author:
DEL SOLE, Judge:
      WICKERSHAM, Judge,

text:
    486 A.2d 951
    Arthur J. HODGE v. Patricia HODGE, Appellant. Arthur J. HODGE, Appellant, v. Patricia HODGE.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed Nov. 30, 1984.
    Reargument Denied Feb. 5, 1985.
    Petition for Allowance of Appeal Granted Aug. 5, 1985,

      Thomas B. Rutter, Philadelphia, for appellant (at No. 416) and appellee (at No. 417).
    Charles E. Friedman, Harrisburg, for appellant (at No. 417) and appellee (at No. 416).
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

This is an action in divorce pursuant to the Pennsylvania Divorce Code, 23 P.S. §§ 101 et seq.

The parties were divorced by a decree entered October 9, 1981. Economic issues were reserved for future determination. Claims for alimony, equitable distribution, counsel fees and expenses were subsequently heard by a Special Master. Both parties filed Exceptions to the Master’s findings. On November 24, 1982, the Court of Common Pleas entered a final decree which included an award of alimony of $100 per week until September 26, 1994, when the parties’ youngest child will reach majority. Both parties have appealed from that final decree.

The issue on appeal is what compensation, if any, is Mrs. Hodge entitled to under the Pennsylvania Divorce Code (the Code) for her contributions to her husband’s medical education and license.

The factual situation of the case is as follows. Arthur Hodge was born on February 28, 1945, and Patricia Hodge was born on May 22, 1940. The parties met while Arthur was a medical technology student and Patricia was a clinical instructor at St. Lukes Hospital in Bethlehem, Pennsylvania. They were married on July 15, 1967. That same year, Arthur applied for a Commission in the United States Army Medical Service Corps. From 1967 through 1970, the parties lived at Fort Hood, Texas. The couple lived on Arthur’s salary as a laboratory officer, while saving Patricia’s earnings from her job as a laboratory technologist. Their first child, Laura, was born on September 28, 1968.

After his discharge from the Army, Arthur worked for approximately nine months as a serologist with Ortho-Phar-maceuticals of Raritan, New Jersey, earning $6,938.00.

Being unable to gain admission to an American medical school, in January of 1971, Arthur entered the Medical School of the University of Guadalajara, Mexico. During 1971, his family remained in Pennsylvania so that Patricia would be able to continue contributing earnings and savings to the expenses of Arthur’s medical education.

From 1972 through 1974, Patricia and the child joined Arthur in Mexico. Their living conditions were far below those to which they were accustomed in the United States.

In 1975, the family returned to Pennsylvania and Arthur began a final year of student training at Harrisburg Polyclinic Hospital. A second child, Arthur, was born on June 30 of that year. In 1976, Arthur took an internship at , Harrisburg Polyclinic Hospital. The parties’ third child, Melanie, was born September 26 of that year.

Upon their return to the United States in 1975, the parties rented a small house in Schuylkill County for Patricia and Laura. Arthur lived in the physicians’ residence at the hospital. Patricia and the children are still living in that rented home.

In January of 1977, Arthur began a two year residency in Internal Medicine and received his license to practice medicine the following month. On August 27, 1977, Arthur announced that he no longer wished to continue in the marriage and moved in with a registered nurse named Julie Paland. Arthur completed his residence in December of 1978 and began the private practice of medicine.

Arthur is employed by another physician in a practice grossing $300,000 per year. He is paid $52,000 per year plus fringe benefits and bonus, plus $7,200 per year rental on his office, which is in the home he shares with Ms. Paland. Ms. Paland, as his office manager, is paid $15,900 per year, plus medical benefits.

Patricia is not employed. She has custody of the parties’ three children. At the time of the hearing, her only income was $275 per week support from Arthur.

In her appeal, Patricia Hodge argues that the court should have equitably divided the value of Arthur Hodge’s medical education, since the joint efforts and investment of the parties substantially increased Arthur’s earning capacity and the marriage terminated before Patricia could enjoy the fruits of her investment.

A clear majority of courts that have considered the question of whether the advanced degree itself, or the increased earning capacity it represents, are divisible marital assets, have concluded that they are not. Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982); Frausto v. Frausto, 611 S.W.2d 656 (Tex.Civ.App.1981); DeWitt v. DeWitt, 98 Wis.2d 44, 296 N.W.2d 761 (Ct.App.1980); In re: Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978); Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792 (1977). We agree with the majority view.

23 P.S. § 401 provides the framework for our analysis of the distribution of “marital property”. Section 401(f) provides that “all property whether real or personal acquired by either party during the marriage is presumed to be marital property ...” (emphasis supplied).

The question then becomes: Is potential increased earning capacity marital property if developed during the time of the marriage?

First, it is important to note that such a potential to earn more in the future is not limited to situations involving formal education. Rather, this potential can be a result of on-the-job training, in-job experience, apprenticeships or a host of other factors which make the labor of an individual more valuable in our society. Thus, the decision reached today is not limited to formal educational situations.

Clearly, increased earning capacity is neither real or personal property in any classic sense of the word. In the case of an advanced degree, the Colorado Supreme Court noted:

An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of the concept of “property”. It does not have an exchange value or any objective transferrable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term.

In re: Marriage of Graham, supra, 574 P.2d at 77.

Our analysis of the Divorce Code also supports the conclusion that the legislature did not intend increased earning capacity to be a divisible asset. Section 401(d)(4) provides that one of the factors to be considered in distributing marital property is “the contribution by one party to the education, training, or increased earning power of the other party” ... It is logical to conclude from that statement that increased earning power itself is not marital property. Also, § 501(b)(1) and (6) provide that in determining the amount, nature and duration of alimony the court should consider the earning capacity of the parties and the contribution made by one spouse to the other’s increased earning power. The inclusion of the latter section makes it obvious that the legislature was concerned with and did consider situations such as that presented here, involving marriages where the divorce occurs before the parties acquired substantial marital property, but one spouse has developed the potential for vastly increased earnings. Had the parties in this case acquired substantial real or personal property prior to the divorce, and had Mrs. Hodge received a substantial portion of that property pursuant to § 401(d)(4), it is doubtful anyone would argue she would be entitled to a share of her husband’s future earnings as a divisible asset. Since the parties did not accumulate such property, the trial court properly considered Mrs. Hodge’s contributions to her husband’s professional education and earning capacity in awarding alimony.

We turn now to Arthur Hodge’s cross-appeal, in which he argues the court violated § 501(c) of the Code by ordering alimony for a period of almost fourteen years. Section 501(c) provides as follows:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling inpediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:

(1) obtaining appropriate employment; or

(2) developing an appropriate employable skill. According to Dr. Hodge, Patricia could develop an appropriate employment skill with two more years of education. Therefore, the alimony award should be for a two year period only. This argument is without merit.

The record indicates that Patricia Hodge is forty-four years old, has not worked for ten years, has custody of three minor children, and has some physical impairment. She has a two year associate degree in medical technology. However, potential employers where she resides now require a four year degree. These impediments to employment would exempt Mrs. Hodge from the limitations provided in § 501(c)(1) and (2).

Even more important, Dr. Hodge had ignored § 501(b) which provides:

(b) In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony; the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

The provisions of § 501 must be read in conjunction with each other and with the intent and purpose of the Code as a whole, so that economic justice results. Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982).

In this case, the trial court correctly considered all of the factors set out in the Code in determining that Mrs. Hodge was entitled to a long-term alimony award, including her contribution to Dr. Hodge’s education and increased earning power. The court concluded that an award of $100 per week until September 26, 1994, was supported by the evidence concerning needs and ability to pay. We find no abuse of discretion by the trial court concerning that order.

Further, it should be noted that § 501(e) provides as follows:

Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstated, or a new order made ...

Should the relative economic circumstances of the parties change in the future, either party may petition the court for an increase or reduction of the award.

Decree affirmed.

WICKERSHAM, J., filed a concurring and dissenting opinion.

WICKERSHAM, Judge,

concurring and dissenting:

This is an action in divorce, pursuant to the Pennsylvania Divorce Code, 23 P.S. §§ 101, et seq. (hereinafter the “Code”).

On October 9, 1981, a Decree in Divorce was entered divorcing plaintiff, Dr. Arthur Hodge, from defendant, Patricia Hodge, and reserving the economic issues for future determinations (R. 2a). The economic issues, including claims for alimony, equitable distribution of marital property, counsel fees, and expenses, were heard by Special Master Louis J. Adler, Esquire, at hearings held on January 29, March 12, March 19, and March 23, 1982. On June 21, 1982, the Special Master filed his report and recommendations on the economic issues, following which both parties filed exceptions (R. 6a). The exceptions were heard before the Honorable William W. Lipsitt, of the Court of Common Pleas of Dauphin County, on August 19, 1982, after which Judge Lipsitt entered a final decree, dated November 24, 1982. It is from this final decree that this appeal follows.

