author: HOFFMAN, Judge: CORSO, Judge: OLSZEWSKI, Judge,

text:
    529 A.2d 1104
    Laura L. SUGALSKI, Charles E. Roop, Sr., Charles E. Roop, Jr., v. Jay COCHRAN, Jr., Commissioner, Pennsylvania State Police, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed Aug. 10, 1987.

      Richard W. Sponseller, Deputy Attorney General, Harrisburg, for appellant.
    Roger B. Reynolds, Norristown, for Sugalski, appellee.
    Allan J. Josel, Assistant Public Defender, Norristown, for Roop, Sr., appellee.
    Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order granting appellee’s petition for return of property. Appellant contends that the lower court erred because the evidence was sufficient to establish that the seized property was derivative contraband and, thus, unlawfully possessed by appel-lee. After a careful review of the record, the briefs submitted by the parties and the lower court’s opinion, we find that the appellant did not meet its burden of proof in this matter, Petition of Maglisco, 341 Pa.Superior Ct. 525, 531, 491 A.2d 1381, 1384 (1985), and affirm on the lower court’s opinion.

Affirmed. Jurisdiction is relinquished.

OLSZEWSKI, J., files a dissenting opinion.

APPENDIX

LAURA SUGALSKI; CHARLES E. ROOP, SR.; CHARLES E. ROOP, JR. vs. JAY COCHRAN, JR.

MISC. NOS. 837 July 1985, 338 July 1985, 339 July 1985.

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DIVISION

December 23, 1986

OPINION

CORSO, Judge:

On August 8, 1985, Petitioners, Laura L. Sugalski, Charles E. Roop, Sr. and Charles E. Roop, Jr., filed petitions for return of property against Respondent, Jay Cochran, Jr., Commissioner, Pennsylvania State Police (hereinafter referred to as “Commonwealth”), seeking the return of money seized by the Pennsylvania State Police from their residences on January 29, 1985, and from a safe deposit box on January 30, 1985. After hearings on said Petitions, the following Order was entered by this Court on July 31, 1986:

“AND NOW, this 31st day of July, 1986, pursuant to Petitions for Return of Property, after hearings on January 30, 1986, April 14, 1986 and April 15, 1986, limited in scope by agreement of counsel to a determination of derivative contraband status without determination of the legality of search warrants and subsequent searches of Petitioners’ homes, and accepting as true for purposes of this proceeding only the affidavit in support of search warrants for the safe deposit box; and consideration of Memoranda of Law submitted and briefs of counsel, it is hereby ORDERED and DECREED that:
I. The Petition for Return of Property of Charles E. Roop, Sr. is granted, the following property is found not to be derivative contraband and shall be returned to Petitioner forthwith:
(a) $1,175.00 U.S. currency seized from Petitioner's home on January 29, 1985; and
(b) $508,700.00 seized from a safe deposit box in the Holding Company, Bryn Mawr, Pennsylvania, on January 30, 1985.
II. The Petition for Return of Property of Charles E. Roop, Jr. is granted, the following property is found not to be derivative contraband and shall be returned to Petitioner forthwith:
(a) $7,940.00 U.S. currency seized from Petitioner’s home on January 29, 1985.
III. The Petition for Return of Property of Laura L. Sugalski is granted in part and denied in part:
(1) The following property is found not to be derivative contraband and shall be returned to Petitioner forthwith:
(a) $15,500.00 U.S. currency seized from a cash box in the clothes closet of master bedroom in Petitioner’s home on January 29, 1985;
(b) $12,429.00 U.S. currency seized from a metal box under the bed of master bedroom of Petitioner’s home on January 29, 1985; and
(c) Two $25.00 savings bonds and two $50.00 savings bonds all in the name of ‘Mrs. Rosetta Keaton’ seized from a kitchen cabinet in Petitioner’s home on January 29, 1985.
(2) The following property is found to be derivative contraband and is forfeitable to the Commonwealth of Pennsylvania:
(a) $50.00 U.S. currency seized from kitchen counter in Petitioner’s home on January 29, 1985; and
(b) $1,626.00 U.S. currency and $2.00 U.S. currency seized from kitchen cabinet in Petitioner’s home on January 29, 1985.”

Notice of Appeal to the Superior Court of Pennsylvania was filed by the Commonwealth on August 22, 1986. The Statement of Matters Complained of on Appeal filed on September 9, 1986, raises two issues: whether the Court placed an evidentiary burden on the Commonwealth which is greater than that required under 47 Pa.S. § 6-602(e) as applied to 18 Pa.C.S. § 5513(b); and whether the Court abused its discretion in ordering the return of the seized money.

The facts may be summarized as follows:

On January 29, 1985, Search Warrants were obtained for Petitioners’ homes by the State Police to search for and obtain evidence of suspected illegal gambling. One warrant was executed upon the home of Charles Roop, Sr., where $1,175.00 in cash, one number’s play, and a tally sheet for two days were found. Another warrant was executed upon the home of Charles Roop, Jr., where $7,940.00 in cash, tally sheets, rice paper, line sheets, numbers bets, and sports bets were found. The proximity of the above cash to the gambling paraphernalia was not known by Troopers John L. Bergan or Joseph Moran who testified for the Commonwealth or otherwise established by the Commonwealth.

Also, on January 29,1985, a search warrant was executed upon the Sugalski home by three Pennsylvania State Troopers, including Troopers Bergan and Levingood. Cash in the sum of $15,500.00 was found in a steel box on a closet shelf of a second floor front bedroom. No gambling paraphernalia was located in this box. A second steel box was found under the bed in the same bedroom which contained items relating to a safe deposit box at the Bryn Mawr Holding Company, Bryn Mawr, Pennsylvania, cash in the amount of $12,429.00, children’s birth certificates, insurance policies, personal papers, etc. No gambling paraphernalia was found in this box. All items were left in the box with the exception of the safe deposit documents and cash which were taken to the kitchen. Although Trooper Bergan took the safe deposit box documents, he was not sure “whether it actually pertained to the case or not”. There was nothing about the cash found in the bedroom to indicate, in any manner whatsoever, that it had been used for illegal gambling, or any other unlawful purpose. No gambling paraphernalia was found in the bedroom, or anywhere on the second floor. However, the money was seized by the Commonwealth.

The first floor rear kitchen of the Sugalski home was then searched. In a top kitchen cabinet, three calculators and blank sheets of paper were found. In a lower cabinet the Troopers found among other things, $1,626.00 and $2.00 in cash, two $50.00 and two $25.00 savings bonds in the name of “Mrs. Rosetta Keaton”, rice paper, numbers bets, weeklys, dailys, and, yearlys. Fifty ($50.00) Dollars in cash and numbers bets were found on the kitchen counter. All of the above items were seized.

The following day, an Application for a Search Warrant for safe deposit box 1H-9, was presented, and the Search Warrant was issued. Upon executing the warrant at the Bryn Mawr Holding Company, the sum of $508,700.00 was found in the safe deposit box and seized by the Commonwealth.

The essence of the Commonwealth’s first argument is that the Court erred when it failed to place the burden upon Petitioners to prove that the seized money was gained or possessed lawfully as required under 47 Pa.S. § 6-602(e). The statutory provisions relied upon by the Commonwealth state:

The Crimes Code, 18 Pa.C.S.A. § 5513(b):
“Confiscation of gambling devices. — Any gambling device possessed or used in violation of the provisions of subsection (a) of this section shall be seized and forfeited to the Commonwealth. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under the provisions of this section.”
The Liquor Code, 47 Pa.S.A. 6-602(e):
“At the time of said [forfeiture] hearing, if the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed.”

The Commonwealth concedes that^ “money is not, ordinarily, itself an instrumentality of gambling” Fairmount Engine Company v. Montgomery County, 135 Pa.Super. 367, 371, 5 A.2d 419 (1938), however, it contends that money is subject to seizure and forfeiture along with gambling devises when the circumstances clearly show that the money formed an integral part of an illegal gambling operation. Thus, the Commonwealth contends that the seized money is derivative contraband of gambling operations. The leading case concerning the forfeiture of money alleged to be derivative contraband of illegal gambling is Rosen v. LeS-trange, 120 Pa.Super. 59, 61-62 [181 A. 797] (1935):

“Money may, nevertheless, be subject to seizure, along with contraband gambling devices, apparatus of instru-mentalities, (Commonwealth v. Sinn, 82 Pa.Superior Ct. 482, 484; Commonwealth v. Kaiser, 80 Pa.Superior Ct. 26, 28) when the circumstances are such that it is clearly apparent that it formed an integral part of the illegal gambling operation and, being commingled with other such money, had not, previous to the seizure, been reclaimed and taken back into his own possession by the player, nor been received and reduced to the exclusive possession and ownership of the winner, or owner of the gambling device, or proprietor of the gambling establishment. Thus money found in a gambling slot machine, when seized, may be held with the machine and be confiscated by the Commonwealth; for while it had passed out of the ownership of the players, who inserted it in the machine, it had not been reduced to the possession and ownership of the proprietor; he does not become the owner of the money while it is contained in a receptacle within the illegal and contraband gambling machine. So money found lying on a roulette wheel, or rouge et noir table, when the gambling device is seized, if so commingled that its prior ownership has been lost, may, in like manner, be subject to confiscation, Com. v. Sinn, supra, Pa. 484. Money received for lottery tickets and ‘policy’ slips and from playing ‘numbers,’ and held awaiting the drawing of the lottery, or the determination of the winning number, if earmarked or segregated so as to be identified as part of the gambling operation, may likewise be confiscated as contraband by the authorities with the gambling instrumentality: Appeal of Joe Curcio, 106 Pa.Superior Ct. 53, 161 A 627.”

