author: BROSKY, Judge. DEL SOLE, Judge,

text:
    682 A.2d 378
    Leo J. KITUSKIE v. Scott K. CORBMAN, Esquire and Garfinkle, Corbman, Greenberg and Jurikson, P.C., Appellants.
    Superior Court of Pennsylvania.
    Argued June 26, 1996.
    Filed Aug. 29, 1996.

      H. Robert Fiebach, Philadelphia, for appellants.
    Fred J. Silverman, Plymouth Meeting, for appellee.
    Before DEL SOLE, TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

Scott Corbman, Esquire, (“Corbman”) and the law firm of Garfinkle, Corbman, Greenberg and Jurikson, P.C. (“Garfinkle firm”) appeal from the judgment of the trial court following a $2,300,000 jury verdict in favor of plaintiff-appellee Leo J. Kituskie, D.M.D. (“Kituskie”) and against appellants.

Corbman is an attorney licensed to practice in Pennsylvania; he was a principal/shareholder in the Garfinkle firm, which has its principal place of business in Philadelphia, PA.

Kituskie is a practicing periodontist and a Pennsylvania resident.

On September 3,1989 Kituskie suffered personal injuries as a result of an automobile accident in San Jose, California; the other driver involved was California resident Evan Mark Trapp (“Trapp”). Trapp lost control of his vehicle and drove into the path of Kituskie’s car; the two vehicles collided. Trapp was driving while intoxicated and was driving at a high rate of speed.

Kituskie returned to the Philadelphia area and began treatment with local health care providers. On September 9, 1989 Kituskie retained Corbman as counsel in Kituskie’s claim against Trapp for personal injuries sustained in the automobile accident. Corbman obtained Kituskie’s medical reports and records of out-of-pocket expenses. Corbman then made a claim on Kituskie’s behalf against Trapp’s insurance carrier, California State Automobile Association (“CSSA”). Negotiations took place over the summer of 1989.

Corbman learned that Trapp had a $25,000 liability policy with CSAA. Although counsel for all parties stipulated at trial that Trapp’s liability limit with CSAA was $25,000, the jury was not permitted to hear this evidence. Corbman was under the belief that the California statute of limitations for personal injury actions was two years (as is the statute of limitations for Pennsylvania), but the California statute of limitations was only one year. On approximately September 17,1990 Corbman learned that the California statute of limitations was only one year (and that it had expired in the instant case on September 3, 1990). After the expiration of the one year statute of limitations CSAA informed Corbman that it refused to make any settlement offer. Corbman then met with Kituskie and told him that his personal injury claim had been terminated since no suit was filed nor was settlement reached within the applicable one year period. Corbman advised Kituskie to seek the services of another attorney to assert a claim for legal malpractice against Corbman.

Kituskie filed a claim against United States Fidelity & Guaranty Co. (“USF & G”), which was the automobile insurance carrier for his father’s car. ■ Following arbitration, Kituskie was awarded $200,000, which was the limit of underinsured benefits available. Kituskie then retained new counsel and sued Corbman and the Garfinkle firm, in Montgomery County Common Pleas Court, on August 28, 1991 for legal malpractice.

Prior to jury selection counsel for both sides presented motions in limine requesting that each side’s expert be precluded from testifying on the issue of the possibility of CSAA settling within the policy limits (the motions did not deal with the issue of collectibility of the underlying judgment in a malpractice claim against an attorney). The trial court stated at the start of the jury trial that, “[T]he issue of collectibility or potential jury verdict or settlement presented itself yesterday when the Court was conferring with counsel. This Court gave counsel last night and the rest of the day yesterday to delve into this issue to see if they could find authority for their respective positions.” N.T., 1/6/95, at 11. The trial court ultimately determined that collectibility of the underlying judgment was not an issue in the instant case, and that evidence would not be admitted regarding the issue of collectibility. The trial court then granted both motions in limine.

The jury trial lasted from January 6, 1995 through January 11, 1995; at its conclusion the jury awarded Kituskie $2,300,-000. This appeal followed.

Appellants’ statement of questions involved is as follows:

1. Whether the lower court erred as a matter of law by fading to recognize that “collectibility” of any judgment which would have been obtained in the underlying matter is an essential element of a legal malpractice claim.
2. Whether the lower court erred as a matter of law by precluding evidence that any judgment which would have been obtained in the underlying matter would not have been collectible beyond the $25,000 insurance policy applicable to the accident.
3. Whether the lower court erred as a matter of law in failing to instruct the jury that Kituskie’s claims against Corbman were barred by the doctrine of collateral estoppel and that, therefore, a directed verdict should have been entered in favor of Corbman.
4. Whether the lower court erred as a matter of law by failing to reduce the judgment by the amount recovered by Kituskie in a related arbitration against Kituskie’s own insurance carrier under his underinsured motorist coverage.

Appellants’ Brief at 3. We vacate the judgment of the trial court and remand for a hearing regarding the collectibility of the underlying judgment (i. e., any judgment that could have been recoverable from Trapp).

Appellants’ issues number one and two are claims that (a) the trial court erred in holding that collectibility of the underlying judgment was not an essential element of a legal malpractice claim, and, (b) the trial court erred in holding that Kituskie had no burden to prove collectibility and that appellants were not permitted to prove that the underlying judgment would have been uncollectible.

Our Supreme Court stated in Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989),

[A]n allegedly aggrieved client must establish three elements in order to recover for legal malpractice. They are:
1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.
[A]n essential element of the cause of action, whether the action be denominated in assumpsit or trespass, is proof of actual loss.

Id. at 498-500, 504-06, 555 A.2d at 65, 68.

Our Court stated in Ammon v. McCloskey, 440 Pa.Super. 251, 655 A.2d 549 (1995),

In any cause of action for [legal] malpractice, some harm must be shown to have occurred to the client----
The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a cause of action for negligence. Hence, until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice. [Citations omitted.]

Id. at 257-58, 655 A.2d at 552.

“Additionally, the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation.” Rogers v. Williams, 420 Pa.Super. 396, 401, 616 A.2d 1031, 1034 (1992).

Our Court held in McCartney v. Dunn & Conner, Inc., 386 Pa.Super. 563, 563 A.2d 525 (1989), that in a legal malpractice action the plaintiff must establish that he or she would have recovered a judgment in the underlying action; the damages are measured by the “lost judgment.” Id. at 568, 563 A.2d at 528.

We will not permit legal malpractice actions based upon speculations regarding settlement negotiations. Id. at 572-74, 563 A.2d at 530.

Our review of Pennsylvania caselaw, statutes and court rules reveals that the issue of the collectibility of an underlying judgment in a legal malpractice action has not been previously addressed.