The issue is what compensation, if any, by means of equitable distribution or alimony, Mrs. Hodge is entitled to, to compensate her for her investment, both financial and otherwise, in Dr. Hodge’s medical education and license and the resultant increase in his earning capacity. This issue, a matter of first impression for the appellate courts of this Commonwealth, is whether the lower court erred in refusing to equitably divide upon divorce the increased earning capacity of a spouse, who earned a medical degree, through the joint efforts, both financial and otherwise, of both spouses. . Specifically, we must determine whether Patricia Hodge is entitled to compensation for the financial and other contributions she made toward Dr. Hodge’s attainment of an M.D. degree and license to practice medicine. I dissent from the majority conclusion on this issue.

Dr. Hodge filed a cross-appeal averring that the lower court erred in awarding Mrs. Hodge, a housewife supporting three minor children, alimony for longer than the two years it would take her (on a full-time study program) to complete her college education. I concur in the majority’s treatment of this issue.

Plaintiff/Appellant, Arthur J. Hodge, M.D. , was born on February 28, 1945 (N.T. 373) and defendant/appellee, Patricia Condrack Hodge, was born on May 22, 1940 (N.T. 7). The parties were married on July 15, 1967 (N.T. 7), having met while Arthur was a student in medical technology at St. Luke’s Hospital in Bethlehem, Pennsylvania, and Patricia was a clinical instructor, providing on-the-job training at the same institution (N.T. 374-75).

In 1967, in lieu of being drafted to serve in Viet Nam, Arthur applied for a commission in the United States Army Medical Service Corps, because “three years as an officer is a lot better than two years as an enlisted man” (N.T. 375). Hence, for the years 1967 through 1970, the Hodges lived at Fort Hood, Texas, where Dr. Hodge served as a laboratory officer and Mrs. Hodge served as a laboratory technologist at Darnell Army Hospital. Dr. Hodge, then Mr. Hodge, rose to the rank of Captain, and the couple lived off Captain Hodge’s salary while they saved Mrs. Hodge’s earnings (N.T. 375-78, 382).

After his discharge from the Army, Dr. Hodge became employed as a serologist with Ortho-Pharmaceutical of Rar-itan, New Jersey, where he remained for approximately nine months (N.T. 378-79). His earnings for the year 1970, while employed at Ortho-Pharmaceutical, as reflected in his W-2 Form, totaled $6,938.00 (R. 53a) which, when extrapolated for twelve months’ employment, established annual earnings for Arthur at that time of $9,250.00 (R. 74a). The Hodges shared an apartment during this period of time, along with their daughter, Laura, who was born on September 28, 1968.

In January, 1971, Dr. Hodge, being unable to gain admission to an American medical school, matriculated at the Medical School of the University of Guadalajara, Mexico (N.T. 379). Dr. Hodge continued as a student at the Guadalajara Medical School from 1971 through 1974. During the first year of his matriculation, at Dr. Hodge’s suggestion, Mrs. Hodge and their daughter remained and lived in Pennsylvania, so that she might continue contributing earnings and savings to the expenses of Dr. Hodge’s medical education.

During the balance of Dr. Hodge’s matriculation at Guadalajara Medical School, his wife and child lived with him. Their living conditions in Mexico, while equivalent to those of other medical students, were far below the acceptable living conditions which they had become accustomed to in the United States (N.T. 22-24).

In January, 1975, the family returned to Pennsylvania and Dr. Hodge embarked upon a final year of medical student training at Harrisburg Polyclinic Hospital, under the Hahnemann Medical College and Hospital Fifth Pathway Program, made necessary by the fact that he had trained at a foreign medical school (N.T. 390). In 1976, Dr. Hodge took an Internship at Harrisburg Polyclinic Hospital (N.T. 391). In 1975 and 1976, while Dr. Hodge was at the Harrisburg Polyclinic Hospital, his family continued to live in a small, rented home in Schuylkill County, Pennsylvania, while Dr. Hodge ostensibly lived in the physicians’ residence quarters at the Harrisburg Polyclinic Hospital (N.T. 394-95). At that time, the Hodge family had grown to include their second child, Arthur, who was born January 30, 1975, and their third child, Melanie, who was born September 26, 1976.

In January, 1977, Dr. Hodge commenced a two-year residency program in Internal Medicine and became licensed to practice medicine in the Commonwealth of Pennsylvania in February of that year (N.T. 392-93). On August 27, 1977 during one of his visits to his family, who continued to reside in Schuylkill County, Dr. Hodge removed certain personalty from the family home and left a note for his wife, announcing his inability to continue in the marital relationship (N.T. 38-43). Thereupon, Dr. Hodge moved directly into residence with one Julie Paland, a registered nurse, whom he met in May of 1977, at the Harrisburg Polyclinic Hospital (N.T. 409 et seq.). Having completed his residency in December, 1978, Dr. Hodge commenced the private practice of medicine. Ms. Paland is both his roommate and his office manager (N.T. 488, et seq.).

In the private practice of medicine, under an employer-employee relationship with another physician, Dr. Hodge is paid $52,000.00 per year, plus certain fringe benefits (N.T. 399-444), plus bonus (N.T. 439), plus $7,200 per year rental on his office, which is in his home (N.T. 406). Ms. Paland is paid $15,900 per year, plus Blue Cross and Blue Shield benefits (N.T. 449-56). The gross income of his practice is $300,000.00 per year (N.T. 438). Finally, as already noted, Dr. Hodge was granted a divorce on October 9, 1981.

In Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983), we held that alimony orders under the Code should be reviewed only for an abuse of discretion and not broadly, as in the case of the actual Divorce Decree, or an award of custody of children. Likewise, “[t]he equitable distribution of marital property is within the sound discretion and judgment of the lower court and its decision shall not be disturbed on appeal absent an abuse of that discretion.” Gee v. Gee, 314 Pa.Super. 31, 35, 460 A.2d 358, 360 (1983).

The factual situation presented by the instant appeal is a classic one, whereby the husband earns a professional degree (e.g., M.D., J.D.), and the. wife — in this case, Patricia Hodge — works to support the family, contributes to her husband’s educational costs, provides a home, accepts a lower standard of living and depletion of their marital assets, with the intention that their joint efforts will be rewarded by her husband’s increased earning capacity and a better and higher standard of living when the schooling or training is completed. The classic situation finds the marriage broken up before any of the fruits of the joint effort are obtained. Since the couple’s marital earnings and savings are dissipated to support the family and to meet the husband’s educational expenses, there is virtually no property subject to equitable distribution upon divorce.

In the instant case, the Hodge marriage terminated when Dr. Hodge left the marital home in August, 1977, in the midst of his residency and before he commenced private practice in the field of Internal Medicine. At the termination of the Hodge marriage, Dr. Hodge left with his medical degree and a license to practice medicine, with a future of increased earnings and a higher living standard. Mrs. Hodge, on the other hand, was left with a lease on a small rental home, and the responsibility to care for three minor children.

The problem which thus arises, is how a court can equitably divide the increased earning capacity of Dr. Hodge to reward Mrs. Hodge for her efforts and prevent unjust enrichment to Dr. Hodge. In short, does the Pennsylvania Divorce Code provide a means for a court to cause economic justice to be done in such a situation? I would hold that it does.

The Pennsylvania Divorce Code, 23 P.S. § 102, states the legislative findings and intent behind its enactment:

(a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
(b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.

Keeping in mind the purposes behind the Divorce Code of effectuating economic justice between the parties, and insuring a just settlement of property rights, the Code authorizes the court to enter an order “... determining and disposing of existing property rights and interests between the parties----” 23 P.S. § 401(b) {emphasis added). The Code refers specifically to the division of property rights and interests, making clear the legislative intent that the court is to broadly determine the property interests of the parties, and is not limited to physical property, in its equitable distribution awards.

Furthermore, in section 401(c), the court is granted the full power to do economic justice.

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

In ordering an equitable division of the property of the parties, the legislature specified the factors the court should consider in reaching an equitable distribution of marital property. Section 401(d) specifically recognized the injustice inherent in the break-up of a marriage, whereby one spouse benefits by the joint efforts of both partners in the obtaining of a higher educational degree and it specifically ordered the court to consider such factors in formulating its equitable division of property:

(d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
(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.”