Forfeiture proceedings have been held to be civil in rem proceedings, which are quasi criminal in character. One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). The burden is upon the Commonwealth to show, by original proof, that the property sought to be returned must, instead, be forfeited. Commonwealth v. 3 Halves of Beer, 162 Pa.Super. 191, 56 A.2d 333 (1948). Since the proceeding is civil in rem, the Commonwealth is not held to the same degree of proof required in a criminal case, it need only produce sufficient evidence to satisfy, reasonably, an unbiased mind to that degree of certainty which a judicial disposition of the issue requires. Urban’s Appeal, 148 Pa.Super. 101, 24 A.2d 756 (1942); Graham v. DiJoseph, 74 Montg. Co. L.R. 114 (1957). The Commonwealth’s burden, essentially a preponderance of the evidence, has also been stated to be:

“... whether a judicial fact finder could reasonably be satisfied from all the evidence ... [citation omitted] ... that it (the money) formed an integral part of the illegal gambling operation and, being commingled with other such money, had not, previous to seizure, been reclaimed and taken back into his own possession by the player, nor been received and reduced to the exclusive possession and ownership of the ... proprietor of the gambling establishment. Rosen v. LeStrange, 120 Pa.Superior Ct. 59, 61, 181 A.797.” Commonwealth v. Petrillo, 158 Pa.Super. 354, 45 A.2d 404 (1946).

It must be noted that forfeiture is a drastic remedy that is not favored by the law and that such statutes must be strictly construed and will not be extended beyond their plain, ordinary and usual meaning. See 37 C.J.S., Forfeitures § 46; Zafino Estate, 375 Pa. 501, 100 A.2d 60 (1953); Nave v. Commonwealth, 74 Montg.Co.L.R. 410 (1958).

Considering the safe deposit box, what evidence has the Commonwealth presented to establish its derivative contraband contention? The Commonwealth’s theory is that an ongoing gambling activity, such as alleged to have been conducted by Petitioners, would need a bank, a reserve to back up the winners, and the money in the safe deposit box constituted same. Although the Commonwealth states that the courts have somewhat expanded the proximity nexus, there is no connection with gambling, gambling devises or paraphernalia in this case; nothing in the steel box, in the bedroom or even on the second floor of the Sugalski home. In addition, the steel box contained personal items such as birth certificates, insurance policies and personal papers.

Was the money in the safe deposit box, with the access documents in a steel box under the bed on the second floor of the Sugalski home, reduced to the exclusive possession and ownership of the Petitioner? Clearly, and this Court heard no evidence to lead it to conclude otherwise.

Was the money in the safe deposit box held pending the determination of a winner? Was it earmarked or segregated so as to be identified as an integral part of the gambling operation? The money was deposited in the safe deposit box on June 14, 1984, and, according to the records of the Holding Company, nobody entered the safe deposit box from the date it was opened until January 30,1985, the date of the search and seizure. In excess of seven month had passed without anybody touching the money. This fact is fatal to the Commonwealth’s theory. The Commonwealth has provided absolutely no basis to conclude that this money was an integral part of the gambling operation and was simply awaiting the determination of a winner. The Commonwealth also asserts that the money must be the proceeds of illegal gambling. This constitutes a boot strap argument based upon the Commonwealth’s suspicion, not evidence. See, Commonwealth v. Tornetta, 76 Montg.Co. L.R. 565 (1960).

The additional seizures of money at issue in this case are:

(1) The $1,175.00 cash, found somewhere in the home of Charles Roop,‘ Sr.;
(2) The $7,940.00 cash, found somewhere in the home of Charles Roop, Jr.;
(3) The $15,500.00 cash, found in a steel box, on a closet shelf, in the Master bedroom, of the Sugalski home;
(4) The $12,429.00 consisting of $7,000.00 cash, found in a steel box under the bed in the Master bedroom of the Sugalski home, and $5,429.00 cash, in the china closet in the dining room of the Sugalski home.

The Commonwealth must meet its burden with regard to each seizure for forfeiture to occur. The Commonwealth’s evidence established the following circumstances with regard to each of the seizures:

(1) No gambling paraphernalia was found with any of the money;
(2) No gambling paraphernalia was found in the vicinity or even in the same room with any of the money; and
(3) There was nothing about the money to indicate that it was being used, or had been sued, for illegal gambling, or any other unlawful purpose.

The money seized at the Sugalski home was located in a china closet in the dining room, and in the master bedroom on the second floor. The money in the bedroom was located in a locked steel box in the clothes closet, and in a locked steel box under the bed with personal papers. The Commonwealth could not even establish where the money seized at either the Charles Roop, Sr. or Charles Roop, Jr. home was located. Again, the Commonwealth is attempting to utilize conjecture and suspicion in place of evidence to expand the law beyond its present statutory and decisional posture.

The Commonwealth has failed to meet its burden of establishing that any of the seized money is an integral part of an illegal gambling operation; that prior to seizure it had not been received and reduced to the exclusive possession and ownership of Petitioners; or that it was earmarked or segregated so as to be identified as part of the gambling operation.

Based upon the foregoing, the Commonwealth concedes that the seized cash is not a “gambling devise possessed or used in violation of the provisions of subsection (a)”, and has failed to “produce evidence that the property in question was unlawfully possessed or used” as required by 18 Pa.C.S.A. § 5513(b) and 47 Pa.S.A. 6-602(e). As such, the burden does not shift to Petitioners to show that they are the owners, that they lawfully acquired the property and that it is not unlawfully used or possessed.

Accordingly, the Order of July 31, 1986, is in accord with the law, does not constitute an abuse of discretion and must be affirmed.

OLSZEWSKI, Judge,

dissenting:

In this appeal from the grant of a petition for the return of property, we are asked to determine whether over one-half million dollars seized during a raid on a gambling operation was derivative contraband and, consequently, subject to forfeiture to the Commonwealth. I agree with the implicit holding of the majority that money, in general, may be subject to forfeiture pursuant to 18 Pa.C.S.A. Sec. 5513. Because I believe the Commonwealth has proved that all the money confiscated here was derivative contraband, however, I disagree with the majority’s decision to return the seized property to appellees.

On January 29, 1985, police officers and Pennsylvania State Police troopers executed search warrants on the homes of appellees, Charles E. Roop, Sr., Charles E. Roop, Jr., and Laura L. (Roop) Sugalski. The search warrants were based upon information regarding the illegal gambling activities of those individuals. Upon execution of the search warrants, the police seized $1,175 in currency, one numbers play, and a two-day tally sheet from the home of Charles E. Roop, Sr. From the home of Charles E. Roop, Jr., police seized $7,940 in currency, tally sheets, rice paper, lined sheets, numbers bets, and sports bets. The police seized the following items from the home of Laura L. Sugalski:

1. $50 cash and a small slip of paper containing numbers bets found on the kitchen counter;
2. from the kitchen cabinets: $1,626 cash, a $2 — bill, two $25 savings bonds, two $50 savings bonds (all bonds were issued in the name of “Rosetta Keaton”), $200 cash, rice paper, sheets of paper containing numbers, a red notebook containing numbers, a yellow pad containing numbers, a steno book containing numbers, and three calculators;
3. approximately $5,229 in currency was found in the dining room china cabinet; and
4. from the second floor master bedroom, the following:
a. $15,500 in currency and a written note containing a dollar figure were in a metal box on a shelf in the closet; and
b. Another metal box under the bed contained approximately $7,000 in currency, a safe-deposit box lease with directions to the location of the box, safe-deposit box keys, a magnetic card, a photograph of Charles E. Roop, Sr. with the name “Robert Cambell,” and a photogrpah of Laura Sugalski with the name “Kathy Price.”

On January 30, 1985, police executed a search warrant on the safe-deposit box which was leased to “Robert Cambell and Kathy Price.” A total of $508,700 was seized from that box. Upon the seizure of these items and currency, appel-lees filed a petition pursuant to Pa.R.Crim.P. 324 for the return of the currency. After a hearing on the matter, the trial court ordered:

1. the $1,175 in currency seized from the home of Charles E. Roop, Sr., and the $508,700 in currency seized from the safe-deposit box were not derivative contraband and, thus, were to be returned to Mr. Roop;
2. the $7,940 in currency seized from the home of Charles E. Roop, Jr. was not derivative contraband and was to be returned to Mr. Roop; and
3. the $15,500 in currency seized from the metal box in the closet of the master bedroom, the $12,429 in currency seized from a metal box under the bed and the four savings bonds seized from the kitchen cabinet were not contraband and, thus, were to be returned to Mrs. Sugalski.

In short, the only property found to be derivative contraband and, consequently, forfeitable to the Commonwealth were a few items from Mrs. Sugalski’s home: the $50 in currency seized from the kitchen counter; and, from the kitchen cabinet, the $1,626 in currency and the $2 — bill. The Commonwealth thereafter filed this timely appeal from the order of the trial court.

The Commonwealth first asserts that pursuant to Section 5513 of the Crimes Code, the currency was subject to forfeiture. The majority implicitly accepts the Commonwealth’s argument, a decision in which I join. Section 5513(b) provides:

(b) Confiscation of gambling devices. — Any gambling device possessed or used in violation of the provisions of subsection (a) of this section shall be seized and forfeited to the Commonwealth. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under the provisions of this section.

