author: DEL SOLE, Judge: JOHNSON, Judge,

text:
    488 A.2d 602
    COMMONWEALTH of Pennsylvania v. Tyrone HAYNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1984.
    Filed Jan. 4, 1985.
    Reargument Denied March 18, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

The sole issue raised in the instant appeal is whether the Appellant was tried in the Philadelphia Municipal Court within the time constraints imposed under Rule 6013 of the Pennsylvania Rules of Criminal Procedure, Pa.R.Cr.P. 6013. Since we find that Appellant was not tried within the time period set forth by Rule 6013, the judgment of sentence is reversed and Appellant is discharged.

The Appellant, Tyrone Haynes, was arrested on July 18, 1981, and charged with aggravated assault, simple assault and reckless endangerment of a person arising out of an altercation in a laundromat in Philadelphia. The preliminary arraignment was held on July 19, 1981, at which time a trial date was set for August 12, 1981 in Philadelphia Municipal Court. On August 12, 1981, Appellant, through counsel, requested and was granted a continuance until September 29, 1981. On September 29, 1981 the Appellant did not appear, a bench warrant was issued and the Commonwealth orally requested an extension of time for trial under Rule 6013. The record establishes the Commonwealth knew that as of October 16, 1981, Appellant was in the custody of the United States Army in the stockade at Fort Dix, New Jersey on the charge of being away without leave (AWOL).

On or about March 24, 1982, the Appellant was arrested in Philadelphia and accorded a bench warrant hearing on March 26, 1982. The record is silent as to the whereabouts or actions of Appellant between October 16, 1981 and March 24, 1982, nor does it state the date Appellant was released from Army custody. When asked by the trial court the Commonwealth was unable and the Appellant unwilling to give such information. In any case, Appellant was given a trial date of May 17, 1982, at the bench warrant hearing. For some reason, Appellant was not brought to court on the new date for trial and the case was continued until June 18, 1982. On June 18, 1982, Appellant’s counsel withdrew and the Defender Association of Philadelphia was appointed. A defense continuance was granted until August 3, 1982. On that date, the trial court granted the Commonwealth’s oral motion to extend under Rule 6013 and denied Appellant’s motion to dismiss for failure to comply with Rule 6013. Immediately after, the Appellant was tried and convicted and then sentenced to two years probation.

On August 17, 1982, Appellant filed a petition for a writ of certiorari to the Philadelphia County Court of Common Pleas requesting that said court order the Philadelphia Municipal Court to certify and send a complete transcript to the Common Pleas Court and that his conviction be reversed and he be discharged based on an alleged violation of Rule 6013. On July 6, 1983, the petition for a writ of certiorari was denied after which Appellant filed this timely appeal.

On June 28, 1974, the Supreme Court of Pennsylvania adopted Rules of Criminal Procedure for the Philadelphia Municipal Court effective July 1, 1974. Pa.R.Cr.P. 6000-6013. In doing so the Court prescribed certain rules of criminal procedure applicable only to cases instituted or transferred to the Philadelphia Municipal Court. Rule 6013(a)(2) provides that trial in a Municipal Court case in which preliminary arraignment is held after June 30, 1975, shall commence no later than 120 days from the date on which the preliminary hearing is held. Subsection (c)(1) allows the Commonwealth to file a petition to extend the time for commencement of trial and subsection (d) prescribes that in determining the period for commencement of trial the following time is excluded: any period of time for which the defendant is unavailable or any time period covered by a defense continuance. Thus, Rule 6013 is remarkably similar to Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Cr.P. 1100. We will accordingly review the instant case in a manner similar to Rule 1100 cases.

Appellant concedes that certain time must be excluded from the calculation of the period for commencement of trial under Rule 6013. Since Appellant was arrested on July 19, 1981, the mechanical run date for Rule 6013 was November 16, 1981. Appellant agrees that the period from August 12, 1981 until September 29, 1981, must be excluded because of the defense continuance and that the period of September 29, 1981 until October 16, 1981, should be excluded because of the Appellant’s unavailability, for a total of 66 excluded days. However, Appellant contends that the time period between the date the Commonwealth knew Appellant was in Army custody, October 16, 1981, and the date of Appellant’s later arrest, March 24, 1982, cannot be excluded because the Commonwealth failed to exercise due diligence in obtaining the custody of Appellant from the Army. In fact, Appellant argues that the Commonwealth did absolutely nothing to secure his custody from the Army and did not know his exact whereabouts during the period of October 16, 1981, until March 24, 1981. This, the Appellant contends, violates the Commonwealth’s duty to use due diligence under Rule 6013 to obtain custody of an accused who is in custody in another jurisdiction. The Commonwealth’s position is that the Appellant voluntarily absented himself from the jurisdiction of the Philadelphia Municipal Court and failed to inform the court as to his whereabouts violating a provision of his bail agreement. On this basis, the Commonwealth contends we should find that the Appellant was unavailable within the meaning of Rule 6013 and thus exclude the period of September 29, 1981 until March 24, 1981, from the determination of the period for commencement of trial under Rule 6013.

It is well settled in this Commonwealth that mere incarceration in another jurisdiction does not make a defendant “unavailable” within the meaning of Rule 1100(d) in the determination of whether to exclude a period of time in the computation of the 180 day period for the commencement of trial. Commonwealth v. Stange, 286 Pa.Super. 38, 428 A.2d 226 (1981); Commonwealth v. Emmett, 274 Pa. Super. 23, 417 A.2d 1232 (1979). The defendant will only be “unavailable” under Rule 1100(d) for the period of time during which his presence cannot be secured despite the due diligence of the Commonwealth. Commonwealth v. Stange, supra. Further, the Commonwealth has the burden of proving the defendant’s unavailability by a preponderance of the evidence. Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982). However, due diligence does not require perfect vigilance and care, but rather a reasonable effort. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981). Since Rule 6013 is similar to Rule 1100 we find the case law to be equally applicable to both rules.

The record reveals that the Commonwealth “knew” on October 16, 1981, that Appellant was incarcerated in Fort Dix, New Jersey in the custody of the United States Army. It was, thus, incumbent on the Commonwealth to make reasonable efforts to secure Appellant’s return to Pennsylvania. However, the record fails to show that the Commonwealth made any effort to secure Appellant’s custody and only arrested him through an apparent fortuitous consequence, although the record is not clear as to the circumstances surrounding the arrest. The only thing that is clear from the record is that custody of the Appellant was not secured directly from the Army.

At the pre-trial hearing on Appellant’s motion to dismiss under Rule 6013 the Commonwealth stated that it did not seek custody of Appellant because it believed that the Army would not return Appellant. However, there is no objective evidence in the record to support this belief. The subjective belief of the Commonwealth is not enough to sustain its burden of due diligence. On appeal, the Commonwealth has abandoned the above argument and instead argues that its duty of due diligence was vitiated by the Appellant’s violation of his bail agreement in leaving the jurisdiction and not reporting his whereabouts. The Commonwealth cites certain decisions of this Court in support of its position, specifically, Commonwealth v. Byrd, 325 Pa. Super. 325, 472 A.2d 1141 (1984); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); and, Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982). However, these cases are distinguishable from the case at bar. In the cases cited by the Commonwealth the accused was incarcerated in another jurisdiction, but the Commonwealth did not know the whereabouts of the accused. In such cases we have found the accused to be “unavailable” within the meaning of Rule 1100. However, in the instant case the Commonwealth knew where Appellant was incarcerated, and in such cases we have required a showing of due diligence in seeking the custody of the accused before we deem the accused “unavailable”. As we have already noted the Commonwealth has failed to meet its burden of proving due diligence.

Accordingly, we find that the days between October 16, 1981 and March 24, 1982, are not excludable from the calculation of the time for commencement of Appellant’s trial under Rule 6013. Since the number of days between the above two dates totals 160 it becomes obvious that Appellant was not tried within 120 days from his preliminary hearing. If the days Appellant concedes are excludable are added to the mechanical run date of November 16, 1981, the new run date was January 21, 1982. Appellant should have been tried on or before that date, and since he was not, the judgment must be vacated and Appellant discharged.

Judgment of Sentence vacated. Appellant discharged.

JOHNSON, Judge,

dissenting:

Because I conclude that the days between October 1,1981 and March 24, 1982 are excludable from the calculation of the time for commencement of Appellant’s trial under Pa.R. Crim.P. 6013, I respectfully dissent.

