author: DEL SOLE, Judge:

text:
    518 A.2d 1263
    ESTATE OF Rachel KEEFAUVER, Deceased. Appeal of Iris HENDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Dec. 17, 1986.

      Suzanne McDonough, Philadelphia, for appellant.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

On December 27, 1976, Decedent’s Will was admitted to probate by decree of the Register of Wills of Philadelphia County. Thereafter, on March 10, 1977, Appellees-Contest-ants appealed from this decree in the Court of Common Pleas, Orphans’ Court Division. Appellees’ appeal alleged that Decedent lacked testamentary capacity at the time the Will was executed. Subsequently, Appellant-Proponent filed a petition to dismiss the appeal. On April 21, 1983 an Adjudication and Decree Nisi were filed sustaining the appeal and setting aside the decree admitting Decedent’s Will to probate. Exceptions were filed and later dismissed by the Orphans’ Court, en banc, on December 19, 1985. This appeal followed.

Appellant advances three counts of error allegedly committed by the Orphans’ Court:

1. The court erred in concluding that Appellees had produced sufficient evidence to support a finding of testamentary incapacity;
2. The court erred in admitting former testimony of a deceased physician under 42 Pa.C.S.A. § 5934;
3. The court erred in denying Appellant’s Motion to Dismiss Appellees’ challenge to the admission into probate of Decedent’s Will.

Initially we note that this case presents a jurisdictional question which was not raised by either party. Accordingly, it is incumbent upon this court to resolve this issue sua sponte. Parker v. MacDonald, 344 Pa.Super. 552, 558, 496 A.2d 1244, 1247 (1985). Our review of the record reveals that Appellant’s notice of appeal was filed on January 22, 1986, which is more than thirty days after the Final Decree of December 19, 1985 from which this appeal is taken. At first blush, it would appear that Appellant’s appeal was untimely. However, we have detected a procedural impropriety in the “Official Docket Entries”, as supplied to this court, which prompts us to excuse its seeming tardiness.

Pa.R.App.P. 903(a) provides that a notice of appeal must be filed within thirty days of the “entry” of the order from which the appeal is taken. Pursuant to Pa.R.App.P. 108(b), the “date of entry” of an order in a civil matter is the day on which notation is made in the docket that notice of the order has been given, as required by Pa.R.C.P. 236(b). We have examined the docket entries and the December 19, 1986 Decree and find that neither document bears a notation that Appellant was given the proper notice mandated by Rule 236(b). In In re Estate of Purdy, 447 Pa. 439, 441, 291 A.2d 93, 94 (1972), our Supreme Court was confronted with an analogous situation in which neither party to an appeal from an Orphans’ Court decree received notice of its existence until two years after it had been entered. The court opined that an appeal nunc pro tunc was warranted given the Register’s neglect to notify the parties. See Marcinak v. Lavery, 286 Pa.Super. 92, 96, 428 A.2d 587, 589 (1981) (the time for filing an appeal may be extended when there is a breakdown in the court’s operation as sanctioned by Pa.R.App.P. 105). In light of the fact that the record before us does not show that either Appellant or Appellees were given proper notice of the Orphans’ Court’s Final Decree, we can only assume that the period for taking an appeal pursuant to Pa.R.App.P. 903(a) was never triggered. Therefore, we shall reach the merits of the issues presented to this court on appeal.

We preface our discussion of the issues at bar by stating our appellate scope of review. The findings of a judge of the Orphans’ Court Division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be disturbed absent a finding of manifest error or abuse of discretion. In Estate of Gilbert, 342 Pa.Super. 82, 87, 492 A.2d 401, 404 (1985) (citation omitted). “We can modify a decree ‘only if the findings on which it rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent or credible evidence.’ ” Fulkroad v. Ofak, 317 Pa.Super. 200, 203, 463 A.2d 1155, 1156 (1983), citing In re Estate of Hastings, 479 Pa. 122, 130, 387 A.2d 865, 869 (1978).

Appellant urges that the Orphans’ Court erred in admitting the recorded testimony of a deceased psychiatrist, one Dr. Manuel Pearson, under 42 Pa.C.S.A. § 5934. In the present case, the contested Will was dated October 24,1973. Shortly thereafter on January 7, 1974, Dr. Pearson examined Decedent and diagnosed her mental condition to be irreversible, progressive senile dementia with an outlook of progress with no chance of recovery. On the basis of Dr. Pearson’s and other testimony, Decedent was adjudicated an Incompetent by decree on February 14, 1974, less than four months following the execution of said Will.

Dr. Pearson died approximately one year prior to the hearings on the issue of Decedent’s testamentary capacity which were conducted in 1982. The testimony of Dr. Pearson in the competency proceeding was introduced into evidence by Appellees over the objection of Appellant. (N.T. 3/29/82, pp. 102-113). Admission of this testimony into evidence was based on 42 Pa.C.S.A. § 5934 which provides:

Whenever any person has been examined as a witness in any civil matter before any tribunal of this Commonwealth or conducted by virtue of its order or direction, if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason, and if the party, against whom notes of the testimony of such witness are offered, had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject matter as that upon which such witness was so examined. For the purpose of contradicting a witness, the testimony given by him in another or in a former proceeding may be orally proved. (Emphasis added)

Appellant contends that neither the parties nor the subject matter of the competency hearing were identical to the parties and subject at issue in the testamentary capacity proceedings.

We agree that the trial court erred by admitting this testimony under § 5934 for the reason that the requisite identity of parties was clearly lacking. The competency hearing was brought by Appellees; however, it did not include Appellant as a party. By comparison, Appellant was a party to the proceedings concerning Decedent’s testamentary capacity. Appellees argue that the identity requirement was met by virtue of the fact that Appellant’s counsel participated in the competency hearing and entered his appearance for Decedent. Therefore, it is alleged, that by engaging her own counsel to represent Decedent in the competency hearing, Appellant’s counsel was in actuality protecting Appellant’s interests. We are not convinced that this amounts to the required identity of parties as envisioned by our legislature.

Our research of Pennsylvania law has not disclosed any cases expounding upon the necessity of identity of parties. However, we note that our sister states which have legislation akin to § 5934 have interpreted the identity requirement in vastly dissimilar ways. It has been recognized by some courts, under McCormick’s guidance, that actual identity of parties or privity between parties is not essential as long as it “appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination.” C. McCormick, Evidence, § 256, at 765 (Cleary 3rd ed. 1984) (footnotes omitted). This is the interpretation which Appellees would have us enunciate as a rule of law in Pennsylvania. However, we decline to afford the language of § 5934 such a broad interpretation absent any indication by our legislature in support of this view. Had our legislature been inclined to set forth more liberal legislation in this area of evidence, the language of this statute would have reflected that intention. In fact, legislation concerning former testimony has remained substantially the same in this Commonwealth since 1887. Accordingly, we hold that the testimony of Dr. Pearson was improperly admitted during the testamentary capacity hearings. We are convinced, though, that the testimony of all other witnesses elicited during these proceedings is sufficient to support the hearing judge’s final determination. Therefore, we find that the admission of this testimony was not reversible error.

Appellant next claims that thé evidence produced during the testamentary capacity proceedings was not sufficient to support the hearing judge’s finding of Decedent’s incapacity. We have reviewed the record of these hearings and have accorded due consideration to the arguments of counsel. The testimony as correctly summarized by the hearing judge’s Opinion dated April 21, 1983, excluding that of Dr. Pearson, was sufficient and properly supported that court’s findings. Therefore, wé need not repeat that thorough analysis and disposition of the witnesses’ testimony. It bears repeating, however, that we disagree with that portion of the Opinion which discusses Dr. Pearson’s testimony.

. Appellant further posits that the Orphans’ Court erred in denying Appellant’s motion to dismiss Appellees’ appeal from the Register of Wills’ decree admitting Decedent’s Will to probate. This argument is grounded on two premises. First, Appellant contends that Appellees unreasonably delayed the appeal and, in essence, advances the equitable doctrine of laches. “The application of ... laches does not depend upon the fact that a certain definite time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act to another’s prejudice.” In re Estate of Marushak, 488 Pa. 607, 610, 413 A.2d 649, 651 (1980) (citation omitted). “Delay which injures no one will not furnish reason for refusing relief.” In re Meyer’s Estate, 173 Pa.Super. 592, 596, 98 A.2d 444, 446 (1953).

We have examined the procedural profile of this case and have found it to display a labyrinth of procrastination, committed by both parties, which has caused the disposition of this case to span nearly a decade. Further confounding Appellant’s argument is the fact that Appellant has failed to specifically state how she has been prejudiced by any delays caused by Appellees. The only theory remotely resembling a showing of prejudice is Appellant’s statement that:

had this Petition been brought before the learned trial Judge promptly, all witnesses, both for and against the Will, would have had a more precise recollection of what happened, and Dr. Pearson would have been available to be cross-examined. (Appellant’s Brief, pp. 34-35)

We have reviewed the testimonies of all of the witnesses and have found them to be clearly expressed and convincing recounts of the events about which were testified. There is no indication from the record that the passage of time had dulled the witnesses’ recollection. More importantly, Appellant has failed to cite any excerpts from the testimony that would support this view. We have already addressed the issue concerning Dr. Pearson’s unavailability to testify, and we further note that the absence of his testimony did not work to Appellant’s disadvantage. Therefore, we hold that Appellant’s allegation of laches must fail.

