ marital estate. After hearing arguments and considering the evidence presented, this court issued its Findings of Fact and Decree Nisi. Both parties filed Motions for Post-Trial Relief. The court granted in part and denied in part Wife’s Motion for Post-Trial Relief. In addition, the Court denied Husband’s Motion for Posh-Trial Relief. Wife has appealed and Husband has cross-appealed.

Trial court opinion, March 7,1995, at 1-3. On appeal, wife/appellant has raised the following issues:

1. Whether the trial court erred in its valuation of the Butcher Singer Investment Accounts?
2. Whether the trial court erred in its valuation and distribution of the marital estate by treating the maturity value of the pension and profit sharing plan certificates of deposit as present value, thereby awarding to husband a disproportionate share of the marital estate?
3. Whether the trial court erred in failing to grant wife’s petition for modification of alimony pendente lite or her petition for counsel fees?
4. Whether the trial court erred in its inclusion in marital debt $78,966 in loans from the corporate pension and profit sharing plans to husband?

Husband/cross-appellant raises the following additional issues on appeal:

1. Whether the trial court erred in valuing the inherited marital residence as of the date of the hearing rather than the date of separation?
2. Whether the trial court erred in failing to reduce the marital estate by the amount of marital debt that existed at the time of separation, including federal taxes, real estate taxes, private school tuition, utility bills and consumer debt?
3. Whether the trial court erred in failing to give husband credit for providing for the private school education of the children?

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

Our scope of review of an order of equitable distribution is limited. Miller v. Miller, 421 Pa.Super. 23, 617 A.2d 375 (1992), appeal denied, 525 Pa. 664, 583 A.2d 794 (1990). Such awards are within the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. Id. at 28, 617 A.2d at 377. “An abuse of discretion will be found by this court only if the trial court failed to follow proper legal procedures or misapplied the law.” Id. at 28, 617 A.2d at 377-78.

Wife first contends that the trial court erred in its valuation of the Butcher Singer investment accounts by totalling the number of units held in the accounts rather than the dollar value of the holdings, and by failing to include the interest earned on the accounts. In its opinion of March 7, 1995, the trial court acknowledged that it had erred in valuing three accounts. The lower court, in its final order, valued account number 030-46592 (Al), at $54,553.00. In its opinion of March 7,1995, the lower court admitted that this figure was incorrect and was the result of a typographical error. The lower court stated that the correct amount was $64,553.00. Trial court opinion, at 5. In her brief on appeal, wife indicates that she agrees with the correction made by the lower court in its March 7, 1995 opinion.

In that same opinion, the lower court also corrected the valuations of two other investment accounts. Trial court opinion, March 7, 1995, at 5-6. Wife indicates in her brief that she accepts the corrected valuations made by the lower court for these two accounts. Husband does not object to the corrections made by the lower court in its March 7, 1995 opinion. Therefore, it is not necessary for us to further address this issue.

Wife next contends that the trial court erred in its valuation and distribution of the marital estate by treating the maturity value of the pension and profit sharing plan certificates of deposit as their present value. Wife argues that the present value of. the certificates is much lower than their maturity value. By using the maturity value, wife asserts that she did not receive a fifty-five percent share of the marital estate, but rather only about forty-one percent.

At the hearing in the lower court, evidence was offered to the effect that the certificates would be worth $100,342.00 each at their maturity dates in the year 2004. Neither party has cited any other evidence of the value of the certificates which was offered in the lower court. In fact, wife/appellant admits that neither party submitted evidence as to the present value of the certificates. Brief for Wife/Appellant, at 12. The trial court, in its equitable distribution scheme, awarded wife both of the C.D.s.

In determining the value of marital property, the court is free to accept all, part, or none of the testimony as to the true and correct value of property. Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988). “[W]here the evidence offered by one party is uncontradicted, the court may adopt this value although the resulting valuation would have been different if more accurate and complete evidence had been presented.” Holland v. Holland, 403 Pa.Super. 116, 120, 588 A.2d 58, 60 (1991), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991).

In the instant case, the trial court did not abuse its discretion in adopting the only valuation amount submitted by the parties. Wife now contends that the present value of the C.D.s is far less than the value assigned by the lower court. She failed, however, to present any such evidence in the lower court and thus cannot now raise the issue on appeal. Pa. R.A.P., Rule 302(a), 42 Pa.C.S.A. (issues not raised in the lower court will not be considered for the first time on appeal).

Wife’s contention that the lower court’s distribution scheme is flawed because the court used the maturity value of the C.D.s must also fail. The lower court addressed this issue in its opinion of March 7,1995, stating as follows:

The Court did consider that the maturity value will not be reached until 2004. Wife testified that the Certificates of Deposit had been set up for her by Husband in order for her to have retirement funds.

Trial court opinion, at 7.

Among the factors to be considered by a court in making an equitable distribution of property are:

(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

23 Pa.C.S.A. § 3502(a). Considering the evidence of wife’s minimal income from her own job, it was not an abuse of discretion for the trial court to distribute the marital assets so as to provide a substantial source of funds for wife in her retirement. The trial court’s distribution scheme included a payment to wife of $81,787.38 in the three years following the order to effectuate the 55/45 distribution. Thus, in addition to the certificates of deposit and other marital assets awarded to her, wife will also receive a substantial amount of cash during the three years subsequent to the equitable distribution order. Wife has failed to prove that the court’s award constituted an abuse of discretion.

Wife’s next contention on appeal is that the lower court erred in failing to grant her petition for modification of alimony pendente lite, or in the alternative to grant her petition for counsel fees. The record shows that in 1986, the lower court awarded appellant alimony pendente lite (a.p.l.) in the amount of $685.00 per month plus $100.00 per month for medical expenses. The hearing officer’s determination was based on husband’s earnings of $3,500.00 per month. The hearing officer noted that husband’s actual net monthly income was $5,000.00 per month, but in light of husband’s testimony that he would be working at less than his previous capacity due to heart surgery, the hearing officer used the amount of $3,500.00, or seventy percent of husband’s actual net income. The hearing officer attributed to wife an earning capacity of $1,000.00 per month. Also considered in this determination was the fact that husband was supporting both children, in the amount of approximately $340.00 per month, and was also paying for an automobile and insurance for wife.

In November, 1991, wife filed a petition for modification of the amount of a.p.l. The basis for wife’s petition was (1) husband’s income had substantially increased; (2) both children had severed all ties with her; and (3) husband was no longer providing her with a car. The lower court ordered that the modification petition would be heard at equitable distribution.

In its decree nisi, the lower court denied appellant’s petition for modification of a.p.l., and terminated the award. In denying wife’s petition for modification, the lower court reasoned that “Wife’s income has remained stagnant by her choice and Husband’s income is approximately the same as it was at the time of the first order.” Trial court opinion, March 7, 1995, at 13. Therefore, the lower court determined that a modification of a.p.l. was not warranted. Id. at 14.

The amount awarded as alimony pendente lite is within the sound discretion of the trial court and absent abuse of discretion, the appellate court will not disturb the trial court’s award. Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, 506 U.S. 868, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992). “APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare.” DeMasi v. DeMasi, 408 Pa.Super. 414, 420, 597 A.2d 101, 104 (1991), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993). “APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse.” Id. at 421-22, 597 A.2d at 105.