Other jurisdictions around the country have included collectibility as an element to be proved or disproved in a legal malpractice case. California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Massachusetts, New York, North Carolina, Tennessee, Texas and Washington place the burden upon the plaintiff (in a malpractice action against an attorney) to prove collectibility of the underlying judgment. See: DiPalma v. Seldman, 27 Cal.App.4th 1499, 33 Cal.Rptr.2d 219 (1994); Lawson v. Sigfrid, 83 Colo. 116, 262 P. 1018 (1927); Palmieri v. Winnick, 40 Conn.Supp. 144, 482 A.2d 1229 (1984); McDow v. Dixon, 138 Ga.App. 338, 226 S.E.2d 145 (1976); Sheppard v. Krol, 218 Ill.App.3d 254, 161 Ill.Dec. 85, 578 N.E.2d 212 (1991); Beeck v. Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149 (Iowa 1984); Jernigan v. Giard, 398 Mass. 721, 500 N.E.2d 806 (1986); Chiaffi v. Wexler, Bergerman and Crucet, 116 A.D.2d 614, 497 N.Y.S.2d 703 (1986); Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985); Payne v. Lee, 686 F.Supp. 677 (E.D.Tenn.1988); Mackie v. McKenzie, 900 S.W.2d 445 (Tex.App.1995); and, Tilly v. Doe, 49 Wash.App. 727, 746 P.2d 323 (1987). Maine, Michigan and New Jersey place the burden on the defendant-attorney to assert the affirmative defense of collectibility (i.e., the defendant-attorney must prove that the plaintiff could not have recovered the full value of the underlying judgment). See: Jourdain v. Dineen, 527 A.2d 1304 (Me.1987); Teodorescu v. Bushnell, Gage, Reizen and Byington, 201 Mich.App. 260, 506 N.W.2d 275 (1993); and, Hoppe v. Ranzini, 158 N.J.Super. 158, 385 A.2d 913 (1978).

We believe that in legal malpractice actions in Pennsylvania, it is time to add the requirement of placing upon the attorney being sued the burden of disproving the collectibility of the underlying judgment. While we recognize that the collectibility of a judgment is not an issue in other types of cases in this Commonwealth, a legal malpractice action is distinctly different from an ordinary lawsuit. The attorney being sued in a malpractice action did not cause the initial harm or damage to the plaintiff; a third party caused that harm (in the instant case the third party was Trapp). In the ordinary course of events leading to a malpractice action the plaintiff then retains the attorney involved and the attorney fails to exercise ordinary skill and knowledge in handling the plaintiffs case (the attorney may have failed to pursue the action against the third party, as in the instant case, or may have negligently handled an action against a third party); the attorney’s negligence was the proximate cause of the plaintiffs loss since the negligence prevented the plaintiff from being properly compensated for his or her losses (Corbman’s negligence was the proximate cause of Kituskie’s losses and this element was adequately proven at trial). However, the plaintiff should only be compensated for his or her actual losses. Rizzo v. Haines, supra. The legal malpractice action actually contains a “case within a case” since the plaintiff must initially establish, by a preponderance of the evidence, that he or she would have recovered a judgment in the underlying action (in the instant case the underlying action would have been against Trapp); the damages that the plaintiff suffered are measured by the “lost judgment”. McCartney v. Dunn & Conner, Inc., supra. The attorney (the party being sued in the malpractice action) who negligently handled the plaintiffs case must be held responsible for the “lost judgment”. However, it would be inequitable for the plaintiff to be able to obtain a judgment, against the attorney, which is greater than the judgment that the plaintiff could have collected from the third party; the plaintiff would be receiving a windfall at the attorney’s expense. For that reason, we now require the injection of the issue of collectibility of the underlying judgment in legal malpractice actions.

We find that the burden of proof should be upon the attorney to plead and prove, by a preponderance of the evidence, that the underlying judgment was not collectible; the plaintiff should not have the added burden of proving collectibility since he or she has already been allegedly wronged by two parties (the third party and the attorney).

In a legal malpractice action the jury should consider the issue of malpractice and the amount of a judgment that would have been recoverable against the third party in the underlying action. If the defendant-attorney raises the affirmative defense of non-collectibility of the underlying judgment, then the jury must also consider whether or not the underlying judgment was collectible.

In the instant case the jury was not permitted to hear evidence regarding collectibility of the underlying judgment; consequently, the amount of the jury verdict did not reflect any finding on that issue. Hence, pursuant to appellants’ issue numbers one and two we must vacate the judgment of the trial court and remand this case so that the trial court may conduct a hearing regarding the collectibility of the underlying judgment.

Appellants’ issue number three is a claim that the trial court erred in failing to instruct the jury to enter a directed verdict since Kituskie “was barred by the doctrine of collateral estoppel from collecting twice for damages resulting from the underlying accident.” Appellants’ Brief at 26. Appellants aver that Kituskie should not be permitted to recover damages beyond the $200,000, awarded by an arbitration panel, in underinsured motorist benefits under Kituskie’s father’s USF & G automobile insurance policy.

Our Court stated in Sterling v. Fineman, 428 Pa.Super. 233, 630 A.2d 1224 (1993),

The five requirements of the collateral estoppel doctrine are as follows:
Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment. [Citations omitted.]

Id. at 240, n. 4, 630 A.2d at 1228, n. 4.

“Collateral estoppel, sometimes referred to as issue preclusion, operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Ammon v. McCloskey, 440 Pa.Super. 251, 260, 655 A.2d 549, 553 (1995).

Pa.R.C.P. 1030(a) provides that the affirmative defenses of estoppel and res judicata “shall be pleaded in a responsive pleading under the heading ‘New Matter’.” Id. Appellants never pled the affirmative defense of collateral estoppel in their New Matter. Furthermore, appellants did not attempt to amend their complaint after the entry of the arbitration award. Hence, since the affirmative defense of collateral estoppel was never pled, it is waived. Accordingly, we find appellants’ third issue to be meritless.

Arguendo, even if appellants had not waived the affirmative defense of collateral estoppel, we would have found their third issue to be meritless based upon our independent review of the instant record, the relevant caselaw, and the December 12, 1995 trial court opinion of the Honorable S. Gerald Corso of the Court of Common Pleas of Montgomery County.

Appellants’ issue number four is a claim that the trial court erred in not subtracting the $200,000 (in underinsured benefits) awarded in arbitration from the $2,300,000 jury verdict. Appellants aver that adding the $200,000 to the jury verdict creates a “windfall” gain for Kituskie. Appellants’ Brief at 31. However, appellants cite to no legal authority in support of their claim.

Issues not properly developed or argued in the argument section of an appellate brief are waived. Commonwealth v. Cassidy, 423 Pa.Super. 1, 620 A.2d 9 (1993); Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988); Commonwealth v. Batch, 328 Pa.Super. 71, 476 A.2d 458 (1984). Since appellants have failed to cite to any legal authority in support of their fourth issue, we find it to be waived.

In summary, pursuant to appellants’ issue numbers one and two, we vacate the judgment of the trial court and remand for a hearing regarding the collectibility of the underlying judgment (that could have been recovered from Trapp). As discussed, supra, appellants have the burden of proving, by a preponderance of the evidence, that the underlying judgment was not collectible.