Last, Appellant argues that Appellees’ appeal from the Register’s decree should have been dismissed on grounds that Appellees failed to post Bond sur the Appeal, as arguably required by § 908(b) of the Probate, Estates and Fiduciaries Code. This section of the Code provides the following:

(b) Bond. — The court, upon cause shown and after such notice, if any, as it shall direct, may require a surety bond to be filed by anyone appealing from a decree of the register conditioned for the payment of any costs or charges thát may be decreed against him. The sufficiency of the surety shall be determined by the register in the first instance, with right of appeal to the court. If a bond in compliance with the final applicable order is not filed within ten days thereafter, the appeal shall be considered abandoned.

20 Pa. C.S.A. § 908(b). Appellant mistakenly interprets this statute to dictate that the necessity and sufficiency of the surety shall be determined initially by the Register with a right of appeal to the Orphans’ Court. In support of this explanation, Appellant cites In re Haueisen Estate, 12 D & C 3d 423, 30 Fiduc. Rep. 145 (1979). We have reviewed this case and find that the portions thereof quoted in Appellant’s brief are dicta and are inapplicable to the case at bar. Rather, we read § 908(b) to provide that the Register is vested with discretion in determining the sufficiency of surety only after the Orphans’ Court directs the filing of the surety bond. This position is consistent with the purpose of the legislation in dispensing with the unnecessary expense of filing surety bonds on appeals from the Register. See Official Comments to § 908(b). For these reasons we hold that the Orphans’ Court did not err in refusing to dismiss Appellees’ appeal from the Register.

Accordingly, the Final Decree of the Orphans’ Court en banc is affirmed. Jurisdiction of this court is relinquished.

      . We note this is an appeal from a Final Decree of the Orphans’ Court, not an Order. However, the Orphans’ Court is still required to conform with the directives of Rule 108(b) inasmuch as the term “order”, for purposes of that Rule, encompasses appeals from decrees. See Pa.R.App.P. 102, "Definitions”.

      . For instance, Fed.R.Evid. 804(b)(1) explicitly recognizes a hearsay exception for former testimony “if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination”.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    518 A.2d 1267
    Judith A. MAJOR, Appellee, v. Clyde D. MAJOR, Appellant.
    Superior Court of Pennsylvania.
    Argued April 1, 1986.
    Filed Dec. 18, 1986.

      Jerry B. Chariton, Wilkes-Barre, for appellant.
    John S. Fine, Jr., Wilkes-Barre, for appellee.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

This is an appeal from the Judgment entered denying appellant’s exceptions to the special master’s report and granting appellee’s petition to reopen the previous uncontested award of equitable distribution of marital assets. For the reasons stated below, we vacate the order of the lower court, and remand for further proceedings.

Judith and Clyde D. Major were married December 22, 1962. Clyde Major, appellant herein, had been a flight engineer in the Air Force from before the time of his marriage until his retirement in February 1981. On December 8, 1981 appellee Judith Major filed a complaint in divorce, alleging indignities to the person. A special master was appointed; his report recommending the grant of a divorce was filed on October 31, 1982. Counsel filed a stipulation permitting bifurcation of the divorce action from the marital property disposition on December 2, 1982; that same day the decree in divorce was entered.

The same special master took testimony regarding the property distribution and filed his report and recommendations on March 14, 1983. The main assets distributed included the marital home and land in Luzerne County, some undeveloped parcels of land in Texas, the two cars, home furnishings, a life insurance policy and appellee’s employee stock plan assets. As no exceptions were filed to the report and recommendation of the master, a final order was entered on March 29, 1983.

Sometime on or about October 17, 1983, appellee filed a petition for rule to show cause as to why the issue of equitable distribution should not be re-opened to include appellant’s military retirement pension. No mention of the pension benefits had been made in previous court records. The special master was re-appointed and filed a report on July 31, 1985, withholding a recommendation on procedural aspects of re-opening the final order, but' recommending that the pension be recognized as marital property. Appellant filed exceptions which were denied by the trial court; a final order was entered and reduced to judgment on October 17, 1985, granting appellee a share of the military pension benefits. Appeal to this court timely followed.

Appellant presents four issues for review. He contends that: his military retirement pay is not marital property; 23 P.S. § 401 (j) prohibits the award of equitable distribution because at the time of the divorce in December, 1982, appellee had no vested right to the pension; assuming arguendo the pension is marital property, appellee waived her right to claim her portion by her failure to file exceptions to the March 29,1983 order; and the lower court erred in citing in its opinion an unpublished memorandum of this court. We shall address these issues seriatim.

I

The issue of whether Pennsylvania will recognize a military retirement pension as marital property is one of first impression. Equitable distribution of marital property in the Commonwealth is governed by the Divorce Code, 23 P.S. § 401 et seq., and by the Rules of Civil Procedure, Rule 1920.1 et seq. Specifically, the applicable portions of the law relating to distribution of marital property are as follow:

§ 401. Decree of court
(c) In all matrimonial causes, the court shall have full equity power and jurisdiction____
(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____
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
(6) Veterans’ benefits exempt from attachnient, levy or seizure pursuant to the act of September 2,1958, Public . Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).
(j) whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b)____

(Emphasis added).

From the clear language of the Divorce Code we find military pension benefits to be includable as marital property. First, a pension is property acquired by the enlisted party during the marriage. In this case, appellant was enlisted in the Air Force at the time of the marriage in 1962 and remained in the military until his pension fully vested after 20 years, retiring in 1981. Thus 18 of the 20 years of pension fund assets are attributable to the period of the marriage. Second, none of the seven exceptions listed under Section 401(e) apply to military retirement funds; subsection (6) refers to the exemption of military disability compensation, not pension benefits. Finally, we are persuaded by the unambiguous statutory purpose as stated in Section 401(f), that all property acquired during marriage is presumed to be marital. Since jthis presumption has not been overcome by a demonstration that the pension falls within a statutory exception, we hold that military pension benefits are marital property, to the extent that they are acquired during marriage.

Our holding today is in accord with the trend of recent decisions in Pennsylvania. Although the issue of whether military pensions are marital property has not been decided in Pennsylvania prior to this case, the issue of whether other pensions are marital property has been decided. Pension benefits, both vested and non-vested, have been designated as marital property by the courts of this Commonwealth. See Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985); Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). “[0]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.” King, 332 Pa.Superior Ct. at 530, 481 A.2d at 915. “Since a pension benefit is an economic resource acquired with funds that would otherwise have been utilized by the parties during their marriage to purchase other assets, it constitutes marital property.” Flynn, 341 Pa.Superior Ct. at 83,491 A.2d at 160. Moreover:

In many equitable distribution cases, an employee’s retirement plan represents one of the most valuable assets accumulated by the marital parties. Often, the marital home is the only other major asset. As a result, questions relating to whether these benefits should be classified as marital property subject to equitable distribution are vital to Pennsylvania’s system of equitable distribution.

Braderman, 339 Pa.Superior Ct. at 191, 488 A.2d at 616. (Footnotes omitted).

Military pensions are as other pensions and vital to equitable distribution. Appellant argues that because federal pensions are not deducted from employee paychecks, but represent current income for inactive duty status, the rationale of Flynn, etc., is not applicable to military pensions. However, we disagree. In light of the sacrifices of those families in the armed services, including long periods of separation while on duty or on assignments overseas, the contributions of both spouses to the household enable the enlisted spouse to continue serving until the pension vests after 20 years of service. Thus we reject appellant’s argument that military pension benefits are not marital property-

II

Appellant’s second argument arises due to the unique circumstances surrounding the law of military pensions that existed when the parties herein filed for divorce in 1981. On June 26, 1981 the United States Supreme Court filed its decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The Court in McCarty held that military pensions were exempted from inclusion in equitable or community property distributions because the federal regulation of military pay and benefits preempted states from exercising dominion over the funds. Thus, when the parties herein filed for divorce in December 1981, appellant’s military pension was ineligible for inclusion in the marital property division .

McCarty did not remain the law. The Congress, responding quickly to the widespread criticism of that decision, enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), Department of Defense Authorization Act, 1983, Pub.L. 97-252, § 1006(a), 96 Stat. 737 (1982), effective February 1, 1983, 10 U.S.C. § 1408 note (1982). The USFS-PA returned to the states the authority to determine whether military pensions are to be considered individual property of the service member, or marital property of the member and spouse. The USFSPA provided that its effective date of application be retroactive to June 25, 1981, the day before the McCarty decision was handed down by the U.S. Supreme Court.

Appellant’s second argument contends that, because the divorce was granted on December 2, 1982, prior to the effective date of the USFSPA, appellee at that point in time had no right to claim any of appellant’s pension benefits as her share of marital property. Under Section 401(j) of the Divorce Code, all property rights not vested as of the date of divorce are terminated. We however, refuse to accord such an interpretation to the facts or the law.