An award of alimony pendente lite may be modified or vacated by a change in circumstances. Jeffery v. Jeffery, 228 Pa.Super. 64, 296 A.2d 873 (1972). The award is always within the control of the court. Id. It is the burden of the party seeking to modify an order of support to show by competent evidence that a change of circumstances justifies a modification. Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976) (construing order of child and spousal support). Before a revised order of a.p.l. arrearages may be entered, it is necessary to obtain testimony as to the petitioning spouse’s economic circumstances. Price v. Price, 419 Pa.Super. 74, 614 A.2d 1386 (1992).

In the instant case, the evidence at trial showed that from 1986 to 1989, husband worked for Eckert Seamans law firm. Husband testified that his net income was less than his prior income from his own practice. N.T. June 21-23, 1993, at 246. From 1989 to 1990, husband worked for two other Pittsburgh law firms. In 1990, husband joined the Frank Bernstein law firm in Maryland. Id. at 250. This employment lasted until 1992. Id. at 253. Husband then went to work for Schnader, Harrison, Segal & Lewis in Washington, D.C. Id. at 256. During 1992, husband earned $12,500 per month from this firm. Id. at 257. At the time of the hearing in 1993, husband’s gross monthly compensation was $10,400.

Husband conceded that his net monthly income has increased $2,176.00 per month from the time of the initial award of a.p.l. in 1986. Brief for appellee/husband, at 46. The amount of the increase is based on the difference between husband’s present income and his $5,000.00 per month net income in 1986. Wife testified that she began working in 1988, and has a current yearly gross income of $12,500.00. Id. at 79. She also stated that she enjoys her present employment. Id. at 153-56. Although wife obtained the equivalent of a master’s degree in French from a Swedish university in 1962, she was not employed in the work force from the time of the parties’ marriage in 1967 until she obtained her present employment.

“An award of alimony pendente lite is designed to enable the dependent spouse to prosecute or to defend a divorce action.” DeMasi v. DeMasi 366 Pa.Super. 19, 38, 530 A.2d 871, 880 (1987), appeal denied, 517 Pa. 631, 539 A.2d 811 (1988). “It is also designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse.” Id. at 38, 530 A.2d at 880. In ruling on a claim for alimony pendente lite, the court should consider the following factors: the ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties. Orr v. Orr, 315 Pa.Super. 168, 461 A.2d 850 (1983).

In the instant case, the record demonstrates at least two changes in circumstances since the entry of the award of a.p.1. in 1986. First, husband had recovered from his heart surgery, a significant factor considered by the hearing officer in 1986. Due to this factor, the hearing officer based his award of a.p.l. on a net monthly income of $3,500.00 on the part of husband, or seventy percent of his normal net monthly income at that time. In addition, husband’s net monthly income had increased by at least $2,000.00 per month during the time period relevant to the petition for modification.

Wife had also obtained employment since the entry of the award of a.p.l. This did not, however, amount to a change in circumstances, as the hearing officer in 1986 attributed to wife an earning capacity of $1,000.00 per month. In her present employment, wife earns a gross amount of just over $1,000.00 per month.

Wife’s testimony at the hearing revealed a decline in her circumstances since the parties’ separation. She lives in a rental unit, and because of irregularities in payments from husband, is sometimes behind in her rental payments. N.T. at 104-05. This is in contrast to the parties’ life together when they lived mortgage-free in a residence given to husband by his mother. Husband continues to reside there. Wife has had on occasion to borrow money from her mother to sustain her. Wife no longer travels, as she did when married. Husband and the children, however, continue to travel extensively.

In denying wife’s petition for modification, the lower court relied in part on wife’s failure to obtain higher-paying employment. Wife testified that she enjoys her present job. She also testified that she has sought other employment since commencing her present employment, id. at 152, 155, but that she has not been offered employment at a higher salary. Id. at 155. Wife testified that she understands that she may not be able to continue in her present employment depending on her financial circumstances. Id. at 155-56. This testimony does not support an outright refusal by wife to obtain other employment, as suggested by the lower court.

The lower court also determined, in denying wife’s petition for modification of a.p.l., that husband’s income was approximately the same as it was at the time of the first order. An increase of $2,000.00 per month in net (disposable) income cannot be considered the “same” or even “approximately the same” as the prior base amount. An increase of $2,000.00 per month of net income is a significant amount, especially in light of the great disparity in earning ability between the parties here and the amount of a.p.l. which wife received at the time of the hearing ($658.00 per month) (ie., husband’s increase in net income is more than three times the total monthly amount of a.p.l. which wife was receiving at the time of the hearing).

It is clear from the testimony at trial that wife has not maintained a lifestyle approximating that of the parties during the marriage. In addition, wife demonstrated significant changes in circumstances since the entry of the original award of a.p.l. in 1986. Considering these factors, we find that the lower court abused its discretion in failing to grant -wife’s petition for modification (increase) of the amount of a.p.l. due to changed circumstances. We will reverse the lower court’s order denying wife’s petition and remand the case to the lower court for a determination of the amount of the increase.

Wife contends that the lower court erred in failing to award her counsel fees. A claim that counsel fees were improperly denied is reviewed under the following standard:

We will reverse a determination of counsel fees and costs only for an abuse of discretion. The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependent spouse to maintain or defend the divorce action without being placed at a financial disadvantage; the parties must be “on par” with one another----
Counsel fees are awarded based on the facts of each case after a review of all the- relevant factors. These factors include the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution----
In most cases, each party’s financial considerations will ultimately dictate whether an award of counsel fees is appropriate.

Perlberger v. Perlberger, 426 Pa.Super. 245, 283, 626 A.2d 1186, 1206-07 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993) (citations omitted). “Counsel fees are awarded only upon a showing of actual need.” Harasym v. Harasym, 418 Pa.Super. 486, 496, 614 A.2d 742, 747 (1992).

In the instant case, the lower court determined that wife was not entitled to counsel fees because she had not demonstrated actual need. The court reasoned that wife is going to receive a large amount of cash as part of her share of equitable distribution, and therefore she did not demonstrate actual need. Trial court opinion, March 7, 1995, at 24-25. The lower court relied on Fitzpatrick v. Fitzpatrick, 377 Pa.Super. 268, 547 A.2d 362 (1988), for this result. Wife contends that the trial court erred in this determination because she needs the cash award to maintain her basic needs until her retirement funds mature in the year 2004. Brief for appellant Rigmor Litmans, at 18.

In Fitzpatrick, the trial court awarded wife $10,000 in counsel fees, an amount which was less than the costs incurred. Id. at 281, 547 A.2d at 369. On appeal, the Superior Court reversed the award, holding that “wife’s prospective receipt of a large amount of cash vitiates what would otherwise constitute need, which is the proper basis on which attorney’s fees and court costs are to be recompensed.” Id. at 282, 547 A.2d at 369. Therefore, the Fitzpatrick court found the award of attorneys’ fees to wife unjustified. The court’s opinion in Fitzpatrick did not indicate the actual amount of cash wife was to receive.

The Fitzpatrick court relied on Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985) for its holding on the issue of counsel fees. In Vajda, the master awarded wife $3,192.06 in counsel fees. Id. at 579, 487 A.2d at 412. The trial court reduced this amount to $500.00. On appeal, the Superior Court affirmed the trial court’s decision as to counsel fees, holding that wife would have substantial assets available after the marital residence was sold from which her attorney’s fees could be satisfied. Id. at 579-80, 487 A.2d at 413.