It is thus clear from a reading of the Divorce Code that the legislature intended, and the court is specifically empowered, to promote economic justice. In the instant case, the lower court abused its discretion in failing to follow the statutory mandate, by not compensating Mrs. Hodge for her contribution and investment in the “human capital” represented by Dr. Hodge’s medical degree and its resultant increase in earning capacity.

Pursuant to the language and intent of the statute, which recognizes the increased earning capacity as a divisible asset, the necessary conclusion is that, under our Divorce Code, we should order equitable distribution of the intangible asset created by this joint effort of the parties.

Although the Code in section 501(c) allows for permanent alimony, the emphasis of alimony in Pennsylvania is rehabilitation. Alimony is awarded until the dependent spouse obtains employment or develops an appropriate employment skill 23 P.S. § 501(c). In the instant case, no award of alimony will equalize the parties’ economic situation. Dr. Hodge, thanks to the investment and contributions of both parties, presently earns $52,000.00 per year (N.T. 439), with a much greater earning capacity for the future. Mrs. Hodge, while caring for her children, could possibly earn $5,000.00 per year as a salesclerk, with her potential, upon completion of her two remaining years of college, being $15,000.00 per year (R. 25a). In short, Mrs. Hodge is left with no return on her investment of earnings and hard work in the human capital represented by her husband’s increased earning power — his medical degree.

The Pennsylvania Divorce Code permits an award of permanent alimony, as opposed to support or rehabilitative alimony, only under very limited circumstances. 23 P.S. § 501(c). The failure of the lower court to equitably dividé and distribute the value of the investment in Dr. Hodge’s earning capacity created a great economic disparity between the parties that the Divorce Code was intended to prevent (See 23 P.S. § 102, Legislative findings and intent). While Dr. Hodge is living in a home which he owns, worth approximately $72,000 (N.T. 405), Mrs. Hodge and the parties’ three minor children are living in a rental home which is in poor condition. Dr. Hodge, who earns $52,000 per year, plus $7,200 per year rental for his office in his home, lives with his current paramour, who contributes $10,000 per year to their living expenses.

The most important discrepancy, however, is apparent in the future earnings potential of the parties. Dr. Hodge, a specialist in internal medicine, and an employee of a practice grossing $300,000 per year, has the potential for a bright and wealthy future — the future Mrs. Hodge thought she would share with her husband, in return for her investment in his medical degree. Mrs. Hodge, by contrast, cannot even work in her field of medical technology. Mrs. Hodge’s future prospects are bleak, augmented by her limited educational background and the necessity of remaining at home to care for the parties’ three minor children.

The lower court’s award of alimony of $100 per week until September 26, 1994 is not sufficient, alone, to compensate Mrs. Hodge for her contributions to Dr. Hodge’s present earning abilities, and does not create economic justice between the parties, in light of their joint contributions to the joint venture, the medical education, and their intentions at the time.

The solution to the problem arising from the termination of a marriage before the non-degree earning spouse has the opportunity to enjoy the fruits of her labor, which is in full compliance with the intent and purposes of the Pennsylvania Divorce Code, is to equitably divide the increased earning capacity of Dr. Hodge, so as to compensate Mrs. Hodge for her investment, financial and otherwise, in the attainment of his medical degree.

From an economic standpoint, the concept is quite simple, and is not much different from that followed in this Commonwealth in evaluating loss of future earning capacity in other types of litigation.

The economic concept advanced by Mrs. Hodge in this case may be simply stated: investment in human capital, analogous to investment in physical capital, occurs when an individual (or a group of individuals, such as a husband and a wife) invests funds, efforts, and energies in the creation of an intangible asset or property interest amenable to valuation in economic terms. Here, the asset created by the parties is the ability to practice medicine received by Dr. Hodge, via medical training whereby his career orientation and earning capacity shifted from medical technologist/ser-ologist to licensed practitioner in the medical arts/science of internal medicine.

The value of that asset is measured simply by the difference between earning capacity in the preadvanced education status and earning capacity in the postadvanced education status.

Here, for example, the value of the intangible asset possessed by the parties before the Guadalajara Medical School/Harrisburg Polyclinic Hospital training is measured by the earning capacity of a medical technologist/serologist. Since Dr. Hodge’s earnings for nine months of employment as a medical technologist in 1970 were, as shown by his W-2 Form, $6,938.00 (R. 53a), his annual earnings at that employment at that time would have been $9,250.00 (R. 74a). In turn, his earnings in 1979 in that same employment would have been $20,000.00, assuming increments in that salary equal to the increments in average white collar wages over that same, period of time in all occupations (R. 74a-75a).

Similarly, the value of the intangible asset possessed by the parties after Dr. Hodge’s Guadalajara Medical School/Harrisburg Polyclinic Hospital experience is measured by the earning capacity of a physician engaged in private practice as a specialist in internal medicine. In this instance, and without regard to national averages for physicians practicing that specialty, Dr. Hodge’s own records show that earning capacity to be $52,000.00 per year, without inclusion of fringe benefits or deferred compensation (N.T. 439).

Accordingly, from the economist’s point of view, the incremental value of the intangible asset created by the parties in this case, the asset denominated “ability to practice Internal Medicine,” is valued at $32,000.00 per year. Then, having in mind Dr. Hodge’s age, and assuming a work life expectancy to age 65, the value of that intangible asset — the value of that ability to practice Internal Medicine — over the course of the remaining thirty-one (31) years is $992,000.00 (R. 76a).

Indeed, the recognition of this asset and its valuation represents no new departure in the jurisprudence of this Commonwealth. This Commonwealth has no difficulty in evaluating the increased earning power represented by a professional license in a wrongful death or survival action. For example, in Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961), the Pennsylvania Supreme Court, in a wrongful death action, sustained an award predicated upon lost earning capacity based upon a school teacher’s salary even though the testimony showed only that plaintiff’s decedent was an eighteen year old college freshman who enjoyed excellent health, had admirable traits and evidenced a desire and ability to become a school teacher. The court allowed a determination of lost earnings potential based upon a comparison between earnings of the decedent for two years prior to his death and the salary that a teacher could expect to earn in Pennsylvania. Whittle v. Schemm, 402 F.Supp. 1294 (E.D.Pa.1975), aff'd, 538 F.2d 322 (3d Cir.1976) permitted a student with eye injuries to recover damages based upon his potential earnings as an architect. This, notwithstanding the fact that, at the time of his injury, plaintiff was only a first-year student at a junior college. Hoffman v. Sterling Drug Co., Inc., 374 F.Supp. 850 (M.D.Pa., 1974) is in accord. There, Judge Herman acknowledged that Pennsylvania does not restrict a recovery to the specific earnings at the time of the injury. Rather, Pennsylvania has adopted the “economic horizon” test which holds that, “It is not the status of the immediate present which determines capacity for remunerative employment.” Id. at 860, quoting Bochar v. J.B. Martin Motors, Inc., 374 Pa. 240, 244, 97 A.2d 813, 815 (1953). Recoveries for lost future earnings should not be restricted to computations based upon the position held “at the moment” of the injury (or, in this case, at the moment of separation).

Frankel v. Heym, 466 F.2d 1226, 1229 (3d Cir., 1972) is of the same view. There, the Court held that a nineteen year old commerical art student could recover lost wages premised upon the theory that she would have found work as a commercial artist. Finally, this court recently permitted the estate of an eleven year old boy to collect damages for lost earnings. See, Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983). In footnote 10 to the opinion, this court cited with approval a series of cases, some of which are more than sixty (60) years old, which permit future wage loss calculations for persons who had never worked, including calculations for three, seven, eight, and ten year olds.

We recently recognized that the settlement of a wife’s personal injury suit is marital property subject to equitable distribution. Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982). The equitable distribution of a spouse’s increased earning capacity is the next step.

I would hold that the investment of human capital in the ability to practice medicine is a joint property interest which is subject to equitable distribution upon dissolution of the bonds of marriage. That conclusion, I believe, is compelled by the language and purpose of the Divorce Code.

We must then settle upon a method of valuation of that jointly-shared property right or interest. That valuation, I believe, is most accurately defined by a comparison of earning capacities, using the earning capacity after the education or advanced degree as the basis from which one subtracts the earning capacity before the education and, having arrived at the difference, applying the multiplier reflecting the remaining work life expectancy. This method of valuation is universally accepted by the courts of this Commonwealth in other types of cases (Cf. Pennsylvania Suggested Standard Jury Instructions, Chapter VI: Damages).