Rule 6013(a)(2) provides that “(t)rial in a Municipal Court case in which a preliminary arraignment is held after June 30, 1975, shall commence no later than one hundred twenty (120) days from the date on which the preliminary arraignment is held.” Appellant Haynes was arrested on July 18, 1981. His preliminary arraignment was held July 19, 1981 and bail was posted on his behalf that same day. Rule 4013 of the. Pennsylvania Rules of Criminal Procedure provides in pertinent part:

Conditions of Bail
When a person is admitted to bail, the conditions of the bail bond shall be that such person will:
(a) appear before the issuing authority or court at all times required until full and final disposition of the case;
(c) give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change;

It is well-settled that a criminal defendant, who accepts the status of bail during the pendency of court proceedings, assumes the responsibility of full compliance with the conditions of bail. Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982).

While I agree with the majority that cases decided under Pa.R. Crim.P. 1100 may be cited as authority in cases dealing with Rule 6013, the majority overlooks several such cases which support the Commonwealth’s position. In Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), our supreme court acknowledged that the burden of proving due diligence in bringing a defendant to trial within the prescribed time is ordinarily upon the Commonwealth. However, “(w)here the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis.” Id., 481 Pa. at 355, 392 A.2d at 1331.

Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protection sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative.

Id., 481 Pa. at 354, 392 A.2d at 1330 (emphasis in original). The court went on to hold that a defendant on bail, who fails to appear at a court proceeding of which he has been properly notified, is unavailable from the time of that proceeding until such time as he is subsequently apprehended or voluntarily surrenders himself. “In such a case the Commonwealth is entitled to an exclusion of this period under [Pa.R.Crim.P. 1100(d)(1)] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.” Id., 481 Pa. at 356, 392 A.2d at 1331 (emphasis added).

Furthermore, Appellant’s obligation to appear at the September 29th hearing, or to notify the Commonwealth in the event of. his inability to appear, was not excused by virtue of the fact that he was incarcerated at Fort Dix, New Jersey. In Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982), we held that a defendant on bail has an obligation under Rule 4013(c) to notify the Commonwealth of his change of address upon being incarcerated, and that a criminal defendant on bail, who willfully absents himself from a proceeding of which he had notice, is precluded from relying on the concept of due diligence afforded by a speedy trial guarantee. Id., 299 Pa.Superior Ct. at 231, 445 A.2d at 539.

As recently as this year, in Commonwealth v. Byrd, 325 Pa.Super. 325, 329, 472 A.2d 1141, 1143-44 (1984), we stated:

When a defendant who is on bail and who has notice of a scheduled court proceeding in his case fails to appear in court at the appointed time, he has violated the conditions of his bail, and the Commonwealth is entitled to count any period of delay as excludable time under Rule 1100(d); a showing of due diligence is not required. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). Upon his incarceration, appellant should have notified the Commonwealth of his change of address. Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982) (emphasis added).

In Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983), we said that when a defendant, who is on bail and who has notice of a scheduled court proceeding in his case, fails to appear in court at the appointed time, he has violated the conditions of bail and the Commonwealth is entitled to count any resulting period of delay as excludable time under Rule 1100(d)(1). “Furthermore the delay is excludable even without a showing by the Commonwealth that it has exercised due diligence to locate a defendant." 317 Pa.Super. at 421, 464 A.2d at 392-93 (emphasis added). See also Commonwealth v. Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983); Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1982) (“[I]t is not the intention of Rule 1100 to benefit a defendant who fails to live up to the requirements of bail.”); Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982); Commonwealth v. Henry, 290 Pa.Super. 309, 434 A.2d 767 (1981).

Appellant agrees that the time period between September 29, 1981, the date on which Appellant failed to appear, and October 16, 1981, when the Commonwealth learned of his whereabouts, is excludable time. Appellant, contends, however, that once the Commonwealth learned of his incarceration in another jurisdiction the Rule 6013 “clock” once again commenced running, and that the Commonwealth must now demonstrate by a preponderance of the evidence that it acted with due diligence thereafter to obtain Appellant Haynes and bring him to trial.

Cases cited by the Appellant stand for the proposition that if time during which a defendant is incarcerated in another jurisdiction is to be excludable time, the Commonwealth must prove by a preponderance of the evidence that, despite due diligence, the presence of the defendant could not be secured. See Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Pichini, 308 Pa.Super. 425, 454 A.2d 609 (1982); Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977). In none of these cases, however, at the Rule 1100 hearing, was the judge required to decide the issue of the Commonwealth’s due diligence without some knowledge of defendant’s continuing availability at a fixed location.

Some mention of what transpired during the hearing on the Rule 6013 motion in the Municipal Court of Philadelphia is appropriate. The record is quite vague respecting Appellant’s term in federal custody. Mr. Remmler, counsel for the defendant at the hearing, submitted that he did not know the exact date upon which Appellant was taken into federal custody (N.T., 8/3/82 at 9); and, when asked, defense counsel twice declined to advise the court as to the date of Appellant’s release from Fort Dix prison, stating that it was counsel’s belief that the Commonwealth had the burden of proof in that regard. (N.T., 8/3/82 at 9-10). Furthermore, as Appellant Haynes did not, himself, testify on the Rule 6013 motion, at the time the motion was denied there had been no testimony before the court whatsoever respecting the term of Appellant’s incarceration in Fort Dix military prison.

We have, therefore, been provided with minimal facts respecting the length of Appellant’s term of imprisonment at Fort Dix. With the exception of only one day, October 16, 1981, we cannot at all be certain of Appellant’s whereabouts and this, it seems to me, is fatal to the majority’s analysis. If Appellant wishes to assert that the Commonwealth, having learned of Appellant’s incarceration in another jurisdiction, then has a burden to show, by a preponderance of the evidence, that it exercised due diligence to bring Appellant to trial, then the burden should first be upon Appellant to come forward with sufficient facts to enable the court to properly consider the conduct of the Commonwealth under the circumstances. As indicated above, Appellant at the Rule 6013 hearing declined to do so.

Furthermore, Appellant had availed himself of Pa.R. Crim.P. 4013, which provided him with the means by which he was able to enjoy his freedom while awaiting the onset of trial proceedings. Having accepted the status of bail, Appellant assumed the responsibility of making himself available for any court appearances which might be required of him in connection with the action, upon receipt of reasonable notice. Commonwealth v. Cohen, supra. To focus solely upon the conduct required of the Commonwealth in a case where a defendant has willingly assumed a corresponding obligation not only ignores the defendant’s dereliction of that obligation, but also places him in a position to benefit from his own wrongdoing.

Accordingly, I would affirm the holding of the court below that the entire period from September 29, 1981 (the date upon which, in violation of his bail agreement, Appellant Haynes failed to appear in court) through March 24, 1982 (the date upon which Appellant Haynes was subsequently apprehended) is excludable from the calculation of time for commencement of Appellant’s trial under Rule 6013.

      . While the procedural device of a writ of certiorari has been abolished by the Pennsylvania Supreme Court as a method of appealing a summary conviction before a district magistrate, Pa.R.Cr.P. 67(g), this Court had held that the writ of certiorari is alive and well in the Municipal Court of Philadelphia and that the Philadelphia County Court of Common Pleas may continue to issue writs of certiorari to the Philadelphia Municipal Court in non-summary criminal cases. Commonwealth v. Poindexter, 248 Pa.Super. 564, 567, n. 2, 375 A.2d 384, 386, n. 2 (1977). Since the instant case is a non-summary criminal case over which the Philadelphia Municipal Court has jurisdiction the petition for writ of certiorari by Appellant was procedurally proper. In addition, Appellant’s appeal of the denial of the writ within 30 days of the denial makes the appeal timely. Accordingly, the appeal of the denial of the petition for a writ of certiorari by the Philadelphia County Court of Common Pleas is properly before this Court.

      . The trial court also found the 54 days between March 24, 1982 and May 17, 1982, the earliest possible time to reschedule the trial, to be excludable. As Appellant’s trial was held well within the time allowable under Rule 6013 without consideration of this additional time period, I express no opinion in this regard.


source: Caselaw Access Project

author:
HOFFMAN, Judge:
      JOHNSON, Judge,

license: Public Domain

text:
    488 A.2d 608
    The VALLEY TRUST COMPANY OF PALMYRA, PA., Appellant, v. William LAPITSKY and Jacquelynne M. Lapitsky, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 14, 1984.
    Filed Jan. 25, 1985.

      George E. Christianson, Lebanon, for appellant.
    C. Grainger Bowman, Harrisburg, for appellees.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in striking a default judgment entered against appellees. We disagree and, accordingly, affirm.