In the instant case, wife is to receive $81,787.38 from husband within three years of the equitable distribution order, either by payments of $2,272 per month or $27,263.00 once per year. She also received valuables amounting to approximately $28,000 and both of the certificates of deposit, which, in the year 2004, will each possess a value of more than $100,000. These certificates, however, are ostensibly for wife’s retirement. See supra. Husband, on the other hand, received the increase in value of the marital residence. The residence was valued at $272,000.00 at the time of hearing. Husband additionally possesses a substantial wage-earning ability which wife does not approach.

It is apparent from the record that during the pendency of this action, husband paid wife $685.00 per month in alimony pendente lite. Husband, on the other hand, utilized substantial marital resources during the pendency of this action, in the form of various investment accounts, which were part of the marital estate. Although some or a substantial part of these funds was ostensibly used to pay for the education of the parties’ children, the uses to which such funds were put were in many instances luxuries, and not strictly for educational expenses. See trial court opinion, at 16. Thus, while husband made a.p.I. payments to wife, he spent a substantial amount of the parties’ marital assets during the pendency of the action.

In determining whether the parties are on a “par” with one another as to cash available for counsel fees, see Perlberger v. Perlberger, supra, it appears that husband has a substantial monthly income and a house worth $272,000. Wife has a minimal income from her employment, $2,272 per month payments from husband for three years (or $81,787), and $28,000 worth of valuables. It is questionable in these circumstances whether the parties are on a “par” with respect to their abilities to pay counsel fees. However, wife has failed to document, or at least has failed to refer this court to the location of the documentation of the amount of counsel fees incurred and the services performed for those fees. Such documentation is required because a factor to consider in an award of counsel fees is the “value of the services rendered.” Perlberger v. Perlberger; supra. Without this basic information, we are unable to further review the trial court’s decision that wife has not demonstrated actual need for counsel fees. Therefore, we conclude that no abuse of discretion has been demonstrated in the denial of counsel fees.

Wife contends that the lower court erred in including $78,-966.00 borrowed from husband’s pension and profit sharing plan in the parties’ marital debt. Appellant contends that these borrowed funds are “paper tigers” because the repayment of this debt would increase a marital asset proportionally. Appellee contends that the amount borrowed from husband’s pension fund is a legitimate marital debt because these sums were withdrawn prior to separation to pay for the children’s private school costs.

Between divorcing parties, debts which accrue to them jointly prior to separation are marital debts. See Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (1986) (tax assessment liability accruing to parties from sale of stock prior to separation was joint liability to be included in computation of marital estate). The evidence in the instant case was that both wife and husband agreed to pursue a goal of private school education for their children, and that the parties were willing to sacrifice to pay for such education. N.T. June 21-23, 1993 at 106-08. Husband testified that he and his wife used the assets of the pension and profit sharing plans on occasion to fund the childrens’ educations. Id. at 389. Husband specifically indicated that prior to separation, they had borrowed approximately $78,000 from the pension and profit sharing plan for this purpose. Id. at 389-90.

In an equitable distribution matter, the trial court, as finder of fact, is entitled to assess the credibility of the evidence presented. Murphy v. Murphy, supra. Here, the trial court apparently found husband’s testimony credible as to when the borrowing of $78,000 from the pension and profit sharing plan occurred. As an appellate court, we will not disturb this credibility finding. Murphy, 410 Pa.Super. at 158, 599 A.2d at 653. Thus, since the parties borrowed the sum at issue from husband’s pension and profit sharing plan prior to their separation, the lower court did not err in including this amount as marital debt for purposes of equitable distribution.

We will now address the issues husband raises in his cross-appeal. His first contention is that the lower court erred in valuing the marital residence as of the date of hearing rather than as of the date of separation. Husband asserts that the parties’ residence during marriage was not a marital asset because it was devised personally to him by his mother; accordingly, under 23 Pa.C.S.A. § 3501(a), the only marital asset connected with the residence was the increase in its value to the date of the parties’ separation.

The lower court determined that the increase in value of the property during the parties’ marriage was marital property. The court reasoned that “the entire asset had been acquired during the marriage and the parties had lived together in the residence for over fifteen years.” Accordingly, the trial court decided to utilize the date of distribution, rather than the date of separation, to value the residence.

The record shows that husband’s mother devised the residence to him in May, 1969. At that time, the property was valued at $65,000. At the time of the parties’ separation in September, 1985, the value of the residence had increased to $170,000. By the hearing of June, 1993, the residence was valued at $272,000. The lower court subtracted the value of the home in 1969 from its value at the hearing, and attributed to the marital estate an amount of $207,000.00. Husband argues that the proper valuation of the property would have yielded $105,000.00 as the amount to be assigned to the marital estate.

The trial court cited Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988) and Solomon v. Solomon, 531 Pa. 113, 611 A.2d 686 (1992), for its decision to use the date of distribution for valuing the marital residence. In Sutliff, the Pennsylvania Supreme Court addressed the issue of the appropriate valuation date for certain marital assets. The court found that the Divorce Code contains “no express provision” which governs the selection of such a date, but held that it was “implicit” in the statutory provisions governing equitable distribution “that a valuation date reasonably proximate to the date of distribution” be utilized. Sutliff, 518 Pa. at 381, 543 A.2d at 536. The court in Sutliff was concerned with changes in the values of marital assets which might occur over the course of time, particularly if there had been a considerable passage of time between separation and distribution. Id. at 383, 543 A.2d at 536-37. The court noted specifically in Sutliff that the question before it was “not whether particular assets are to be deemed marital....” Id. at 381, 543 A.2d at 536.

In Solomon, the court considered that issue. Appellant wife became the beneficiary of a trust after the parties were married. Under the trust provisions, she was entitled to receive income from the trust and could withdraw up to $6,000 of principal. At the age of thirty-five, wife became entitled to withdraw up to one-half of the principal. Wife became thirty-five prior to the parties’ separation. The trust further provided that upon wife’s attainment of age forty, she was entitled to withdraw the remaining principal. 531 Pa. at 117-18, 611 A.2d at 688.

The trial court determined that the principal of the trust was a gift and therefore was not marital property. The court found that the increase in value of one-half of the principal of the trust after wife attained thirty-five and before the date of separation was marital property. Since wife did not attain the age of forty until after separation, the increase in value of the other one-half of the principal was not marital property. Id. at 118-19, 611 A.2d at 689. On appeal, the Superior Court, relying on Sutliff, supra, held that the full increase in value of the trust was marital property because wife had attained age forty at the time of the hearing. Id. at 119-20, 611 A.2d at 689.

The Pennsylvania Supreme Court found that the Superior Court erred in this determination. The court agreed that the principal of the trust was clearly non-marital property. Id. at 120, 611 A.2d at 689. However, the Supreme Court disagreed with the Superior Court’s approach which determined the increase in value at the time of distribution. The Supreme Court reasoned that equitable considerations such as those present in Sutliff could not “serve to reclassify assets that are properly deemed to be non-marital” under the applicable provisions of the Divorce Code. Id. at 121, 611 A.2d at 690.

The court then referred to the definition of marital property in effect at the time of the commencement of the proceedings in Solomon:

For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except,
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.

23 P.S. § 401(e) (effective April 2, 1980), amended December 19, 1990, currently 23 Pa.C.S.A. § 3501(a). Based on this statute, the Supreme Court found that appellant/wife in Solomon did not acquire ownership and control over any of the trust until she attained age thirty-five. At that age, she obtained the right to one-half of the principal of the trust, “which gave rise to increases in value qualifying as marital property,” but no right to the remaining one-half of the principal. Id. at 122, 611 A.2d at 690. The court then determined:

Since the parties separated prior to [wife] attaining age forty, [wife] did not obtain ownership or control over the right to the remaining one-half of the principal pursuant to Section 401(e) prior to the date of final separation, and thus, the increase in value of this remaining one-half interest cannot be included as marital property.