18 Pa.C.S.A. Sec. 5513(b).

A literal reading of this provision indicates that only “gambling devices” are subject to forfeiture. It has long been established, however, that money may be seized and forfeited as derivative contraband, if it is clear that the currency formed an integral part of a gambling operation and it has not been received, reclaimed or reduced to an individual’s exclusive possession and ownership. See e.g., Fairmount Engine Co. v. Montgomery County, 135 Pa.Super. 367, 5 A.2d 419, 420-421 (1939). To my knowledge, neither the Supreme Court nor this Court has had occasion to question the propriety of a forfeiture of money pursuant to Section 5513(b). This Court has determined, however, that pursuant to a similar provision of the Drug, Device and Controlled Substance Act, money seized during an arrest for the illegal sale of drugs was derivative contraband and, consequently, was forfeitable even though that statute did not expressly authorize the forfeiture of money. Lappas v. Brown, 335 Pa.Super. 108, 483 A.2d 979 (1984). In addition, the Commonwealth Court of Pennsylvania has applied the common law test for forfeiture under Fairmount Engine Co., supra, in a Section 5513(b) proceeding. In re $13,-561.50, 72 Pa.Commw. 451, 456 A.2d 1140 (1983). I am persuaded by the reasoning of Lappas and In re $13,561.50. Consequently, I conclude that pursuant to Section 5513(b), money may be forfeited as derivative contraband.

Having made this determination, I turn to the application of this rule. Section 5513(b) specifically provides that the forfeiture procedures governing in the Liquor Code, 47 Pa.S.A. Sec. 6-601 et seq., are to apply in a Section 5513 proceeding. 18 Pa.C.S.A. Sec. 5513(b); Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 197-99, 465 A.2d 973, 979 (1983) (applying the forfeiture provision of the Liquor Code to a gambling case). Section 6-602 of the Liquor Code is particularly instructive:

Sec. 6-602. Forfeiture proceedings
# j}! % $ >}c
(e) At the time of said (forfeiture) hearing, if the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed.
In the event such claimant shall prove by competent evidence to the satisfaction of the court that said liquor, alcohol or malt or brewed beverage, or still, equipment, material, utensil, vehicle, boat, vessel, container, animal or aircraft was lawfully acquired, possessed and used, then the court may order the same returned or delivered to the claimant^)

47 Pa.S.A. Sec. 6-602(e).

Pursuant to this provision, the Commonwealth bears the burden of proving that the property was unlawfully possessed or used. Where derivative contraband is involved, unlawful possession or use is established by proof that the property formed an integral or essential part of the gambling activities. In a forfeiture proceeding, the Commonwealth must sustain this burden by a preponderance of the evidence. Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 561-62, 492 A.2d 6, 8 (1985); Petition of Maglisco, 341 Pa.Super. 525, 530-31, 491 A.2d 1381, 1384 (1985); Lappas v. Brown, 335 Pa.Super. 108, 115-16, 483 A.2d 979, 983 (1984); Commonwealth v. Myers, 298 Pa.Super. 272, 282, 444 A.2d 1170, 1175 (1982); Commonwealth v. Landy, 240 Pa.Super. 458, 469-71, 362 A.2d 999, 1005 (1976) (en banc). If the Commonwealth’s burden has been satisfied, the burden is then upon the claimant seeking return of the property to show ownership, lawful acquisition, and lawful use or possession of the property. 47 Pa.S.A. Sec. 6-602(e). See generally, Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. at 197-200, 465 A.2d at 979-980.

Having set forth the guiding principles, I turn to the merits of the Commonwealth’s claim that the trial court erred in finding insufficient evidence that the currency seized here was subject to forfeiture as derivative contraband. The trial court concluded that there was no connection between the gambling operation and the currency seized from any of the homes or the safe-deposit box. In particular, the court noted that no gambling paraphenalia was found with or near the money and nothing about the money indicated it was or had been used for an unlawful purpose. As a result, the court held the Commonwealth failed to meet its burden of showing that the currency was an integral part of an illegal gambling operation.

While the majority here affirms the decision of the lower court, I agree with the Commonwealth that the trial court ignored the evidence of record. At the forfeiture hearing, the Commonwealth presented evidence which indicated the existence of an extensive, on-going gambling enterprise. Based upon information gathered during an extended investigation and documents seized during the raids, an expert witness for the Commonwealth described in detail the activities of the participants. The Commonwealth’s expert witness opined that given the evidence relating to the numbers activities, the gross income of the gambling operation was $40,000 per week or approximately $2,200,000 per year. (Notes of hearing, 4/15/86 at 89). Moreover, it was the witness’s conclusion that a bookmaking operation of this size would have had large sums of money available to settle wagers. (Notes of hearing, 4/15/86 at 129). From this testimony and the documents produced at the hearing, it could reasonably be inferred that the money seized was accumulated from the gambling transactions and served as a readily available reserve to be used in the gambling operation. Accordingly, I am satisfied that the Commonwealth established by a preponderance of the evidence that the currency seized had become an integral part of the gambling activities and, hence, was unlawfully possessed or used. Cf. Commonwealth v. Two Electronic Poker Game Machine, 502 Pa. at 195-99, 465 A.2d at 978-979 (Supreme Court reversed conclusion of hearing court; Commonwealth’s burden of proof was satisfied); Commonwealth v. Doranzo, No. 1368 Philadelphia 1983 (Pa.Super. 7/23/87) (reversing trial court’s finding that the Commonwealth had not satisfied its burden of proof).

The burden was then upon appellees who were required to establish ownership, lawful acquisition, and lawful use or possession of the money. 47 Pa.S.A. Sec. 6-602(e). Appel-lees presented no evidence at the hearing. The attorney for appellees did, however, cross-examine the Commonwealth’s witness about the currency contained in the safe-deposit box. That witness admitted that the box was opened on June 15, 1984 and, thereafter, was not touched until it was seized by the police on January 30, 1985. The fact that the safe-deposit box was not opened for some time does not convince me that the money was lawfully acquired, possessed or used. At best, the cross-examination merely demonstrates that the police could not say with absolute certainty that the money was not acquired or used in the illegitimate operation. The Commonwealth is not required, however, to prove its case to an absolute certaintude. Having shown that the currency was more likely to have been unlawfully acquired and used, appellees were required to prove otherwise. This they failed to do. Consequently, the court erred in granting appellees’ petition for the return of the currency.

I find no error, however, in the grant of the petition for the return of the four bonds seized from the home of Mrs. Sugalski. By implication, property is not an integral part of an illegal activity if it has been reduced to an individual’s exclusive possession or ownership. The Commonwealth presented no evidence indicating that the government bonds were either part of the gambling reserve or accumulated from gambling activities. Moreover, the bonds were issued in the name of a party unrelated to the proceedings here. The court, therefore, properly granted the petition for the return of the bonds.

In sum, I would find that the currency was subject to forfeiture as derivative contraband. Where, as here, the Commonwealth’s evidence established it was more likely than not that the money seized was derived from and formed an integral part of the gambling operation, the money was forfeitable in the absence of any evidence indicating it had a legitimate and lawful source.

Accordingly, I would reverse the order of the trial court insofar as the seized property was returned to appellees.

      . In addition, on January 27, 1986, Petitioners filed a Motion to Suppress which addressed evidence obtained from interception of wire communication. This was not heard by the Court based upon agreement of counsel at the hearings and embodied in this Court’s Order of July 31, 1986 set forth hereinafter.

      . This amount of money was grouped by Trooper Bergan with an amount of money found in the dining room china closet. No gambling paraphernalia was found in the dining room.

      . Subsequent to the filing of this petition, Charles E. Roop, Jr. and Charles E. Roop, Sr. died. Sharon Roop was thereafter substituted as a party to the petition.

      . Pa.R.Crim.P. 324 provides as follows:
      Rule 324. Motion for Return of Property
      (a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
      (b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
      (c) A motion to suppress evidence under Rule 323 may be joined with a motion under this rule.

      . This appeal is properly before us. According to the record, no criminal actions have been taken and held over in court against appellees. Consequently, this appeal is not interlocutory. See Commonwealth v. Lewis, 288 Pa.Super. 198, 204-05, 431 A.2d 357, 360 (1981) (appeal from demand of petition for return of property was interlocutory where criminal prosecution was pending). In addition, the appeal was properly taken from the order of the court. No post-trial motions need be filed where a Rule 324 petition is unrelated to a criminal proceeding. Cf. Commonwealth v. Myers, 298 Pa.Super. 272, 274-78, 444 A.2d 1170, 1172-1173 (1982) (Rule 324 petition filed with post-verdict motions); Commonwealth v. Setzer, 258 Pa.Super. 236, 392 A.2d 772 (1978) (where a Rule 324 petition was not filed with post-trial motions or at sentencing, the issue was not preserved for appellate review).

      . There is a distinction between derivative contraband and contraband per se. " ‘Contraband per se is property the mere possession of which is unlawful.... Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act.’ ” Petition of Maglisco, 341 Pa.Super. 525, 528, 491 A.2d 1381, 1382 (1985), quoting, Commonwealth v. Fassnacht, 246 Pa.Super. 42, 46, 369 A.2d 800, 802 (1977). There is no question that the currency seized here was not contraband per se. Rather, the question before us is whether currency is subject to forfeiture pursuant to Section 5513.

      . In re $13,561.50 was before the Commonwealth Court apparently as an appeal from the denial of a petition for the return of money seized pursuant to the Liquor Code. Generally, an appeal from the grant or denial of forfeiture is properly presented before the Commonwealth Court. See Commonwealth v. 84-Quart Bottles Bianco DiVerona Wine, 250 Pa.Super. 544, 546-48, 378 A.2d 1282, 1283-1284 (1977). See also 42 Pa.C.S.A. Sec. 762(a)(1). Because appellee has not objected to the jurisdiction of this Court, I believe we have properly exercised our discretionary power to consider this appeal. See 42 Pa.C.S.A. Sec. 702; Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986) and cases cited therein.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    529 A.2d 1112
    COMMONWEALTH of Pennsylvania v. Robert Gene RUMBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 17, 1987.
    Filed Aug. 3, 1987.