Judgment vacated. Case remanded for a hearing consistent with the directives of this Opinion. Jurisdiction relinquished.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring.

I join the majority in holding that a defendant may introduce evidence of collectibility in a legal malpractice case. I view this as recognition of the traditional role of tort litigation, to compensate for the extent of the loss.

By the same token, the award should not be reduced by the fees that the defendant lawyer would have collected absent negligence. To do so would diminish the client’s recovery since fees would be required for current counsel.

Further, I agree with the majority that the arbitration award under the Underinsured Motorists section of the applicable policy does not operate to bar a recovery in excess of the award.

In the event the trial court, on remand, determines that Mr. Trapp has sufficient assets to pay the $2,300,000 award, it would be subject to any right of subrogation the underinsured carrier may exercise. If there are no such rights, then the plaintiff, not the defendant, should receive the value of that bargain.

      . As a result of the accident Kituskie suffers from a degenerative, arthritic back condition and he has had to reduce his work schedule.

      . This would add the Commonwealth to the list, of approximately half of the states in this country, that require the plaintiff or defendant-attorney to prove or disprove the collectibility of the underlying judgment.

      . New Jersey requires this burden of proof, and we find that it would be appropriate to apply it in Pennsylvania. Hoppe v. Ranzini, supra.

      . In the instant case it is possible to conclude that appellants pled the affirmative defense of non-collectibility since their New Matter stated that, ''Plaintiffs cause of action herein must fail where no damages have accrued to plaintiff as a result of any alleged act/or failure to act on the part of" appellants. Appellants’ New Matter, par. 14. However, even if the affirmative defense had not been pled, and Kituskie had objected to the injection of the non-collectibility issue, appellants could have amended their pleadings to clearly include the affirmative defense of non-collectibility. Pa.R.C.P. 1033.

      . The trial court should consider, inter alia, whether there was a S25,000 liability limit on Trapp's CSAA policy, and, Trapp’s assets.
      We also note that normally the jury would have deliberated upon the issue of collectibility, but since the instant jury has been excused the trial judge must make the determination regarding collectibility.

      . Appellants concede that Kituskie “had a right to claim coverage under [his father's] policy." Appellants' Brief at 27.

      . We note a typographical error in Judge Corso's opinion on the last line at page eight, wherein the word “underinsured” was mistakenly inserted in place of the word “uninsured”.


source: Caselaw Access Project

author: CIRILLO, President Judge Emeritus.

license: Public Domain

text:
    682 A.2d 383
    COMMONWEALTH of Pennsylvania v. David P. BANELLIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 1, 1996.
    Filed Aug. 30, 1996.

      Joseph F. Sklarosky, Forty Fort, for appellant.
    Peter Paul Olszewski, Jr., District Attorney, Wilkes-Barre, and Melissa A. Berlot, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, J., CIRILLO, President Judge Emeritus and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus.

David Banellis appeals from a summary conviction in the Court of Common Pleas of Luzerne County. We reverse.

On November 3, 1995, Officer John Lee Mecca of the Dupont Borough Police observed Banellis in a red Ford truck travelling on the Pittston Bypass in Luzerne County. Banellis failed to stop at the stop sign located at an intersection of the bypass ramp and Main Street. Officer Mecca, who was clothed in full uniform, pulled Banellis over and issued him a citation for not stopping at the stop sign. Banellis was subsequently charged for his failure to stop pursuant to 75 Pa.C.S. § 3323(b). The magistrate imposed costs and fines, Banellis appealed, and a trial de novo ensued.

■Following the conclusion of the Commonwealth’s case, in which Officer Mecca was the only witness, Banellis demurred to the charges; he challenged the Commonwealth’s failure to prove his guilt beyond a reasonable doubt. The trial court denied Banellis’ demurrer. Banellis was found guilty of a stop sign violation, and costs and fines as imposed by the Magistrate were affirmed. This appeal followed.

On appeal, Banellis raises one issue for our consideration: Whether the language of the statutory exception found in § 3323(b) of the Pennsylvania Vehicle Code is an integral part of the definition of the offense and, as such, whether the Commonwealth had the burden of negating the exception by producing evidence that no police officer was directing traffic through the stop sign?

In examining a challenge to the sufficiency of the evidence, it is well settled that an appellate court must determine whether the evidence was sufficient to enable the factfinder to find every element of the crime charged beyond a reasonable doubt, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner. Commonwealth v. LaCava, 542 Pa. 160, 170-72, 666 A.2d 221, 226 (1995); Commonwealth v. Thomas, 527 Pa. 511, 513-14, 594 A.2d 300, 301 (1991).

Banellis claims the Commonwealth has not met its burden of proving each. and every element of the crime charged. Section 3323(b) of the Vehicle Code provides in pertinent part:

§ 3323. Stop signs and yield signs.
(b) Duties at stop signs. — Except when directed to proceed by a police officer or appropriately attired persons authorized to direct, control or regulate traffic, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line____

75 Pa.C.S. § 3323(b) (emphasis added).

Banellis argues that the language “except when directed to proceed by a police officer” is an integral part of the offense and, therefore, the Commonwealth must produce evidence negating the exception as part of its burden of proof. We agree. In the instant case, the Commonwealth produced no evidence to negate the exception and, therefore, failed to meet its burden of proof beyond a reasonable doubt.

Pennsylvania state appellate courts have yet to interpret the “except clause” in 75 Pa.C.S. § 3323(b). Finding no appellate court cases interpreting this statute, we are guided by the reasoning in Commonwealth v. Hudson, 38 D. & C.3d 248 (1985), which is the sole Pennsylvania case to have addressed the burden of proof issue in section 3323(b). In its analysis of the sufficiency of the evidence with regard to section 3323(b), the court determined that it was the Commonwealth’s burden to negate the exception at issue. Hudson, 38 D. & C.3d at 254. While Hudson is clearly not binding on this court, we find its reasoning persuasive.

In Hudson, defendants appealed from a summary conviction of failing to stop at a stop sign before entering an intersection, pursuant to § 3323(b). Hudson, 38 D. & C.3d at 249. Defendants testified that the driver of the first vehicle stopped in the middle of the highway, held up a red flag, and directed the defendants to come through the intersection without stopping. Id. It was not contested that this lead pilot car was authorized by PennDot Regulations to direct traffic in the foregoing situation. See 67 Pa.Code § 179.10(13)(i). Thus, the key question centered on the burden of proof of the statutory exception in section 3323(b): Whether the burden was on the defendants to prove or on the Commonwealth to disprove traffic direction. Hudson, 38 D. & C.3d at 251.