There then remains only the question of what constitutes “equitable” distribution in the instant case. If the asset were one of the more customary types, e.g., a jointly-owned apartment house, it could be “equitably” distributed by starting from a presumption of 50-50 ownership and then changing the percentage based on the factors mentioned in section 401(d). Here, I believe the court can, and should, do no less. The increased earning capacity of Dr. Hodge arising out of the efforts whereby he, jointly with his wife, attained the degree of education and specialization he now possesses, is no different in quality from the increased earning capacity which should have flowed from acquiring another asset, e.g., the apartment house already mentioned.

Given the nature of the asset, I would find that the lower court abused its discretion pursuant to sections 401 and 404 of the Code, in holding that the value of the increased earning capacity of Dr. Hodge, which was created by the joint efforts of the parties, was not marital property subject to equitable distribution. I would, therefore, remand to allow the lower court to determine the value of Dr. Hodge’s increased earning capacity, and the percentage of that value to be awarded to each party pursuant to the factors enumerated in 23 P.S. § 401. The Pennsylvania Divorce Code, in seeking to promote economic justice between the parties upon divorce, requires no less. I dissent from the majority finding to the contrary.

CROSS-APPEAL

Dr. Hodge filed a cross-appeal, averring that the lower court erred in awarding alimony to Mrs. Hodge until September 26, 1994. Dr. Hodge contends that since Mrs. Hodge had only two years left to complete her college degree, which would enable her to obtain employment in her geographic locality, the alimony should, pursuant to section 501(c), be limited to two years.

A reading of section 501(c) of the Divorce Code, makes it clear that the lower court did not abuse its discretion in awarding alimony until the Hodge children reach majority. Section 501(c) provides that spouses, such as Mrs. Hodge, are exempt from the limitations provided in 501(c)(1) and (2). Instantly, Mrs. Hodge has custody of the parties’ minor children, has some physical impairment, and is faced with other compelling impediments to attaining gainful employment. Accordingly, under the facts of the instant case, it was appropriate for the lower court to award alimony for the duration of their children’s minority, and I concur in the majority opinion in so finding.

      . Mrs. Hodge appealed from the lower court’s Decree of November 24, 1982. Dr. Hodge filed a cross-appeal. Since Dr. Hodge was the plaintiff below, he became appellant in this court, pursuant to Rule 2136 of the Pennsylvania Rules of Appellate Procedure.

      . Citations are to the reproduced record and to the Notes of Testimony (N.T.) adduced before the Special Master.

      . Dr. Hodge described his military career as follows:
      “Yes, when I went in, I went in as a second lieutenant. I believe it was about in one year’s time I got promoted all the way up to captain, because Vietnam was even getting worse, it was about 1968 when (sic) TET offensive was going and they started these blood donor programs at each of the posts, so because I was in the right place at the right time, I got the promotion and we began running big blood programs and sending the blood over to Vietnam." (N.T. 376)

      . An anomaly of this case is that Mrs. Hodge, prior to her marriage to Arthur Hodge, had questioned the desirability of marriage, since she feared Arthur would follow a pattern that she had seen followed by other physicians during her experience at St. Luke’s Hospital; namely, divorces and marital interruptions occurring after the physician’s education was completed, and he was exposed to the temptations of his status of "doctor” (N.T. 13, et seq.). In any event, Arthur Hodge’s father and father-in-law each testified that, in response to Mrs. Hodge’s concerns, Arthur had assured everyone that a goal of his medical education was to provide his wife and family with "a decent life” (e.g., N.T. 358, 371-72). Indeed, to the extent that Dr. Hodge’s education expenses did not come from savings or earnings generated by Mrs. Hodge or the marriage, payments came from his own parents, his in-laws, and a $5,500 loan from the Pennsylvania Higher Education Authority.

      . Our review of the facts is taken with approval as to accuracy from the brief for appellee, pages 2-6.

        Appellee counterstates the questions involved as follows:
      I. Whether the lower court should have equitably divided and distributed between the parties the value of the investment made by the parties in the "human capital” represented by Appellant’s medical education when the joint efforts and joint investment of the parties created a substantial increase in Appellant’s earning capacity and when the marriage terminated prior to the realization of the fruits of their joint labor?
      II. Whether alimony should be limited to the two years it would take Appellee to obtain her college degree when her ability to provide for her needs through appropriate employment is limited by the need to care for the parties’ three minor children?
      Brief for Appellee at 1.
      Appellant, Arthur J. Hodge, states the question involved as being:
      The Lower Court erred in failing to limit the duration of the Order of Alimony to a period of time which is reasonable for the purpose of allowing Patricia Hodge to meet her reasonable needs by obtaining appropriate employment or developing an appropriate employment skill.
      Brief for Appellant at 4.

      . Mrs. Hodge and her children are living in the same home the parties rented while Dr. Hodge was in his training program at Harrisburg Polyclinic Hospital.

      . While Mrs. Hodge is licensed, and has a two-year associate’s degree in medical technology, the potential employers in the geographic location where she resides require four-year degree medical technologists (N.T. 505). Had Mrs. Hodge not left her employment to join her husband in Mexico during his medical school training, she would have been able to remain at the hospital with her two-year training, already being an employee there (N.T. 112). This is a change in the professional employment requirements which occurred since Mrs. Hodge was last employed as a medical technologist.

      . The same asset creation occurs in any educational context, or practical training context, be it in the progress from high school graduate to auto mechanic or in the progress from high school graduate to brain surgeon. Indeed, such asset creation and concomitant creation of economic value is frequently discussed in educational journals and federal government publications whereby this "value” of continuing education is recorded.

      . This value is higher, of course, than the value of a simple college education (e.g., a B.A. from Wilkes College such as Dr. Hodge possessed before his medical technologist training) or a high school diploma, due to the value of the medical technology training received by Dr. Hodge at St. Luke’s Hospital.

      . Dr. Hodge has offered no evidence to suggest that the extrapolated $20,000 figure is too low; hence, it is proper for the court and for expert Verzilli to rely upon this annualized extrapolation based upon figures published by the federal government.

      . This valuation, reflecting an ability to earn a specific sum in annual increments over the years, has not been reduced to present value on the assumption, espoused by the Pennsylvania Supreme Court in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), that inflationary increases in the principal annual sum would offset the effect of discounting. Neither has there been any attempt to project future or annual earnings increases based upon productivity. In short, the valuation of the intangible asset here advanced is by far the most conservative possible method of valuation.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    486 A.2d 962
    COMMONWEALTH of Pennsylvania v. Donald GRADY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1984.
    Filed Dec. 28, 1984.

      Joshua D. Lock, Harrisburg, for appellant.
    Katherine E. Holtzinger, Michael L. Rozman, Deputy District Attorneys, Harrisburg, for Com., appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

The question presented by this appeal is whether the legislature’s addition of a recidivist section to the “drunk driving law,” 75 Pa.C.S. § 3731(e)(l)(ii), is unconstitutional as a violation of the proscriptions against ex post facto laws found in Art. 1, § 10 of the United States Constitution and Art. 1, § 17 of the Pennsylvania Constitution. We hold that the amendment is constitutional.

The facts are simply stated. In November, 1976, Donald Grady entered a guilty plea to driving while under the influence of alcohol in violation of Section 1037 of the Motor Vehicle Code of 1959, 75 P.S. § 1037. In 1983, Grady was again convicted of driving while under the influence of alcohol. This time, however, his offense was a violation of 75 Pa.C.S. § 3731. This section, in subparagraph (e)(l)(ii), required a mandatory minimum term of imprisonment of not less than thirty days for a defendant who had been convicted of the same or a similar offense within the previous seven years. Grady was accordingly sentenced to a minimum term of thirty days imprisonment in addition to a fine. On appeal, he argues as he did at trial, that 75 Pa.C.S. § 3731(e)(1)(h) is constitutionally infirm as an ex post facto law.

At the outset, we observe that the statutory provision is beneficiary of a strong presumption of constitutionality. Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983); Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981). One who challenges the constitutionality of a statute bears a heavy burden. Commonwealth v. Mikulan, supra 504 Pa. at 247, 470 A.2d at 1340. The courts may refuse to enforce a statute only if it clearly, palpably, and plainly violates the Constitution. Id.; Snider v. Thornburgh, supra 496 Pa. at 166, 436 A.2d at 596. A review of the purposes to be achieved by constitutional provisions proscribing ex post facto laws compels the conclusion that § 3731(e)(1)(h) is not a prohibited law.