Id.

Addressing Sutliff again, the Solomon court stated that protracted litigation “simply cannot affect the determination of whether a particular asset qualifies as marital property.” Id. at 123, 611 A.2d at 691. In terms of property properly identified as marital, however, an equitable distribution court is indeed to consider the increase in value of the marital asset from the date of separation to the date of distribution, as indicated in Sutliff. Id.

The Solomon court then added a footnote which is at the crux of the issue in the instant case:

We note that in applying this concept to the case sub judice, the trial court would be necessarily compelled to take into consideration any change in value of the portion of the trust determined to be marital property, which occurs after the date of final separation through the date of distribution. This only involves consideration of the change in value of the marital assets during the period of delay pursuant to our mandate in Sutliff, and thus, does not include any change in value of either the non-marital principal of the trust itself or that portion of the increase in value of the trust determined to be non-marital property.

Id. at 123 n. 11, 611 A.2d at 691 n. 11 (emphasis added). The lower court relied upon this footnote in the instant case in its decision to value the residence as of the date of distribution. Similarly, wife herein cites the Solomon footnote in support of her contention that the trial court did not err in this determination.

In interpreting this footnote, we note first that the Solomon court did not in fact remand the case to the lower court for a determination as described in footnote eleven. Having decided that the Superior Court had erred in its application of Sutliff to enlarge the portion of the trust deemed to have been acquired by the wife in Solomon, the Supreme Court simply reinstated the equitable distribution scheme of the lower court. Id. at 126, 611 A.2d at 693. Under that scheme, as we previously indicated, the increase in value of one-half the principal of the trust after wife attained age thirty-five until the date of final separation was deemed marital property. Id. at 118-19, 611 A.2d at 688. Thus, despite footnote eleven referring to changes in value of marital assets prior to distribution, the Supreme Court in Solomon did not remand the case to the lower court for such a determination. We must thus conclude, as husband in the instant case has argued, that the court’s statement in footnote eleven is mere dictum, and that the reinstatement of the trial court’s order, which limited the increase in value of the non-marital asset to that which occurred prior to final separation, represents the actual decision of the Solomon court.

In Smith v. Smith, 439 Pa.Super. 283, 653 A.2d 1259 (1995), appeal denied, 541 Pa. 641, 663 A.2d 693 (1995), the court considered the valuation of gifts of stock to wife from her father during the marriage as well as an inheritance from wife’s mother, which also occurred during the marriage. The court determined that these items were not marital property-under the current statute, 23 Pa.C.S. § 3501(a), but that the increase in value of this property during the marriage was. Id. at 296, 653 A.2d at 1265. Wife presented expert testimony to the effect that the gifts of stock increased from August, 1955 (date of the marriage) to June, 1985 (date of separation) in the amount of $12,055.00. The increase in value of the inheritance was determined to be $11,094.00. Id. at 297, 653 A.2d at 1266. The master and trial court adopted this valuation. Id.

Husband argued that there was error in the valuation. The panel determined that wife had met her burden of producing evidence of the increased value of the gifts, and found that if husband disagreed with -wife’s valuation, it was his burden to provide the court with an alternative one. Id. at 299, 653 A.2d at 1267. The court reasoned that “[w]ith the help of a financial expert, Husband could have calculated the increase in the value of the stocks from the date Wife received the shares until the date of separation.” Id. (emphasis added). Thus, in Smith, the date of sepáration was held to be the appropriate date for determining the increase in value of the non-marital' assets under section 3501(a).

In Ling v. Ling, 442 Pa.Super. 106, 658 A.2d 805 (1995), appeal denied, 542 Pa. 671, 668 A.2d 1134 (1995), a panel of this court construed the proper valuation of a gift to wife of stock during the marriage. At the time of the gift, the stock was worth $22,400. Wife surrendered the shares in 1986 and received $90,000. In May, 1987, the date of the parties’ separation, she reinvested $80,000. In 1988 and 1989, wife withdrew $11,454 and $10,969, leaving a balance in 1990 of $57,937. The trial court found that $57,959 of the stock could be characterized as marital property. This was calculated as follows: $57,937 plus $11,454 plus $10,969 minus $22,400, equals $57,959. Id. at 107-08, 658 A.2d at 806.

On appeal, the panel determined that the lower court had correctly found “the $22,400 gift appellee received during the course of her marriage was not marital property, while the increase in value thereof during the parties’ marriage was properly designated marital property for the purpose of equitable distribution.” Id. at 108, 658 A.2d at 806. However, the issue on appeal did not concern the increase in value of the gift, but whether interest income from the stock received after separation but prior to distribution was marital property. The court determined that it was not, finding that the asset in question, which was an inheritance, was not marital property, and husband was entitled to share it only to the extent of the increase in value “to the date of separation and not to the date of distribution.” Id. at 110, 658 A.2d at 807. Similarly, the court determined that the value of the portion of the inheritance characterized as marital property by the lower court had a “commonsense accuracy,” in that if the value of the gift when received ($22,400) is deducted from $80,000 (the amount reinvested during the same month as the parties’ separation), the result is $59,600, which is similar to the lower court’s determination ($57,959). Id. at 108 n. 3, 658 A.2d at 807. Again, the Ling case illustrates that when the increase in value of non-marital property is calculated, the courts use the date of separation.

In the instant case, the lower court used the date of distribution to determine the increase in value of the non-marital asset, the residence at Dunmoyle Street. Under the above authority, this was error. The proper date for determining the increase in value of the residence was the date of separation. As to the delay in distribution which followed (1985 to 1993), we find footnote eleven in Solomon to refer to a situation in which the increase in value of a non-marital asset is determined as of the date of separation, there then ensues a long period of delay between separation and distribution, and the asset itself then decreases in value by the time of distribution. In such a case, footnote eleven would require the trial court to consider the “change in value” of the non-marital asset as a result of the delay. In the instant case, however, it is clear that the residence did not decrease, but increased in value during the period of delay (1985 to 1993). Accordingly, the increase in value of this non-marital asset should have been determined as of the date of separation.

Husband’s next contention on appeal is that the trial court failed to reduce the marital estate by the amount of “legitimate debt” existing at the time of separation. Husband lists the following items of debt as proper marital debt excluded by the trial court: 1985 quarterly income tax payment, $5,000; commercial and household debt, $6,600; children’s school tuition, $12,850; and delinquent real estate taxes and water and sewage bills, $8,115. As to the real estate and utility bills, the lower court held that these items were not legitimate marital debt because “Wife was no longer living in the house,” and that it would be “unjust to make Wife pay for Husband’s expenses when Wife was not employed.” Trial court opinion, at 17. The trial court did not find any additional amount of “consumer debt” to be credible because “Husband failed to show sufficient documentation for any of those amounts.” Id.

We have reviewed husband’s contention in light of the citations to the record he has provided. We are unable to locate any documentation of the amounts claimed other than an exhibit which simply lists the amounts claimed without providing supporting documentation, and husband’s own testimony. The trial court hearing an equitable distribution matter is not required to accept the testimony of any witness. Murphy v. Murphy, supra. Here, there was no documentation to support husband’s allegations as to marital debt. We conclude. that the lower court did not err in finding that husband failed to provide sufficient documentation of the amounts claimed as proper marital debt.