The Hudson court recognized that the burden of proving an essential element of the crime may not be shifted to the defendant. Hudson, 38 D. & C.3d at 252 (citing In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). “When dealing with a statute, it is the legislative intent which governs whether the exception or exemption is an essential and integral element of the crime.” Hudson, 38 D. & C.3d at 253 (quoting Commonwealth v. Bigelow, 484 Pa. 476, 482-84, 399 A.2d 392, 395 (1979)). See also Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) (holding the absence of a license is an essential element of the crime of carrying a firearm without a license as prohibited by 18 Pa.C.S.A. § 6108 (formerly § 4628(e) of the Uniform Firearms Act)). Specifically, the Hudson court stated:

If the exception or exemption is such an essential and integral part of the offense, the Commonwealth has both the burdens of persuasion and of initially producing evidence to negate the exception or exemption, and to do so beyond reasonable doubt; if it is not such an integral element, even though an essential element, defendant has the burden of producing some credible evidence sufficient to raise a legitimate issue by creating the basis for reasonable doubt that the exception or exemption is applicable; once defendant produced such evidence, the burden of going forward with evidence to negate the exception or exemption beyond a reasonable doubt passes to the Commonwealth.

Hudson, 38 D. & C.3d at 253 (citations omitted).

The trial court concluded the statutory exception of section 3323(b) is incorporated into and is an integral part of the definition of the offense. Hudson, 38 D. & C.3d at 253. Furthermore, the court distinguished statutory exceptions which are completely divorced from the definition of the offense, i.e., exceptions treated as a distinct element. Id. at 254. “It is constitutionally permissible to shift to the accused the duty of producing evidence of facts constituting an exception to or exemption from liability when such dispensation exists separately from the statutory or contractual definition of the basic cause of action; [i.e.,] when the exception or exemption is stated in a proviso or other distinct clause ____” Hudson, 38 D. & C.3d at 252-53 (emphasis added); Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979). Finally, in deciding who has the burden of proof for an integral part of an offense, the Hudson court stated the following: “[T]he Commonwealth has the burden of negating the exception, both by producing evidence on the issue and by persuasion of the fact-finder beyond a reasonable doubt.” Hudson, 38 D. & C.3d at 254 (citing McNeil, 461 Pa. at 713-15, 337 A.2d at 843).

While we have not had the occasion, until now, to confront the issue of whether the exception in section 3323(b) is an integral part of the offense, the Pennsylvania state appellate courts have analyzed various “exception clauses” to determine whether these clauses state an integral element of the crime with which the defendant is charged. One of the most frequently cited statutes containing such an exception is 18 Pa.C.S.A. § 6106 (Firearms not to be carried without a license), which states the following:

(a) Offense defined. — No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.
(b) Exceptions. — The provisions of subsection (a) of this section shall not apply to:
# :k sk sk H* sk

18 Pa.C.S.A. § 6106(a) & (b) (emphasis added) (Subsection (b) goes on to enumerate ten exceptions to subsection (a)).

In Commonwealth v. Lopez, 523 Pa. 126, 565 A.2d 437 (1989), the Pennsylvania Supreme Court looked to the language in section 6106(a) to determine whether the phrase “except in his place of abode or fixed place of business” is an element of the offense which the Commonwealth has the burden of proving. The court found that the Commonwealth cannot successfully prove a violation of section 6106(a) without showing that the firearm, found on the person, was carried outside the place of abode. Lopez, 523 Pa. at 129-31, 565 A.2d at 439. The court in Lopez relied on the rules of statutory construction to- distinguish subsection (b) of section 6106 which specifically describes certain justifications for carrying a firearm outside one’s home or fixed place of business. Id. at 131-33, 565 A.2d at 440. Unlike subsection (a), subsection Qs) clearly evidences a distinction between the elements of the offense and its exceptions since this subsection is divorced from the definitional section of the crime. Id.

In addition to Lopez, we are guided by the reasoning the Pennsylvania Supreme Court employed in Bigelow, supra, to interpret various “except clauses”. In that case, the court distinguished both the structure and language in sections 6106 & 6108 of the Uniform Firearms Act. Bigelow, 484 Pa. at 476, 399 A.2d at 392. These distinctions are important in understanding the difference between a proviso and an “except clause”, the latter of which is included in the definition of the defense. See Bigelow, 484 Pa. at 482-84, 399 A.2d at 395. The Pennsylvania Supreme Court concluded that the text regarding licensure in section 6108 is set off by the word “unless,” indicating it is in the nature of a proviso. Id. “Material placed in a proviso is not an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution.” Id. For this reason, the Bigelow court continued to hold that subsections (1) and (2) of section 6108 should be treated as affirmative defenses which must be raised by the defendant. Bigelow, 484 Pa. at 484-86, 399 A.2d at 396. The proviso in Bigelow is set off from the definition of the offense, unlike the “except clause” in section 6106(a) which is clearly a part of the definitional section of that offense and, therefore, must be proved by the Commonwealth. See Lopez, 523 Pa. at 131-33, 565 A.2d at 440.

A common precept of statutory construction mandates:

When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is a matter of defense and must be shown by the accused.

Commonwealth v. Stoffan, 228 Pa.Super. 127, 140, 323 A.2d 318, 324 (1974) (holding “except clauses” do not state defenses but, rather, define necessary elements of crime which the Commonwealth must prove) (emphasis added). Based on the foregoing principle, the essential question in the instant case becomes whether the exception in section 3323(b) is an integral part of the offense.

The Crimes Code, in section 103, defines “Material element of an offense” as:

[a]n element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with:
(1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or
(2) the existence of a justification or excuse for such conduct.

18 Pa.C.S.A. § 103. Thus, to be considered a material element of the stop sign violation, the language relating to traffic being directed by a police officer must be connected with the harm or evil sought to be prevented by section 3323(b) or the existence of a justification or excuse for such conduct.

We are persuaded by the reasoning in the Hudson court and the preceding analogous appellate court cases that the “except clause” in section 3323(b) is an integral part of the offense. The clause, “Except when directed to proceed by a police officer ...” directly precedes the words “every driver of a vehicle approaching a stop sign shall stop----” Against the wording of this statute, it is obvious that the “except clause” is not divorced from the definition of the offense. In addition, there is no indication that the exception is in the nature of a proviso. See Bigelow, supra. The language of the exception aids in a more clear and accurate description of the offense. Stoffan, supra. The structure of the statute convinces us that lack of traffic direction at a stop sign is an essential element of the crime. In reaching this decision, we must place upon the Commonwealth the burden of negating the foregoing exception.