Essentially, appellant is requesting that we give McCarty the status of effective law, when the clear Congressional intent is to eradicate the effects, if any, of that decision. The Senate Report accompanying the Act unequivocally expresses the legislative intent to render McCarty a nullity:

The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payments out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation.

S.Rep. 502, 97 Cong., 2d Sess. 5-6, reprinted in 1982 U.S. Code Cong. & Ad. News 1555, 1596, 1599-1600. (Emphasis added). Although prior to the McCarty decision, Pennsylvania courts had not been presented with the issue of the status of military pensions, economic justice is clearly furthered by including the pension in the marital property. We believe that, had the issue been raised previously, our courts would have decided as we decide today. We find no equitable justification to penalize appellee merely because she is the first to raise the issue. Therefore, we hold that appellee did not lose her right to claim any portion of the interest she held in the military pension merely because McCarty was the law at the time the divorce was entered; the USFSPA, rather than McCarty, applies to all divorce decrees filed after McCarty, from June 25, 1981 to the present.

Our decision to apply the USFSPA retroactively is supported by the decisions in other states throughout the country. Courts in other states have held similarly:

See Walentowski v. Walentowski, 100 N.M. 484, 672 P.2d 657 [1983]; Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex.1982); Griggs v. Griggs, 107 Idaho 123, 125-27, 686 P.2d 68 (1984); In re Marriage of Hopkins, 142 Cal.App.3d 350, 355-61, 191 Cal.Rptr. 70 (1983); Coates v. Coates, 650 S.W.2d 307, 309-10 (Mo.Ct.App.1983); Steczo v. Steczo, 135 Ariz. 199, 200-01, 659 P.2d 1344 (Ct.App. 1983); Chase v. Chase, 662 P.2d 944, 945-46 (Alaska 1983); Hartzell v. Hartzell, 434 So.2d 353, 354-55 (Fla.Dist.Ct.App.1983); Faught v. Faught, 67 N.C.App. 37, 47-48, 312 S.E.2d 504 (1984); Contra Psomas v. Psomas, 99 N.M. 606, 609, 661 P.2d 884 (1982), overruled in Walentowski v. Walentowski, supra; Inzinna v. Inzinna, 456 So.2d 691, 693 (La.Ct.App.1984).

In re MacDonald, 104 Wash.2d 745, 709 P.2d 1196, 1199 (1985); see also Castiglioni v. Castiglioni, 192 NJ.Super. 594, 471 A.2d 809 (1984); Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct.1983).

These courts, as do we, rely on the legislative intent behind the USFSPA. The intent was to grant relief to those parties who mistakenly treated military pensions as separate property due to the McCarty decision. “This result is necessary to promote the purposes of the USFSPA and to avoid unfairness to the small group of litigants who would otherwise be treated differently based on the date on which their divorce decree was filed.” In Re MacDonald, supra. Therefore, even though appellee’s divorce was entered prior to passage of the USFSPA, appellee’s interest in the military pension did not terminate with the divorce decree.

Ill

Appellant contends that by her failure to file exceptions protesting the omission of the pension from marital property prior to the order becoming final, appellee has waived her right to raise this issue. See Pa.R.C.P. 1920.52-55. Appellant correctly points out that, although at the time the divorce was filed in December 1982, McCarty was the law, when the property settlement was recommended by the special master in 1983, the USFSPA had become law. Ap-pellee did not file exceptions to the order or in any way cite the USFSPA; rather appellee petitioned to re-open the judgment in October 1983, seven months after the property distribution settlement was finalized in March.

The Divorce Code does permit reopening of a divorce decree under certain circumstances.

§ 602. Opening or vacating divorce decrees
A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including penury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

23 P.S. § 602. Appellee, however, has not demonstrated that she is entitled to the relief embodied in Section 602 because: 1) she did not petition for reopening within 30 days; 2) she has not argued that fraud was perpetrated; 3) she presents no new evidence relating to the cause of action. Thus we must conclude that appellee was not entitled to have the decree reopened pursuant to Section 602.

Neither do we find cause to rearticulate appellee’s plea as a motion to vacate pursuant to Section 602. Although the record clearly demonstrates that appellant did not disclose to the lower court his military pension asset, we cannot say this failure to disclose amounted to extrinsic fraud. See Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 502 A.2d 185 (1985).

Rather, we find the Divorce Code supplies an adequate legal remedy for any party’s failure to disclose:

§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void
(b) Both parties shall submit to the court an inventory and appraisement of all property owned or possessed at the time action was commenced.
(c) If any party deliberately or negligently fails to disclose information required by subsection (b) and in consequence thereof any asset or assets with a fair market value of $500 or more is omitted from the final distribution of property, the party aggrieved by such nondisclosure may at• any time petition the court granting the annulment or divorce to declare the creation of a constructive trust as to all undisclosed assets, for the benefit of the parties and their minor or dependent children, if any, with the party in whose name the assets are held declared the constructive trustee, said trust to include such terms and conditions as the court may determine. The court shall grant the petition upon a finding of a failure to disclose such assets as required under subsection (b)____

23 P.S. § 403(b), (c). See also 23 P.S. § 401(d)(6), supra.

Appellant either deliberately or negligently failed to disclose information about his military pension, an asset whose value clearly exceeds $500.00. The failure to disclose is clear from a painstaking examination of the record, and was noted by the Master in his report reviewing the parties’ assets pursuant to Section 401(d): “[t]he record is scarce concerning the party’s [sic] medical, retirement, insurance or other benefits.” Master’s Report at 12. The appropriate remedy, therefore, is the imposition of a constructive trust upon the military pension assets. This remedy cannot be waived by a failure to file exceptions; it becomes available “at any time” a court of competent jurisdiction is presented with facts warranting its imposition.

The trial court has decided every factual issue necessary to the disposition of this matter, and correctly determined that the pension asset should be distributed as marital property. Pursuant to our power to modify an order, 42 Pa.C.S.A. § 706; Fenstermaker, supra, we therefore modify the lower court order dated October 7, 1985 as follows:

It is hereby ORDERED, ADJUDGED and DECREED that defendant’s military retirement benefits shall be subject to imposition of a constructive trust, the trustee to be the defendant, Clyde D. Major, and the beneficiary to be the plaintiff, Judith A. Major. The trust corpus shall be equally divided; one-half of each monthly payment shall be distributed to the plaintiff. This order is effective October 7, 1985.

As so modified, the trial court order is affirmed.

IV

Appellant’s final contention is that the trial court committed reversible error by citing an unpublished memorandum decision in its opinion. Appellant’s contention is without merit.

Memorandum decisions are not to be considered precedent and cannot be cited by parties to an action for any purpose. See K.N. v. Cades, 288 Pa.Super. 555, 566-567, 432 A.2d 1010, 1016 (1981); Commonwealth v. Kelliher, 325 Pa.Super. 228, 472 A.2d 1091 (1984). While the trial court may have been mistaken in its reliance on a memorandum opinion as precedent for its holding, we have found independent grounds for our decision to affirm the lower court. Therefore, the lower court’s holding, if not its rationale, was proper. Furthermore, it was not reversible error for the lower court to cite the case, as no harm to either party resulted from the holding.

AFFIRMED, as modified.

      . However, the pension was eligible for consideration as one of the totality of financial circumstances affecting appellant’s situation. Yet, we can find in the record no mention of the pension, either in the Master’s Report filed in March 1983 or in the testimony predating the report. See discussion infra.

      . We leave open the issue of whether general inherent equity powers of the court may permit reopening or vacating of divorce decrees after 30 days for parties similarly situated to appellant and appellee herein. Courts in other states have held that, where a procedural mechanism or equity jurisdiction exists to effectuate opening the property settlement, the relief of reopening the decree may be granted. As the Court in In re Flannagan stated:
      Most courts in other jurisdictions that have considered the retroactive application of the IJSFSPA to final decrees have allowed reopening, when a procedural mechanism existed for such reopening. Edsall v. Superior Court, [143 Ariz. 240], 693 P.2d 895 (Ariz.1984); Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983); Castiglioni v. Castiglioni, [192 N.J.Super. 594], 471 A.2d 809 (N.J.Super.Ct.1984);
        Koppenhaver v. Koppenhaver, [101 N.M. 105], 678 P.2d 1180 (N.M. Ct.App.1984); Thorpe v. Thorpe, [123 Wis.2d 424], 367 N.W.2d 233 (Wis.Ct.App.1985). Edsall, Smith, and Koppenhaver discussed the finality doctrine and concluded that the balance of equities favored reopening over finality.
      Two courts have refused to reopen decrees because of the doctrine of finality. In re Quintard, 691 S.W.2d 950 (Mo.Ct.App.1985); Allison v. Allison, 690 S.W.2d 340 (Tex.Ct.App.1985). However, in each case the court noted that finality was considered such an important doctrine in the state that no CR 60(b)(ll)-type rules had been created. Other courts have refused to open specific final decrees because of an insufficient showing of inequity. In re Habermehl, [135 Ill.App.3d 105, 89 Ill.Dec. 939], 481 N.E.2d 782 (Ill.Ct.Ápp. 1985); Harkins v. Harkins, [101 N.M. 296], 681 P.2d 722 (N.M.1984). No cases have been found in which the doctrine of finality prevailed over the inequity of denying retroactivity, so long as a procedural mechanism such as CR 60(b)(ll) existed for retroactive application. The weight of authority from other states leads to a conclusion favoring retroactivity over finality in applying the USFSPA.
      42 Wash.App. 214, 709 P.2d 1247, 1251 (1985). Because an adequate statutory remedy exists in this matter, we reserve decision as to whether equitable remedies will apply to parties seeking retroactive relief, and the reopening of their divorce decrees.


author: BECK, Judge:

text:
    518 A.2d 1274
    Margaret M. ROSS v. Jack N. ROSS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed Dec. 22, 1986.