Husband’s final contention on appeal is that the lower court abused its discretion in failing to give him credit for private school educational expenses which he incurred through the date of hearing. The lower court refused to give husband credit for any of these expenses on the basis that the expenses claimed went well beyond the intentions of the parties as to private school education. Trial court opinion at 16. The court found that many of the expenses claimed were luxuries which were unreasonable. Id.

Parents have a legal obligation to provide for the reasonable expenses of raising their children. Francis v. Francis, 358 Pa.Super. 391, 517 A.2d 997 (1986). A private school education may be a reasonable need for a child if it is demonstrated that the child will benefit from such and if private schooling is consistent with the family’s standard of living and station in life before the separation. Id. at 395-96, 517 A.2d at 999-1000. If these factors are proved, a court may order a parent to provide financial support for the private schooling of a minor child. Id.

In the instant case, the parties’ children continued to attend private school after the parents separated. The record shows that: (1) in 1986, the hearing officer reduced the amount of a.p.l. to be awarded wife by $340.00 in recognition of the fact that the children were in husband’s custody; (2) husband used some of the marital assets to pay for the children’s school expenses; (3) the expenses claimed by husband included items which could properly be deemed luxuries such as ski trips and international travel; (4) one of the children did not perform well in school; (5) both of the children were legal adults at the time of the hearing and neither had sustained an ongoing relationship with their mother. We note also that husband has not referred to any documentation other than an exhibit admitted in connection with the hearing, which simply lists the expenses husband claims, in support of the expenses alleged.

Husband relies on Perlberger v. Perlberger, supra, in support of his position that he is entitled to credit for the expenses. In Perlberger, husband contended that wife should repay $52,000 to certain bank accounts belonging to the parties’ children (PUGMA accounts). A panel of Superior Court vacated the order of the trial court which required wife to repay that amount. The Superior Court remanded the case to the lower court for a hearing to determine the reasonable needs of the children and what portion of the PUGMA account funds had been expended for the children’s reasonable needs. Id., 426 Pa.Super. at 274-76, 626 A.2d at 1202-03. The court held that it would be appropriate under PUGMA, to use the assets in the accounts for the children’s benefit as long as the parents “expended their own resources before turning to the custodial funds.” Id. at 274, 626 A.2d at 1201-02.

The instant case does not involve the use of assets belonging to the children for their benefit, but the use of marital assets to satisfy an obligation of support. Thus, Perlberger is not applicable. The lower court here found many of the expenses claimed by husband to be luxury items and thus unreasonable. Although the lower court did not specifically address the issue of the reasonableness of private school tuition, we find no abuse of discretion in the trial court’s decision to give husband no credit for those expenses.

As we have noted, husband did not provide sufficient documentation of the claimed expenses, including tuition. Additionally, because wife’s a.p.l. was reduced a significant amount due to the husband’s custody of the children, wife in effect contributed substantial support to the children’s education, given her limited income. Further, husband fulfilled his obligation to support the children by depleting marital assets. He displayed poor financial judgment in using these assets for purposes unrelated or only tangentially related to the children’s education.

The lower court in the instant case awarded husband the marital assets which he used to fund the children’s expenses. We find this to be a reasonable exercise of the trial court’s discretion and a fair distribution of the assets under the circumstances presented. We find no abuse of discretion by the lower court in denying husband credit for the expenses claimed.

Order affirmed in part and reversed in part; case remanded to lower court for further proceedings in accordance with this decision.

      . The relevant time period for wife’s petition for modification of a.p.l. is from November, 1991 to the time of the hearing. Wife has alleged that husband made certain sums while employed by the Frank Bernstein law firm during this time period. However, the citations to the reproduced record used by wife in her appellate brief do not contain this information. Wife has not referred us to any other location in the record which would support her contention as to husband's income during his employment with the Frank Bernstein law firm. However, the lower court, in its findings, determined that husband earned $12,-000 per month during his employment with the Bernstein law firm, from 1990 until June 30, 1992.

      . On subsequent appeal, DeMasi v. DeMasi, 408 Pa.Super. 414, 597 A.2d 101 (1991), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993).

      . The Support Guidelines should be considered in this determination. See Pa.R.C.P., Rule 1910.16-1(a), 42 Pa.C.S.A. (amount of alimony pendente lite shall be determined in accordance with the support guidelines).

      . We note that the equitable distribution- scheme takes this into account in that husband’s portion of the equitable distribution award includes the investment accounts which he spent during the time since commencement of this action.

      . The action in Solomon commenced on July 30, 1984.

      . Pennsylvania Uniform Gifts to Minors Act, 20 Pa.C.S. § 5301 et seq.


source: Caselaw Access Project

author: OLSZEWSKI, Judge.

license: Public Domain

text:
    673 A.2d 923
    COMMONWEALTH of Pennsylvania v. Charles MONTIONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed Feb. 5, 1996.
    Reargument Denied April 18, 1996.

      Frank W. Nocito, Kingston, for appellant.
    William P. O’Malley, Assistant District Attorney, Scranton, on oral argument; Eugene M. Talerico, Jr., Assistant District Attorney, Scranton; Andrew J. Jarbola, III, First Assistant District Attorney, Scranton, on briefs for the Commonwealth, appellee.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

Charles Montione appeals from a judgment of sentence entered in the Court of Common Pleas of Lackawanna County. We affirm.

The procedural history of this case is undisputed. On October 8, 1993, a criminal complaint was filed charging Montione with, inter alia, first-degree murder in connection with the contract killing of Edward “Ned” Tracy. At the time, however, Montione was already incarcerated at the Lycoming County Prison where he was awaiting sentencing after pleading guilty to federal drug charges. On November 4, 1993, Montione was sentenced to 168 months for the drug charges and, subsequently, was transferred to the United States Penitentiary at Lewisburg, Pennsylvania. As the Commonwealth had yet to try Montione on the murder charges, the District Attorney of Lackawanna County, on December 23, 1993, filed a Form V, Request for Temporary Custody, pursuant to Article IV of the Interstate Agreement on Detainers (IAD).

On February 4,1994, Montione was transferred from Lewis-burg and into the custody of the Commonwealth of Pennsylvania. After a preliminary hearing and arraignment, Montione filed an omnibus pre-trial motion on March 17, 1994. This motion included a motion to quash the information, a motion to suppress statements, and a motion for the appointment of an investigator.

On September 1, 1994, Montione filed a motion to dismiss alleging that the Commonwealth had violated the terms of the IAD by failing to bring him to trial within 120 days. Earlier, on July 27, the Honorable John S. Cottone had issued an order finding that the IAD’s 120-day limit had been tolled. Judge Cottone issued a similar order on September 22. Finally, on October 14, 1994, Judge Cottone denied the motion to quash and scheduled Montione’s trial for November 17.

Subsequently, Montione’s case was re-assigned to the Honorable James M. Munley. On November 28, 1994, Montione filed supplemental pre-trial motions. After entertaining arguments on the motion to dismiss, Judge Munley denied said motion on December 20, 1994. Moreover, Judge Munley denied the last of Montione’s pre-trial motions on December 30, 1994. Ultimately, Montione was convicted of first-degree murder, criminal solicitation and criminal conspiracy. He was sentenced to life plus five-to-ten years imprisonment. In this timely appeal, Montione alleges solely that his motion to dismiss was improperly denied.