The result we reach today supports the basic tenet of criminal law that there is a continuing presumption of innocence. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); see Commonwealth v. Hilbert, 476 Pa. 288, 297, 382 A.2d 724, 729 (1978) (“LA] state carries a never-shifting burden of proof beyond a reasonable doubt of all the elements of a crime, such elements being contained in either statutory or common-law definitions.”); Turner v. Commonwealth, 86 Pa. 54, 74 (1878) (the burden of proof never shifts but rests with the prosecution throughout); Commonwealth v. Wagaman, 426 Pa.Super. 396, 401-02, 627 A.2d 735, 737 (1993) (same). See also Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, supra. “The Due Process Clause of the United States Constitution prohibits placing a burden of proof upon a criminal defendant to negate an element of the crime with which he or she is charged.” Hilbert, 476 Pa. at 294, 382 A.2d at 727 (citing Mullaney, supra). There can be no burden on an accused to disprove an element of the offense. Loccisano, 243 Pa.Super. at 537-39, 366 A.2d at 284. Furthermore, “[t]he due process burden of proof applies to summary offenses as well as to other criminal charges.” Wagaman, 426 Pa.Super. at 401, 627 A.2d at 737 (citing Commonwealth v. Karl, 340 Pa.Super. 493, 490 A.2d 887 (1985)). See Commonwealth v. Crockford, 443 Pa.Super. 23, 660 A.2d 1326 (1995) (Cirillo, J., concurring and dissenting).

In the instant case, the Commonwealth has failed to produce any evidence to disprove the presence of a police officer directing traffic. The Commonwealth, therefore, has failed to meet its burden of proof beyond a reasonable doubt. In re Winship, supra; Crockford, supra. The Commonwealth’s only witness, Officer Mecca, testified that he observed Banellis exit the ramp and just continue right through the stop sign. The Commonwealth, however, failed to address the issue of whether Officer Mecca was directing traffic at this particular intersection. We find, therefore, that Banellis is entitled to discharge.

Reversed. Appellant is discharged.

      . In a consolidated hearing, it appeared that one defendant was operating a lowboy trailer with a permitted oversize load, while the other defendant was operating the rear pilot vehicle. A third driver, who was not charged, was operating the front pilot vehicle. It was this lead pace car that directed the two defendants to come through the intersection. Defendants testified that it was standard practice to bring an oversized vehicle through an intersection without stopping, due to its large size. Hudson, 38 D. & C.3d at 250. See 67 Pa.Code § 179.10(13)(i).

      . The trial court in Hudson raised this issue sua sponte. 38 D. & C.3d at 251. The court stated, "Although the issue was not mentioned by either side, we who must decide evidentiary sufficiency are necessarily governed by the proper rule.” Id.

      . The court in Lopez recognized that the Pennsylvania Superior Court in Commonwealth v. Turner, 339 Pa.Super. 81, 488 A.2d 319 (1985), interpreted the same statute. Turner, however, held that the "except clause” in section 6106(a) should be construed as an affirmative defense, rather than an essential element of the crime to be proven by the Commonwealth. Even though Lopez did not specifically overturn Turner, the Lopez court did state that the Superior Court's decision in Turner was misplaced in its interpretation of section 6106(a). Lopez, 523 Pa. at 131-33, 565 A.2d at 440. Since Turner has been specifically disapproved by Lopez, we shall not focus on it in our analysis of 75 Pa.C.S. § 3323(b).

      . See 1 Pa.C.S.A. § 1921 which states the following:
      (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
      (b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
      1 Pa.C.S.A. § 1921(a), § 1921(b) (emphasis added). See also Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982) (holding every statute shall be construed, if possible, to give effect to all its provisions).

      . § 6108. Carrying firearms on public streets or public property in Philadelphia
      No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:
      (1) such person is licensed to carry a firearm; or

        (2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).
      18 Pa.C.S.A. § 6108 (emphasis added).


author: BECK, Judge:

text:
    682 A.2d 388
    COMMONWEALTH of Pennsylvania v. Fred DOBBS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 18, 1996.
    Filed Aug. 29, 1996.

      Joseph P. Burt, Public Defender, Erie, for appellant.
    Christian A. Trabold, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BECK, TAMILIA and POPOVICH, JJ.
   BECK, Judge:

We address the merger of sentences for aggravated assault and reckless endangerment in light of Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994). We also address the merger of sentences where appellant has been found guilty of two separate sections of the aggravated assault statute.

Appellant insists his sentences for aggravated assault merge with his sentences for reckless endangerment. He also argues that the merger doctrine prevents the court from sentencing him separately for violating two different sections of the aggravated assault statute. We agree with appellant and remand for resentencing.

At trial, the Commonwealth proved that appellant approached Antonio Bolden and Dennis Robinson in a parked automobile and, after a verbal exchange with Bolden, opened fire on the vehicle. Bolden was struck in the shoulder by one of the bullets fired from appellant’s weapon.

With respect to the victim Robinson, the jury found appellant guilty of one count each of Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1), Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705, and Terroristic Threats, 18 Pa. C.S.A. § 2706. As to the victim Bolden, appellant was convicted of two counts of Aggravated Assault, § 2702(a)(1) and (a)(4), one count of Recklessly Endangering Another Person and one count of Terroristic Threats. Appellant also was found guilty of Carrying a Firearm Without a License, 18 Pa.C.S.A. § 6106. The court imposed consecutive sentences for all of the charges resulting in an aggregate sentence of ten years and three months to twenty-four years in prison.

Appellant first asserts that the two counts of aggravated assault on Bolden, 18 Pa.C.S.A. § 2702(a)(1) and (a)(4), should have merged for sentencing purposes. Also, as to the crimes against Bolden and Robinson, he claims that the reckless endangerment charges, 18 Pa.C.S.A. § 2705, should have merged into the aggravated assault charges for sentencing purposes. Finally, he alleges an abuse of discretion generally in that his sentence was manifestly excessive, “especially as to consecutiveness.”

The test for determining whether crimes merge for sentencing purposes was clarified recently by our supreme court in Commonwealth v. Anderson, supra. There, the court set forth the following rule:

We now hold that in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses.

Id. at 578, 650 A.2d at 22.

It is important to note that despite the fact that the Anderson lesser included offense standard is a strict, “bright line” test, the Anderson court applied principles of common sense in reaching its conclusion. The question in Anderson was whether aggravated assault merged with attempted murder for sentencing purposes. When the issue was before an en banc panel of this court, we found no merger because the two crimes required distinct mental states, ie., for attempted murder the specific intent to kill and for aggravated assault the intentional, knowing or reckless infliction of serious bodily injury. We further distinguished the two statutes on the basis of the type of injury required. Finally, we reasoned that aggravated assault, a felony of the first degree, could not be a lesser included offense of, or merge with, attempted murder, a felony of the second degree.

Our supreme court rejected all of those arguments. After clearly setting forth the lesser included offense standard, it approached the issue in practical terms and stated:

The act necessary to establish the offense of attempted murder — a substantial step toward an intentional killing— includes, indeed, coincides with, the same act which was necessary to establish the offense of aggravated assault, namely, the infliction of serious bodily injury. Likewise, the intent necessary to establish the offense of attempted murder — specific intent to kill — is greater than and necessarily includes the intentional, knowing, or reckless infliction of serious bodily injury, the intent required for aggravated assault. It is tautologous that one cannot kill without inflicting serious bodily injury. Inasmuch as aggravated assault, the lesser offense contains some, but not all of the elements of the greater offense, attempted murder, the offenses merge for purposes of sentencing.