      James R. Leonard, Jr., Lancaster, for appellant.
    Stephen L. Needles, Richboro, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from an order dated May 1, 1985 by the Bucks County Court of Common Pleas reinstating appellant-father’s support arrearages. The order was entered in response to a Motion to Reinstate Arrears filed on April 30, 1985 by a Domestic Relations Officer representing appellee-mother. The record reveals that the order was entered without notice to the father who, therefore, had no opportunity to respond to the reasons set forth in the motion in support of reinstatement of arrears. We hold that the entry of this ex parte order was improper and reverse.

A review of the complicated procedural history of this appeal is warranted. However, because the interrelationship of the statutes and rules governing support matters is somewhat complex and because all of the support statutes and rules have been amended and/or reenacted or recodi-fied in recent years, a review of the facts would be meaningless without first providing a legal context.

Support matters are generally governed by the Civil Procedural Support Law, 42 Pa.Cons.Stat.Ann. §§ 6701 — 13 (1982), amended by and reenacted at 23 Pa.Cons.Stat.Ann. §§ 4301-53 (Supp.1986) (the “Support Law”). The Support Law generally governs actions for support where the interstate enforcement of a support obligation is not implicated.

The procedure to be followed in an action under the Support Law is set forth in the Rules of Civil Procedure concerning Actions for Support (the “Support Rules”). Pa. R.C.P. 1910.1-.31 (1986). The basic form of these rules was originally promulgated in 1981, although certain of the rules were amended or rescinded in 1985 and 1986. See, e.g., Pa.R.C.P. 1910.2, 1910.6(b). When promulgated in 1981, the Support Rules specifically provided that they would “govern all civil actions or proceedings brought in the court of common pleas to enforce a duty of support.” Pa.R.C.P. 1910.1(a). As Rule 1910.31 and the Note to Rule 1910.1 indicate, the rules suspend and supercede certain of the procedural provisions of the Support Law. Many of the procedural provisions in the prior Support Law have been omitted in the 1986 Support Law because the Support Rules provide the procedural requirements. Act 1982, Dec. 20, P.L. 1409, No. 326, art. II; 23 Pa.Cons.Stat.Ann. §§ 4341-2.

In addition to the foregoing, Pennsylvania has enacted the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.Cons.Stat.Ann. §§ 6741 — 80 (1982), amended by and reenacted at 23 Pa.Cons.Stat.Ann. §§ 4501-40 (Supp. 1986) (“RURESA”). RURESA generally governs support matters where one of the parties resides outside the Commonwealth and enables a Pennsylvania resident to obtain enforcement of a support obligation through proceedings in another state. The Support Rules specifically do not govern the procedure to be followed under the interstate reciprocal provisions of RURESA. Pa.R.C.P. 1910.1(b)(1)(a).

As to intra state or inter county support obligations, there are three relevant enactments, RURESA, the Support Law and the Support Rules. RURESA contains provisions relating to certain intra state matters arising where the parties are in different counties within Pennsylvania. 42 Pa.Cons.Stat.Ann. § 6773, amended by and reenacted at 23 Pa.Cons.Stat.Ann. § 4533. The Support Law in Sections 6712 and 6713 also provide for the situation where the parties reside in different counties. 42 Pa.Cons.Stat.Ann. §§ 6712-13, amended by and reenacted at 23 Pa.Cons.Stat. Ann. § 4352. The Support Rules do not govern these provisions.

The Support Rules provide yet another procedural route. The introductory Explanatory Note to the Support Rules as they were originally enacted in 1981 explained that the rules provide a third alternative procedure for intrastate support matters. See also Note to Pa.R.C.P. 1910.1(a). The Rules facilitate the enforcement of a support obligation where the obligee and the obligor are in different counties by providing liberalized venue and service of process requirements in such situations. Pa.R.C.P. 1910.2, 1910.6(b).

In the context of intrastate support obligations both the Support Law and RURESA require the transfer of a support matter to the proper jurisdictional forum where the parties are in the Commonwealth but are in different counties. Section 6773 of RURESA states that in such a situation, if the court of the county in which the petition for support is filed finds that the petition sets forth facts from which it may be determined that the obligor owes a duty of support and that a court of another county may obtain jurisdiction over the obligor or his property, the matter must be transferred to the other county. 42 Pa.Cons.Stat. Ann. § 6773, amended by and reenacted at 23 Pa.Cons. Stat.Ann. § 4533.

Section 6712 of the Support Law similarly provides as follows:

If the court of the county acting as an initiating county finds that the complaint sets forth facts from which it may be determined that the defendant owes a duty of support or the defendant is in default in payment on an order of support and that jurisdiction cannot be obtained over the defendant or his property as prescribed by general rule or that there has been an election to proceed under this section, and that the court of the responding county may obtain jurisdiction, it shall so certify to the responding county and shall cause three copies of the complaint or order and its certification to be transmitted to the court in the responding county.

42 Pa.Cons.Stat.Ann. § 6712, amended by and reenacted at 23 Pa.Cons.Stat.Ann. § 4533.

These sections in RURESA and the Support Law have been construed as mandating the transfer of any support matter that falls within their provisions. Commonwealth ex rel. Powell v. Powell, 238 Pa.Super. 369, 373-374, 357 A.2d 566, 568 (1976).

In the context of intrastate support the Support Rules provide an alternative to transfer by permitting the plaintiff to call the defendant back to the plaintiffs county. of residence to defend against the support action if the plaintiffs county of residence is the place of the last family domicile and tbe plaintiff has continued to reside there. Pa.R.C.P. 1910.2, 1910.6(b) & 411 {see footnote 2, supra).

The Support Rules do, however, provide for the transfer of a support action, either before or after a support order has been entered, where the court determines that for the convenience of the parties and witnesses, the matter should be heard in a different county. Pa.R.C.P. 1910.8. The rule embodies the concept of forum non conveniens in support actions and permits transfer only to a county where the action could have been brought either originally or at the time of transfer.

Consistent with the foregoing, Support Rule 1910.18 permits later proceedings to modify, terminate or enforce a support order to be brought in the court where the order was originally entered or, if the action has been transferred, in the court to which it was transferred. Pa.R.C.P. 1910.18. Rule 1910.18 implements Section 6710 of the Support Law, which provides as follows:

The court making [an] order [of support] shall at all times maintain jurisdiction of the cause for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding,such order, without limiting the right of a complainant to commence additional proceedings for support in any county wherein the defendant resides or where his property is situated ... The court may at any time remit, correct or reduce the amount of any arrearages. This section shall apply to all support orders whether entered pursuant to this chapter or any other provision of law.

42 Pa.Cons.Stat.Ann. § 6710, substantially reenacted at 23 Pa.Cons.Stat.Ann. § 4352. In construing Section 6710, this court has repeatedly stated that a change in the county of residence of one party does not oust the jurisdiction of the court that entered the original support order. Commonwealth ex rel. Leider v. Leider, 335 Pa.Super. 249, 484 A.2d 117 (1984); Commonwealth ex rel. Fiebeg v. Fiebeg, 258 Pa.Super. 300, 392 A.2d 804 (1978).

Against this background, we turn to the complex procedural scenario of this case. In this case, the original support order was entered in 1979 in Bucks County where both parties then resided. After six years, and several intervening actions, the appellee-mother attempted to enforce an alleged support obligation of the appellant-father who then resided in Lancaster County. The result of the mother’s action is the Bucks County Court’s order of May 1, 1985 that is the subject of this appeal.

In 1979, pursuant to the Support Law, the Bucks County Court of Common Pleas ordered the father to pay $70 per week in support of his two children. Thereafter, the father -relocated to New York. At that time, he was in arrears on his support payments.

On August 10, 1982, the mother filed a petition in Bucks County under RURESA seeking to enforce the father’s support obligations and to collect the arrearages under the 1979 order. The petition was certified by the Bucks County Court to the Family Court of Onondaga County, New York in accordance with the provisions of RURESA.

Following a hearing in New York on the mother’s RURE-SA petition, at which both parties were present, the New York Court entered an order on December 7, 1982 directing the father to pay $70 per week in child support and vacating the arrears up to November 5, 1982, “due to present unemployment of [father].” The effect of the order appears to have been to vacate the arrears for a period of three months; from the date of the petition, August 10, 1982, to the date stated in the order, November 5, 1982.