      J. Randall Miller, Assistant Public Defender, Hollidays-burg, for appellant.

      Ellen L. Cohen, Assistant District Attorney, Hollidays-burg, for Com., appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order denying-appellant Robert Gene Rumbaugh’s post-sentence petition to withdraw his guilty plea and from the judgment of sentence imposed following his plea.

Appellant was arrested on September 7,1985 and charged with Burglary, Criminal Trespass, and Indecent Assault. On January 23, 1986, following a trial by jury which ended in a mistrial, appellant entered a negotiated guilty plea to charges of Criminal Trespass and Open Lewdness. Appellant was sentenced on September 10, 1986 to three to eight years imprisonment. Eight days later, appellant filed a motion to withdraw his guilty plea and modify his sentence. The motion was denied without a hearing on September 23, 1986. Appellant now appeals. On appeal, he raises two issues: (1) Is the refusal to permit him to withdraw his guilty plea manifestly unjust? and (2) Is the sentence imposed manifestly excessive?

In disposing of appellant’s first issue, we must apply the post-sentence test to determine whether appellant should have been permitted to withdraw his guilty plea: appellant filed a motion with the court for permission to withdraw his plea eight days after sentence had been imposed. A post-sentence motion to withdraw a guilty plea, filed pursuant to Pa.R.Crim.P. 321, can be granted only on a showing of prejudice amounting to manifest injustice. Commonwealth v. Refile, 353 Pa.Super. 190, 509 A.2d 400 (1986). Appellant has failed to show any prejudice. His contention that his physical and mental condition rendered him incapable of making an intelligent and voluntary decision to plead guilty is belied by his acknowledgment during the plea colloquy that he understood what he was doing and that his physical ailment — a head cold — did not impair his ability to comprehend the proceedings. Since appellant’s argument is contradicted by his own testimony, under oath, at the plea hearing no further hearing on his post-sentence motion was required.

In his second issue, appellant questions whether the sentence imposed was excessive because it was disproportionate to sentences given to other defendants who committed similar crimes. Since the issue raised by appellant does not implicate the legality of his sentence but only the discretionary aspects of the sentence, his appeal is not a matter of right. Rather, an appellate court may only grant such an appeal where it appears that there is a substantial question that the sentence imposed is not appropriate under the sentencing code. 42 Pa.C.S. § 9781(b).

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Supreme Court discussed the procedure which must be followed to perfect an appeal from the discretionary aspects of a sentence. The notice of appeal under Pa.R.A.P. 902 serves as the “petition for allowance of appeal” as required by 42 Pa.C.S. § 9781(b). The appellant then must include in his brief a separate section setting forth a concise statement of reasons why the Court should exercise its discretionary jurisdiction to hear the appeal. Pa.R.A.P. 2119(f). Failure to include such a statement may preclude permission to appeal. If the appellee does not object to the failure of the appellant to comply with the requirements of Rule 2119(f), the procedural requirement of a separate section detailing the reasons why permission to appeal should be granted is waived. Such a waiver of the procedural requirement to set forth an independent statement of reasons does not, however, relieve us from our initial obligation to determine whether a substantial question that warrants exercise of our discretionary jurisdiction is presented.

In this case, the Commonwealth has not objected to appellant’s failure to include a separate statement of reasons, and therefore we can overlook appellant’s failure to comply with the procedural requirement of Rule 2119(f). See Tuladziecki, Id., 513 Pa. at 515, 522 A.2d at 21 (“Appellant properly preserved his challenge to this procedural violation, and for the reasons stated herein, the Superior Court’s decision to overlook it must be vacated”). However, we still must determine whether appellant has presented a suitable “ ‘statement of question’ by ‘brief reasons’ indicating a ‘substantial question’ ” is involved. Commonwealth v. Lapcevich, 364 Pa.Super. 151, 155 n. 2, 527 A.2d 572, 574 n. 2 (1987).

Our examination of appellant’s claim shows that he has failed to present a substantial question that his sentence is not appropriate under the Sentencing Code. Appellant was sentenced within the sentencing guidelines, and the severity of his sentence reflects his substantial prior criminal record as reflected in his prior record score. We therefore deny appellant’s petition for permission to appeal from the discretionary aspect of his sentence.

The order denying appellant’s petition to withdraw his guilty plea is affirmed, and his petition for permission to appeal from the discretionary aspects of his sentence is denied.


author: WIEAND, Judge:

text:
    529 A.2d 1115
    COMMONWEALTH of Pennsylvania v. Robert WINDELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1987.
    Filed Aug. 14, 1987.

      Augustine J. Rieffel, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a thief, who surreptitiously and without the knowledge of the owner removes a coin purse and wallet from a pocketbook being carried by a passenger on a bus, is guilty of robbery. We conclude that because the element of force is missing, the pickpocket is guilty of theft and not robbery.

On February 21, 1985, at or about 9:45 a.m., Kenny Welsh, a Sears security guard, received information from a customer that two males, whom the customer pointed out, had been picking pockets on a Route K SEPTA bus. Welsh and Thomas Strobeck, another guard, approached the men and asked them if they had been on the Route K bus. When one of them, Herbert Edmunds, responded in the affirmative, Welsh asked the men if they knew anything about pickpocketting a passenger on the bus. Edmunds answered, “no,” but immediately walked to a clothing rack, where he dropped a red wallet. Welsh and Strobeck thereupon apprehended Edmunds and Robert Windell and took them to the store’s security office. En route, Strobeck observed Windell drop to the floor a small, brown, coin purse. When Strobeck retrieved the purse, he found a beige wallet lying next to the purse. The purse contained a cross, a key, and coins in the total amount of $1.11. The beige wallet divulged a prescription containing the name of the prescribing physician, his telephone number, and the name “C. Taylor.” A call to the physician led to Frances Taylor, a seventy-nine year old woman. Although she was able to identify the coin purse and wallet, she had not been aware previously that they had been stolen.

Frances Taylor testified at trial that she had been a passenger on the Route K bus between 9:25 and 9:50 a.m. on the morning of February 21, 1985. The bus had been crowded, she said, and she had found it necessary to stand in the aisle. Although there had been a fair amount of jostling, she remembered being shoved forcefully just before the bus arrived at the Sears store. When she turned around to see who had pushed her, she observed a tall man standing beside her, but she did not know who he was and could not identify him as either Edmunds or Windell. She did not become aware that her purse and wallet were missing until after she arrived home and learned that they were in the possession of the police.

The trial court, which heard the evidence without a jury, found Robert Windell guilty of robbery, theft by unlawful taking, theft by receiving stolen property, and criminal conspiracy. Post-verdict motions were denied, and Windell was sentenced on the robbery conviction to serve a term of imprisonment for not less than IIV2 months nor more than 2 years minus one day, to be followed by probation for a consecutive period of five years. He was sentenced to an additional term of probation for criminal conspiracy. Win-dell appealed. He contends, inter alia, that the evidence was insufficient to sustain a conviction for robbery.

A person is guilty of robbery if, in the course of committing a theft, he physically takes or removes property from the person of another by force however slight. 18 Pa.C.S. § 3701(a)(1)(v). The issue in this case is whether the removal of property from a person, without any force other than that needed to take the property and carry it away, constitutes robbery. If so, all unlawful taking of property from the person of another will constitute robbery and not merely theft.

In Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984), the Supreme Court held that the element of “force however slight,” required by 18 Pa.C.S. § 3701(a)(l)(v), can be satisifed by evidence of any amount of force applied to a victim in the course of a theft. The court said:

It is clear to us that any amount of force applied to a person while committing a theft brings that act within the scope of robbery under § 3701(l)(a)(v). This force, of course, may be either actual or constructive. Actual force is applied to the body; constructive force is the use of threatening words or gestures, and operates on the mind. Commonwealth v. Snelling, [4 Binn. 379, 383 (1812)].
The degree of actual force is immaterial, so long as it is sufficient to separate the victim from his property in, on or about his body. Any injury to the victim, or any struggle to obtain the property, or any resistance on his part which requires a greater counter attack to effect the taking is sufficient. The same is true if the force used, although insufficient to frighten the victim, surprises him into yielding his property.

Id., 506 Pa. at 176, 484 A.2d at 741 (emphasis added).

In Commonwealth v. Smith, 333 Pa.Super. 155, 481 A.2d 1352 (1984), defendant was found guilty of robbery because he had taken a pack of cigarettes from a blind man. There had been no threats made by defendant, and there had been no struggle or resistance by the victim. In reversing defendant’s conviction, this Court stated:

The elements of robbery as defined by § 3701(a)(l)(v) are (1) that the defendant physically take or remove property, (2) from the person of another, (3) by use of force however slight. Here, as appellant concedes, the first two elements were proved. However, with respect to the third element, the only “use of force” that was proved was that appellant used just so much force as was necessary to “physically take or remove” (first element) the pack of cigarettes “from the person of” Mr. Walker (second element). The conclusion follows that the third element was not proved, and that the evidence was therefore insufficient. Plainly, the legislature intended to distinguish between evidence showing only a taking or removal from the person, and a taking or removal by force. To hold, as did the trial judge, that evidence proving only a taking or removal also proves a removal by force because “there was no way [appellant] could have gotten the cigarettes ... without using some force” is equivalent to holding that the first and third elements are synonymous. Such a holding is proscribed, for its effect would be to make the third element redundant, or surplusage, and in construing a statute, we must assume that the legislature intended that every word of the statute would have effect. To give effect to the phrase “force however slight”, we must construe it as requiring proof of more than only the physical removal of an object from a person.