The constitutional provision prohibiting ex post facto laws serves as a limitation on the legislature. It is a proscription which attempts “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Hoetzel, 284 Pa.Super. 623, 630, 426 A.2d 669, 672 (1981). It has been said that a law will be found constitutionally infirm on grounds that it is an ex post facto law only where one of the following effects is present:

1. The law makes an act criminal which was not criminal when done;

2. The law aggravates a crime [ — ] one which makes it greater than it was when committed;

3. The law changes a punishment, and makes it greater than it was when a punishable act was committed;

4. The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed in order to be convicted.

Commonwealth v. Hoetzel, supra, 284 Pa.Superior Ct. at 630, 426 A.2d at 672, citing Commonwealth v. Riley, 253 Pa.Super. 260, 264, 384 A.2d 1333, 1335 (1978).

The enactment of 75 Pa.C.S. § 3731(e)(1) did not make criminal an act which had previously been lawful. Similarly, it did not alter the rules of evidence to require less or different testimony in order to convict. Can it be said, then, that the amendment to the Vehicle Code aggravated the crime which appellant had committed in 1976 or enlarged the punishment therefor? We think not. Appellant has already been sentenced for his 1976 offense; that sentence cannot be increased by virtue of the amendment to the Vehicle Code. The amendment did not authorize or even permit an additional or increased sentence for the 1976 offense. When appellant committed a second offense on March 5, 1983, the punishment for that second offense had already been prescribed by statute. Appellant then knew or should have known the punishment which the legislature had mandated for a second offense. The statutory amendment, which provided a heavier sentence for a second offense, was not constitutionally infirm merely because it required a sentencing court to consider a conviction which had occurred before the new law went into effect.

Recidivist statutes have been adopted for a number of reasons: because the previous punishment failed to work the reform for which it was intended, Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895); to punish more severely those whose criminal activities have not been deterred by former convictions, Funk v. State, 427 N.E.2d 1081 (Ind.1981); to warn first offenders and deter their criminal tendencies, 39 Am.Jur.2d, Habitual Criminals and Subsequent Offenders, § 3 (1968 & Supp.1984); arid to rid communities of the depravity of unreformed criminals, id. Their validity has generally been upheld. See: Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (as applied to the property-related felonies of fraudulent use of a credit card, passing a forged check, and felony theft for obtaining money by false pretenses); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, reh. denied, 386 U.S. 969, 87 S.Ct. 1015, 18 L.Ed.2d 125 (1967) (as applied to murder, robbery and burglary); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) (as applied to forging and uttering a forged order for money); and Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895) (as applied to burglary).

In Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1947), reh. denied, 335 U.S. 837, 69 S.Ct. 13, 93 L.Ed. 389 (1948), the Supreme Court of the United States considered the Pennsylvania Habitual Criminal Act and concluded, “[n]or do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy.” 334 U.S. at 732, 68 S.Ct. at 1258, 92 L.Ed.2d at 1687. See also: United States v. Ilacqua, 562 F.2d 399 (6th Cir.1977); 39 Am.Jur.2d, Habitual Criminals and Subsequent Offenders, §§ 1-5 (1968 & Supp.1984).

Relying on Gryger v. Burke, supra, a Texas court in Gomez v. State, 162 Tex.Crim. 30, 280 S.W.2d 278 (1955) considered the validity of a statute requiring enhanced punishment for a second conviction under the Uniform Narcotics Drug Act. There the prior conviction had occurred before the effective date of the statutory amendment providing for increased punishment for a second, third or subsequent conviction. The validity of the statute was upheld. The same result was achieved in Funk v. State, 427 N.E.2d 1081, 1087 (Ind., 1981), where the court specifically noted, “[ajppellant was not punished for having committed the prior crimes that occurred before the statute went into effect.”

Factually on all fours with the instant case is State v. Levey, 122 N.H. 375, 445 A.2d 1089 (1982). There Ms. Levey had pleaded guilty in July, 1981 to driving while under the influence. At that time the statute permitted a jail sentence, although Ms. Levey did not receive one. In August, 1981, an amendment became effective which made jail mandatory for a conviction of a second or subsequent offense. One month later, in September, Ms. Levey was convicted a second time for driving while under the influence of alcohol. The Supreme Court of New Hampshire responded to an ex post facto argument by Ms. Levey and concluded:

The amendment to [the statute] did not increase the penalty imposed on offenses predating the effective date of the statute. Rather, the amendment created a penalty for an offense that would necessarily take place in the future. Merely allowing a conviction obtained before the amendment to be used in the assessment of the penalty for a subsequent offense does not violate the constitutional prohibition against ex post facto laws.
As of the effective date of the 1981 amendment ... the defendant was on notice as to what would happen if she were again convicted of driving while intoxicated. The penalty she faces if convicted will not result from the legislation, but rather from her own acts which took place after the effective date of the legislation.

Id. at 378-79, 445 A.2d at 1090-1091 (emphasis supplied).

We agree with this analysis by the Supreme Court of New Hampshire. The Pennsylvania recidivist section to the “drunk driving law” is not violative of constitutional provisions proscribing ex post facto laws. See also: Danks v. State, 619 P.2d 720, 722 (Alaska 1980); Sims v. State, 262 Ark. 288, 556 S.W.2d 141 (1977); State ex rel. Van Natta v. Rising, 262 Ind. 33, 310 N.E.2d 873 (1974); State v. Willis, 332 N.W.2d 180 (Minn.1983); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (1979). Cf. State v. Acton, 665 S.W.2d 618, 620 (Mo.1984) (en banc); State v. Rollinger, 314 N.W.2d 871 (S.D.1982).

The judgment of sentence is affirmed.

      . The amendment became effective January 15, 1983.

      . 75 Pa.C.S. § 3731(e)(1) provides:
      Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (i) not less than 48 consecutive hours.
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
      (iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
      (iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

      . Penal Code of 1939, section 1108, 18 P.S. § 5108.


author: HESTER, Judge:

text:
    486 A.2d 966
    Anthony R. OLIASTRO, Rocco Cusato and Nick A. Frisk, Jr., Esq. v. BOROUGH OF ELLWOOD CITY. Appeal of Nick A. FRISK, Jr., Esq.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed Dec. 31, 1984.
    Reargument Denied Feb. 7, 1985.

      Scott L. Melton, Conway, for appellants.
    Edward Leymarie, Jr., Ellwood City, for appellee.
    Before ROWLEY, TAMILIA and HESTER, JJ.
   HESTER, Judge:

In 1961, Anthony Oliastro and Rocco Cusato owned several earth-moving vehicles used in their excavating business in Beaver County. The vehicles were parked across from Oliastro’s residence on Summit Avenue which prompted the filing of frequent complaints by neighbors with the Borough of Ellwood City (hereinafter “appellee”).

Although the vehicles were parked legally, appellee encouraged Oliastro and Cusato to move them to a large tract of land it owned and used primarily for a refuse dump. The two men agreed, and they executed a yearly lease for a monthly rental of $35.00.

Appellee also promised to transfer title to a portion of the property to both men providing they renovated a house on the premises and performed some excavation. Following the expenditure of $16,000.00 in labor and materials, the house was made habitable, and Oliastro moved in. Approximately $20,000.00 in labor and materials was expended to move earth, garbage and a strip mine spoil pile in order that parking space would be available for said vehicles. Appel-lee permitted the men to erect a large garage for their trucks and a tool shed for smaller equipment at a cost of $6,000.00. Oliastro and Cusato completed other projects for the benefit of appellee.

In 1973, the Pennsylvania Department of Transportation offered to purchase a portion of the property in question for the construction of a highway. In the event the Department purchased any portion of the property to be conveyed to Oliastro and Cusato, appellee agreed to compensate them for their expenses and effort.

In 1973, Oliastro and Cusato retained appellant, Nick A. Frisk, Jr., Esq., to represent them in the condemnation proceeding. On March 19, 1974, appellant and Oliastro met with borough council, Ellwood City’s mayor, and the borough solicitor and manager. Prior to the meeting, the Department of Transportation had offered $11,000.00, to be divided between appellee and the tenants, as a condemnation settlement.

As a result of the meeting, borough council voted to authorize appellant to negotiate in an effort to obtain a higher offer for appellee while he was negotiating in behalf of the tenants. The offer of $11,000.00 was reduced to a pro tanto payment, the draft was endorsed by the tenants and the entire amount given to appellee. A second pro tanto payment in the amount of $20,760.00 was divided accordingly: $7,000.00 to appellee, $4,000.00 to Oliastro and Cusato each and $5,760.00 to appellant in attorney fees calculated on the amount received by tenants. The first pro tanto payment was issued in December, 1974; the second was issued in December, 1975.