In January 1983, the Domestic Relations Office of Bucks County, acting apparently on behalf of the father, filed a motion to vacate the 1979 Bucks County support order “by reason of Order entered in Syracuse Court.” The Bucks County Court subsequently vacated the order with “all arrearages forgiven.”

Then, in March, 1983, upon application of the father, the New York Court entered a second order suspending its original December 7, 1982 order due to father’s unemployment and also due to the self-sufficiency of one of the parties’ children. Up to this point the New York court has suspended the arrears from August 10, 1982 to November 5, 1982 while the Bucks County Court has apparently vacated all arrears to November 5, 1982.

In March, 1985, the mother filed another complaint in support under RURESA in Bucks County Court. On April 30, 1985, the Bucks County Domestic Relations Office filed a Motion to Reinstate Arrears which resulted in the May 1, 1985 order and this appeal. The Motion sought reinstatement of all arrears up to November 6, 1982, allegedly totalling $3,646.34. The sole reason for reinstatement provided in the Motion was that “plaintiff believes that the defendant was working ‘under the table’ during this time and that the arrears should not have been vacated.”

Having issued its order reinstating the arrears on May 1, 1985, two days later, on May 3, 1985, pursuant to the provisions of RURESA, the Bucks County Court transferred the support proceedings to Lancaster County. 42 Pa. Cons.Stat.Ann. §§ 6754, 6773.

Appellant-father raises three issues for review all relating to the Bucks County order of May 1, 1985: (1) that the Bucks County Court lacked authority to issue the May 1, 1985 Order reinstating arrears because the New York court had vacated those arrears; (2) that the May 1, 1985 order is invalid because it was entered without prior notice to father and a hearing; and (3) that the trial court acted improperly in entering the May 1,1985 order based entirely on hearsay.

We find merit in the second allegation of error and, therefore, reverse. However, we preliminarily note that appellant-father’s first argument raises an important issue concerning the interaction of the Full Faith and Credit Clause and RURESA which the court should address on remand. Since we revolve the matter sub judice based on the failure to provide notice, we shall not address the other issues, which are more properly resolved in the first instance by the trial court.

The trial court’s opinion in support of the May 1, 1985 order sheds little light and offers no precedent in support of its ex parte order. The trial court was apparently of the view that in reinstating the arrears the May 1, 1985 order merely corrected on the records of Bucks County an error that had been made when the 1979 order was vacated. As such, the trial court apparently concluded that a hearing or even notice to the father was not required. We disagree.

Our standard for reviewing support is limited to a determination of whether the trial court abused its discretion. Commonwealth ex rel. McClelland v. McClelland, 303 Pa.Super. 540, 450 A.2d 58 (1982) {citing Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980)). Where a trial court has acted to modify an existing support order, that action is justified only when supported by clear and positive evidence after a hearing on the merits. Id. {citing Commonwealth ex rel. Rubin v. Rubin, 230 Pa.Super. 591, 326 A.2d 578 (1974)).

Although most of our cases that impose this requirement concern modification of support orders due to changed circumstances of the parties, we have previously considered cases involving support matters where numerous other forms of ex parte action have been taken by a trial court and has had a potentially negative impact on the party to whom no notice of the action or opportunity to be heard has been given. We have consistently not permitted such ex parte actions to stand. Bliss v. Bliss, 343 Pa.Super. 17, 493 A.2d 780 (1985). See also Commonwealth v. Pressley, 331 Pa.Super. 43, 479 A.2d 1069 (1984); Commonwealth ex rel. Fiebig v. Fiebig, supra.

Moreover, our Rules of Civil Procedure specifically require that “copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action.” Pa.R.C.P. 440 (formerly Pa.R.C.P. 233). The Rules further require that the prothonotary immediately give notice to all parties of the entry of any order, decree or judgment. Pa.R.C.P. 236. Neither of these notices were given in this case.

We find that the Buck’s County order of May 1, 1985 did more than set the record straight. It adversely affected the position of the father, and therefore notice to him was required. Prior to the May 1, 1985 order, the father had been relieved of at least some of the arrears accruing up to November 5, 1982 in New York and had been completely relieved of liability for any arears in the Bucks County Court. After the May 1, 1985 order, the father was subject to an order for those arrearages.

Moreover, the trial court later certified the existence of this order to Lancaster County, presumably for purposes of enforcement. Since the purpose of the transfer was enforcement of the arrears, the Lancaster County Court could not modify or vacate the order. Commonwealth ex rel. Soloff v. Soloff, 215 Pa.Super. 328, 257 A.2d 314 (1969).

In Soloff, the Philadelphia court was the intiating court and had entered an order of support. The mother later instituted additional proceedings for support in Montgomery County under the Support Law and Montgomery County entered another support order. The mother relied upon the then effective version of Section 6710, quoted above, which permits additional support proceedings in counties other than the intiating county. The court reversed the Montgomery County order stating:

[Section $710] authorizes the courts throughout the Commonwealth to enforce existing orders by attachment or execution and not the entry of additional orders or the modification of an existing order.
Once the jurisdiction of a court attaches in a support case it continues until the matter is completely and finally determined. And it is res adjudicata as to all attempts to infringe upon the courts’ power to control its own order.

Id., 215 Pa.Superior Ct. at 332, 257 A.2d at 317.

Thus, because of the entry of the May 1, 1985 order, the father here would not be able to contest his liability for the arrearages in the Lancaster County Court because that court is bound to follow and merely enforce the order. And obviously the father was foreclosed from contesting this liability in the Bucks County Court by that court’s ex parte entry of the order. The harm to the father is manifest.

We remand for further proceedings consistent with this opinion.

      . We recognize that this appeal was not filed until August 2, 1985, and is therefore ostensibly in violation of Pa.R.A.P. 903(a) (an appeal must be taken within 30 days of the date of entry of the order from which the appeal is sought).

        In a per curiam order, our court denied appellee-wife’s motion to quash the appeal on grounds of untimeliness, for the reason that the lower court’s docket bears no indication that notice of the entry of the order was given to appellant-husband as required by Pa.R.C.P. 236 (the prothonotary shall immediately give written notice of the entry of any order, decree or judgment of each party of record, and shall note in the docket the giving of the notice). The appellee’s motion for reconsideration of the denial of the motion to quash was also denied, and she again raises the issue of timeliness in her appellate brief. We accept the appeal for the same reasons that supported our prior denial of the wife’s motion to quash.

      . Rule 1910.2, relating to venue, was further amended in 1985. Rule 1910.6(b), relating to service of process, was simultaneously rescinded. These changes were made in conjunction with the 1985 amendments to the service of process rules, Pa.R.C.P. 400-41, and reflect the consolidation in Rules 400-1 of all the rules governing service of process and other legal papers. Rule 411 now specifically covers service in support matters. As the Explanatory Comment preceding the 1985 version of Rules 400-41 and the Note following Rule 411 explain, these changes do not affect the procedure to be followed. Because of the corresponding changes in the support venue rule, Pa.R.C.P. 1910.2, new Rule 411 leaves the prior practice in support actions involving intercounty matters unchanged. Because these amendments to the rules post-date the matters on appeal here, they are not applicable to this case.

      . We should note that at all times pertinent to this appeal, the 1985 amendments to and reenactments of the Support Law and RURESA were not yet effective. Thus, our analysis proceeds under the versions of those statutes found in Title 42, not in Title 23.

      . The father disputes the effect of this order, contending it vacated all arrears accrued to November 5, 1982.

      . In April, 1983, the mother filed a petition in Bucks County to reinstate arrears. The petition sought to reinstate arrears only up to August 5, 1982, in the amount of $2,851.00, since the petition alleged that the New York court’s order had suspended only the arrears accruing during the period from August 10, 1982 to November 5, 1982. Shortly thereafter, a rule to show cause on the petition was entered. Nevertheless, it appears that no further action was taken with respect to the petition. Since the mother's April, 1983 Petition to Reinstate Arrears up to August 5, 1982 stated that the arrears at that time were $2,851.00, we have been unable to ascertain how the April 30, 1986 Motion’s figure of $3,646.34 was calculated. To add to the confusion, the record reveals that on April 9, 1985, an accountant’s certificate was issued certifying that the arrears as of April 30, 1983 totalled only $1,210.00. This certificate recites that it is based on the records of the Bucks County Domestic Relations Section.