Id. at 582, 650 A.2d at 24 (citations omitted).

With the proper standard in mind, we begin our analysis by reviewing the statutory requirements of the crimes at issue. We first address the merger of reckless endangerment and aggravated assault. The reckless endangerment statute provides:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705.

The aggravated assault statute, in pertinent part, provides that a person is guilty if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
******
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon____

18 Pa.C.S.A. § 2702(a).

If we were deciding this issue prior to Anderson, an in-depth analysis of merger would be unnecessary since numerous cases decided before 1994 held that reckless endangerment is a lesser included offense of not only aggravated assault, but a number of other crimes, including murder. See e.g., Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979) (reckless endangerment is a lesser included offense of murder); Commonwealth v. Mosley, 401 Pa.Super. 537, 585 A.2d 1057 (reckless endangerment is a lesser included offense of aggravated assault), appeal denied, 529 Pa. 633, 600 A.2d 952 (1991); Commonwealth v. Tipton, 396 Pa.Super. 402, 578 A.2d 964 (1990) (reckless endangerment merges with involuntary manslaughter); Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983) (crimes of reckless endangerment, simple assault and aggravated assault merge for sentencing purposes); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983) (reckless endangerment is a lesser included offense of attempted murder).

Our inquiry then is whether Anderson changes the rationale of the above-cited cases. We find that it does not. Instead, the logical approach fashioned by the Anderson court strengthens the holdings of the previous cases. Once the prosecution has proved that an individual caused or attempted to cause serious bodily injury under circumstances manifesting an extreme indifference to the value of human life, it also has established that the same person recklessly engaged in conduct that placed or may have placed another person in danger of death or serious bodily injury. Every element of reckless endangerment is subsumed in the elements of aggravated assault.

The Commonwealth argues that reckless endangerment cannot be a lesser included offense of aggravated assault because the statutes require different mental states. We reject that argument for several reasons. First, the language of the aggravated assault statute plainly applies to reckless as well as knowing and intentional conduct. Second, crimes requiring reckless states of mind consistently have been deemed lesser included offenses of specific intent crimes. See e.g., Musselman, supra; Boettcher, supra; Griffin, supra. Third, Anderson addressed this issue in the context of attempted murder and stated:

[T]he intent necessary to establish the offense of attempted murder — specific intent to kill — is greater than and necessarily includes the intentional, knowing or reckless infliction of serious bodily injury----

Anderson, supra, 538 Pa. at 582, 650 A.2d at 24.

Clearly, the requirement of a specific mental state in a greater crime does not prevent a crime requiring merely reckless conduct from being a lesser included offense. We have no trouble concluding that reckless endangerment continues to be a lesser included offense of aggravated assault. Therefore, each of appellant’s reckless endangerment charges should have merged for sentencing purposes with the related aggravated assault charge for each victim.

Appellant next argues that the merger doctrine forbids the trial court from sentencing him separately for convictions of two different provisions of the assault statute, 18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4). To resolve this challenge we need not engage in the traditional merger analysis of lesser and greater included offenses. Instead we examine the rationale favoring merger where a defendant has engaged in a single criminal act and he is found guilty of violating more than one section of a statute. If the sections that appellant has violated are designed to proscribe a single harm and the defendant in violating them committed one act, then the sentences merge. Otherwise the sentences would constitute more than one punishment for the same crime and be impermissible as violative of double jeopardy.

In Commonwealth v. Shannon, 530 Pa. 279, 608 A.2d 1020 (1992), the supreme court was asked to consider “whether the imposition of separate sentences for convictions on subsections (2) and (5) of 18 Pa.C.S. § 3123 arising from a single act constitute^] an illegal sentence.” Id. at 279, 608 A.2d at 1020. The appellant in Shannon was convicted of and sentenced for, inter alia, two counts of involuntary deviate sexual intercourse (IDSI) based on a single episode wherein he engaged in sexual acts with his paramour’s daughter.

The Shannon court looked at the plain language of the statute as well as its structure and determined that:

[T]he fair import of the statute’s terms including its five subsections reveals a design to proscribe the same harm, involuntary deviate sexual intercourse. Therefore, each subsection of the statute provides an alternative basis upon which the crime can be established.

Id. at 286, 608 A.2d at 1024.

In finding that the imposition of separate sentences for the two counts of IDSI arising from a single act was “beyond the authority of the trial court,” the court relied on the framework of the IDSI statute, particularly the use of the word “or” to separate its subsections. Shannon, a plurality opinion, stands for the proposition that where a single act is charged, a criminal defendant cannot be sentenced for violating two subsections of the same statute despite the fact that the evidence supports both convictions.

This court adopted the Shannon rationale in Commonwealth v. Rhoads, 431 Pa.Super. 437, 636 A.2d 1166 (1994). The appellant in Rhoads, who had committed a single act of shooting his victim in the chest with a gun he did not know was loaded, was found guilty of two subsections of the simple assault statute, 18 Pa.C.S.A. § 2701. The Rhoads court noted that “in order to support the imposition of more than one sentence, it must be found that the defendant’s conduct constituted more than one injury to the Commonwealth.” Id. at 441, 636 A.2d at 1168 (quoting from Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985)).

Relying on the Shannon court’s reasoning, the Rhoads court found that the simple assault statute, like the IDSI statute, was disjunctive and each subsection provided an alternative basis for finding culpability. Id., 636 A.2d at 1167. As a result, the appellant could not be sentenced twice for violating the same statute.

In Commonwealth v. Owens, 437 Pa.Super. 64, 649 A.2d 129 (1994), this court relied on Shannon and Rhoads to hold that a criminal defendant charged with a single act cannot be sentenced for more than one conviction of Indecent Assault, 18 Pa.C.S.A. § 3126.

The rationale of Shannon, Rhoads and Owens applies equally to the aggravated assault statute. Section 2702 presents five alternative bases for-culpability. Where only one act is at issue, here the attack on Antonio Bolden, only one sentence is appropriate. “While a defendant’s conduct might fall under more than one subsection, it does not then follow that more than one punishment is authorized.....[S]uch an extension of logic runs afoul of fundamental principles of double jeopardy prohibiting multiple punishments for the same offense.” Rhoads, supra, 431 Pa.Super. at 441, 636 A.2d at 1168. Appellant should not have received separate sentences for his two aggravated assault convictions against Bolden.

Where we determine that a sentence must be corrected, this court has the option of amending the sentence directly or remanding it to the trial court for resentencing. Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984). If a correction by this court may upset the sentencing scheme envisioned by the trial court, the better practice is to remand. Such is the case here. Because a remand is appropriate, we need not consider appellant’s third claim regarding the discretionary aspects of his sentence.