Following the disbursement of the second pro tanto payment, appellant notified the borough solicitor and borough manager that appellee had received its full compensation, and any additional sums received would be endorsed to the tenants. Appellant’s letter was based upon his understanding of an agreement which he entered into with appel-lee and the tenants.

Thereafter, appellant filed a Petition for the appointment of a Board of Viewers in the Common Pleas Court of Beaver County, naming appellee, Oliastro and Cusato as claimants. On June 22, 1978, the Board of Viewers conducted a hearing and a final award was issued in favor of appellee in the amount of $42,500.00. There was no award in favor of Oliastro and Cusato.

The Department of Transportation appealed, and the matter was eventually settled for $39,000.00. Adding detention charges to the settlement figure, and reducing the aggregate by the two pro tanto payments totaling $31,760.00, the Commonwealth issued its check payable to the three claimants in the amount of $11,220.40. In June, 1979, appellant mailed the check for $11,220.40 to appellee and requested that it be endorsed to Oliastro and Cusato, whom, in appellant’s opinion, were entitled to everything in excess of $18,000.00.

Appellee refused to endorse the check for $11,220.40; consequently, Oliastro, Cusato and appellant instituted suit for compensatory and punitive damages in the Court of Common Pleas of Beaver County.

On April 22, 1980, pursuant to preliminary objections filed by appellee, a demurrer was sustained as to all assumpsit counts while preliminary objections to three counts of fraud and deceit were dismissed. Shortly thereafter, appellant’s and the tenants’ Motion for Leave to Amend the Complaint was granted. Appellant and the tenants thereafter amended their complaint to include two counts of unjust enrichment.

Following a non-jury equity trial on November 9, 1981, a verdict was returned for appellee in the amount of $11,-220.40. Only appellant filed exceptions. When they were denied by Order dated June 29, 1982, this appeal followed.

We hold that appellee was unjustly enriched in its receipt of $11,220.40; consequently, we reverse.

Appellant asserts that an agreement was reached on March 19, 1974 when he, Oliastro and Cusato met with appellee’s councilmen, solicitor and treasurer. The alleged agreement authorized appellant to represent appellee in the condemnation proceedings. It further provided that the first $18,000.00 awarded would be paid to appellee while all funds in excess thereof would be payable to Oliastro and Cusato. Appellant was to calculate his contingent fee only on funds paid to the tenants; appellee was not to pay any portion of appellant’s fee.

The lower court ruled that no contract existed. In so doing, it cited § 1116 of the Borough Code. 53 P.S. § 46116. That section provides that counsel, other than the borough solicitor, may be retained only by ratification of borough council. Since there was no ordinance, resolution or written agreement to confirm appellant’s representation of appellee, no agreement existed. We agree with the lower court’s ruling that no contract existed; however, we believe it erred in ruling that appellee was not unjustly enriched.

In Furia v. City of Philadelphia, 180 Pa.Super. 50, 118 A.2d 236 (1955), a Philadelphia police officer missed 24 days of work due to injuries sustained in an automobile accident. During his absence, the City of Philadelphia paid his full wages which amounted to $263.75. The police officer retained an attorney to represent him in a claim against the tortfeasor. The city notified the attorney of its right to subrogation in the amount of $263.75. The attorney acknowledged the notice and instructed the city of his usual fee. The city did not respond.

The officer’s claim was settled with the tortfeasor’s insurance carrier in the amount of $850.00. When the city refused to pay one-third of its claim for $263.75 to the police officer’s attorney, a declaratory judgment action was instituted by said attorney.

The attorney in Furia did not have an express contract to undertake legal services for the city of Philadelphia. The Furia court noted that had the attorney performed the work for the city, without either an implied or express contract, he would not be entitled to compensation. However, the attorney acted for the police officer, and the fund created by settlement was obtained solely for his client. It was only upon settlement on behalf of his client that the city’s right to subrogation arose.

The Furia court was guided by equitable principles in awarding attorney fees from the subrogation fund. Had it ruled to the contrary, the Furia court was particularly troubled by the possibility of the officer acquiring less than the amount of the city’s subrogation claim from the tort-feasor’s carrier. In that event, the city would acquire all of the funds in the settlement of its claim, while the officer paid the entire attorney’s fee.

In the case sub judice, the final payment of $11,-220.40 was acquired following the payment of $18,000.00 to appellee and $13,760.00 to the tenants. We recognize that evidence of an agreement between appellee and appellant was either insufficient or inadmissible. Furthermore, as acknowledged by dictum in Furia, appellant could not be compensated for representing appellee without an agreement. There is evidence, however, that once $18,000.00 was paid to appellee, appellant was no longer representing appellee.

A letter dated October 25,1974, written by appellee’s solicitor and addressed to appellant, says in pertinent part:

Pursuant to our understanding, we enclose herewith application for Pro-Tanto payment by Pen Dot [sic] in the amount of $11,000.00. This amount will be handed over to the Borough of Ellwood City, properly endorsed as soon as you receive it. The final settlement from Penn-Dot will be distributed in accordance with our understanding at the 18-figure.

This letter concerns the first pro tanto payment of $11,-000.00; more significantly, it acknowledges appellee’s understanding that it would receive no more than $18,-000.00. It follows, therefore, that following its receipt of the entire first pro tanto payment and $7,000.00 from the second pro tanto payment, appellee did not consider appellant to be representing the borough. The settlement for $11,220.40, the amount in dispute, was created by appellant in his representation of Oliastro and Cusato.

As in Furia, appellee must pay reasonable attorney fees on funds procured for its benefit through the efforts of the tenants’ attorney. In this case, attorney fees will be calculated on the full $11,222.40. Despite the check being made payable to all three claimants, Oliastro and Cusato will not participate in the final settlement due to the fact that the lower court so ruled, and they have not appealed.

The lower court cites § 41 of the Restatement of the Law of Restitution as basis for its opinion that appellant is not entitled to compensation, because appellee did not know that appellant pursued the tenants’ claim in the condemnation proceedings following the second pro tanto payment. Section 41 also provides that should the recipient of the services have reason to know that services were being performed, but did not expect to pay therefor, no compensation is due.

The lower court incorrectly applied § 41. Section 41 would apply only if appellant had performed the services for appellee which reaped the final payment of $11,220.40. As noted, final payment was the result of appellant’s sole representation of the tenants; appellee had already received $18,000.00, which it acknowledged in writing as full compensation for its interest.

The lower court also cites Restatement of Contracts, 2nd, Sections 197, 198 and 199, as authority for rejecting appellant’s claim for compensation. These sections deny restitution to a party who engaged in serious misconduct and to a party who performs on a promise unenforceable on grounds of public policy.

According to the lower court, appellant engaged in misconduct by failing to advise appellee of the condemnation proceedings following the second pro tanto payment, and by representing multiple clients in contravention of Canon $5, EC5-1 of the Canons of Professional Responsibility. The promise allegedly contrary to public policy was the authorization for representation given by appellee without formal vote and resolution.

The lower court fails to recognize that final payment of $11,220.40, and the efforts expended to acquire that payment, are the only disputed issues. Once appellee received $18,000.00, there was incontrovertible evidence that appellant represented only Oliastro and Cusato. Whether representation of multiple clients occurred prior to payment of $18,000.00 to appellee is not relevant.

Also, appellant was not performing on appellee’s promise when attempting to reach final settlement. Therefore, it is contrary to fact to find that appellant performed on a promise unenforceable on public policy. Appellee had made no promise to compensate appellant. Following the second pro tanto payment, appellant was seeking an additional condemnation award only for Oliastro and Cusato.

Having ruled appellant entitled to compensation on the payment to appellee of $11,220.40, the amount of a reasonable attorney’s fee is a remaining issue. See Furia, supra. Under his agreement with Oliastro and Cusato, appellant was to receive a contingent fee of 40 percent. A Beaver County attorney confirmed that percentage as reasonable and customary. Furthermore, appellee contests appellant’s receipt of any compensation; it does not dispute the reasonableness of the percentage used to compute the contingent fee. Therefore, in light of this evidence and the holding in Furia, we reverse and hold appellant entitled to 40 percent of $11,220.40, or $4,488.16.

Order reversed. Appellee directed to pay appellant the sum of $4,488.16, plus legal interest and costs.

ROWLEY, J., filed a dissenting statement.

ROWLEY, Judge, dissenting:

I respectfully dissent. I would affirm on the opinion of the trial court.