      . Inexplicably, on July 1, 1985, the Bucks County Court entered a further "Order” entitled "Registration of Support Order,” and again transferred the matter to Lancaster County. In this document, the Court recited that the father was under an order of support entered in Bucks County in the amount of $70.00 per week and owed arrearages in the amount of $3,646.34. The Court further recited that it appeared that the Lancaster County Court could obtain jurisdiction of this matter and, therefore, that the findings regarding the father’s support and arrearages liabilities were certified to Lancaster "in accordance with the Civil Procedural Support Law of July 13, 1953, P.L. 431, 62 P.S. 2043.31 et seq____” By this order, the Bucks County Court apparently intended once again to transfer the matter to Lancaster County, this time not under RURESA but rather under Section 6712 of the Support Law. Presumably this transfer was effected to transfer enforcement of the May 1, 1985 order to Lancaster.
      This Court is admittedly confused as to the procedure followed in this regard by the trial court. The May 3rd transfer related only to arrears. The July 1, 1985 transfer order recites that the father is under a 1979 order of the Bucks County Court pursuant to which the father is obligated to pay $70.00 per week in support. We assume that the Bucks County Court was hereby referring to the original Bucks County support order in 1979. However, that order had been completely vacated by the same court’s order in January, 1983. That obligation had been suspended in New York and vacated in Bucks County. It was never reinstated. The May 1, 1985 order only reinstated the arrearages.


author: POPOVICH, Judge:

text:
    518 A.2d 1280
    DELAWARE VALLEY UNDERWRITING AGENCY, INC. v. WILLIAMS & SAPP, INC., and Walter Sapp Insurance Agency, Inc., Successor, and Donald G. Powell and Nancy Powell, His Wife. Appeal of WILLIAMS & SAPP, INC. and Walter Sapp Insurance Agency, Inc., Successor.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Dec. 11, 1986.

      Georgia A. Broz, Pittsburgh, for appellants.
    David K. Rudov, Pittsburgh, for Delaware Valley, appel-lee.
    James H. Joseph, Pittsburgh, for Powell, appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which sustained preliminary objections for lack of personal jurisdiction over the appellees, Donald and Nancy Powell. We must reverse and remand the matter for reasons herein stated.

The factual allegations which were set forth in appellees’ preliminary objections consisted of the following:

Appellees, the Powells, lived in Fox Chapel until 1984, at which time they moved to the State of Washington. Although they did not sell their house in Fox Chapel at that time, their homeowners’ insurance policy was cancelled because the house was vacant.

The Powells had initially received their insurance coverage through their broker, Williams & Sapp, Inc., and the successor, Walter Sapp Insurance Agency, Inc. (Sapp).

The Powells contacted Sapp to learn what action they should take concerning the insurance. Sapp agreed to contact other sources of insurance to determine what coverage could be obtained.

The Powells eventually obtained insurance coverage through their insurance brokers in Tacoma, Washington. Sapp, however, had obtained an insurance binder for the Powell’s dwelling from plaintiff, Delaware Valley Underwriting Agency, Inc. After being advised of the existence of the other policy, the Powells instructed Sapp to cancel the binder. The Powells have not returned to Pennsylvania and they are not engaged in the conduct of any business in Pennsylvania.

The trial court concluded that a Pennsylvanian could not exercise personal jurisdiction over the Powells under the long arm statute essentially because “[t]he Powells had no reason to believe that through the telephone call with Sapp [that] they were entering into a contract with a Pennsylvania company requiring premiums to be paid in Pennsylvania. Thus, the quality and nature of the activity of the Powells in Pennsylvania is such that it would be unreasonable and unfair to require them to conduct a defense in this state.” Trial Court Opinion at 4. This appeal followed.

Appellant contends that the trial court erred because it improperly relied upon the predecessor statute to 42 Pa.C. S.A. § 5322. According to appellant, Section 5322 now provides a broader basis for jurisdiction.

The pertinent portions of the long arm statute, supra, are set forth in the following manner:

(a) General rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
* * * * * *
(5) Having an interest in, using, or possessing real property in this Commonwealth.
(6)(i) Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting.
(ii) Being a person who controls, or who is a director, officer, employee or agent of a person who controls, an insurance company incorporated in this Comonwealth or an alien insurer domiciled in this Commonwealth.
(iii) Engaging in conduct described in section 504 of the act of May 17, 1921 (P.L. 789, No. 285), known as “The Insurance Department Act of 1921.”
sit * * * * *
(b) Exercise of full constitutional power over nonresidents. — In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.
(c) Scope of jurisdiction. — When jurisdiction over a person is based solely upon this section, only a cause of action or other matter arising from acts enumerated in subsection (a),' or from acts forming the basis of jurisdiction under subsection (b), may be asserted against him.
(d) Service outside this Commonwealth. — When the exercise of personal jurisdiction is authorized by this section, service of process may be made outside this Commonwealth.
(e) Inconvenient forum. — When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

42 Pa.C.S.A. § 5322.

Additionally, the applicable standard of review has been summarized accordingly:

when preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt, (citation omitted). Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.
Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-303, 464 A.2d 323, 332 (1983), cert. denied Charter Consolidated, Ltd. v. Barber, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984).

At this stage of the proceedings, because “of the failure of the parties to provide the evidence necessary for a proper determination of the issue”, we must remand the matter. Holt Hauling & Warehousing v. Aronow Roofing, 309 Pa.Super. 158, 161, 454 A.2d 1131, 1133 (1983).

The record in this case contains no evidence from which we can make an independent determination of the nature and quality of the Powells’ activity in Pennsylvania with respect to their ownership of the real estate and the instant cause of action. Although the trial court states that the Powells were not parties to the insurance contract and that the Powells have not returned to Pennsylvania since their departure to the State of Washington, there is no record evidence to support its conclusions.

The trial court also states that the factual allegations which were set forth ip the appellees’ preliminary objections “were not contested by Sapp”. However, we have said:

Where a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., 261 Pa.Super. 84, 87, 395 A.2d 954, 955 (1978) citing Monaco v. Montgomery Cab Co., 417 Pa. 135, 140, 208 A.2d 252, 255 (1965); Pa.R.C.P. 1017(b)(1). If an issue of fact is raised by the preliminary objections, “the court shall take evidence by depositions or otherwise.” Pa.R.C.P. 1028(c). In such a situation the court may not reach a determination based upon its view of the controverted facts, but must “resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing.” Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). Accord: Telstar Corporation v. Berman, 281 Pa.Super. 443, 448, 422 A.2d 551, 554 (1980); Envirosystems Corporation v. Weinhardt, 271 Pa.Super. 66, 68, 412 A.2d 577, 578 (1979); Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, 257 Pa.Super. 45, 49, 390 A.2d 238, 240 (1978); Greene v. Liebergott, 235 Pa.Super. 475, 477, 344 A.2d 501, 502 (1975); Schaffer v. Batyko, 227 Pa.Super. 62, 65, 323 A.2d 62, 63-64 (1974); Luria v. Luria, 220 Pa.Super. 168, 171, 286 A.2d 922, 923 (1971). The failure of the parties to provide the evidence necessary for a proper determintion of the issue does not excuse the court from further inquiry. Thus, it was incumbent on the court below to take evidence to resolve the dispute. See: Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502. Accord: Schaffer v. Batyko, supra 227 Pa.Super. at 65-66, 323 A.2d at 63-64. Luria v. Luria, supra 220 Pa.Super. at 170-171, 286 A.2d at 923-924. Moreover, it was not Holt[, the original defendant,] but Aronow[, the additional defendant,] who, as the moving party, bore the burden of supporting its objections to the court’s jurisdiction. Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 955; Liggitt v. Liggitt, 253 Pa.Super. 126, 131, 384 A.2d 1261, 1263-1264 (1978); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 516-517, 313 A.2d 281, 284 (1973); Lewandowski v. General Telephone Company, 223 Pa.Super. 476, 480, 302 A.2d 478, 480 (1973).

Holt Hauling & Warehousing v. Aronow Roofing, 309 Pa.Super. at 161, 454 A.2d at 1133 (1983).

Because appellees bore the burden of supporting its objections to the court’s jurisdiction, we are unable to rely upon the uncontested factual allegations which were set forth in the appellees’ preliminary objections. Greene v. Liebergott, 236 Pa.Super. at 477, 344 A.2d at 502 (“Because the preliminary objections did not contain a notice to plead, this averment of fact must be considered as being denied by appellant despite his failure to file a responsive pleading.”) Hence, a “remand is necessary to allow the parties a reasonable period of time within which to present evidence by deposition, interrogatories or otherwise which will allow a determination of the factual issues raised by” the preliminary objections. Id.

Order vacated and record remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . We also note that the order which forms the basis of the instant appeal is a final order. Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 149-56, 461 A.2d 839, 841 (1983) ("the order in question effectively terminated the litigation as to the additional defendant".).

      . 42 Pa.C.S.A. § 5322.

      . Trial Court Opinion at 1.

      . On remand, the trial court should apply the current version of the long arm statute, 42 Pa.C.S.A. § 5322. See e.g., Kenny v. Alexson Equipment Company, 495 Pa. 107, 125-27, 432 A.2d 974, 980 (1981).


author: MONTGOMERY, Judge: POPOVICH, Judge, CAVANAUGH, Judge,

text:
    518 A.2d 1284
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael SEPTAK, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 9, 1986.
    Filed Dec. 12, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
    Carl M. Janavitz, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellee Michael Septak pleaded guilty to charges of unlawful restraint, terroristic threats, and criminal conspiracy . The sentencing court, over the Commonwealth’s objection, refused to apply the deadly weapon enhancement provision of the Sentencing Guidelines, and sentenced ap-pellee to four (4) years probation and payment of a $500.00 fine and court costs. The court acknowledged that the sentence was below the applicable minimum guideline sentence. On appeal, the Commonwealth requests that we vacate the sentence and remand with instructions to apply the deadly weapon enhancement and impose a sentence within the enhanced guidelines. We agree with the Commonwealth that the sentencing court erred in refusing to apply the deadly weapon enhancement provision and that the sentence imposed unreasonably deviated from the Guidelines. We therefore vacate and remand for resentenc-ing.