At the outset, we note that the “Interstate Agreement on Detainers is a compact among 48 states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States.” Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516, 520 (1985). “A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Id. “The purpose sought to be achieved by the [IAD] is to promote and foster prisoner treatment and rehabilitation programs by eliminating the uncertainties which accompany the filing of detainers.” Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973). To accomplish this goal, the IAD requires, in pertinent part, that “trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state.” 42 Pa. C.S.A. § 9101 Article IV(c).

Instantly, there is no question that the 120-day clock started to run on February 4, 1994, when Montione was transferred from federal to state custody. Thus, almost a full year had elapsed before Judge Munley commenced Montione’s trial on January 5, 1995. At first blush it would appear that the Commonwealth violated the IAD’s 120-day provision. This speedy trial provision, however, is not unqualified. Article IV(c) of the IAD provides, in pertinent part, that “for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” Moreover, Article VI(a) provides that “[i]n determining the duration and expiration dates of the time periods provided in ... this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” Thus, we must determine whether Montione’s various pre-trial motions constituted a continuance for “good cause” and/or rendered him “unable to stand trial.”

In deciding this issue, we note that our task is an arduous one. This matter has never been definitively addressed by a Pennsylvania appellate court, and, consequentially, we are presented with a case of first impression. Moreover, a review of caselaw from other jurisdictions reveals that strong arguments exist on both sides of the issue, as evidenced by the division among our federal courts. The United States Court of Appeals for the First, Second, Fourth, Seventh and Ninth Circuits have decided that a defendant’s pretrial motion does toll the IAD time period. United States v. Neal, 36 F.3d 1190 (1st Cir.1994); United States v. Whiting, 28 F.3d 1296 (1st Cir.1994); United States v. Johnson, 953 F.2d 1167 (9th Cir.), cert. denied, 506 U.S. 879, 113 S.Ct. 226, 121 L.Ed.2d 163 (1992); United States v. Cephas, 937 F.2d 816 (2d Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Walker, 924 F.2d 1 (1st Cir.1991); United States v. Dawn, 900 F.2d 1132 (7th Cir.), cert. denied, 498 U.S. 949, 111 S.Ct. 368, 112 L.Ed.2d 330 (1990); United States v. Nesbitt, 852 F.2d 1502 (7th Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); United States v. Scheer, 729 F.2d 164 (2d Cir.1984); United States v. Hines, 717 F.2d 1481 (4th Cir.1983), cert. denied, 467 U.S. 1214, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984). The Court of Appeals for the Fifth and Sixth Circuits, however, have reached the opposite conclusion. Birdwell v. Skeen, 983 F.2d 1332 (5th Cir.1993); Stroble v. Anderson, 587 F.2d 830 (6th Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). Against this backdrop, we begin our own trek in attempting to resolve the issue in manner consistent with justice and fairness.

In deciding issues concerning the IAD, this Court has sought guidance from caselaw concerning Pennsylvania’s own speedy trial rule, Pa.R.Crim.P. 1100. See Commonwealth v. Woods, 444 Pa.Super. 321, 663 A.2d 803 (1995); Commonwealth v. Kripplebauer, 322 Pa.Super. 317, 469 A.2d 639 (1983). We acknowledge that Rule 1100 analysis certainly is not binding regarding interpretation of the IAD. See Commonwealth v. Thornhill, 411 Pa.Super. 382, 601 A.2d 842 (1992) (“Rule 1100 is a procedural rule implemented by our Supreme Court, the interpretation of which is subject to judicial creation,” while the IAD is “a legislatively enacted statute, the interpretation of which is governed by the legislative intent and purpose”). We cannot, however, discount the importance of Rule 1100 analysis as a navigational tool in our search for justice when deciding IAD issues. Moreover, we find it desirable to maintain consistency when resolving issues similar to both speedy trial provisions. Obviously, such congruity benefits our state’s trial courts, practicing attorneys and other interested parties.

As noted above, the IAD’s time provision is tolled when the defendant is “unable to stand trial.” Nearly identical language qualifies Rule 1100. Time to trial calculation under Rule 1100 is tolled during delays attributable to “the unavailability of the defendant.” Pa.R.Crim.P. 1100(c)(l)(i). Further, in Commonwealth v. Riffert, 379 Pa.Super. 1, 549 A.2d 566 (1988) , alloc. denied, 522 Pa. 602, 562 A.2d 825 (1989), we addressed the issue of whether a defendant’s pretrial motion renders him “unavailable” for the purposes of Rule 1100. After noting that the defendant’s trial could not commence until after his pretrial motion was decided, we held that “[defendant] thus was unavailable to be tried while his omnibus motion was pending. Implicitly, he had obtained a postponement or continuance of his trial during such time.” Id. at 10, 549 A.2d at 571. See also Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990), alloc. denied, 527 Pa. 615, 590 A.2d 756 (1991); Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882, alloc. denied, 524 Pa. 606, 569 A.2d 1365 (1989) .

In reaching this conclusion, we were persuaded by President Judge Spaeth’s concurrence in Commonwealth v. Bond, 350 Pa.Super. 341, 358, 504 A.2d 869, 878 (1986) (en banc):

The critical point as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of the trial court’s order denying the motion should be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner.

We believe that our reasoning and decision in Riffert is instructive in resolving the case at hand. Our resolution of Riffert is consistent with the well established principle that “[wjhen the defendant causes the delay he is not entitled to be discharged.” Commonwealth v. Thompson, 343 Pa.Super. 468, 471, 495 A.2d 560, 561 (1985) (citing Commonwealth v. Wilson, 231 Pa.Super. 451, 454 n. 6, 331 A.2d 792, 794 n. 6 (1974)). This precept has been held to apply equally to Rule 1100 and the IAD. See Thompson, supra; Commonwealth v. Lloyd, 341 Pa.Super. 107, 115, 491 A.2d 173, 177 (1985) (“Appellant benefited from the delays of trial. It would be error to reward him further with dismissal of the charges.”); Commonwealth v. Gallo, 276 Pa.Super. 562, 566, 419 A.2d 601, 603 (1980) (“where a defendant is responsible for the delay he cannot later benefit from the delay that he, himself, caused”). See also Commonwealth v. Koonce, 511 Pa. 452, 461-64, 515 A.2d 543, 548-49 (1986). As such, we find that the IAD’s speedy trial provision is tolled once the defendant files pretrial motions.

Next, we must decide the length of time for which the provision is tolled. Montione alleges that his. pre-trial motions presented simple issues which could have been quickly resolved by the trial court. We find this assertion to be irrelevant. Whether the time utilized by the trial court in resolving the issues was unreasonable is simply not an inquiry suitable for our review. In so finding, we are persuaded by the following language:

[W]e think it inappropriate for us to scrutinize each defense motion for the purposes of deciding whether a judge should have been able to dispose of it in two days, two weeks or two months. Many factors effect a judge’s readiness to render a decision, and we would overstep our role were we to intrude routinely into the trial judge’s deliberative process.

United States v. Taylor, 861 F.2d 316, 321-322 (1988). As such, we are convinced that it would be imprudent and impractical to exclude less than the full time between defendant’s filing of a pretrial motion and its resolution.