Id., 333 Pa.Superior Ct. at 158, 481 A.2d at 1353-1354 (1984) (citations omitted) (emphasis in original).

The decision in Commonwealth v. Smith, supra, holds that the force required for robbery must be something more than the force needed to take and carry away another person’s property. The element of “force however slight” must be directed to the exercise of strength or power to overcome resistance. Id., 333 Pa.Superior Ct. at 160, 481 A.2d at 1355.

The Commonwealth argues that the element of force was established by the victim’s testimony that she was pushed or shoved shortly before the bus stopped at the Sears store. We would readily agree with this argument by the Commonwealth if there were evidence that Windell or his co-conspirator had applied such force. In fact, however, the evidence does not establish, directly or by inference, that the pushing was in any way connected with the theft of the victim’s purse and wallet or that it was done by appellant or his co-conspirator. Although the evidence was sufficient to permit an inference that appellant was on the bus and took the victim’s purse and wallet, there was no evidence to connect him or the theft with the pushing which the victim experienced. The bus was crowded, as she conceded, and at the time of the pushing she was standing next to a tall man whom she could not identify. She also did not know when her coin purse and wallet were taken.

A conviction must be based upon something more than mere suspicion or conjecture. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973). A conviction which is based solely on inference, suspicion, and conjecture cannot stand. Commonwealth v. Simpson, 436 Pa. 459, 464, 260 A.2d 751, 754 (1970); Commonwealth v. Frey, 264 Pa.Super. 212, 215, 399 A.2d 742, 743 (1979). In light of the evidence, we are constrained to hold that appellant's conviction for robbery can be sustained only by conjecture. Consequently, it must be vacated. There is more than adequate evidence, however, to support the convictions of theft and conspiracy.

Appellant contends that he is entitled to a new trial because the trial court erred when it denied his pre-trial motion to suppress the brown purse and beige wallet which were retrieved by Sears personnel after defendant and his companion had been detained. We disagree. It is axiomatic that a defendant has no standing to contest the search or seizure of items which he has voluntarily abandoned. Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976).

The issue is not abandonment in the strict property-right sense, but whether appellant voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it.

Commonwealth v. Williams, 269 Pa.Super. 544, 547, 410 A.2d 835, 836 (1979). In the instant case, appellant intentionally and voluntarily discarded the purse and wallet when he was apprehended by Sears personnel. Police had not arrived on the scene before this occurred. Thus, the abandonment of the purse and wallet could not have been caused by illegal police activity. Even if the security guards had detained appellant without probable cause, the exclusionary rule argued by appellant did not prevent the use of the evidence. The rule has no application to a private or citizen’s arrest. Commonwealth v. Corley, 507 Pa. 540, 551, 491 A.2d 829, 834 (1985).

Appellant also complains that Edmunds’s affirmative response to questioning in which he said that he and appellant had been on the Route K bus was improperly received in evidence against appellant. Because appellant did not preserve this issue in his post-verdict motions, however, it has been waived. Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979); Commonwealth v. Pyatt, 477 Pa. 162, 383 A.2d 873 (1978). Moreover and in any event, the statement of Edmunds was admissible because it was a statement made by a co-conspirator during the continuation of the conspiracy. See: Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981) (statement made by one co-conspirator in course of concealing evidence and evading capture admissible against other); Commonwealth v. Bolden, 268 Pa.Super. 431, 408 A.2d 864 (1979) (conspiracy extends to concealing and destruction of evidence).

For purposes of imposing sentence, the trial court determined that the theft offenses had merged with the crime of robbery. Therefore, the court imposed no separate sentence for theft. In view of our decision to reverse the conviction for robbery, we will remand to permit the trial court to impose an appropriate sentence for theft. We will also vacate the sentence imposed for criminal conspiracy and remand for resentencing in light of this Court’s determination that the Commonwealth failed to prove a robbery.

The judgment of sentence for robbery is reversed and with respect thereto appellant is discharged. The judgment of sentence for criminal conspiracy is vacated, and with respect thereto the matter is remanded for resentencing. The matter is also remanded for sentencing on the verdict finding appellant guilty of theft.

      . 18 Pa.C.S. § 3701(a)(l)(v).

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 903.


author: OLSZEWSKI, Judge:

text:
    529 A.2d 1118
    Charles J. EGENRIEDER, Administrator of the Estate of Robert A. Egenrieder, Deceased; Charlotte J. Clair, Administra-trix of the Estate of Joyce E. Clair, Deceased; Joyce E. Fleske, Administratrix of the Estate of Vicky Ann Fleske, Deceased; Jacqueline M. Snyder, Administratrix of the Estate of Gregory M. Snyder, Deceased; and all Others Similarly Situated, Appellants, v. The OHIO CASUALTY GROUP, West American Insurance Company, and Ohio Casualty Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1987.
    Filed Aug. 10, 1987.

      Pamela Shuman, Harrisburg, for appellants.
    Richard E. Freeburn, Harrisburg, for appellees.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order entered after the trial court dismissed appellants’ claims as being time-barred. On appeal, we must determine: (1) whether appellants, members of the certified class, have standing to bring this appeal on behalf of the unnamed plaintiffs whom the trial court refused to certify as members of the class; and (2) whether the trial court erred in dismissing the claims made on behalf of decedents whose fatal accidents occurred between November 16, 1979 and May 15, 1981. For the reasons stated below, we affirm the judgment entered by the trial court.

The facts relevant to an understanding of this appeal are as follows. Appellants’ attorney originally filed a class action against thirty-one insurance companies. Our Supreme Court, however, upheld the trial court’s ruling that, as the representative plaintiff had an insurance policy only with Erie Insurance Exchange, all other defendant insurance companies should be dismissed. Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983). The attorney then began to file class action suits against the individual insurance companies. This is one of those suits. Plaintiffs-appellants, administrators of estates of decedents who received fatal injuries in motor vehicle accidents, filed the instant action on May 15, 1985 against defendants-appellees for work loss benefits under Pennsylvania’s No-fault Motor Vehicle Insurance Act (No-fault Act). On June 3,1986, the trial court certified the case as a class action and divided the class into three subclasses. See our discussion infra. One June 13, 1986, plaintiffs-appellants filed a motion to amend the certified classes to include claims made on behalf of decedents whose fatal accidents occurred between November 16, 1979 and May 15, 1981. The trial court denied the motion and subsequently severed and dismissed the claims of the estates of decedents who died between November 16, 1979 and May 15, 1981. This timely appeal followed.

On January 28, 1987, appellees filed a motion to quash appellants’ appeal, raising the issue of whether appellants have standing to pursue this appeal. Appellees, in addressing this issue in their brief, summarized their contention as follows:

This appeal is taken by the certified class on behalf of the individuals who the court refused to certify as members of the class. It is clear that the individuals who the court refused to certify as members of the class are no longer parties to the class action. It is equally clear that the interests of the members of the certified class have not been adversely affected by the trial court’s refusal to certify other individuals as members of the class. Consequently, the certified class lacks standing to take this appeal.

Brief for appellees at 18-19.

This case presents us with an issue of first impression in this Commonwealth: whether the representative plaintiffs, who are all certified as members of a class, can appeal from the partial decertification of the class on behalf of the unnamed plaintiffs (i.e., “all others similarly situated”) who were denied certification. Prior Pennsylvania appellate decisions have involved the situation where the entire class was denied certification and where the appellant, consequently, was a representative plaintiff of the class. See, e.g., Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), after remand, 241 Pa.Super. 192, 360 A.2d 681 (1976); Brunda v. Home Ins. Co., 353 Pa.Super. 146, 509 A.2d 377 (1986), appeal granted, 512 Pa. 358, 516 A.2d 1185 (1986). In the instant case, however, there was a partial decertification and none of the plaintiffs who have been denied certification into the class are representative plaintiffs but rather, are all unnamed plaintiffs. The representative plaintiffs of the class are now appealing on behalf of the unnamed, non-certified plaintiffs.

It is well-established that only “aggrieved” parties may appeal from an appealable order. See Pa.R.A.P. 501 (“... any party who is aggrieved by an appealable order ... may appeal therefrom”). The requirement that a party must be “aggrieved” as a prerequisite to maintaining an action is applicable to class actions. See Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983). In discussing who is an “aggrieved” party for the purpose of standing, our Supreme Court has stated:

The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed. This principle was thoroughly considered in Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) where this court confirmed that to have standing, a party must (a) have a substantial interest in the subject-matter of the litigation; (b) the interest must be direct; and (c) the interest must be immediate and not a remote consequence.

Franklin Twp. v. Commonwealth, Dept. of Environmental Resources, 500 Pa. 1, 4, 452 A.2d 718, 719 (1982).

We agree with appellees that the representative plaintiffs, who are all members of the certified class, are not “aggrieved” by the trial court’s order dismissing other plaintiffs from the class. We, however, find that the representative plaintiffs of the certified class are acting in a representative capacity on behalf of those who are indeed aggrieved, i.e., the unnamed plaintiffs who were denied certification. The non-certified plaintiffs have suffered an immediate, direct, and substantial injury by the trial court’s order dismissing them from the class action. Cf. Cambanis v. Nationwide Ins. Co., 348 Pa.Super. 41, 501 A.2d 635 (1985) (non-certified plaintiffs were permitted to appeal trial court order denying class certification); Seibel v. Allstate Ins. Co., 346 Pa.Super. 384, 499 A.2d 666 (1985), appeal denied, 513 Pa. 635, 520 A.2d 1385 (1987) (non-certified class members appealed trial court order denying class certification). We, consequently, conclude that the certified class has representational standing to assert the claims of the non-certified, unnamed plaintiffs.