On March 20, 1980, appellees made, executed, and delivered an “Obligation” bond in the amount of $353,000 payable to appellant. As security for this indebtedness, appellees mortgaged to appellant three separate properties, one each in Lebanon, Dauphin, and Cumberland. Counties. Appellees thereafter failed to make payments due on the bond and mortgages, and appellant commenced actions in mortgage foreclosure against the three properties. Appellant then proceeded to execute on the properties in this order: Lebanon, Dauphin, Cumberland. Judgment in the Dauphin County action was entered for $341,233.24 plus interest and costs, and appellant purchased the property at a sheriffs sale on July 9, 1981 for $20,116.49. On March 17, 1982, judgment by default was taken by appellant in Cumberland County in the total amount of $227,969.02 (principal, interest, and attorneys’ fees), and a writ of execution was issued on the same day. On June 9, 1982, appellees filed a motion to stay the sheriff’s sale, and a rule was issued against appellant to show cause as to why the sale should not be stayed. Appellant filed an answer to the motion and rule on June 15. On June 22, appellees filed a petition to strike and/or open judgment, and a rule was issued the same day. Appellant filed its answer to that petition on July 26. Argument was held before the lower court en banc on June 8, 1983, and on July 22, the court ordered the Cumberland County judgment struck. This appeal followed.

“[A] petition to strike a judgment is a common law proceeding and operates as a demurrer to the record and ... will not be granted unless a fatal defect in the judgment appears on the face of the record.” Township of Middletown v. Fried and Gerber, Inc., 308 Pa.Superior Ct. 161, 164, 454 A.2d 71, 72 (1982). “A judgment may be stricken off because it appears upon the face of the record to have been entered in violation of a valid statutory provision.” 12 Standard Pa. Practice 2d § 71:181 at 307 (1983) (footnote omitted). Because appellant has not complied with the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103, we hold that the judgment was properly stricken.

The Deficiency Judgment Act provides that:

Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.

Id. § 8103(a). Additionally,

If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within [six months], the debtor, obligor, guarantor or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, or any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment, may file a petition, as a supplementary proceeding in the matter in which the judgment was entered, in the court having jurisdiction, setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, after notice as prescribed by general rule, and being satisfied of such facts, shall direct the clerk to mark the judgment satisfied, released and discharged.

Id. § 8103(d). “[T]he six month period begins from the date the sheriff’s deed is executed and delivered to the successful bidder.” Shrawder v. Quiggle, 256 Pa.Superior Ct. 303, 308, 389 A.2d 1135, 1137 (1978), citing Marx Realty and Improvement Co. v. Boulevard Center, Inc., 398 Pa. 1, 156 A.2d 827 (1959). Here, it is undisputed that appellant failed to file a petition to fix the fair market value of the Dauphin County property within six months after the deed was delivered to it on October 5, 1981.

Appellant contends, however, that because the Dauphin County judgment was in rem rather than in personam, the Act is inapplicable. We begin by noting that, contrary to appellees’ assertion, appellant has not obtained a personal judgment against them. We find, however, that the fact that the Dauphin County action was in rem does not render compliance with the Act unnecessary. In National Council of the Junior Order of United American Mechanics of the United States of North America v. Zytnick, 221 Pa.Superior Ct. 391, 293 A.2d 112 (1972), this Court stated:

A fair interpretation of the Deficiency Judgment Act, particularly in the light of its obvious purpose, is that its protection is applicable to proceedings to collect the balance due with respect to a judgment, even though the property was sold in an in rem proceeding____ Accordingly, mortgagees who proceed by way of mortgage foreclosure and who have bought the property would be able to recover a deficiency only if they obtained a personal judgment and petitioned in that proceeding to fix the fair value not later than six months after the sale of the property.

Id., 221 Pa.Superior Ct. at 394, 293 A.2d at 114 (emphasis added); see also Marine Midland Bank v. Surfbelt, Inc., 718 F.2d 611, 618 (3d Cir.1983). Therefore, because appellant failed to obtain a personal judgment on the obligation bond and, in conjunction thereto, file a petition to fix fair value not later than six months from October 5, 1981, the judgment must be stricken. Failure to comply with the Act “creates ‘an irrebuttable presumption that the creditor was paid in full in kind.’ ” Federal National Mortgage Association v. Guy Heavener, Inc., 16 Pa.Commonwealth Ct. 386, 389, 328 A.2d 590, 592 (1974), quoting McGrath Estate, 159 Pa.Superior Ct. 78, 80, 46 A.2d 735, 736 (1946).

Appellant also contends that the following language from First Pennsylvania Bank N.A. v. Lancaster County Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983), compels a different result: “We believe [that] a creditor who has bargained for a specific lien on several parcels should, instead, be able to issue successive executions against the specific parcels until he collects his debt from various parcels of the debtor’s real estate.” Id., 504 Pa. at 190, 470 A.2d at 944; contra Union Trust Co. v. Tutino, 353 Pa. 145, 44 A.2d 556 (1945). However, First Pennsylvania Bank is of little precedential value because JUSTICE HUTCHINSON’S application of the Act to that case was joined only by JUSTICE FLAHERTY. JUSTICE ROBERTS concurred in the result, and JUSTICE ZAPPALA, joined by the remaining three justices, concurred but specifically noted that he does “not join that part of the majority that discusses the deficiency judgment act issue.” First Pennsylvania Bank, supra, 504 Pa. at 190, 470 A.2d at 944. We believe that, in light of the purpose that the Act was designed to serve, namely,

to relieve a debtor of further personal liability to the creditor, if the real property taken by the creditor on an execution has a “fair market value”, as of the date of the execution sale, sufficient so that the creditor may dispose of the property to others (or even, sometimes, use it himself) without a net loss to the creditor,

Cheltenham Federal Savings and Loan Association v. Pocono Sky Enterprises, Inc., 305 Pa.Superior Ct. 471, 479, 451 A.2d 744, 748 (1982), the better result is obtained, and the debtor is protected, when compliance with the Act is mandated after the first parcel is sold. We therefore affirm the lower court’s order striking the judgment.

Affirmed.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I agree with the majority to the extent that it appears that the judgment in the instant case should not stand. However, I disagree with the majority’s finding that the instant case is a proper one for a petition to strike; rather, I believe that the trial court should have addressed appellee’s motion to open the judgment.

As the majority noted in its opinion, a petition to strike is a common law proceeding and operates as a demurrer to the record. Such a petition will not be granted unless a fatal defect in the judgment appears on the face of the record and the facts are not controverted. Conti v. Shapiro, Eisenstat, Capizola, O’Neil, Lisitski and Gabage, PA, 203 Pa.Super. 301, 439 A.2d 122 (1981). In contradistinction, a motion to open judgment is equitable in nature and addresses itself to irregularities predicated upon matters outside the record. National Recovery Systems v. Monaghan, 322 Pa.Super. 183, 469 A.2d 244 (1983). Where the claim is that a judgment should not have been entered for reasons not appearing of record, the proper remedy is not a motion to strike but a motion to open the judgment. In re Estate of McCauley, 478 Pa. 83, 385 A.2d 1324 (1978). To open a judgment, a petitioner must aver a valid defense and must establish equitable considerations which impress the court with the need for relief. Sanctis v. Lagerbusch, 213 Pa.Super. 483, 249 A.2d 919 (1968).

In the instant case, the resolution of the issue regarding the Deficiency Judgment Act, presented to the court in Cumberland County, turns on matters contained on the docket in Dauphin County. It is necessary to ascertain whether the underlying debt obligation is the same in both instances. We neither have before us a certified copy of the docket from Dauphin County nor do we have Valley Trust’s admission that the underlying debt is the same in both cases. The Lapitskys have filed an uncertified copy of the complaint in mortgage execution, which was said to have been filed in Dauphin County, and it would appear from this document that the underlying debt is the same. For this reason, I believe that the correct procedure would have been for the trial court to grant the Lapitskys’ petition to open judgment to allow in evidence of their defense.

I, therefore, would reverse the trial court’s granting of the petition to strike and I would remand this case to the lower court for a ruling upon the Lapitskys’ petition to open.

      . Appellant avers that “[t]he dates of the filing of the Complaints were, approximately, as follows:
      Lebanon February 5, 1981
      Dauphin February 9, 1981
      Cumberland February 5, 1981L-]"
      (Appellant’s Answer to Appellees’ Motion to Stay Sheriff’s Sale and Rule to Show Cause at 2). As the record indicates, however, the Cumberland County complaint was filed February 6, 1981.

      . See Appellant’s Brief at 3; Appellees’ Brief at 5.