Judgments of sentence vacated; matter remanded for re-sentencing consistent with this opinion.

      . At the close of the evidence, the court entered judgments of acquittal on two counts of Attempted Murder, 18 Pa.C.S.A. § 901.

      . The Commonwealth relies on Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989), appeal denied, 524 Pa. 627, 574 A.2d 68 (1990). In determining whether criminal mischief and institutional vandalism merged for sentencing purposes, the Perdue court noted the different mental states required for each crime. However, the court also noted that the two crimes each contained an element the other did not. See id., 387 Pa.Super. at 488, 564 A.2d at 497. Perdue was decided prior to Anderson and does not preclude our holding today.

      . The Rhoads court discussed and distinguished case law regarding lesser included offenses. It determined that the basis for its conclusion was different from, and not controlled by, that doctrine.

      . Our holding is not in conflict with the supreme court's recent opinion in Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632 (1996). There, the majority found that the defendant committed two distinct acts and could be punished for each.

      . We are aware that appellant was found guilty of two subsections of the aggravated assault statute, each of which is graded differently. Subsection (a)(1) is a felony of the first degree, while subsection (a)(4) is a felony of the second degree. Although it is clear that the sentences merge, it is unclear whether the trial court must impose sentence for the (a)(1) conviction or is free to impose sentence for the (a)(4) conviction. This may become an issue for either the Commonwealth or appellant should the sentencing court consider imposition of the statutory maximum.
      In Anderson, Justice Castille noted a similar problem:
      Furthermore, having found a merger of offenses, it is important to note that the majority’s decision leads to the anomaly of a first degree felony, aggravated assault, merging into the lesser graded offense of attempted murder, a second degree felony. The trial court now apparently has the discretion to sentence the accused on the lesser graded offense of attempted murder only, and, therefore, give the accused a lesser maximum sentence even though the accused was convicted of a higher graded crime which permits a higher maximum sentence.

        Anderson, supra, 538 Pa. at 587, 650 A.2d at 26 (Castille, J. concurring) (footnote omitted).
      While the Anderson majority made no comment on this issue, the longstanding rule that the trial judge is afforded great deference in sentencing issues remains. The sentencing court, in its discretion, will determine the appropriate sentencing scheme for appellant.


author: JOHNSON, Judge:

text:
    682 A.2d 393
    Susan C. CALABRESE v. Michael P. CALABRESE, Appellant. Jennifer C. CALABRESE Michael P. CALABRESE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1996.
    Filed Aug. 30, 1996.

      James K. Jones, Carlisle, for appellant.
    Mary A. Etter Dissinger, Marysville, for appellees.
    Before TAMILIA, JOHNSON and MONTEMURO , JJ.

       Retired Justice assigned to Superior Court.

   JOHNSON, Judge:

Michael P. Calabrese (Husband) appeals from the order that directed him to pay $3,805 a month in spousal and child support for Susan C. Calabrese (Wife) and his daughter, Christie. Husband also appeals from the order that directed him to contribute to the expenses incurred for his daughter Jennifer’s college education. We affirm.

In conjunction with a divorce action, Wife filed a petition requesting spousal and child support on March 14, 1991. The support order has subsequently been modified several times. After hearings on April 24 and May 31, 1995, the current order was entered requiring Husband to pay $2,655 a month for Wife and $1,150 a month in child support for Christie. This represents a reduction in Husband’s previous support obligations, which totaled $5,700 a month. This order also directed Husband to pay Wife $16,287 as reimbursement for tuition expenses related to Jennifer’s first two years in college. Finally, the order authorized the parties to withdraw any funds necessary for future college expenses from a joint marital account that had been frozen in escrow pending equitable distribution. Husband now appeals.

Husband contends that the trial court erred in calculating his income and reasonable living expenses and, accordingly, improperly determined his child support and spousal support obligations. In addition, Husband maintains that the court erred in holding him responsible for Jennifer’s college expenses.

When evaluating a support order, this Court may only reverse the trial court’s determination where the order cannot be sustained on any valid ground. Strawn v. Strawn, 444 Pa.Super. 390, 393, 664 A.2d 129, 131 (1995). “ ‘Absent an abuse of discretion or insufficient evidence to sustain the support order, this [C]ourt will not interfere with the broad discretion afforded the trial court ... [.] Where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable and must be reversed.’ ” Id., quoting McKolanis v. McKolanis, 435 Pa.Super. 103, 105-06, 644 A.2d 1256, 1257 (1994). “[T]he assessment of the credibility of witnesses is within the sole province of the trial court.” Brotzman-Smith v. Smith, 437 Pa.Super. 509, 514, 650 A.2d 471, 474 (1994). In addition, the fact-finder is entitled to weigh the evidence presented and assess its credibility. Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, 506 U.S. 868, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992).

Both child and spousal support are awarded in the Commonwealth pursuant to the support guidelines promulgated by the Pennsylvania Supreme Court.

The guideline shall be based upon the reasonable needs of the child or spouse needing support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.

23 Pa.C.S. § 4322(a). However, when the combined net income of the parties in a support situation exceeds $10,000 a month, the guidelines are not equipped to apply. Thus, the court calculates support obligations in these instances using the formula first enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Rules Civ.Proc., Rule 1910.16-5(d), 42 Pa.C.S.A. The Melzer formula requires the court to consider the reasonable needs and expenses of the children and the respective abilities of the parents to pay the support obligation. Calabrese v. Calabrese, 448 Pa.Super. 166, 670 A.2d 1161 (1996). These calculations must be placed in the record to insure that “ ‘an actual dollar figure is determined as the reasonable needs and expenses of the parents and children.’ ” Id., quoting Racciato v. Racciato, 393 Pa.Super. 307, 309, 574 A.2d 625, 626 (1990). The Melzer formula follows:

Mother’s total Mother’s income available support = for support x child’s

obligation Mother’s + Father’s income needs available for support

Father’s total Father’s income available support = for support x child’s

obligation Mother’s + Father’s income needs available for support

Melzer, supra.

The function of support is not to punish the payor spouse, but to fix an amount which is reasonable and proper for the comfortable support and maintenance of the spouse in need. Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991). “An award of support must be fair, non-confiscatory, and attendant to the circumstances of the parties.” Strawn, supra, at 395, 664 A.2d at 132.

Husband first asserts that the trial court erred in calculating his income. When computing income available for support purposes when the payor owns his own business, the income must reflect the actual available financial resources of the payor spouse, and not the often fictional financial picture that emerges after taking into account any tax considerations. Heisey v. Heisey, 430 Pa.Super. 16, 19, 633 A.2d 211, 212 (1993). In addition, personal perquisites such as entertainment and personal automobile expenses that are paid by a party’s business must be included as income for purposes of calculating income available for support. Id.