      . They regraded and partially paved a roadway through the property over which borough vehicles travelled daily to dump refuse. Oliastro kept watch over appellee's limestone and electrical equipment stored on the property. They moved refuse dumped by private industries from the front to the rear of the property and covered the debris with dirt to prevent rodent infestation. When the men notified appellee of their expense in performing these jobs, the borough manager assured them that they would gain title to a portion of the real estate. Finally, they constructed a new road for access by appellee. Appellee eventually set aside two and one-half acres, which included the house, for sale; however, the sale did not occur.

      . Appellant asserts that the meeting with council on March 19, 1974 also resulted in an agreement whereby appellee would acquire the first $18,000.00 of condemnation funds received from the state while Oliastro and Cusato would acquire any amount in excess of $18,-000.00. Appellant’s fee was to be calculated on 40 percent of the funds in excess of $18,000.00. Consequently, the entire first pro tanto payment and $7,000.00 of the second payment of $20,760.00 was endorsed to appellee. Evidence of this agreement was inadmissible; the agreement was void as it was not adopted by borough resolution, a formality mandated by the Borough Code.

      . This is so despite the fact that the Board of Viewers had determined earlier that only appellee was entitled to compensation. Final settlement was entered into by all three claimants and the Commonwealth. Furthermore, the check for $11,220.40 was made payable to appellee, Oliastro and Cusato. The three claimants’ names remained on the pleadings throughout the condemnation proceedings following appel-lee’s receipt of $18,000.00.

      . At the time of the Board of Viewers hearing, appellant was appellee’s solicitor. That fact, in conjunction with the Board of Viewer’s award being given to appellee only, encouraged the Court to find misconduct for appellant's failure to notify appellee of the proceeding and the award in its favor alone.


author: OLSZEWSKI, Judge: CIRILLO, Judge,

text:
    486 A.2d 971
    FIRST PENNSYLVANIA BANK, N.A., Appellant, v. Robert J. DiDOMENICO and Paula E. DiDomenico, H/W.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed Dec. 19, 1984.

      Donald B. Brenner, Philadelphia, appellant.
    Ruth E. Ganister, Philadelphia, appellees.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

Appellant challenges an Order denying and dismissing its motion for leave to file an amended complaint.

This controversy centers on the obligation incurred by appellees in a series of liens from appellant (“Bank”). On September 17,1982, the Bank filed a complaint in assumpsit against-appellees. At issue was an Amended Demand Note dated July 20, 1976 (“1976 Note”) evidencing appellee’s obligation in principal amount of $492,040.98. Appellees, by answer filed October 4, 1982, denied liability. During the deposition of appellee, Robert J. DiDomenico, December 21, 1982, the Bank’s error came to light. The 1976 Note, on its face an executed instrument, had never been accepted by the Bank. Retrenching, the Bank responded with a request, then a motion on April 18, 1983 for leave to file an amended complaint. The trial court, by order dated May 24, 1983, denied the Bank’s motion. This appeal followed.

Under section 742 of the Judicial Code, this Court’s jurisdiction extends to “all appeals from final orders of the courts of common pleas.” 42 Pa.C.S. § 742. An order denying leave to amend a complaint is interlocutory and, as a rule, non-appealable. See Commonwealth v. Gore, 279 Pa.Super. 622, 421 A.2d 372 (1980) (order denying pre-trial motion by Commonwealth to amend bill of information did not put the Commonwealth out of court; non-appealable). However, an order which does not dispose of the entire case may be deemed final, and so, appealable, if postponement of appeal until after final judgment might result in irreparable loss of certain rights asserted. Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981). In the instant case, appellant moved to amend the complaint to reflect suit on a note dated May 6, 1977. Appellant filed its motion on April 18, 1983. The run date for action on the 1977 Note was May 7, 1983. 42 Pa.C.S. § 5527; see Mayerson v. Washington Mfg. Co., 58 F.R.D. 377 (D.C.Pa.1972) (amendment permitted if, at time of filing motion, statute had not barred amended action). Dismissal of the appeal as untimely would effectively deprive appellant of the right to sue on the 1977 Note. Concluding that the appeal is properly before us, we turn to the substance of appellant’s attack.

Appellant argues that the trial court abused its discretion in refusing to allow amendment. For the reasons below, we are constrained to agree.

“It is well-settled in this Commonwealth that while the right to amend pleadings is ordinarily a matter resting in the sound discretion of the trial court, amendments should be allowed with great liberality at any stage of the case, unless, of course, they violate the law or prejudice the rights of the opposing party.” Arzinger v. Baughman, 348 Pa. 84, 86, 34 A.2d 64, 65 (1943), quoted in Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 585, 407 A.2d 394, 396 (1979). Appellant characterizes its actions as an “attempt to correct a mere clerical error” by making reference to the 1977 Note as evidence of the obligation sued upon. Appellant’s brief at 9. The trial court found that appellant wanted to amend the complaint to change the cause of action from suit on the 1976 Note “[which] had been marked satisfied of record” to suit on a different note, 1977 Note. Reasoning that amendment would prejudice appel-lees by allowing introduction of a new cause of action after the statute of limitations had run on the original note, Judge LaBrum refused to allow amendment.

As a matter of fact, the 1977 Note, not the 1976 Note, had been marked satisfied of record. Action on that second was not yet barred when appellant filed its motion to amend. We admit the possibility that suit on the 1976 “non-satisfied”, albeit non-accepted, Note might reflect tactical choice rather than clerical error. We note too that appellant, when served with appellee’s request for Production of Documents, failed to present the 1977 Note. These irregularities considered, we think the better rule in this case would allow for amendment of the complaint to reflect suit on the 1977 Note. If the matter for which the action was truly and substantially brought is not forsaken, but adhered to and relied on for recovery, the introduction by way of amendment of a different contract in form is not regarded as introducing a new cause of action and is permissible. See Standard Pennsylvania Practice 2d § 24:51 and cases cited therein.

Order vacated and case remanded with leave for appellant to amend its complaint consistent with this opinion. Jurisdiction relinquished.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting:

I must respectfully dissent from the majority’s conclusion that appellant may amend its complaint.

The majority correctly sets forth the rule of liberal amendment of pleadings. Pa.R.Civ.P. 1033 states, in part, that “[t]he amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense.”

However, Pennsylvania law has also established that, after the applicable statute of limitations has run, a complaint may be amended only if the amendment merely clarifies or amplifies the original cause of action. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 243, 431 A.2d 237, 239 (1981); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978). A party may not amend a pleading after the limitations period has expired in order to state a new cause of action. Mussolino v. Coxe Brothers & Co., 357 Pa. 10, 15, 53 A.2d 93, 95 (1947) (citations omitted); Del Turco v. Peoples Home Savings Association, 329 Pa.Super. 258, 274, 478 A.2d 456, 464 (1984); Asper v. Haffley, 312 Pa.Super. 424, 458 A.2d 1364 (1983); Stulz v. Boswell, 307 Pa.Super. 515, 453 A.2d 1006 (1982); Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 448 A.2d 588 (1982); John Goffredo and Sons, Inc. v. S.M.G. Corp., 300 Pa.Super. 112, 446 A.2d 255 (1982).

In the present case, appellant admits that it wants to amend its complaint to sue upon a note dated May 6, 1977, which is separate from the July 20,1976 note, upon which it originally sued. Suit on this second note would thus state a new cause of action, and the statute of limitations for this new cause ran on May 7, 1983. Independent of the limitations issue, a cause of action based on the 1977 note would involve a factual background arid, therefore, evidentiary matters different from those for a claim on the 1976 note. As the trial court noted in its opinion, appellees would be prejudiced by an amendment because of these differences and the delay between the 1977 note’s issuance and the suit upon it.

Our standard for reviewing a denial of leave to amend a complaint is to determine whether the court abused its discretion in making that denial. Del Turco, supra, 329 Pa.Super. at 275, 478 A.2d at 464-65. See also Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983); Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). I would hold that the hearing court here did not abuse its discretion when it denied appellant’s motion for leave to amend its complaint.

      . Adopted June 25, 1946, effective January 1, 1947.

      . The 1977 note stated that payment was due “one day after date,” or one day after May 6, 1977, its date of execution. The 1976 note had recited the borrowers’ "promise to pay on demand." The statute of limitations for an action on a demand note runs from the date when demand or payment on the principal or interest is made or judgment is entered on the note. Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983).


author: WICKERSHAM, Judge:

text:
    486 A.2d 974
    Stella L. BANKS v. Willie L. RANDLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed Dec. 21, 1984.

      Daniel W. Shoemaker, York, for appellant.
    Joseph R. Adamczyk, Jr., York, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   WICKERSHAM, Judge:

In this appeal we are asked to decide whether due process entitles a defendant in a paternity action to the effective assistance of counsel.