      . Appellant states that “[a] Writ of Execution issued on the Lebanon property and Sheriff’s Sale was held. Bank became purchaser' for costs.” (Appellant’s Answer to Appellees' Motion to Stay Sheriff's Sale and Rule to Show Cause at 2-3). Other than this statement, no mention is made in the record of the Lebanon County judgment and amount thereof, the writ of execution on the property situate there, the date of the sheriff's sale, or the consideration which appellant paid for the property.

      . We agree with the lower court in that we, too, are "unable to determine from the record the reason for the discrepancy between the principal amount of $341,233.34 in [appellant’s] original complaint and the principal amount of $134,443.67 [appellant] took in the default judgment.” (Lower Court Opinion at 4).

      . J.F. Feeser, Inc., a lien creditor of the property subject to the sheriff’s sale, also filed a motion to stay, and another rule to show cause was issued against appellant.

      . Not only are appellant’s complaints captioned "Mortgage Foreclosure,” but the prayers for relief therein are similar to the one in issue in McDowell National Bank of Sharon v. Stupka, 310 Pa.Superior Ct. 143, 149 n. 7, 456 A.2d 540, 543 n. 7 (1983), where this court held that the plaintiff had obtained only an in rem judgment. Cf. Kretschman v. Stoll, 238 Pa.Superior Ct. 51, 352 A.2d 439 (1975), allocatur refused, 238 Pa.Superior Ct. xxxvii.


author: MONTEMURO, Judge:

text:
    488 A.2d 613
    Roslyn S. BRADERMAN v. Jay R. BRADERMAN.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed Feb. 8, 1985.

      John F. Lyons, Harrisburg, for appellant.
    Arthur L. Goldberg, Harrisburg, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

These cross-appeals arise from an order of the Dauphin County Court of Common Pleas in a divorce proceeding concerning the equitable distribution of marital property, alimony, and counsel fees. Roslyn S. Braderman, is the appellant in appeal No. 272 and Jáy R. Braderman is the appellant in appeal No. 273. In order to avoid the confusion which the . terms “appellant” and “appellee” would cause in dealing with these cross-appeals, the term “plaintiff-wife” will be used throughout this opinion to describe Roslyn S. Braderman and Jay R. Braderman will be designed as “defendant-husband”.

Roslyn and Jay Braderman were married on April 7, 1963 and two children were born of this marriage. Since the parties’ separation in June, 1980, the children, Randi, age five, and Sari, age three, have resided with their mother. Roslyn Braderman, age thirty-nine (39) works part-time as a medical secretary. Jay Braderman, age forty-three (43), is a practicing attorney earning a gross income of approximately $60,000.00 per year. Until 1977, he was employed by the Commonwealth of Pennsylvania and participated in the State Employees’ Retirement System from which he now receives monthly benefits.

On July 29, 1981, plaintiff-wife instituted an action for divorce alleging indignities under 23 P.S. § 201(a)(6). She later amended her complaint alleging that the marriage was irretrievably broken under 23 P.S. § 201(c) and both parties filed affidavits of consent. On December 22, 1982, pursuant to defendant-husband’s motion, the trial court entered an order granting a decree in divorce and bifurcating and preserving all other issues. The matter was then assigned to a special master who, after conducting hearings on May 18, 1982 and May 21, 1982, filed his report and recommendation. The master’s report identified the retirement benefits as marital property and awarded the entire amount of the benefits to defendant-husband. The master then divided the other marital property, and awarded plaintiff-wife alimony in the amount of $150.00 per week for seven (7) years. The master, however, denied plaintiff-wife’s request for counsel fees, finding that she would receive at least $20,000 per year from part-time employment, alimony, and child support.

Both parties filed numerous exceptions to the Master’s report. Oral arguments on these exceptions were heard by the Honorable Warren G. Morgan who entered an order rejecting the master’s inclusion of the retirement benefits as marital property, and adopting the remainder of the master’s proposed property distribution. The trial court also found that the master’s award of alimony was insufficient. After evaluating plaintiff-wife’s income from part-time employment, child support, and investments, as well as her reasonable expenses, the court awarded her alimony in the amount of $190.00 per week for five (5) years. Furthermore, the court rejected the master’s recommendation relating to insurance coverage for the plaintiff-wife, but adopted the master’s recommendation that her request for counsel fees be denied. These cross-appeals followed.

On appeal, Roslyn S. Braderman, plaintiff-wife, presents two arguments for our consideration: First, she contends that the defendant-husband’s state employee retirement benefits constitute marital property subject to equitable distribution. Second, she argues that the trial court erred in concluding that she was not entitled to an award of counsel fees. In his cross-appeal, Jay R. Braderman, defendant-husband, challenges the determination of the trial court concerning: (1) the property distribution scheme; (2) the alimony award; (3) the division of the stock portfolio; (4) the amount of his weekly net income; and (5) the plaintiff-wife’s and defendant-husband’s living expenses. We shall consider these issues seriatim.

Before addressing these contentions, we reitérate our scope of review. Awards of alimony, counsel fees, and property distribution are within the sound discretion of the trial court and this court will not reverse, nor interfere with the determination of the trial court unless there has been a clear abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence. As a result, under the abuse of discretion standard, we do not usurp the trial court’s duty as fact finder; rather, we carefully scrutinize each of the guidelines to determine whether the lower court has abused its discretion. Ruth, supra. However, an abuse of discretion will be found by this court if the trial court failed to follow proper legal procedures or misapplied the law. Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980). Considering this standard of review, we now address the claims presented.

Plaintiff-wife contends first that the state retirement benefits appellee receives as a result of his employment with the Commonwealth of Pennsylvania should be classified as marital property. The trial court reversed the master regarding the status of the benefits and concluded that the state retirement plan was actually an annuity, since an “annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be arrived [sic].” Since the trial judge viewed the retirement plan as purely income, its present value was not included in the marital property. We disagree with the trial court’s interpretation and conclude that defendant-husband’s state retirement benefits constitute marital property.

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. Although the Pennsylvania Appellate Courts have not addressed this matter, it has produced vast amounts of litigation in other jurisdictions with varying results, depending on the type of benefits involved.

Pension or retirement benefits are characterized as . vested or non-vested, contributory or non-contributory, and matured or unmatured. A critical question concerning these benefits deals with during what stage of the plan the marriage was terminated. A marriage can be terminated during the stage when benefits are non-vested, vested, unmatured or fully matured. Non-vested benefits are subject to a number of contingencies. These benefits have accrued, but are still subject to the condition that the employee continue his employment. They will be forfeited by discharge, voluntary termination or death. An employee’s interest is vested if he is entitled to receive them at retirement age, regardless of whether he continues working for the employer. If the benefits have vested, but have not yet matured, the employee has a right to benefits in the future, often upon attainment of a designated age. However, the benefits subject to the least amount of contingencies have matured, meaning the employee is collecting payments from the plan or has met all the requirements for immediate payment. These matured benefits are subject only to the contingency that the employee survive to receive all the payments. Even if the employee terminates his employment, he has a present right to receive these benefits.

The vast majority of jurisdictions hold that vested, unmatured retirement benefits are marital property, and the present trend rejects any distinction between these benefits on the basis of vesting, by including vested, as well as unvested rights, as marital property. In the case sub judice, however, we deal with retirement benefits that have both vested and matured. During his marriage to plaintiff-wife, defendant-husband was employed by the Commonwealth of Pennsylvania and contributed to the State Employee Retirement System. When he terminated his employment in 1977, he withdrew his contributions to the retirement system amounting to approximately $15,000.00. Defendant-husband elected to withdraw his contribution in a lump sum payment. Under this option, no further lump sum payments are permitted. Defendant-husband, however, has met all the requirements under the plan and currently receives monthly payments in the amount of $99.43 from the State Employee’s Retirement System. He has the right to receive these monthly payments for the rest of his life or the life of the surviving beneficiary which is currently plaintiff-wife.

After a study of these concepts, we begin our analysis by focusing on the definition of marital property in our Divorce Code of 1980. Section 401(e) defines marital property as “all property acquired by either party during the marriage”. The Code presumes that all property, whether real or personal, acquired by either party during the marriage is marital property. 23 P.S. § 401(e). This presumption, however, is overcome if the property was acquired by one of the methods which are excepted from the marital property definition. These exceptions include:

(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.

Furthermore, the inclusion of matured retirement benefits as marital property fully comports with the policies and goals of the Divorce Code. Section 102 provides that the goal of the Code is to effectively deal with the realities of marriage and to “[EJffectuate economic justice between the parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the the [sic] parties and insure a fair and just determination and settlement of their property rights.” 23 P.S. § 102(a)(6). Through the joint efforts of both parties to a marriage, an employee spouse is able to obtain additional compensation in the form of employee retirement benefits. The contribution of the non-employee spouse to the household cannot be ignored.