Presently, the IAD time clock started to run on February 4, 1994, when Montione was transferred into the state’s custody'. The clock was tolled forty-one days later, however, on March 17, 1994, when Montione filed his omnibus pre-trial motion. Subsequently, Montione filed various additional pretrial motions. The record reveals that, until December 30, 1994, at least one such pre-trial motion remained unresolved. As such, we find that the entire period from March 17 to December 30 must be excluded from Montione’s time to trial. Thus, when his trial ultimately commenced on January 5, 1995, only forty-seven days had elapsed for purposes of computing his time to trial under the IAD. Consequently, we find that Montione is entitled to no relief under the IAD.

Judgment of sentence affirmed.

      . Tracy was bludgeoned to death in lieu of $14,000 he owed to Montione for drugs.

      . Louisiana and Mississippi are the only states which have not enacted the IAD. Pennsylvania has codified the Agreement at 42 Pa.C.S.A. § 9101, et seq.

      . In arguing to the contrary, Montione relies almost exclusively upon our decision in Commonwealth v. Kripplebauer, supra. We find this reliance to be misplaced. There, a panel of this Court held that the IAD’s time mandate was not tolled during the thirty-day period the defendant had requested to file pre-trial motions. As such, we made no decision concerning whether the time provision was tolled once the defendant had, in fact, filed such motions. Moreover, the panel’s decision in Kripplebauer was predicated upon outdated caselaw concerning a version of Rule 1100 which has since been repealed. Consequentially, we must even question the continued validity of Kripplebauer’s narrow holding.

      . We acknowledge that some of Montione’s pre-trial motions were nondispositive. We do not believe, however, that non-dispositive motions should .be treated differently than dispositive motions. As stated in United States v. Whiting, 28 F.3d at 1307, "both types are likely to delay trial and both should be treated the same.” •


author: POPOVICH, Judge:

text:
    673 A.2d 927
    COMMONWEALTH of Pennsylvania, Appellee, v. Patrick A. GAYLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1995.
    Filed March 13, 1996.

      Allen C. Welch, Lemoyne, for appellant.
    E. Christopher Abruzzo, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Dauphin County on June 1, 1995, following appellant's conviction on charges of possession with intent to distribute a controlled substance, unlawful possession of a small amount of marijuana and unlawful possession of drug paraphernalia. Appellant argues that the suppression court erred in failing to suppress evidence found in his possession after he was searched by parole officers and police officers. We agree and, consequently, vacate the judgment of sentence and remand for a new trial.

Our standard of review in this case is well-settled. Our supreme court has held that:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 178-179 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992) (citation omitted).

We note with disapproval that the record in this case was forwarded to us without an opinion by the lower court. Pennsylvania Rule of Appellate Procedure 1925(a) requires the lower court to file a brief statement of the reasons for the order or judgment which was appealed. However, in this case, it is possible for us to make a decision on appeal absent a lower court opinion, and, thus, for the sake of judicial economy, we will do so. We further note that the Commonwealth has failed to file a brief in this case. However, the Commonwealth did file a letter with this court, whereby they expressly conceded all issues raised by appellant on appeal. Commonwealth letter 11/27/95 p. 1.

The relevant facts in this case are not in dispute and they are as follows: On March 26, 1994, police officers from the Dauphin County Drug Task Force were working a detail in Dauphin County, near the Edgemont Social Club. There had been a rash of criminal activity near the club, and, therefore, additional police officers were assigned to the area.

Prior to the mission on March 26, 1994, the officers, including parole officers, were briefed. The parole officers were briefed at the same time, in the same place and in the same manner as the police officers. Once deployed into the field, the parole officers monitored the police radio broadcasts and made responses thereto.

On March 26, 1994, at approximately 2:05 a.m., police officers assigned to the Edgemont Social Club area observed a vehicle with only one working headlight. Observing this violation of the general lighting requirements and observing that the vehicle was “heading towards the area of the Edgemont Social Club,” the officers followed the vehicle and, subsequently, activated their emergency lights. The driver of the vehicle, appellant, who was a parolee, pulled the vehicle to the side of the road.

After pulling over, appellant exited the vehicle. The police officers advised him to get back into the vehicle. The police officers approached appellant’s vehicle and requested his license and registration. While appellant was searching for his license and registration, the police officers noticed that a telephone pager was clipped to the driver’s side sun visor.

Appellant located his license and registration and gave them to the police officers. The police officers then informed appellant that his vehicle had been pulled over because of a faulty headlight. The police officers returned to their vehicle and contacted the county dispatcher by radio to ascertain appellant’s driving record and criminal history. This call from the police officers to the dispatcher was overheard by parole officers who were also patrolling the area. Parole Officer Daniel McIntyre radioed the police officers to inform them that appellant was on parole and that they should hold him at the scene. In approximately thirty seconds, three parole officers were on the scene.

The parole officers searched appellant’s person while in the presence of the police officers. The parole officers found five baggies of marijuana. Based on this evidence, appellant was arrested and advised of his Miranda warnings by the police officers. He was then searched by the police officers incident to his arrest. The search disclosed seven baggies of cocaine in his sock, a baggie of cocaine tied around his waist, $206.00 in cash and additional, empty baggies. The confiscated marijuana totalled 4.6 grams and the cocaine totalled 6.7 grams. Appellant was charged with possession with intent to deliver, unlawful possession of a small amount of marijuana and unlawful possession of drug paraphernalia.

Appellant filed a pre-trial Motion to Suppress the narcotics and paraphernalia seized by the parole officers and the police officers. Following an evidentiary hearing, the motion was denied. Subsequently, appellant was tried on April 10, 1995, and was convicted of all charges. This appeal followed.

Appellant argues that after he provided the police officers with his registration and identification, the police officers continued to detain him unlawfully, and that the parole officers, who initially searched appellant’s person, did not have the requisite reasonable and articulable suspicion under the Terry doctrine. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant further argues that neither the parole officers nor the police officers had probable cause to make a warrantless arrest and a subsequent search of appellant’s person incident to that arrest. Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991).

Before deciding whether the officers had a reasonable and articulable suspicion to “stop and frisk” appellant or probable cause to make a warrantless arrest and search incident to that arrest, we must first decide whether appellant’s status as a parolee meant that he had a diminished expectation of privacy.

The issue of parolees’ rights with regard to the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, has been the subject of rather recent appellate scrutiny.

In the early analysis of parolees’ rights, courts distinguished those cases where parole officers “switched hats” and became “stalking horses” for the police from those cases where parole officers searched for evidence of parole violations. See Commonwealth v. Edwards, 400 Pa.Super. 197, 583 A.2d 445 (1990) (holding that parolees must endure warrantless searches based upon reasonable suspicion that they have committed parole violations). When parole officers “switched hats” and, in all relevant respects, became police officers, courts held that parole officers’ searches and subsequent seizures of evidence was impermissible without warrants. See Edwards, supra; Commonwealth v. Berry, 265 Pa.Super. 319, 401 A.2d 1230 (1979) (holding that the parole officer had gone beyond his role as a parole officer when he worked closely with the police).

When parole officers did not “switch hats,” but conducted searches and seizures based on parole violations, the searches and subsequent seizures of evidence were permissible without warrants. Edwards, supra; Berry, supra. Courts held that parolees’ reasonable expectations of privacy were diminished as a consequence of their status, and, therefore, they must endure warrantless searches based upon reasonable suspicion that they had committed parole violations. Edwards, supra; Berry, supra. This distinction has been eroded.

In Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993), our supreme court reiterated the rule that parole agents cannot act like “stalking horses” for the police. However, the court’s rather explicit holding, that warrantless searches of parolees’ residences, even when supported by reasonable suspicion, are prohibited by the Fourth Amendment without the consent of the owners or passage of a statutory framework, indicates that even if parole agents are not acting like “stalking horses,” parolees have Fourth Amendment, rights. Cases following Pickron have not applied the “stalking horses/switching hats” analysis to determine whether the parole officers’ conduct was proper. Commonwealth v. Rosenfelt, 443 Pa.Super. 616, 662 A.2d 1131, 1134 (1995) (holding that Pickron applies even if parole agents do not act as “stalking horses” for the police); Commonwealth v. Alexander, 436 Pa.Super. 335, 647 A.2d 935, 938 (1994) (determining whether parole officers were acting on behalf of the police is irrelevant subsequent to the holding in Pickron).

The modern rule, which we must follow and apply in this case, has recently been enunciated in Rosenfelt. In Rosenfelt, we held that “Pickron stands for the proposition that without a prior agreement, or specific guidance from statute or regulation, a parolee’s protection from an unreasonable search and seizure is no less than that afforded any other Commonwealth resident.” Rosenfelt, 662 A.2d at 1134. We further explicitly held: “Absent a clear policy or an agreement between a parolee and the parole board, a parolee does not have a diminished expectation of privacy.” Id. at 1146 (holding that parole officers could not search parolee’s automobile trunk without probable cause, reasonable suspicion was not sufficient) (emphasis added).

While we acknowledge that the search at issue in Pickron was that of the parolee’s home, and that the search at issue in Rosenfelt was that of the parolee’s automobile trunk, it is reasonable to conclude that our holding in Rosenfelt, that a parolee does not have a diminished expectation of privacy, is to be extended to a search of the parolee’s person. Keeping this rule of law in mind, we now turn to the issue of whether appellant was “seized” and whether his seizure was constitutional.

It is our determination that appellant was “seized” for the purposes of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Here, appellant was stopped by the police for a faulty headlight. Then, parole officers instructed the police to “hold” appellant at the scene until they could respond to search him, and the police did so. Clearly, appellant was “seized.” See Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994) (holding that when officers, by means of physical force or a show of authority have restrained the liberty of an individual, a “seizure” has occurred). Having found that appellant was “seized,” we must next determine whether the seizure was justified.

In accordance with the protections afforded our citizens under Article I, Section 8 of the Pennsylvania Constitution, we have recognized only two instances where police may “seize” an individual, both require an appropriate showing of antecedent justification: first, a “stop and frisk” based upon reasonable suspicion, and, second, an arrest based upon probable cause. Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378, 1382 (1992) (citations omitted).

For the officers to have made a valid “stop and frisk,” there must have been specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted that intrusion. Lewis, 636 A.2d at 623. A stop for investigatory purposes is justified only if the “officers observe unusual conduct which leads ... [them] reasonably to conclude in light of ... [their] experience that criminal activity may be afoot....” Terry, 392 U.S. at 30, 88 S.Ct. at 1884. “This standard is met ‘if the ... officers’ reasonable and articulable belief that criminal activity was afoot [is] linked with ... their observations of suspicious or irregular behavior on behalf of the particular defendant stopped.” Lopez, 609 A.2d at 180 (citing Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968, 970 (1987)). In evaluating the reasonableness of a stop, we must look to the totality of the circumstances. Commonwealth v. Daniels, 410 Pa.Super. 275, 599 A.2d 988 (1991), appeal denied, 531 Pa. 645, 612 A.2d 983 (1992) .

The reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, but the detaining officers must have more than a hunch as the basis for a stop. In Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172, 174 (1993) . “Reasonable suspicion, like probable cause, is dependent upon both the content of the information possessed by [the officers] and its degree of reliability.” Interest of S.D., 633 A.2d at 174 (citation omitted).

Here, appellant’s vehicle was stopped because it had a faulty headlight. Appellant does not contest the validity of this stop. Rather, he contends that after he provided the police officers with his license and registration, the police officers continued to detain him unlawfully at the scene, upon the request of the parole officers, because he had a pager clipped on the driver’s side sun visor and he was heading towards the area of the Edgemont Social Club. Parole officers then arrived on the scene and searched appellant’s person and seized five baggies of marijuana.

We find that while the police officers’ initial stopping of appellant for a motor vehicle violation was proper, the continued detention of appellant elevated to an investigatory stop for which the officers needed an articulable and reasonable basis.

Viewing the evidence in its totality, we cannot find that the parole officers or the police officers had a reasonable suspicion to make a Terry stop. The mere fact that appellant possessed a pager and was traveling in a certain area is not sufficient basis to make a Terry stop. It is well-established that appellant’s mere presence near a high crime area or a vicinity of recently reported crime is not enough to warrant a Terry stop. Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346 (1992). In addition, we note that there was no link between appellant and the area from where narcotics were allegedly being distributed.

As discussed previously, the fact that appellant was a parolee does not diminish his reasonable expectation of privacy, absent a clear policy or an agreement between appellant and the parole board. Since there was no reasonable basis to suspect that appellant was connected in any manner with the supposed criminal activity in the Edgemont Social Club area, the search of appellant’s person by the parole officers was a product of an illegal detention. Therefore, the marijuana seized from appellant’s person by the parole officers should have been suppressed under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. In addition, the evidence seized during the police officers’ search of appellant’s person incident to his arrest should have been suppressed because it was “fruit of the poisonous tree.” See Commonwealth v. Berry, 265 Pa.Super. 319, 401 A.2d 1230, 1231 (1979).

Judgment of sentence is vacated and this case is reversed and remanded. Jurisdiction is relinquished.

      . Title 35 § 780-113(a)(30).

      . Title 35 § 780-113(a)(31).

      . Title 35 § 780-113(a)(32).

      . Pa.R.A.P. 1925(a) states:
      Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, of the reasons for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966).

      . The Fourth Amendment to the United States Constitution provides, in relevant part, that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...."

      . Article I, Section 8 of the Pennsylvania Constitution provides, in relevant part, that: "The people shall be secure in their persons, houses, papers and professions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without probable cause...."

      . In Rosenfelt, we noted with disapproval that in recent years there has been a diminishment of the right of privacy under the Federal Constitution. Rosenfelt, 662 A.2d at 1146. In fact, we indicated that ‘‘[w]e are alarmed by recent news that the 104th United States Congress voted down 'a measure that repeated, verbatim, the language of the Fourth Amendment.’ ” Id. (quoting Katherine Q. Seelye, At the Bar: A Con

        gress with Few Lawyers is a Congress with Different Inclinations, N.Y. Times, April 7, 1995, at A33).

      . The protections of individual privacy against unreasonable governmental searches and seizures under the Pennsylvania Constitution are more expansive than those afforded under the United States Constitution. Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735, 738 (1993). The United States Supreme Court’s interpretations of Fourth Amendment guarantees do not bind this court in reaching conclusions regarding the protections afforded under Article 1, Section 8 of the Pennsylvania Constitution. Id. However, we conclude that under both the state and federal constitutional provisions, the search and seizure in this case was unconstitutional.
      We note that the tests for determining probable cause and whether there is justification for a "stop and frisk” are essentially the same under the federal and state constitutions. See Commonwealth v. Leninsky, 360 Pa.Super. 49, 519 A.2d 984 (1986). Therefore, our analysis applies to both constitutional provisions.

      . Having found that the officers did not have reasonable suspicion to conduct a Terry "stop and frisk,” we need not address appellant’s argument that neither the parole officers nor the police officers had probable cause to make a warrantless arrest and a subsequent search of appellant’s person incident to that arrest.