This appeal arises out of a criminal episode which took place on November 10, 11 and 12 of 1982. The victim was Robert Johns, and the criminal actors included appellee Michael Septak and co-defendants Joseph Pokorny, Carl Pokorny, James Pokorny and Ronald Smith.

Robert Johns, a carpenter, was performing some work at the home of Joseph Pokorny. After learning that Joseph Pokorny had hidden a quantity of cocaine in the house, Johns stole the cocaine. It then occurred to Johns that Joseph Pokorny would discover the theft and seek retribution. In order to divert attention to another suspect, Johns set fire to Joseph Pokorny’s motorcycle and forged a threatening note which he hoped would mislead Joseph Pokorny into thinking that some other person had burned his motorcycle and stolen his cocaine. Unfortunately for Johns, Joseph Pokorny was not misled.

On the afternoon of November 10, 1982, Joseph Pokorny came to Johns’ home, punched Johns in the jaw, and then abducted Johns at the point of a loaded handgun. With the assistance of three associates, Joseph Pokorny took Johns back to the Pokorny residence, where Joseph’s brothers Carl Pokorny and James Pokorny were waiting. Joseph Pokorny telephoned Johns’ girlfriend, made a demand for $9,000.00 he felt he was owed by Johns, and warned the girlfriend not to call the police. The three Pokorny brothers then took turns guarding Johns with the handgun.

A few hours later, in the late afternoon or early evening of November 10, 1982, appellee Michael Septak appeared at the Pokorny residence. We do not know what Septak had been told by the Pokorny brothers, but we do know that Septak approached Johns in a threatening manner and stated that if he (Septak) had been “ripped off”, he would have killed Johns. Septak also told Johns that the Pokor-nys should either shoot him or kill him. Shortly after this confrontation, Septak helped Carl Pokorny to tie Johns’ hands together. Sometime before midnight, after Johns’ hands had been untied, Septak suggested that Johns should be tied up again. Septak helped to tie Johns’ hands and feet, and Johns was made to lie on a sleeping bag in the kitchen. Septak left the house around midnight, and had no further involvement in the criminal episode.

Subsequent events may be briefly summarized. On November 11, 1982, a member of the Johns family contacted the F.B.I. In turn, the local police were called in. Arrangements were made to deliver the ransom money at noon on November 12. At the designated time and place, Joseph Pokorny picked up the money and was immediately arrested. Later that day, Carl Pokorny, who had been guarding Johns at the Pokorny residence, was also arrested. Michael Septak was arrested on December 2, 1982.

By information filed on February 18, 1983, Septak was charged with kidnapping, unlawful restraint, terroristic threats, theft by extortion, and criminal conspiracy. Count four of the information, theft by extortion, specifically alleged that Septak had threatened “to shoot Robert Johns and/or otherwise injure him if he did not pay Joseph Pokor-ny $9,000 or $10,000 ...” After the Commonwealth placed an offer of proof on the record at the guilty plea hearing, Septak pleaded guilty to charges of unlawful restraint, terroristic threats, and criminal conspiracy. The remaining charges were dismissed.

The Commonwealth first contends that the sentencing court erred in refusing to apply the deadly weapon enhancement section of the Sentencing Guidelines. This section provides that when the court determines that the defendant or an accomplice possessed a deadly weapon during the commission of a criminal offense, the court must add at least 12 months and up to 24 months to the guideline sentence which would otherwise have been applicable. 204 Pa. Code § 303.4. The sentencing court does not have the discretion to disregard this section in determining the appropriate guideline sentencing ranges. Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985).

In the instant case, the sentencing court refused to apply the deadly weapon enhancement section on the ground that neither the information nor the Commonwealth’s offer of proof at the guilty plea hearing put Septak on notice that this section would apply. Even if we were to assume that such notice is required, the record clearly shows that it was given in this case. In count four of the information, the Commonwealth alleged that appellee Septak had threatened to shoot the victim. Additionally, during the offer of proof at the guilty plea hearing, the Commonwealth specifically stated that the abduction was carried out at gunpoint, that the Pokorny brothers had guarded Johns with a handgun, and that Septak had told Johns that the Pokorny brothers should either shoot or kill him. Thus, the record clearly shows that Septak was aware that his accomplices had possessed a gun during the course of the criminal episode.

Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), on which both appellee and the sentencing court rely, is clearly distinguishable from the case at hand. In Taylor, no mention was made of a weapon being involved in the criminal episode in either the information or the facts recited during the plea colloquy. Rather, Taylor was accused, and pleaded guilty, to beating the victim with his fists. At the sentencing,, however, the victim testified that Taylor had threatened her with a knife. The court held that the victim’s testimony at the sentencing hearing was not sufficient to establish that the knife was used at the time of the incidents to which Taylor had pleaded guilty. In the instant case, however, the facts to which appellee pleaded guilty included the fact that his accomplices possessed a gun during the incident.

Appellee argues further that the deadly weapon enhancement provision was not specifically mentioned in the plea colloquy. We know of no case law that requires that a defendant be advised of the specific Sentencing Guidelines which are applicable to his case prior to the court’s acceptance of his guilty plea nor is such notice specifically required by statute. It is important to note that we are here dealing with the Sentencing Guidelines and not with a mandatory sentencing provision. In Commonwealth v. Reagan, 348 Pa.Super. 702, 502 A.2d 702 (1985), this Court held that a defendant must be advised of the mandatory minimum sentences, 75 Pa.C.S. § 3731(e)(1), before he pleads guilty to drunk driving. In such a case, the defendant is facing certain imprisonment since the sentencing court has no discretion to disregard the mandatory sentence. Commonwealth v. Pryor, 347 Pa.Super. 239, 500 A.2d 811 (1985). The Sentencing Guidelines, however, do not preclude judicial discretion. Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158 (1985). There is no doubt that the sentencing court has the power to impose a minimum sentence outside the Guidelines, provided sufficient reasons are set forth and the sentence is reasonable. 42 Pa.C.S. § 9721(b); Commonwealth v. Drumgoole, supra; Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). Under the proper circumstances, therefore, a defendant may receive a sentence ranging anywhere from minimal probation to the maximum incarceration permitted by law. Septak was advised of the maximum penalties for each of the crimes to which he pleaded guilty, as is required by Pa.R.Crim.P. 319. We refuse to require that a defendant must be advised of the suggested minimum sentences set forth in the Sentencing Guidelines.

It is imperative that the sentencing court determine the correct Guidelines before imposing sentence. Commonwealth v. Drumgoole, supra. We agree with the Commonwealth, therefore, that the sentence imposed must be vacated and the case remanded for resentencing after consideration of the appropriate guidelines, including the deadly weapon enhancement.

The Commonwealth also contends that the sentence imposed was unreasonably lenient. The offense gravity score for the conspiracy charge (the most serious of the charges) is 6 and Septak’s prior record score was zero. The Sentencing Guidelines, with the deadly weapon enhancement included, call for a minimum imprisonment of 16 to 36 months, or 24 to 42 months if there are aggravating circumstances, or 14 to 28 months if there are mitigating circumstances. Thus, the sentence of nonconfinement was 14 months below the lowest minimum recommended by the Guidelines.

In reviewing a sentence which is outside the Guidelines, we must determine whether the sentence is unreasonable. 42 Pa.C.S. § 9781(c)(3). In making this determination we must look at the nature and circumstances of the offense, the history and characteristics of the defendant, the opportunity of the sentencing court to observe the defendant, the presentence investigation report, the findings on which the sentence was based, and the Guidelines. Commonwealth v. Dixon, 344 Pa.Super. 293, 496 A.2d 802 (1985). After considering these factors, we must agree that the sentence of nonconfinement was unreasonable.

The reasons given by the sentencing court for deviating from the guidelines were that Septak had a clean criminal record for the previous ten years, that his involvement was minimal in terms of time, that his appearance on the scene was accidental, that he was married, had a family and had a business that employed two other persons, and that he had not had any contact with the Pokorny brothers since the incident occurred. The sentencing court’s first reason, Septak’s clean criminal record, is not an appropriate reason for deviating from the Guidelines because the Guidelines already give credit for an accused’s prior record or lack thereof. Commonwealth v. Drumgoole, supra. We are left, then, with the fact of Septak’s marital and employment status, that his involvement was minimal in terms of time (although not necessarily in terms of his actions), that his appearance on the scene was accidental and that he had no contact with his co-conspirators since his arrest.

When choosing among the sentencing alternatives of probation, partial confinement, total confinement, fine or no penalty, the sentencing court must consider the particular circumstances of the offense as well as the character of the defendant. In addition, the sentence must be consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Frazier, supra. We believe the sentencing court in this case focused on the needs of appellee to the exclusion of the other factors, including the gravity of the offense, especially as it relates to the impact on the life of the victim and the community. See, Commonwealth v. Mattis, supra. We agree therefore that the sentence is unreasonably lenient.