On March 4, 1980, Stella Banks, appellee herein, began an action in the York County Court of Common Pleas to determine support and/or paternity of a daughter born to her on November 17, 1979. Appellant, Willie Randle, was named as the child’s father. Appellant denied paternity and requested that a blood test be performed. Thereafter, appellant obtained an attorney and the case progressed through pre-trial proceedings.

On October 22, 1982, a jury trial was held on the issue of paternity. Appellant’s counsel was present, but appellant was not. The trial court ordered the case to proceed in the absence of appellant. The sole witness to testify at the trial was appellee. In fact, she testified on her own behalf, and was also called as a witness by appellant’s counsel. Appellant’s counsel presented no other witnesses; nor did he present the results of the H.L.A. blood test, which, while more favorable to appellee, left considerable room for doubt as to the child’s true paternity. The jury’s verdict was in favor of appellee and against appellant. No post-trial motions were filed by appellant’s counsel.

The matter was eventually set down for a support hearing and at that point, appellant obtained his present counsel. In late March of 1983, appellant’s new counsel filed a petition for leave to file motions for a new trial nunc pro tunc, on the basis of prior counsel’s incompetence. Appel-lee filed an answer to the petition and both parties filed briefs. The petition was eventually dismissed by the trial court without a hearing on June 22, 1983. A support hearing held on August 22, 1983 resulted in a support order against appellant in the amount of $30.00 per week, and $40.00 per week on the arrearages. Appellant filed this timely appeal, questioning not the amount of support, but whether the court erred in refusing to grant his motion for a new trial nunc pro tunc.

To answer this, we must first decide whether appellant may raise the issue of ineffective assistance of counsel in an appeal from a civil proceeding in paternity. The trial court found that because a paternity proceeding is a civil case, incompetency of trial counsel alone will not support a motion for a new trial. As appellee states in her brief, “a party in an ordinary civil law suit is not entitled, as a matter of due process, to ‘competent counsel.’ ” Brief for Appellee at 4. Rather, “if a party is deprived of a substantial right in a civil action by incompetent counsel, his remedy is, not another contest with the other litigant, but an action against his counsel.” Brief for Appellee at 5.

The fourteenth amendment to the United States Constitution drawing from the fifth amendment, provides in part, that “No State shall ... deprive any person of life, liberty, or property, without due process of law.” The sixth amendment, as applied to the states through the fourteenth amendment in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), gives a defendant in a criminal case the right to have the assistance of counsel for his defense. A similar provision is embodied in article I, section 9, of the Pennsylvania Constitution. While there is no similar provision for counsel for defendants in civil actions, our court has stated that “the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required.” Corra v. Coll, 305 Pa.Super. 179, 185, 451 A.2d 480, 483 (1982). A resolution of this question cannot be reached by applying a wooden civil/criminal distinction. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings). That approach has been abandoned in favor of an emphasis on the nature of the threatened deprivation. See In re Hutchinson, 279 Pa.Super. 401, 421 A.2d 261 (1980), aff'd, 500 Pa. 152, 454 A.2d 1008 (1982) (civil commitment hearings).

In Corra v. Coll, supra, this court recognized that denial of counsel for indigent defendants in civil paternity actions is inconsistent with due process. The court noted that it was immaterial that paternity actions, previously governed by criminal statutes, are now civil in nature. See generally Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982); Mansfield v. Lopez, 288 Pa.Super. 567, 432 A.2d 1016 (1981). This is chiefly because an adjudication of paternity may still result in the future loss of physical liberty. Once paternity is established and a support order entered, an adjudged father who, while financially capable, willfully fails to comply with that order, can be imprisoned. The Corra court examined the three due process factors enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976) — the private interests of the defendant, the risk of an erroneous adjudication of paternity, and the government’s interest — and balanced them against the presumption that counsel is required for indigent defendants who face a potential loss of liberty as a result of an adjudication of their paternity. The court concluded that:

[Tjhe due process clause of the Fourteenth Amendment to the United States Constitution requires the appointment of counsel for indigent defendants in civil paternity actions in Pennsylvania. Due process is an elastic concept which must be adapted to fit the exigencies of the particular situation at hand. There is no situation of more monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship. In recognition of this, the legislature has conferred legal representation on a complainant upon the request of the court, or a Commonwealth or local public welfare official. We find no reason why an indigent defendant, accused of parentage, should not also be provided with the assistance of experienced counsel.

Corra v. Coll, supra, 305 Pa.Superior Ct. at 193-94, 451 A.2d at 488 (footnotes omitted).

In White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983), this court was presented with a paternity defendant who was not indigent. In holding that Gordon was denied due process when the lower court ordered him to proceed, without benefit of counsel, at a paternity hearing which resulted in a finding of paternity and the entry of a support order against him, the court stated:

The instant appeal differs somewhat from the issue addressed by the Corra court since the paternity defendant there was indigent, while the paternity defendant in the instant case is not. It appears clear, however, that a potential deprivation of liberty confronts any paternity defendant, whether or not indigent, and, since this court has determined that indigent paternity defendants have a right to counsel, non-indigent paternity defendants must, at least, be afforded a reasonable opportunity to secure representation by counsel to assist in the defense of such claims. Therefore, we conclude that appellant here, although not indigent, should have been granted, under the circumstances hereinbefore detailed, a reasonable opportunity to retain counsel of his choice to represent him for the trial of the case.

Id., 314 Pa.Superior Ct. at 189, 460 A.2d at 830 (footnote omitted) (emphasis added). Gordon was then given an opportunity to obtain counsel, even though the case had already been continued a number of times, Gordon had been told by the court about two months prior to trial that he must secure counsel before the trial date or proceed without counsel, and Gordon had made no objection to proceeding without counsel.

Given the recognition of the right to counsel for paternity defendants in Corra v. Coll, supra and White v. Gordon, supra, we find it impossible to deny such a defendant the right to effective assistance of counsel. It is axiomatic that the right to the assistance of counsel means the right to the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Commonwealth v. Kale, 331 Pa.Super. 155, 480 A.2d 291 (1984). “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970). Indeed, without the guidance of competent counsel, appellant’s right to representation would be rendered worthless. In re Hutchinson, supra. Thus, were we to hold that a paternity defendant’s right to counsel does not require the effective assistance of counsel, we would be exalting form over content.

Holding as we do that the law contemplates the assistance of effective counsel, it follows that appellant may raise the issue of ineffectiveness on appeal. To relegate appellant to the civil remedy of a malpractice suit for money damages is no remedy at all for the potential loss of liberty and the seriousness and permanence attached to an adjudication of paternity. Hence, appellant’s ineffectiveness claims must be studied in order to determine an appropriate remedy.

To examine a claim of ineffectiveness a two-step analysis is used:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.
Commonwealth v. Jennings, 285 Pa.Super. 295, 298-9, 427 A.2d 231, 232 (1981).

Commonwealth v. Golson, 310 Pa.Super. 532, 535, 456 A.2d 1063, 1065 (1983).

Appellant herein alleges that his trial counsel was incompetent in: failing to give him notice of the trial date; failing to request a continuance to secure appellant’s presence; failing to present any evidence beneficial to appellant; failing to present a defense; failing to examine and/or strike prospective jurors; failing to put into evidence the results of the blood test; failing to notify appellant of the verdict until it was too late to file post-trial motions; and failing to file post-trial motions. We find that several of these allegations, if proved, have arguable merit. However, the problem in this case, as in most cases where the claim of ineffectiveness is raised on direct appeal, is that we have before us no record of any hearing at which testimony was taken on these allegations or at which trial counsel was given an opportunity to explain his reasons for failing to do the things that appellant now challenges. Where, as here, it is impossible to tell from the record why trial counsel chose the course of action he did, we must remand for an evidentiary hearing, at which time trial counsel may state his reasons for choosing this particular course if, in fact, it was his decision. See Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976); Commonwealth v. Mills, 332 Pa.Super. 75, 480 A.2d 1192 (1984). The trial court will then be able to determine whether trial counsel had any reasonable basis for his actions. If, after the hearing, the lower court determines that trial counsel was ineffective, it may grant appropriate relief, in this case, a new trial on paternity. If counsel is found to have provided effective representation, the lower court shall reinstate the order of support and judgment of paternity entered against appellant.

The order of support and judgment of paternity are vacated and the case is remanded for an evidentiary hearing on appellant’s ineffectiveness claims. Jurisdiction is relinquished.

      . The H.L.A. test showed a 74.68% plausibility that appellant was the child’s father.