In the instant case, plaintiff-wife made significant contributions to the marriage as a homemaker, as well as through employment outside the home. To deny her a share of defendant-husband’s retirement benefits would deny her what she helped to achieve during the marriage. Each spouse has a reasonable expectation of enjoying the monies received from an employee retirement fund. In order to “effectuate economic justice between the parties”, equity demands that both parties share in this asset acquired during the marriage. Accordingly, we conclude that defendant-husband’s state retirement benefits are marital property subject to equitable distribution, and that the trial court abused its discretion by failing to include these benefits as marital property.

(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
(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 divorce.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
(6) Veterans’ benefits exempt from attachment, 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.
(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for divorce are commenced. (Footnote omitted)

23 P.S. § 401(e). None of these section 401(e) exceptions are applicable to retirement benefits. If the presumption of marital property is not overcome, the property is marital property. Therefore, due to the operation of the presumption, since retirement benefits are not excepted by one of the above categories, they must be included as marital property.

The critical question under the Divorce Code then becomes whether the benefits were “acquired by either party during the marriage”. 23 P.S. § 401(e). An interest in an employee retirement plan is a form of additional compensation. The employee benefits are a wage substitute which are earned and bargained for by the employee. If these benefits result from employment during the marriage, they are marital property since the benefits are received in lieu of higher compensation which would have enhanced the marital assets or the marital standard of living. Therefore, it must be determined if and how much of the benefits were earned while the parties were married. Only 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 v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

Plaintiff-wife and defendant-husband were married when defendant-husband was employed by the Commonwealth, as well as at the time he terminated this employment and his interest matured. These benefits constitute deferred compensation for services defendant-husband performed during the marriage and therefore, he acquired his interest in these benefits while married to plaintiff-wife.

The lower court stated that the defendant-husband only had an interest in the monthly payments, not in the principal fund. We disagree. Defendant-husband’s interest in his retirement benefits has not only vested, but has matured. He worked for and earned the right to these payments, and he, therefore, has an interest in the principal sum, not only the monthly payments he receives from that principal.

This holding is in agreement with a recent case by this court dealing with a related issue, as well as decisions from numerous trial courts in Pennsylvania. This court recently reviewed the valuation of a pension for equitable distribution purposes. King, supra. Although not an issue raised by the parties, the court in a footnote opined that a pension is marital property. The court stated:

We believe it is clear that the pension is marital property subject to equitable distribution and agree with the decisions of other jurisdictions that have so found. See e.g. In re Marriage of Fairchild, 110 Ill.App.3d 470, 66 Ill.Dec. 131, 442 N.E.2d 557 (1982) Janssen v. Janssen, Minn., 331 N.W.2d 752 (1973); Jerry L.C. v. Lucille H.C., Del., 448 A.2d 223 (1982).
Moreover, the Divorce Code, 23 P.S. § 401(e) defines marital property as ‘all property acquired by either party during the marriage.’ None of the exclusions to the definition applies to pensions.

King, supra, 332 Pa.Superior Ct. at 531 n. 2, 481 A.2d at 916, n. 2. Furthermore, retirement benefits have been classified as marital property in our sister states which have similar property distribution statutes.

Having determined that the retirement benefits are marital property subject to equitable distribution, the complex task of valuing and dividing this asset must be addressed. Although Pennsylvania courts have never addressed this task, two main methods of distribution have been established by our sister courts.

One method, the immediate offset method, divides the benefits at the time the equitable distribution order is entered by assigning a present value to them. For a discussion of the determination of present value see Troyan, Pension Evaluation and Equitable Distribution, 10 FAM. L.REP. (BNA) 3001 (1983). As we recommended in King, supra, the retirement plan should be valued as of the date of the hearing. After determining the present value of the benefits, it is necessary to calculate the portion of the present value which was earned during the marriage. As we stated above, only those benefits attributable to the period commencing with the marriage and ending on the date of separation are marital property. King, supra. This present value must then be multiplied by the “coverture” fraction to reach the present value of the entitlement which was acquired during the marriage. The “coverture” fraction represents that portion of the value of the benefits attributable to the marriage. The numerator of the fraction reflects the total period of time the employee spouse participated in the plan during the marriage, and the denominator is the total period the employee participated in the benefits program. See Skoloff, How to Evaluate and Distribute Employee Benefits in Divorce, NATL. L.J. 25 (February 13, 1984). Next, the court must determine how the sum available for equitable distribution should be apportioned between the spouses according to the provisions of the Divorce Code. After determining the non-employee spouse’s interest in the benefits, the court awards these benefits to the employee spouse and offsets this award by distributing other marital property or by ordering payment to the non-employee spouse.

The second method is labeled the deferred distribution or reserved jurisdiction method, since the court retains jurisdiction and apportions the benefits when they enter pay status or mature. Under this method, present value figures are not used. Rather, the “coverture” fraction is applied to the benefits when they enter pay status since there are too many variables projected into the future. King, supra, (citing Troyan, Pension Evaluation and Equitable Distribution, 10 FAM.L.REP. (BNA) 3001 (1983)).

The immediate offset method has the advantage of avoiding further entanglement between the parties. Problems with continuing court supervision and enforcement are also avoided. This method’s greatest virtue, however, is that it effectuates a final and immediate settlement of the distribution of the retirement benefits. In contrast, the deferred distribution method equally divides the risk of forfeiture before maturity among the parties, but also prolongs the strife and hostility between the parties by extending the time for a final resolution of the parties’ assets. Although an immediate offset is preferred, See Troyan, supra, this method is impractical where the parties do not possess enough assets to offset the pension award. When the value of the employee-spouse’s pension far exceeds the value of the other marital property, the deferred distribution method must be used.

We do not attempt in this case to establish a distribution scheme to be used in every case. Rather, the trial courts of this Commonwealth must balance the advantages and disadvantages of each alternative method as applied to the facts of each particular case to determine which method best effectuates a fair and equitable distribution. In the instant case, however, the defendant-husband’s benefits have matured and he is currently receiving monthly payments. As a result, on remand, the trial court shall use the immediate offset method.

Finally, defendant-husband suggests that he will be unjustly burdened if the pension is designated as a marital asset subject to equitable distribution and also used to calculate the alimony award to plaintiff-wife. This argument ignores the provisions of the Divorce Code providing that in determining the alimony award, the court must consider numerous factors including the sources of income and the property of both parties. 23 P.S. § 501(b)(3). In determining the husband’s ability to pay support, the court must consider his earning power and the nature and extent of his property. Commonwealth ex rel. Buehler v. Buehler, 288 Pa.Super. 303, 431 A.2d 1059 (1981). Also, in determining whether plaintiff-wife lacks sufficient property to provide for her reasonable needs, the court must consider any property distributed to the wife pursuant to the equitable distribution award. 23 P.S. § 501(a)(1). Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). As a result, defendant-husband will not be unjustly burdened since his property, as well as plaintiff-wife’s property must be considered in calculating an alimony award.

Since we have concluded that defendant-husband’s state retirement benefits constitute marital property, we reverse the equitable distribution order of the trial court and on remand direct the court to include defendant-husband’s retirement benefits as marital property and to equitably distribute the benefits in accordance with the procedures established in this opinion.

The second issue on appeal concerns whether the trial court erred in failing to make an award of counsel fees to plaintiff-wife. The plaintiff-wife contends that the court abused its discretion by refusing her request for attorney fees. The trial court adopted the master’s recommendation that plaintiff-wife’s request for counsel fees and expenses be denied because she receives at least $22,000 per year from part-time employment, alimony and child support. In determining that she was not entitled to attorney fees, however, the court also considered that she was awarded in excess of $40,000.00, plus the house and other tangible personalty from the distribution of the marital property. Since we have determined that the equitable distribution order upon which the trial court relied in awarding counsel fees was in error, we also reverse and remand the order regarding counsel fees and expenses. The court may or may not wish to change its determination, but on remand it shall reconsider plaintiff-wife’s entitlement to counsel fees after it properly distributes the marital property.

We next consider defendant-husband’s cross-appeal. First, he argues that the lower court erred in determining that the parties living expenses were essentially equal. Specifically, he complains that, in order to evaluate their living expenses, the court should have considered the additional costs he would incur in purchasing a home and visiting his two daughters, as well as the fact that plaintiff-wife’s mortgage payments would be ending soon. We find this argument meritless.