Judgment of sentence vacated, case remanded for resen-tencing in accordance with this opinion. Jurisdiction is relinquished.

POPOVICH, J., files a concurring opinion and joins MONTGOMERY, J., majority opinion.

CAVANAUGH, J., files a dissenting opinion.

POPOVICH, Judge,

concurring:

I join the lead opinion, but postulate the following scenario in response to the position espoused in the dissenting opinion:

What if the defendant became involved in a conspiracy after his cohorts had killed the kidnapped victim, would the defendant be liable (as an accessory after the fact) for the acts of his co-conspirators and be exposed to the weapon enhancement provisions of the Sentencing Code?

Supposedly, under the dissent’s rationale, the fact that the defendant was not aware of or present during the use of the weapon on the victim should render him immune from the effects of the weapon enhancement statute. With this I cannot agree. See Commonwealth v. Rodgers, 187 Pa.Super. 471, 144 A.2d 662 (1958).

Under settled law embracing the area of conspiratorial accountability, the occurrence of a killing during the commission of, e.g., a robbery by a group of felons would expose each to a sentence commensurate with a felony-murder (second degree murder). See Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979).

The defendant could not plead ignorance to the use of a weapon by his cohorts, and seek asylum in the fact that his involvement was conditional upon the effectuation of the crime without the use of a weapon. See Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963). This type of logic strains reality and runs head-on into the precept that each conspirator is responsible for everything done by his confederates, provided, of course, that it is in furtherance of the conspiracy. See, e.g., Commonwealth v. Riley, 330 Pa.Super. 201, 479 A.2d 509 (1984); Commonwealth v. Rhey, 140 Pa.Super. 340, 14 A.2d 192 (1940).

Also, 42 Pa.C.S. § 9721 does not make specific reference to the defendant having to be charged with the use or possession of a weapon during the commission of the crimes for which he is being sentenced. See Commonwealth v. Bell, 512 Pa. 334, 342-344, 516 A.2d 1172, 1177 (4986). If such were the case, there would be no need to have the term “accomplice” in the section unless the intent of the Legislature was to hold the defendant responsible for his confederates’ actions. Stated differently, the intent of the section, as I read it, is to punish one not only for his possession of a weapon, but for the possession of a weapon by an accomplice out of which the crimes being charged flow. See 18 Pa.C.S. §§ 306, 903. Thus, although a defendant may not have been a principal when it comes to the use of a weapon, the fact remains that a weapon was used at bar upon the victim by a member of the conspiracy team. As a result, this conspiratorial web exposes all members of the cadre to liability for the act of the other, regardless of when it occurred so long as the act was in furtherance of the conspiracy. Tate, supra. On this, we are presented no evidence to reach a contrary conclusion.

Here, as recounted by the dissent, the victim was harassed with a weapon by one of defendant’s co-conspirators. Accordingly, I see no reason not to hold the defendant accountable (through means of the weapon enhancement statute) for conduct engaged in by a member of the conspiracy.

CAVANAUGH, Judge,

dissenting:

The charges to which appellee pled guilty do not involve the use of a deadly weapon nor does the factual summary presented by the Commonwealth at the guilty plea colloquy establish that a deadly weapon was used in the appellee’s presence or that he should have known of its use. For these reasons, I believe the lower court properly did not apply the deadly weapon enhancement provision of the Sentencing Guidelines and that the probationary sentence and fine imposed were reasonable deviations from the Guidelines under the circumstances. I dissent from the vacation of the sentence of the lower court and would affirm.

Appellee pled guilty to the charges of unlawful restraint, terroristic threats, and conspiracy. None of these counts in the information filed by the Commonwealth alleged possession of a deadly weapon. Nor, for that matter, did the kidnapping or theft by extortion counts allege possession of a deadly weapon. The theft count alleges a threat to shoot; no other reference to a firearm or other deadly weapon is contained in the information.

The factual summary recited by the Commonwealth at the guilty plea colloquy referred to use of a handgun in the initial abduction of the victim and during a portion of the time the victim was held at the home of a co-conspirator. There was no representation that appellee was present during the brandishing of the weapon or that he was aware of its existence and use. Appellee was present during a relatively short portion of the entire time the victim was held and pled guilty to those crimes for which he bore responsibility. It is proper that only the offenses to which appellee pled guilty be looked at in determining application of the deadly weapon enhancement provision.

The relevant portion of the deadly weapon enhancement provision is as follows:

§ 303.4(a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.

204 Pa. Code § 303.4(a), reprinted at 42 Pa.C.S.A. § 9721 (emphasis added).

The language of this section clearly requires that the “current conviction offense” is the relevant focus of inquiry for determination of application of the deadly weapon enhancement provision. This reading of the language is in accord with the meaning ascribed to it by The Pennsylvania Commission on Sentencing. “A deadly weapon enhancement is added when a weapon was possessed while committing the crime being sentenced.” Pa.C.Sent.2d at 47 (Sept. 1, 1986.) Thus, it is clear that only the offenses to which apellee pled guilty may be considered for enhancement purposes at the time of sentencing. The Commonwealth did not present any evidence that, relating to the offenses for which guilty pleas were tendered, an accomplice possessed a deadly weapon. The entire criminal episode is not the proper object of review, but only the acts to which defendant admitted guilt and which resulted in convictions. To hold otherwise results in impermissible plea enhancement rather than sentence enhancement.

The Commonwealth further contends that the lower court unreasonably deviated from the Sentencing Guidelines in imposing a too lenient sentence. I would hold that the lower court adequately articulated its reasons for deviating from the guidelines and that the reasons were legally sufficient to support the sentence imposed. Ignoring the deadly weapon enhancement, the ranges for an offense gravity of 6 and a prior record score of 0 are minimum range 4-12 months, aggravated range 12-18 months, and mitigated range 2-4 months of confinement. The lower court’s probationary sentence is not an abuse of discretion given the duration of the entire episode and appellee’s brief and accidental involvement, appellee’s background and character, employment status, family responsibilities, and avoidance of contact with co-defendants since the date of the criminal act.

I would affirm the judgment of sentence.

      . 18 Pa.C.S. § 2902.

      . 18 Pa.C.S. § 2706.

      . 18 Pa.C.S. § 903.

      . 204 Pa.Code § 303.4, reprinted following 42 Pa.C.S. § 9721.

      . As required by 42 Pa.C.S. § 9781(b), we find that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines, and will therefore permit this appeal by the Commonwealth. Commonwealth v. Mattis, 352 Pa.Super. 144, 146, 507 A.2d 423, 424 (1986).

      . The offer of proof at the guilty plea hearing serves as the source of information for the preceding description of the criminal offense.

      . See, e.g., 42 Pa.C.S. § 9712, which requires reasonable notice by the Commonwealth that it intends to seek the mandatory sentence for visible possession of a firearm.

      . Although a presentence investigation was apparently made, the report was not included in the record forwarded to this Court. Obviously, our review of a sentence would be much easier and more accurate if we had the presentence report before us.

      . Septak was apparently convicted, as a juvenile, of passing stolen postal money orders.

      . We also take note of the size of the deviation from the Guidelines, which in this case is fairly substantial, being in excess of one year less than the most lenient sentence contemplated by the Guidelines.

      . The counts to which appellee pled guilty are as follows:
      Count 2, Unlawful Restraint, Misdemeanor 1
      The actor knowlingly and unlawfully restrained another person, namely Robert Johns in circumstances exposing the said other person to risk of serious bodily injury, in violation of Section 2902 of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2902.
      Count 3, Terroristic Threats, Misdemeanor 1
      The actor, with intent to terrorize Robert Johns threatened to commit the violent crime of murder and/or aggravated assault in violation of Section 2706 of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2706.
      Count 5, Criminal Conspiracy, Felony 2
      The actor, with the intent of promoting or facilitating the crime of the kidnapping of Robert Johns and/or the extortion of $9,000 from Robert Johns and/or his family conspired and agreed with Joseph Pokorny and/or Carl Pokorny and/or Ronald Smith and/or James Pokorny that they or one or more of them would engage in conduct constituting such crime or crimes, and in furtherance thereof did commit the overt act of threatening Robert Johns with bodily harm and/or tying him up in violation of Section 903(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 903(a)(1).

      . The counts dropped by the Commonwealth are as follows: Count 1, Kidnaping, Felony 1
      The actor unlawfully removed Robert Johns a substantial distance under the circumstances from 127 Teece Avenue, Bellevue, Pennsylvania the place where he was found, to 4525 Mount Troy Road Extention, Pittsburgh, Pennsylvania with the intent to hold him for ransom or reward, in violation of Section 2901(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2901(a)(1). Count 4, Theft By Extortion, Felony 3
      The actor intentionally obtained or withheld property, namely, $10,-000 belonging to William Johns by threatening to inflict harm, namely, threatening to shoot Robert Johns and/or otherwise injure him if he did not pay Joseph Pokorny $9,000 or $10,000 which wold not have benefited the actor, in violation of Section 3923(a)(7) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 3923(a)(7).

      . This section was amended effective January 1, 1986 to clarify the language but was substantively unchanged.