As unnamed, non-certified plaintiffs, these individuals were never identified and, consequently, could never be notified of the trial court order denying them class certification. If the representative plaintiffs were not allowed to appeal on behalf of the unnamed, non-certified plaintiffs, then no appeal would be possible from a partial decertification of a class action where all of the non-certified plaintiffs are unnamed plaintiffs. Our determination that the named representatives of a class can appeal on behalf of the unnamed, non-certified plaintiffs avoids the harsh consequences attendant to a conclusion that such appeals are to be quashed on the basis of a lack of standing.

Having found that this appeal is properly before us, we now address the merits of appellants’ contention that the trial court erred in dismissing the claims made on behalf of decedents whose fatal accidents occurred between November 16, 1979, and May 15, 1981. In essence, appellants argue that this Court’s decision in Miller v. Federal Kem-per Ins. Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986), expanded the Nye class of plaintiffs. Appellants’ contention focuses on the following language in Miller: “The Nye action was also adequate to toll the statute of limitations for class members whose decedents had sustained fatal injuries after November 15, 1977.” Miller, 352 Pa.Super. at 595, 508 A.2d at 1230. In their appellate brief, appellants assert that: “It is significant that Your Court in Miller did not limit the class of plaintiffs in the Nye complaint other than to say that it included those whose deaths occurred after November 15, 1977.” Brief for appellants at 16 (emphasis in original). Appellants ask us to now interpret the Nye plaintiff class, which was defined in the Nye complaint as estates of decedents who died “within the past two years,” to include not only decedents whose deaths occurred in the two years prior to the filing of the Nye complaint, but also to include those decedents whose fatal accidents occurred after November 15, 1979, (the date the Nye complaint was filed) and while the Nye action was pending before the courts. We decline to do so.

In its order of June 3, 1986, the trial court certified three subclasses of plaintiffs:

(1) The first subclass shall consist of the estates of all decedents insured under policies of no-fault insurance issued by defendants whose deaths occurred as the result of the maintenence and use of a motor vehicle within Pennsylvania on or after May 16, 1981. The subclass shall also include the estates of such decedents who were residents of Pennsylvania and who died as a result of the maintenance and use of a motor vehicle outside of Pennsylvania during that period.
(2) The second subclass shall consist of the estates of all previously employed decedents who were Pennsylvania residents insured under policies of no-fault insurance issued by defendants and who sustained their fatal injuries as the result of the maintenance and use of a motor vehicle, whether within or outside of Pennsylvania, during the period from November 16, 1977, to November 15, 1979.
(3) The third subclass shall consist of the estates of all previously-employed decedents who were Pennsylvania residents insured under policies of no-fault insurance issued by defendant, whose fatal injuries were sustained as the result of the maintenance and use of a motor vehicle, whether within or outside of Pennsylvania, prior to November 16, 1977, and whose estates received any no-fault payments from November 16, 1977, to November 15, 1979, as a result of decedents' deaths.

The first subclass includes claims on behalf of decedents whose fatal motor vehicle accidents occurred on or after May 16, 1981, a date which is four years prior to the filing of the Egenrieder class action complaint. This four year period is based upon Section 106(c)(1) of the No-fault Act which specifies the statute of limitations applicable to claims for post-mortem work loss benefits. See Kamperis v. Nationwide Ins. Co., 503 Pa. 536, 469 A.2d 1382 (1983). This section states in pertinent part:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 Pa.C.S.A. Sec. 1009.106(c)(1) (emphasis added). Under Section 106(c)(1), the greatest period within which to file an action for post-mortem work loss benefits is four years from the date of the fatal accident. In the instant case, the Egenrieder class action complaint was filed on May 15, 1985. The trial court, therefore, limited the first subclass of plaintiffs to claims made on behalf of decedents who died on or after May 15, 1981, four years prior to the filing of the Egenrieder class action complaint.

The second and third subclasses are based upon the class definition contained in the complaint in Nye v. Erie Insurance Exchange, No. 5349 S 1979 (C.P. Dauph.). The Nye complaint defined the class as follows:

14. The class of plaintiffs includes all previously employed Pennsylvania residents who were insured by any of the defendants under No-Fault insurance coverage and who sustained a fatal injury within the past two years or whose estates or relatives received any no-fault payments whatsoever as a result of decedents’ death during the past two years and their executors, administrators, relatives, etc.

(Emphasis added.). The trial court, consequently, limited the second subclass to claims made on behalf of decedents who died between November 16, 1977 (two years prior to the filing of the Nye complaint) and November 15, 1979 (the date the Nye complaint was filed). The third subclass represents the estates of decedents who died earlier than two years prior to the filing of the Nye complaint, but whose estates or relatives received no-fault benefits within this two year period, i.e., from November 16, 1977 to November 15, 1979.

We find that the trial court did not err by excluding claims made on behalf of decedents who died between November 16, 1979 and May 15, 1981. In Miller, this Court stated:

... As American Pipe (& Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713, reh’g denied, 415 U.S. 952, 94 S.Ct. 1477, 39 L.Ed.2d 568 (1974)) and its progeny suggest, a previously filed class action tolls the statute of limitations only for asserted class members who would have been parties had the suit been permitted to continue as a class action. This requirement assures that a defendant will not be unfairly surprised by the size or general composition of the class of individuals who may later attempt to intervene or bring their own actions against the defendant. Thus, the only members of the class in the instant action who are entitled to benefit from the Nye action’s tolling effect are those who also were in the class defined in Nye.
* * sjc *
... Were we to extend the tolling effect of Nye beyond the parameters of the narrow class there defined, however, we would defeat the objective of the legislature that the statutorily imposed period of limitations was designed to achieve, i.e., to protect insurers such as Kemper from the need to defend unforeseeable, stale claims.

352 Pa.Super. at 595, 508 A.2d at 1230 (citations omitted) (emphasis in original). This Court merely concluded in Miller that the statute of limitations on claims for post-mor-tem work loss benefits had been tolled by the prior class action of Nye until December 30, 1983, but only for claims made on behalf of members of the class defined in Nye, i.e., those previously employed insureds who died in motor vehicle accidents between November 16, 1977 and November 15, 1979, or whose estates or relatives received any no-fault payments within this two-year period. See Himmelright v. United States Fidelity & Guaranty Co., 352 Pa.Super. 517, 508 A.2d 594 (1986). The Miller opinion, consequently, did not expand the Nye class beyond November 15, 1979, but merely extended the statute of limitations for those within that two-year period of the Nye class. Indeed, appellants’ counsel, who was also counsel in Nye, conceded in his appellate brief that: “(I)n hindsight it might have been wiser for plaintiffs’ class definition (in Nye) to state clearly that the plaintiff class consisted of all previously-employed decedents whose deaths occurred until final adjudication of this matter____” Brief for appellants at 14-15 (emphasis in original).

The claim of decedents who suffered their fatal injuries between November 16, 1979 and May 15, 1981, do not fall within the class described in Nye. The plaintiffs representing the claims of these decedents, therefore, may not benefit from the tolling effect of the Nye action and their claims are accordingly barred by the No-fault Act’s statute of limitations.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. Sec. 1009.101 et seq., repealed by, Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984.

      . The only Pennsylvania appellate case concerning partial decertification of a class action was Alessandro v. State Farm Mutual Automobile Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979). In that case, the trial court limited the class to persons who had obtained arbitration awards of $10,000 or more. Appellant, the named representative of the class, was decertified but was allowed to continue as the named representative of the class. Subsequently, appellant appealed from the trial court’s partial decertification of the class. Alessandro is distinguishable, however, since in the instant case, a named representative of the class has not been denied certification by the trial court’s order of June 19, 1986.

      . An order decertifying a class is a final order and is therefore appealable. See Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), after remand, 241 Pa.Super. 192, 360 A.2d 681 (1976).


author: WIEAND, Judge: BECK, Judge,

text:
    529 A.2d 1123
    David E. JOHNSON, Appellant, v. Pamela K. JOHNSON, Appellee.
    Superior Court of Pennsylvania.
    Argued April 2, 1987.
    Filed Aug. 10, 1987.
    Petition for Allowance of Appeal Granted Jan. 19,1988.

      Richard J. Callahan, Williamsport, for appellant.
    Gary T. Harris, Williamsport, for appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

David E. Johnson and Pamela K. Johnson were married on August 18, 1966, separated in August, 1983 and divorced on May 24, 1985. The divorce was bifurcated, and after a decree had been entered, hearings were held on the related economic claims. On March 19,1986, the trial court entered a decree distributing fifty-five (55%) percent of the marital property, amounting to $609,435.75, to wife. The balance of $498,629.59 was awarded to husband. The court also awarded wife counsel fees in the amount of five thousand ($5,000.00) dollars. Husband filed post-trial motions, which were denied. He then appealed.

In evaluating an equitable distribution scheme, our scope of review is limited. An appellate court will not reverse an order determining equitable distribution absent an abuse of discretion by the trial court. Diamond v. Diamond, 360 Pa.Super. 101, 105, 519 A.2d 1012, 1014 (1986); Campbell v. Campbell, 357 Pa.Super. 483, 489, 516 A.2d 363, 366 (1986); Morschhauser v. Morschhauser, 357 Pa.Super. 339, 346, 516 A.2d 10, 13 (1986); Bold v. Bold, 358 Pa.Super. 7, 10, 516 A.2d 741, 742 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 490, 513 A.2d 1024, 1028 (1986); Winters v. Winters, 355 Pa.Super. 64, 69, 512 A.2d 1211, 1214 (1986); Brown v. Brown, 352 Pa.Super. 267, 270, 507 A.2d 1223, 1224 (1986); LaBuda v. LaBuda, 349 Pa.Super. 524, 528, 503 A.2d 971, 974 (1986).