The record reveals that the lower court did not adopt the finding of the master that the needs of the parties were equal. Rather, the court examined the annual expenses of the parties and found that defendant-husband’s needs were “presently approximately $3,000 to $4,000” more than plaintiff-wife’s. The testimony concerning expenses was carefully evaluated by the court. The court labeled some of plaintiff-wife’s expenses as unjustified, thus lowering the amount of her claimed expenses. The court deleted from her yearly living expense statement expenses for “Yeshiva & Hebrew High School ($1399.94), houshold help ($1040), camp for children ($999.96), lawn care/snow removal ($520).” In arriving at its own reasonable yearly expenses for the plaintiff-wife, the court also considered the fact that the mortgage on the marital home would soon be paid.

Furthermore, in evaluating defendant-husband’s expenses, the court noted his desire to purchase a new home. However, since he had not yet purchased a new home, his testimony regarding possible mortgage payments was regarded as “extremely vague.” Finally, the court dismissed defendant-husband’s argument that the court failed to consider his visitation costs including the need to purchase a new home with sufficient bedroom space for his daughters when they visit. The court noted that the testimony revealed that one daughter on only one occasion ever stayed at her father’s home overnight. Since the court considered the facts argued by defendant-husband and arrived at its own expense figures for the parties, we find no merit to this contention.

The next contention raised in defendant-husband’s cross-appeal challenges the court’s projection of his weekly net income. He claims that the court erroneously adopted the master’s figure of $788.00 per week, instead of $759.00 per week. The defendant-husband does not offer any figures concerning how he arrived at this amount. The master, however, also reached a similar figure of $760.00 per week for his weekly net salary. The master then properly added to that amount $5.00 for dividend income and $23.00 for the state pension to reach a total of $788.00. Therefore, we find no error in the trial court’s calculation of defendant-husband’s weekly net income.

Defendant-husband also argues in his cross-appeal that the trial court abused its discretion in framing its award of alimony to plaintiff-wife. The trial court granted plaintiff-wife alimony in the amount of $190.00 per week for a period of five (5) years. Defendant-husband complains that the amount, as well as the duration of his award is unreasonable under the standards set forth in the Divorce Code.

In determining the amount of alimony the court properly relied, inter alia, on the property distributed, to both parties under the equitable distribution scheme. However, since we have determined that the court’s order of equitable distribution was in error, as discussed above, we also reverse and remand the alimony order. The court may or may not decide to change its award, but on remand the court shall reconsider the alimony award after it distributes the marital property.

Accordingly, the orders of the trial court regarding equitable distribution, alimony, and counsel fees are reversed and the case remanded for proceedings consistent with this opinion. On remand, the court is directed to include the retirement benefits as marital property and to determine an equitable distribution of the marital property and plaintiff-wife’s entitlement to alimony and counsel fees. Jurisdiction is not retained by this court.

Affirmed in part and reversed in part. This case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The court also rejected the master’s determination regarding two (2) of plaintiff-wife’s rings concluding that the insurance claim which arose from the loss or theft of these two (2) rings constituted plaintiff-wife’s separate property, since the rings were acquired by her as gifts.

      . An abuse of discretion has been defined as "... not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Commonwealth ex rel.

        Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976) (cited in Commonwealth ex rel. Caswell v. Caswell, 280 Pa. 359, 421 A.2d 762 (1980).

      . For purposes of this opinion, the terms "retirement plan” and “pension" are used interchangeably. The terms used to describe rights under a pension plan include "retirement benefits”, “pension payments” and "deferred employee benefits”.

      . In King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984), this court noted:

        Although he does not raise the question as a separate issue, appellant does suggest in the body of his argument that perhaps his pension fund is not subject to equitable distribution. He cites our opinion in Young v. Young, [320] Pa.Super. [269], 467 A.2d 33 (1983). In that case, however, we did not say that a municipal pension was not marital property, but that it was not subject to attachment. As we said, ‘Appellant must utilize other means, whether at law or in equity, to enforce such order.’
      We believe it is clear that the pension is marital property subject to equitable distribution and agree with the decisions of other jurisdictions that have so found.

        King v. King, supra, 332 Pa.Superior Ct. at 531 n. 2, 481 A.2d at 916 n. 2.

      . See, e.g., Mienholz v. Mienholz, 11 FAM.L.REP. (BNA) 1027 (November 20, 1984) (Ark.Sup.Ct. October 29, 1984). Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 (1984); DiPietro v. DiPietro, 193 N.J.Super. 533, 475 A.2d 82 (1984); Hatcher v. Hatcher, 129 Mich.App. 753, 343 N.W.2d 498 (1983); Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981); Kikkert v. Kikkert, 177 N.J. 471, 427 A.2d 76 (1981), aff’d 88 N.J. 4, 438 A.2d 317 (1981), Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235 (1978).

        See generally Annot., 94 A.L.R.3d 176 (1979) (discusses the issue of whether a spouse’s pension or retirement benefits are subject to award or division by a court in settlement of property rights between spouses).

      . See, e.g., Lookingbill v. Lookingbill, 301 Md. 283, 483 A.2d 1 (1984); Damiano v. Damiano, 94 App.Div.2d 132, 463 N.Y.S.2d 477 (1983); Janssen v. Janssen, 331 N.W.2d 752 (Minn.1983); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.Super.1981); Woodward v. Woodward, 656 P.2d 431 (Utah 1982); Kikkert v. Kikkert, 177 N.J. 471, 427 A.2d 76 (1981), aff’d 88 N.J. 4, 438 A.2d 317 (1981) (quoting Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975)), and In Re Marriage of Brown, 15 Cal.3d 838, 544 P.2d 561, 126 Cal.Rptr. 633 (1976).

      . See, e.g., Nogan v. Nogan, No. — (Allegheny Ct.C.P., Sept. 24, 1984); Salac v. Salac, No. — (Allegheny Ct.C.P., March 21, 1984); Kalinoski v. Kalinoski, No. 80-530 (Butler Ct.C.P., Dec. 1, 1982); and Gorr v. Gorr, No. 114 Oct. Term (Allegheny Ct.C.P. 1980).

      . See, e.g., New Jersey — Kikkert v. Kikkert, 177 N.J. 441, 427 A.2d 76 (1981) ("The court may make ... [an] award or awards to the parties in addition to alimony and maintenance, to effectuate an equitable distribution of the property, real and personal, which was legally and beneficially acquired by them or either of them during the marriage.” N.J.Stat.Ann. 2A:34-23 (West 1984)) and Delaware — Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.Super.1981) ("In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably distribute and assign marital property between parties without regard to marital misconduct, in such proportions as the court deems just." DelCode Ann. tit. 13, § 1513(a) (1981)).

        See also Comment, Vested But Unmatured Pensions as Marital Property: Inherent Valuations, Allocation and Distribution Problems in Equitable Distributions, 14 RUTGERS L.J. 175 (1982).

      . The master used the following calculations to determine defendant-husband’s net income:
      Gross pay per week (including year end hold back distribution) $ 996.00
      Federal W/H -143.00
      PICA -61.00
      State W/H -22.00
      Local W/H -10.00
      Net Salary 760.00
      Dividends +5.00
      Pension +23.00
      Weekly Total Net Income $ 788.00
      Master’s Report at 29.

      . Since we have remanded to the trial court for reconsideration of its equitable distribution award in light of our decision concerning the retirement benefits, we need not reach defendant-husband’s two remaining claims of whether the trial court erred in: (1) awarding him only sixty percent (60%) of the stock portfolio and plaintiff-wife forty percent (40%); and (2) awarding plaintiff-wife sixty-two percent (62%) of the marital property and only thirty-eight percent (38%) to defendant-husband.


author: HOFFMAN, Judge:

text:
    488 A.2d 622
    Robert J. WALDER, individually and jointly, and Joseph Walder, individually and jointly, and McCarrie Schools, Inc., Appellants, v. William LOBEL, individually and t/a National School of Health Technology and National School of Health Technology. Robert J. WALDER and Joseph Walder, individually and jointly, and McCarrie Schools, Inc. v. William LOBEL, individually and t/a National School of Health Technology and National School of Health Technology, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1984.
    Filed Feb. 15, 1985.

      Keith S. Erbstein, Philadelphia, for appellants (at 1108) and appellees (at 1114).
    Jeremy T. Ross, Philadelphia, for appellants (at 1114) and appellees (at 1108).
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Both parties have appealed from the lower court’s April 7, 1983 order which granted defendants a new trial, but denied their motions for judgment n.o.v. and in arrest of judgment. For the reasons stated herein, we modify in part and affirm in part.