‘Under this standard, we do not usurp the hearing court’s duty as factfinder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion.’ Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984). ‘An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence____ However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law.’ Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985).

Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986).

Three years prior to the marriage, husband purchased a flour and animal feed business known as Clinton-dale Mills for $24,000.00. The trial court found that at the time of separation in August, 1983, the value of the business had increased to $600,000.00. The difference, or $576,000.00, was determined by the court to be marital property subject to equitable distribution. This was proper and in accord with this Court’s decision in Sergi v. Sergi, supra. See: Anthony v. Anthony, 355 Pa.Super. 589, 595, 514 A.2d 91, 94 (1986).

Appellant contends, however, that the trial court committed an abuse of discretion when it gave no weight to “[t]he contribution ... of each party in the acquisition, preservation, depreciation or appreciation of the marital property” as required by Section 401(d)(7) of the Divorce Code. We disagree.

Section 401(d) directs that in fashioning a decree of equitable distribution, a hearing court shall consider all relevant factors, including the following:

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(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.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

23 P.S. § 401(d). The record in the instant case discloses that the trial court considered and gave weight to the following: (1) that the marriage was of rather long duration; (2) that it was wife’s first marriage but husband’s second marriage; (3) that the parties were the same age and in good health; (4) that both parties were protected by adequate medical and retirement benefits; (5) that wife had supported husband with her earnings during the early years of the marriage; (6) that wife had contributed to the accumulation of marital assets as wife and homemaker; (7) that wife’s income as an elementary school teacher was approximately $23,000.00 per year and was not likely to be increased substantially in future years; (8) that husband was self-employed as the owner of Clintondale Mills and, although then drawing a salary of $24,000.00 per year, enjoyed a greater potential than wife for increased earnings and the accumulation of assets; (9) that the parties had enjoyed an upper middle class lifestyle; and (10) that wife required a greater share of marital assets in order to continue to enjoy the lifestyle to which she had become accustomed.

The evidence showed that Clintondale Mills, which had been purchased by husband prior to marriage, was incorporated on November 1, 1978. All stock was thereafter held in husband’s name; he alone managed the business as president of the corporation. Although wife became the nominal secretary/treasurer of the corporation, the evidence is clear that she did not participate actively in the business or in the regular conduct of corporate affairs, nor was she paid a salary. Because of husband’s business acumen and hard work, Clintondale Mills prospered and expanded. As a result, the marital assets also grew in value, and the parties achieved a comfortable lifestyle. The trial court, although it took husband’s contribution to the growth of the business into consideration, concluded that “no weight [should] be given to either party in this regard.” It is this statement, appearing at page 11 of the trial court’s opinion, which the husband-appellant assigns as error.

Section 401(d)(7) requires only that a hearing court be aware of and consider the contribution of each party to the “acquisition, preservation, depreciation or appreciation” of marital property. The “weight” to be given to this consideration, as well as all other considerations, is to be determined primarily in the discretion of the trial court. See: Sergi v. Sergi, supra 351 Pa.Super. at 600, 506 A.2d at 934. In the instant case, the trial court did consider husband’s contribution to the acquisition and appreciation of the marital property but concluded that this fact alone was entitled to no weight. Perhaps, as the author of the concurring opinion concludes, the trial court set off wife’s contribution as a homemaker against husband’s contribution in enhancing the value of the business. Although we may have assigned greater significance to husband’s contribution to the business than did the trial court, it cannot be said that the trial court’s consideration of this factor was an abuse of discretion.

In determining the propriety of an award of counsel fees, we also utilize an abuse of discretion standard of review. Miller v. Miller, 352 Pa.Super. 432, 443, 508 A.2d 550, 556 (1986); Pangallo v. Pangallo, 329 Pa.Super. 25, 31, 477 A.2d 885, 888 (1984); Prozzoly v. Prozzoly, 327 Pa.Super. 326, 331, 475 A.2d 820, 823 (1984); Ruth v. Ruth, 316 Pa.Super. 282, 285, 462 A.2d 1351, 1352-1353 (1983). However, counsel fees are not awarded to either spouse automatically. Diamond v. Diamond, supra, 360 Pa.Superior Ct. at 116, 519 A.2d at 1019. “Actual need must be shown in order to justify an award.” Dech v. Dech, 342 Pa.Super. 17, 23, 492 A.2d 41, 44 (1985), citing Hoover v. Hoover, 288 Pa.Super. 159, 161-162, 431 A.2d 337, 338 (1981). Counsel fees are appropriate when necessary to put the parties “on a par” in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce. See: Miller v. Miller, supra 352 Pa.Super. at 442, 508 A.2d at 556; Dech v. Dech, supra; Young v. Young, 274 Pa.Super. 298, 302, 418 A.2d 415, 417 (1980).

The record in the instant case fails to disclose any facts to support a finding that an award of counsel fees to wife was necessary to enable her to achieve “par” in protecting her rights in this action. Her counsel fees were in the amount of $16,518.21. She incurred additional expense in the amount of $27,435.20, which was attributable to the hiring of accountants, appraisers and expert witnesses. A request for interim counsel fees was denied during the pendency of the proceedings, and wife thereafter paid the sum of eight thousand ($8,000.00) dollars on account. She subsequently paid an additional sum of eight thousand ($8,000.00) dollars from marital assets. Wife is steadily employed at an annual salary of $23,000.00 and receives, in addition, rental income of one thousand ($1,000.00) dollars per month ($12,000.00 per year). Finally, she will receive $213,206.49 in relatively liquid assets under the decree of equitable distribution, plus annual payments of approximately sixty thousand ($60,000.00) dollars per year for fifteen years. Under these circumstances, wife failed to establish any need for her husband to contribute to the payment of her counsel fees. To award counsel fees when no need existed was an abuse of discretion. Cf. Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985).

The order of the trial court is modified by eliminating therefrom the award of counsel fees. As so modified, the order determining economic rights is affirmed.

BECK, J., filed a concurring opinion.

BECK, Judge,

concurring:

I concur in the result.

The majority finds that the trial court considered husband’s contribution to the acquisition and appreciation of the marital property and concluded that this fact alone was not entitled to weight. I disagree with the majority’s analysis. The trial court opinion indicates that it considered the husband’s contribution to enhancing the value of the business and then balanced it against the wife’s contribution as a homemaker:

In considering the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, the Court finds no particular weight to be given to either party in this regard. Defendant’s role in contributing as a homemaker and spouse is something that has previously been considered. Plaintiff’s role in enhancing the value of the business and its operations through his efforts and skills is also being taken into account.

Trial Court Opinion at 11-12.

The court, in balancing each party’s contribution to the marriage, concluded they were equal, and therefore offset each other. The fact that the husband concentrated his efforts on building the business and that the wife concentrated hers on maintaining the home does not entitle the husband to a greater share of the value of the business than the court awarded him. Each party to a marriage contributes to that enterprise in accordance with his or her ability and in accordance with the couple’s expectations. The gains attributable to the party who is responsible for economic growth are usually tangible. The gains attributable to the party who is responsible for maintaining the home are usually intangible. Just because the gains are intangible they should not be undervalued. Both parties benefit from the efforts of the spouse who maintains a home. The value of that labor must be recognized and translated into monetary value at the time the marriage is dissolved.

The majority’s opinion might lead to the erroneous conclusion that a trial court need not give weight to each factor in section 401(d) of the Divorce Code, Pa.Stat.Ann. tit. 23, § 401(d) (Purdon Supp.1987), even though that factor may be significant in evaluating the distribution of the marital estate. Such a conclusion would be contrary to legislative intent. Section 401(d) directs the trial court to consider all relevant factors. I conclude the statute means the court must give weight to each relevant factor. For example, if the factor under consideration was a 35-year marriage, during which time the parties lived together, a court in all likelihood would abuse its discretion if it recognized the length of the marriage but gave it no weight. In the instant case, the court properly considered the wife’s contribution as a homemaker under sections 401(d)(4) and 401(d)(7) and the husband’s as a businessman under 401(d)(7) and concluded their contributions were equal. It also considered the fact that the husband’s future earning power was greater than the wife’s. Section 401(d)(3) . I disagree with the majority’s interpretation that the court afforded no weight to the husband’s contribution.

Section 401(d) provides the necessary flexibility for the court to consider the relevant 401(d) factors separately and in relation to each other so as to accomplish economic justice. See Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986). The legislative mandate requires that the court consider and give weight to all relevant factors.

2

The majority opinion reverses the trial court’s award to the wife of five thousand dollars ($5000) in counsel fees and expenses. The court found the wife’s counsel fees and expenses amounted to approximately thirty-three thousand dollars ($33,000). I find the majority’s analysis which bases such an award on need alone over-simplified, and I disagree that need is the only criterion that the trial court is permitted to consider. I, however, agree with the majority’s conclusion that attorneys’ fees and expenses were not proper in this case.

The record reveals the history of wife’s claims for legal fees and expenses. She initially petitioned the court for interim counsel fees which the court denied.