Plaintiffs, Robert J. Walder and Joseph Walder, are the owners and operators of plaintiff McCarrie Schools, Inc. (McCarrie School), a private dental technology school. Defendant William Lobel is the owner and operator of defendant National School of Health Technology (National School), a competing dental technology school. On August 30, 1973, plaintiffs filed a defamation'action against defendants. After defendants filed preliminary objections to the complaint, plaintiffs filed an amended complaint. Defendants’ preliminary objections to the amended complaint were sustained and, on July 15, 1977, plaintiffs filed a second amended complaint. On November 14, 1977, the lower court, per Judge Smith, dismissed defendants’ preliminary objections to the first and second causes of action of the second amended complaint. Subsequently, defendants filed a motion for summary judgment based upon the legal insufficiency of the second amended complaint. The lower court, per Judge Chalfin, considered this motion a motion for judgment on the pleadings and denied it on June 10, 1982. Following a June 10-22 trial, the jury found defendants liable and awarded plaintiffs $500,000 in compensatory damages and $450,000 in punitive damages. On July 15, 1982, defendants filed motions for a new trial, judgment n.o.v., and arrest of judgment. The lower court, in an April 7, 1983 order and opinion, granted the motion for a new trial based upon an erroneous jury charge and an excessive verdict; the remaining motions were denied. These appeals followed.

Before turning to the parties’ contentions, we must first examine the defamatory communications in question, namely, several letters purportedly sent by students but actually sent by defendant Lobel to discredit plaintiffs. The “West” letter, dated January 22, 1973, was sent to the Veterans Administration (VA) in Philadelphia and ostensibly signed by Robert A. West, a veteran and graduate of McCarrie School. In the letter, West allegedly complained about the poor quality of the education which he had received at McCarrie School, his rejections by various dental labs based upon his schooling, and his inability to obtain employment. He also requested VA approval to take a course at National School “so that I may become employable.” The “Wheeler” letters, dated January 5, 1973, were typed on National School stationery and ostensibly signed by Brenda Wheeler, a student at National School. The signatures on the two letters are different. In these letters, Wheeler allegedly claimed that McCarrie School representatives repeatedly called her to try to convince her to transfer to McCarrie School and told her that McCarrie School had more teachers, better equipment, and guaranteed job placement while National School had “lousy teachers.” According to the letters, McCarrie representatives also told Wheeler that National School had been disqualified by the Board of Health. The “Jones” letters, dated December 13, 1972, were also typed on National School stationery and were ostensibly from Sandra Jones, a student at National School. One letter was signed; the other was unsigned. These letters described Jones’ visit to McCarrie School, during which plaintiff Walder allegedly slandered rival schools, suggested to Jones a “dishonest” method of getting into the school free, called Lobel “a crook” and National School a “fly-by-night school” and a “little hole-in-the-ground,” and bragged about McCarrie School. Jones also allegedly wrote that, when she next visited National School, “my faith in private schools was reaffirmed” because defendant Lobel only told her about the advantages and opportunities offered at National School and did not discuss any other school.

The “West” letter was received by the YA on January 24, 1973. (N.T. June 15, 1982 at 3.127). On March 2, 1973, the VA forwarded the letter to Dr. Joseph Gavenonis of the VA section of the Pennsylvania Department of Education in Harrisburg, which maintains an approved list of veterans’ programs. (Id. at 3.130-3.131). Without state approval, private trade schools cannot enroll veterans. (Id. at 3.166, 3.173). Dr. Gavenonis then sent the letter to James Kiernan, an employee of the Department in Philadelphia, who investigated the charges by visiting McCarrie School and speaking with plaintiff Walder. Kiernan concluded that the complaint was groundless, and no further action was taken by the Department on the matter. (Id. at 3.166-3.172).

At trial, Robert West testified that he had neither prepared nor dictated the “West” letter, and that he had never seen the letter until his deposition was taken for this case. (Id. at 3.18, 3.23). He also testified that, after graduating from McCarrie, he immediately obtained a position at a dental lab which he held for four years and that he has been continuously employed thereafter. (Id. at 3.8-3.9). He stated that he visited National School subsequent to his graduation to explore the possibility of advanced training, picked National for that purpose solely because of its location, and signed some YA forms during that visit. (Id. at 3.9-3.12). Defendant Lobel testified at trial that West gave him the information contained in the letter when he met with West to discuss a course at National School. (N.T. June 11, 1982 at 2.43, 2.68-2.73). However, at his deposition, Lobel had stated that he first became aware of the “West” letter only after it became a part of this case and that he did not have any recollection of ever speaking to West. (Id. at 2.49, 2.53, 2.76). At trial, plaintiff Joseph Walder testified that, as a result of the “West” letter, he was compelled to appear before the VA Board of Inquiry sometime in 1973 to defend McCarrie School and that this was a “frightening experience.” (N.T. June 16, 1982 at 4.84). He also testified that, if he had lost state approval, he would have lost 34% of his students and been effectively put out of business. (Id. at 4.73-4.77).

The “Wheeler-Jones” letters were sent to the Pennsylvania Association of Private School Administrators (PAPSA), a trade association of private schools to which both parties belong. PAPSA also provides auxiliary services to the National Trade and Technical School Association, which has the power to grant accreditation to such schools on a national level. Without accreditation, these schools could not get financial aid for their students. {Id. at 4.92). Plaintiff Joseph Walder was confronted with the “Wheeler-Jones” letters at a meeting of the PAPSA Board. Defendant Lobel was also present and used these letters to substantiate his charges of unethical practices on the part of plaintiffs. {Id. at 4.89-4.97). The Board questioned Walder for approximately one-and-a-half-to-two hours and then dismissed the case. {Id. at 4.97). At trial, defendant Lobel testified that these letters had been typed by one of his secretaries after Wheeler and Jones came to him and requested that they be written. (N.T. June 11, 1982 at 2.104-2.115, 2.146-2.147). Plaintiff Walder testified that all of the allegations contained in the letters were false. (N.T. June 16, 1982 at 4.98). Walder also testified that, as a result of the “Wheeler-Jones” letters, he became upset, frustrated, worried and could not function, N.T. June 16, 1982 at 4.98-4.99; he felt ridiculed and that his honesty had been unfairly questioned, N.T. June 17, 1982 at 5.47; and the income of McCarrie School substantially decreased and it lost its accreditation in 1975, N.T. June 17, 1982 at 5.46-5.47.

Also at trial, Bernard Bernstein, a National School employee in advertising and public relations, N.T. June 15, 1982 at 3.62, identified the letters in dispute as similar in “language” and “tone” to other letters he had been given by defendant Lobel to edit. (N.T. June 15, 1982 at 3.64-3.-79). He also testified that, at Lobel’s request, he had edited the “West” letter although he had never met West himself. {Id. at 3.66-3.67).

Plaintiffs challenge the order granting a new trial, arguing that the lower court erred in finding that (1) the jury charge in question was erroneous and (2) the damages award was excessive. On June 22, 1982, the court charged the jury regarding the burden of proof on the issue of the truth or falsity of the communications in dispute, as follows:

Also, the defendants have the burden of establishing the truth of the communications which are claimed to be defamatory or libelous.
The defendant has the burden of proving the truth. If the defendant proves that they are true, they are not libelous.
j}t * sfc s}: sk %
The defendant, Mr. Lobel and the National School have the burden of proving that these allegations in those statements were true.

(N.T. June 22, 1982 at 8.26-8.27). In considering defendants’ post-trial motions, the court below determined that these instructions were incorrect, relying upon Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Superior Ct. 475, 448 A.2d 6 (1982), alloc. denied. We disagree. Our Supreme Court’s recent decision in Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984), conclusively held that 42 Pa.C.S.A. § 8343(b)(1), which places the burden of proving the truth of the defamatory communication upon the defendant in a defamation action, is not unconstitutional. The Court stated: “[I]n a libel suit brought by a private individual for compensatory damages resulting from the defamatory material, the presumption of falsity remains and the defendant has the option of proving truth as an absolute defense to the action.” Id., 506 Pa. at 525, 485 A.2d at 387. Thus, we hold that the charge in the instant case was correct and, accordingly, find the lower court’s grant of a new trial on this ground improper.

The lower court also found that the damages awarded by the jury were excessive. “Under Pennsylvania law, a defamation plaintiff may recover damages for injury to reputation, for any special harm he may have suffered, and for emotional distress or bodily harm.” Marcone v. Penthouse International, Ltd., 577 F.Supp. 318, 332 (E.D. Pa. 1983). “General damages are given to compensate the plaintiff for harm for which the defamatory statement is assumed to have caused his or her reputation.” Corabi v. Curtis Publishing Co., 441 Pa. 432, 473, 273 A.2d 899, 920 (1971). “The purpose of punitive damages is to punish wrongful conduct and to deter its repetition.” Marcone v. Penthouse International, Ltd., supra at 335. To justify punitive damages, the plaintiff must show actual malice on the part of the defendant. Feld v. Merriam, 506 Pa. 383, 395-396, 485 A.2d 742, 747-748 (1984); Hepps v. Philadelphia Newspapers, supra, 506 Pa. at 329-330, 485 A.2d at 388-389. “The duty of assessing damages is within the province of the jury and should not be interfered with by the court unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence.” Tonik v. Apex Garages, Inc., 442 Pa. 373, 378, 275 A.2d 296, 299 (1971). If the verdict bears a reasonable resemblance to the damages proven, the court should not substitute its judgment for that of the jury. Mohler v. Worley, 179 Pa.Superior Ct. 56, 60, 116 A.2d 342, 344 (1955). Under Pennsylvania law, the jury’s award of punitive damages should not be disturbed by the court “unless it is so grossly excessive as to offend the conscience of the court and to shock its sense of justice.” Marcone v. Penthouse International, Ltd., supra at 335.

Here, the lower court found that “[t]he jury’s award of $500,000.00 compensatory damages and $450,000.00 punitive damages ... shock[ed] [its] conscience and sense of justice.” (Lower Court Opinion at 11). The court below, in reviewing the evidence in the instant case, emphasized the following: (1) with respect to the “West” letter, there was no evidence presented that the Department of Education took any further action or that McCarrie School lost its approval; (2) with respect to the “Wheeler-Jones” letters, the PAPSA Board dismissed the matter after questioning plaintiff Walder; and (3) there was no evidence presented that McCarrie School lost any students, potential students or potential revenue. Therefore, the lower court concluded that the amount of damages awarded by the jury “resulted from some prejudice or other improper partiality.” (Lower Court Opinion at 15). The court stated:

The only possible explanation, in the opinion of the Court, for the excessive amount of damages awarded on these facts is that the jury wished to punish Mr. Lobel because his testimony was so incredible throughout the trial, particularly regarding his net worth, (n.t. 6.145-6.211.) It is also apparent that the jury was annoyed by the obvious lack of preparation of Mr. Lobel’s attorney and the incompetent manner in his trial technique.

(Lower Court Opinion at 15 n. 3).

We initially note that the lower court apparently overlooked the unrebutted testimony of plaintiff Joseph Walder that, as a result of the letters, the income of McCarrie School substantially decreased and it lost its accreditation. See N.T. June 17, 1982 at 5.46-5.47. However, we do not believe that this additional evidence is enough to warrant our overturning the lower court’s finding of excessive verdict. “As to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court’s action 'absent an abuse of discretion or error of law which controlled the outcome of the case.’ ” McDevitt v. Terminal Warehouse Co., 304 Pa.Superior Ct. 438, 441-442, 450 A.2d 991, 993 (1982) (citation omitted). Accord, Tonik v. Apex Garages, Inc., supra 442 Pa. at 378, 275 A.2d at 299; Corabi v. Curtis Publishing Co., supra 441 Pa. at 472-73, 273 A.2d at 919-20; McNair v. Weikers, 300 Pa.Superior Ct. 379, 385, 446 A.2d 905, 908 (1982).

In reviewing the lower court’s action to determine whether an abuse of discretion has occurred, we recognize that “[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overriden [sic] or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence on the record, discretion is abused.”

Straub v. Tyahla, 274 Pa.Superior Ct. 411, 414, 418 A.2d 472, 474 (1980) (citation omitted). In applying the above-defined standard to the instant case, we cannot say, after reviewing the record, that the lower court abused its discretion in finding the verdict excessive. The court properly applied the law on damages and reached a judgment which we do not find manifestly unreasonable, or the result of partiality or prejudice. Therefore, we are compelled to remand this case for a new trial on the issue of damages.

Next, defendants challenge the lower court’s denial of their motion in arrest of judgment, arguing that plaintiffs’ second amended complaint (1) was so vague and indefinite as to be defective as a matter of law and (2) stated a new cause of action after the statute of limitations had expired. We find no merit in these contentions. “Generally, a defamatory action must allege: 1) the defamatory character of the communication; 2) publication; 3) that the communication refers to the plaintiff; 4) the third party’s understanding of the communication’s defamatory character; and 5) injury.” Raneri v. DePolo, 65 Pa. Commonwealth Ct. 183, 186, 441 A.2d 1373, 1375 (1982). See also 42 Pa.C.S.A. § 8343(a) (elements of a defamation action which plaintiff has the burden of proving); Corabi v. Curtis Publishing Co., supra, 441 Pa. at 441-42, 273 A.2d at 903-04 (defamation defined). “The sufficiency of the complaint is governed by the facts alleged therein.” Gross v. United Engineers & Constructors, Inc., 224 Pa.Superior Ct. 233, 235, 302 A.2d 370, 371 (1973), alloc. denied.

Here, after reviewing the second amended complaint, we find that the allegations contained therein are specific, definite and sufficient to state a cause of action in defamation.

A defamation action must be commenced within one year. 42 Pa.C.S.A. § 5523(1). “The general rule is that an amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action, ..., but if the amendment would only amplify or enlarge the existing cause of action, it will be permitted.” Sanchez v. City of Philadelphia, 302 Pa.Superior Ct. 184, 187, 448 A.2d 588, 589 (1982) (citations omitted). “A new cause of action exists if it is based on an entirely different theory, ... or is based upon different relations between the parties. Under such circumstances both the plaintiff’s proof and the defenses available to the defendant would be different.” Goodrich Amram 2d § 1033:4.1, at 369-70.

Amendments which merely restate in a more distinct form the grounds set forth originally as the basis of the plaintiff’s cause of action ... or merely vary the cause of action, as originally stated, so that the subject matter remains the same, may be made at any time, even after the statute of limitations has run on the claim sued for.

Hoffman v. Hibbs, 235 Pa.Superior Ct. 470, 474, 344 A.2d 546, 548 (1975) (en banc); see also Goodrich Amram 2d § 1033:4.1, at 372-73.

Here, after comparing the original complaint with the second amended complaint, we do not find that the second amended complaint stated a new cause of action. Both alleged a cause of action in defamation involving the same letters published by defendant Lobel to third parties resulting in detriment to plaintiffs. The second amended complaint did not allege an entirely different theory or different relations between the parties, but only amplified the existing cause of action which was sufficiently stated in the original complaint. Therefore, we hold that the lower court properly denied defendants’ motion in arrest of judgment.

Accordingly, we modify that portion of the April 7, 1983 order granting a new trial by limiting the new trial to the issue of damages; otherwise, we affirm the denial of the motions for judgment n.o.v. and in arrest of judgment.

Modified in part, affirmed in part, and remanded for a new trial solely on the issue of damages. Jurisdiction is not retained.

      . The court sustained preliminary objections to the third cause of action, which plaintiffs later withdrew. The case was tiied under the second amended complaint.

      . The lower court also found that, because Dunlap (which the court believed effected a change in the law) was decided after the instant trial and while post-verdict motions were pending, defendants’ failure to take specific exception to the charge at trial did not result in waiver of the issue. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Because we find the jury charge correct, however, we need not resolve this waiver question.

      . Plaintiffs also argue that the award of punitive damages was justified by the evidence and that punitive damages need not bear a relationship to the compensatory damages, citing Rhoads v. Heberling, 306 Pa.Superior Ct. 35, 451 A.2d 1378 (1982). Therefore, they request, alternatively, that the punitive damages award be reinstated and a new trial be limited to the issue of compensatory damages only. Because the law is unclear as to the relationship between compensatory damages and punitive damages, we decline to do this. See Marcone v. Penthouse International Ltd., 577 F.Supp. 318, 335 (E.D.Pa.1983) ("Pennsylvania law appears to be in a state of change as to whether punitive damages must be proportionate or reasonably related to compensatory damages.”); Feld v. Merriam, 314 Pa.Superior Ct. 414, 437, 461 A.2d 225, 237 (1983), remanded for new trial, 506 Pa. 383, 485 A.2d 742 (1984) (punitive damages are excessive when they are disproportionate to the amount of compensatory damages awarded); Rhoads v. Heberling, 306 Pa.Superior Ct. 35, 44-45, 451 A.2d 1378, 1383 (1982) (trial court did not err when it instructed jury that amount of punitive damages awarded need not bear any relationship to the actual damages awarded); Golomb v. Korus, 261 Pa.Superior Ct. 344, 346, 396 A.2d 430, 431 (1978) (punitive damages may not be disproportionate to compensatory damages).