The court stated:

It is difficult to escape the conclusion that Defendant [wife] is not occupying the typical posture of indigency which is present in many divorce cases. Her weekly income is substantial and despite the extraordinary expenses she has incurred since the separation ..., she has still been able to accumulate cash assets---- Under all of these circumstances, it is difficult for the Court to conclude that Defendant is at any significant disadvantage with the Plaintiff in defending this action and preparing for the issue of equitable distribution of property....

Although the court denied the wife’s petition for interim counsel fees and expenses, the trial court advanced a convincing rationale for awarding interim fees in a proper case. “[I]f it were determined later that the wife was not entitled to such fees, the Court would make an adjustment against her share of marital property based upon the overall disposition of the parties’ assets as part of its equitable distribution scheme.” Ibid. Because the court is in the position of making adjustments at the time of final disposition for any interim fees it may award, the court should liberally award such fees. The court should protect the less affluent spouse and place him or her in a position to secure competent representation. The spouse may have difficulty in securing such representation if courts do not liberally grant interim counsel fees and expenses. If the less affluent spouse is unable to make periodic payments from his or her own resources to an attorney and if there is little likelihood that interim counsel fees will be awarded, such a spouse may be deprived of adequate representation. Many attorneys and expert witnesses cannot afford to forego their fees for the several years that it takes to resolve the dispute between the parties. An interim award which can then be adjusted at final settlement is the sensible solution to this difficult problem.

Here, however, the court’s denial of interim counsel fees was proper. The wife’s income from her teaching position as well as rental property was substantial and sufficient so that she could bear the cost of interim counsel fees and expenses. Furthermore, the record reveals no equities which would entitle her to interim counsel fees and expenses.

In its subsequent final order, the trial court awarded the wife counsel fees and expenses. In doing so, the court considered the wife’s testimony that she consumed her savings to pay retainer fees for her expert witnesses. She also stated her total savings at the time of the equitable distribution hearing was $600, and her income was derived solely from her salary as a teacher and from rental property. N.T. 7/17/85 at 112-13. The trial court’s award to the wife was based in part on wife’s argument that she bore complete responsibility and substantial expenses for securing experts who testified to the valuation of the parties’ assets whereas husband presented little other than his own testimony regarding valuation of these assets. Thus the trial court awarded wife $5000 in partial attorney’s fees and expenses based on a rationale of general equity principles.

Parties to litigation usually pay their own costs and attorneys’ fees. The general rule is subject to a few exceptions. For example, a court may grant a request for fees and costs when authorized by statute or when the defeated party acted in bad faith. See e.g. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 92 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In sections 401(b) and 502, The Pennsylvania Divorce Code provides that the court may require one spouse to pay for the other’s attorney’s fees, costs and expenses. Neither section limits the court’s discretion in determining the appropriateness of an award of reasonable attorneys’ fees and expenses. Neither section requires that counsel fees and expenses be limited to those situations where the petitioning party proves need. Perlberger states that the grant of counsel fees and costs is dependent on the equities. N. Perlberger, Pennsylvania Divorce Code § 7.14 (1980). Such a standard is preferable and I would adopt it.

In awarding counsel fees and expenses, the law has developed in two directions. The first direction requires the petitioning spouse to show the award is necessary to maintain and to defend the divorce action. These cases require the petitioning spouse to show actual need of an award in order to achieve “par” in protecting the spouse’s rights in the divorce action. Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986), Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986), Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985), Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981), Wiegand v. Wiegand, 242 Pa.Super. 170, 363 A.2d 1215 (1976), Moore v. Moore, 198 Pa.Super. 349, 181 A.2d 714 (1962).

Another direction, less prevalent in our case law but nonetheless strong, permits an award of counsel fees, expenses and costs, based on equitable considerations:

The determination to award counsel fees is made on a case-by-case basis after an analysis of all relevant factors including the “husband’s ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties____ The statute contemplates ... the administration of fair and impartial justice by placing the parties on a par in defending their rights.” Jack v. Jack, 253 Pa.Super. 538, 545-46, 385 A.2d 469, 473 (1978); Fried v. Fried, 326 Pa.Super. 271, 473 A.2d 1087 (1984) [quashed for lack of jurisdiction, 509 Pa. 89, 501 A.2d 211 (1985)].

Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). See Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986) (no abuse of discretion when trial court concludes that neither the economic situation of either party nor the equities of the case supported an award of counsel fees.)

In Pennsylvania one line of cases focuses on financial need alone, and the other focuses on all relevant factors. Permitting the court to focus on all relevant factors is the preferable approach. If one spouse’s action or inaction significantly raises legal fees or costs for the other unnecessarily, is it equitable for the second spouse to bear the added burden even if such spouse can afford it? If one spouse presents little or no testimony on valuation and the second spouse at his or her own expense provides the court with expert testimony relating to valuation, is it equitable for the second spouse to bear the entire expense of the experts even if he or she can afford it?

I note that other jurisdictions grant the trial court equitable powers to make awards without limiting consideration to the relative financial positions of the parties. For example in Missouri, the divorce statute provides that the court may consider all relevant factors rather than just the financial resources, thereby allowing the court considerable discretion. Kieffer v. Kieffer, 590 S.W.2d 915, 918-19 (Mo. 1979), Gaddis v. Gaddis, 632 S.W.2d 326 (Mo.App.1982).

By judicial decision, Connecticut has also granted the trial court broad discretion. The Connecticut Supreme Court specifically held that:

“in the exercise of a trial court’s discretion regarding an award of counsel fees, ‘the availability of “sufficient cash” to pay one’s attorney’s fees is not an absolute litmus test---- [A] trial court’s discretion should be guided so that its decision regarding attorney’s fees does not undermine its purpose in making any other financial award.’ ... Taking into account the totality of the circumstances reflected in the financial awards as a whole, we cannot find that the trial court abused its discretion and acted unreasonably in granting the [plaintiff’s] request for counsel fees. Although the alimony awarded to the [plaintiff] provided her with liquid assets, the trial court could reasonably have concluded that it wanted to preserve those assets for the [plaintiffs] use without the burden of the contested ... attorney’s fees.

Palazzo v. Palazzo, 9 Conn.App. 486, 490, 519 A.2d 1230, 1232 (1987) (citations omitted).

The District of Columbia courts, in the face of a restrictive statute which provides that the courts may, “require the husband or wife to pay ... suit money, including counsel fees, to enable such other spouse to conduct the case, whether as the plaintiff or the defendant” D.C.Code § 16-911(a)(l) (1981), have granted the trial court broad discretion. In the District of Columbia there are several factors to be weighed:

In deciding whether to award a fee, it is proper for the court to consider whether the litigation has been oppressive or burdensome to the party seeking the award____ The judge may also examine the motivation and behavior of the litigating parties____ However, these factors are properly used only in coming to a determination of whether any award shall be made; once the threshold is crossed, these preliminary factors may play no role in deciding the amount of the fee to be awarded____ In setting the amount, among the factors the court should consider are the quality and nature of the services performed, the necessity for the services, and the results obtained from the services, and the financial ability of the spouse being ordered to pay.

Steadman v. Steadman, 514 A.2d 1196, 1200 (D.C.1986) (citations omitted). In its equitable considerations, the District of Columbia courts consider a variety of factors to determine the award of counsel fees and costs. The court determines the amount of the award independent of the petitioning spouse’s financial condition.

In the case sub judice the trial court’s award of attorneys’ fees and expenses to the wife was based on the equities in the case. The trial court specifically relied on the fact that the wife bore complete responsibility to secure experts on valuation. The court noted that $8000 out of a total $33,000 for reasonable counsel fees and expenses for wife have already been paid out of husband’s share of the equitable distribution. The wife has received a substantial proportion of the marital estate pursuant to equitable distribution. The court’s equity rationale therefore does not support the grant of $5000 to her. The wife has already derived enormous benefit from her expert witnesses. As a result of their testimony, the trial court placed a higher valuation on the family business than husband testified to. Therefore, although I would normally accord deference to the trial court where its decision is on equitable considerations rather than financial need alone, I do not do so in the case sub judice. I agree with the majority that the trial court abused its discretion in awarding partial attorneys’ fees and expenses to the wife in the light of the amount already paid out to her from the marital estate, the size of the distribution to her, and the benefit she derived from the experts she provided.

      . This amount was payable as follows:
      (1) The sum of $213,206.49, consisting of relatively liquid assets, was payable immediately;
      (2) Credit was given for $10,848.17 because of husband’s assumption of notes payable; and
      (3) The balance of $385,381.09 was payable in equal monthly installments over a fifteen year period, with interest computed at the rate of ten (10%) percent per annum.

      . Wife’s evidence was that the business at separation had a value of $725,000.00. Husband did not offer expert testimony regarding the value of the business, but his own testimony placed a value on the business of approximately $209,000.00.

      . 23 P.S. § 401(d). Act of April 2, 1980, P.L. 63, No. 26, § 401, effective July 1, 1980.

      . Husband's first wife, together with his children, had been killed in an automobile accident.

      . The relevant factors in section 401(d), 23 Pa.Stat.Ann. tit. 23, § 401(d) (Purdon Supp.1987) are:
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

      . Whereas an interim award for attorneys’ fees and expenses should often be encouraged, an interim award for costs is not proper under the Divorce Code. Pa.Stat.Ann. tit. 23, § 401(b). Costs include all court costs, including masters’ fees and stenographic charges. Pa.R. Civ.P. 1920.62. See McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985).

      . Pa.Stat.Ann. tit. 23, §§ 401, 502 (Purdon Supp.1987):
      § 401. Decree of court
      The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.
      § 502. Alimony pendente lite, counsel fees and expenses The court may, upon petition, in proper cases, allow a spouse reasonable alimony pendente lite and reasonable counsel fees and expenses.