Husband is the president and 50% owner of Calabrese and Sons, Inc. In calculating his income, the record, including Husband’s tax returns, reveals the following: Husband collected a salary of $201,935 in 1994. Husband also had interest income of $1,671, rental income of $1,560, and a tax refund of $1,517 that year, for a total 1994 gross income of $206,683. The trial court added $7,200, representing the value of a car leased by Calabrese and Sons for Husband’s benefit, to this sum. After taxes, Husband’s net income in 1994 was $161,628. In 1995, Calabrese and Sons, while restructuring a large amount of corporate debt, entered into a loan agreement with the Pennsylvania National Bank and Trust Company. This agreement limits Husband’s total annual compensation from 1995 through the end of the loan period to $156,000. Thus, the trial court used this figure in calculating Husband’s 1995 gross income. The court also added $7,200 (representing the value of the company car) to this figure, and included rental and interest income of $1,900. The court thereby found that Husband had a total income of $165,100, and a net annual income of $120,256, in 1995.

Husband avers that the trial court erred by including the value of the automobile in his income, since the car’s value was already included in his “officers account” and reflected in his salary. There is no evidence in the record, however, of this account or of the inclusion of the automobile’s lease in Husband’s income calculations. It is clear that automobile expenses paid by a company for the payor spouse are properly included in the determination of the payor’s available income. Heisey, supra. Thus, it was proper to include this amount when calculating Husband’s income.

Husband also claims that $13,469.47 of his reported gross income consists of medical benefits paid for by Calabrese and Sons which benefitted the entire family and thus should not be included as income. Husband contends that these benefits were not, in fact, compensation as defined by Rules Civ.Proc. Rule 1910.16-5(b), 42 Pa.C.S.A. The benefits represent an additional perquisite of Husband’s and are thus properly attributable as income. Heisey, supra. Moreover, because sections 4324 and 4325 of the Domestic Relations Code provide that a court could order Husband to pay for Wife and daughter’s health insurance premiums, we find that this sum is properly included in the calculations of Husband’s income.

Generally, earning capacity, not actual earnings, determines the ability to pay support. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). In the present case, however, the evidence does not support the conclusion that Husband has artificially limited his earnings in order to shield income from his support obligations. We find that the trial court reasonably determined that Husband’s 1995 earnings, while a decrease from prior years, fairly represent Husband’s current earning capacity. We conclude that the calculations regarding Husband’s income and his ability to pay support are supported by the record, and we find that the trial court committed no abuse of discretion in this regard. Strawn, supra.

Wife claims in rebuttal that the court should have included in its calculations all sums that Calabrese and Sons took as depreciation deductions in 1993 and 1994. We disagree. In 1993, the corporation deducted $472,000 from its corporate tax returns as depreciation; in 1994, $183,000. Wife contends that these sums should be considered as income because the deduction translates into a benefit for the corporation and creates additional cash in the company that is available to increase Husband’s income. Although it may be true that Calabrese and Sons did not acquire new machinery or retire old equipment during 1994, this does not necessarily mandate the inclusion of a proportionate share of depreciation into Husband’s income. In Labar v. Labar, 434 Pa.Super. 612, 644 A.2d 777 (1994), petition for allowance of appeal granted, 544 Pa. 37, 674 A.2d 673 (1996), this Court set forth a two-part test to determine whether a corporation’s depreciation deductions should be considered income: (1) was there an actual increase in the party’s income, and (2) was the depreciation expenditure necessary for the ongoing business concern or a mere attempt to shield income for the purpose of avoiding support obligations. Here, there is no evidence to suggest that Husband was attempting to shield income to avoid his obligations; rather, a restructuring of the corporation’s finances was necessary to the continued long-term viability of Calabrese and Sons. According to Labar, we find that the court did not err in failing to include depreciation allowances in the calculations of Husband’s available income.

Husband next asserts that the court erred in calculating his reasonable living expenses. The trial court found that his reasonable expenses were $4,928 a month. These expenses include his condominium mortgage and taxes, utilities, food, clothing, a home equity loan, and miscellaneous expenses. Husband asserts that his reasonable expenses average $7,660 a month. However, we reiterate that the trial court is the final determiner of the credibility of witnesses, and has the sole discretion to weigh the evidence presented and assess its credibility. Brotzman-Smith, supra; Murphy, supra. After a review of the record, including Husband’s testimony of April 24 and May 31, 1995, we find that the trial court’s findings are supported by sufficient evidence and the court’s calculations of Husband’s living expenses are reasonable. Strawn, supra.

Based upon the foregoing, we find that the court properly considered the reasonable needs and expenses of all the parties involved as required under Melzer. The award of spousal and child support is fair, non-confiscatory, and attendant to the circumstances of the parties. Strawn, supra. We find no abuse of discretion in the trial court’s support order.

As his final contention, Husband asserts that the court erred in ordering him to pay a portion of his daughter Jennifer’s college expenses. The order requires Husband to, within 60 days, pay Wife $16,287 in reimbursement for monies she has expended on Jennifer’s tuition, room, board, and books. The order further authorizes Husband and Wife to withdraw from a frozen marital account such money as shall be needed in the future to cover these expenses. In his brief to this Court, Husband argues that the court should require the marital account to be used to pay Jennifer’s expenses. As this is exactly what the order holds, we assume that Husband is objecting to the requirement that he reimburse Wife for the funds that she has already expended for Jennifer’s education. This issue is controlled by section 4327 of the Domestic Relations Code, which provides, in pertinent part:

§ 4327. Postsecondary educational costs
(a) General rule. — Where applicable under this section, a court may order either or both parents who are separated ... to provide equitably for educational costs of their child.... The responsibility to provide for postsecondary educational expenses is a shared responsibility between both parents.

23 Pa.C.S. § 4327. We note that the recent Pennsylvania Supreme Court decision of Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995) holds that this statute violates equal protection principles by treating those children of divorced parents differently from those who live in intact families. However, a panel of this Court has found that all of the criteria regarding retroactivity of this decision, as set forth by our Supreme Court in Blackwell v. Commonwealth of Pennsylvania State Ethics Commission, 527 Pa.172, 589 A.2d 1094 (1991), weigh in favor of the prospective application of the Curtis rule. Simmers v. Packer, 451 Pa.Super. 555, 680 A.2d 904 (1996). As the order holding Husband responsible for these costs was entered prior to the Curtis decision, we will address this issue under the statute.

In determining whether an order for these costs is appropriate, the court will consider the financial resources of both parties and the student’s ability to obtain financial aid or gainful employment. 23 Pa.C.S. § 4327(e). A court will not order such support for educational costs, however, if to do so would create undue financial hardship on the parent. 23 Pa.C.S. § 4327(f).

In the present case, the trial court ordered Husband to reimburse Wife for the expenditures she had made for Jennifer’s educational expenses because, at the time the expenses were incurred, Husband was not only under a court order to pay 75% of these costs, but also had ample disposable income to pay these expenses without creating any undue financial hardship. Trial Court Opinion, dated July 11, 1995, at 16. We agree with the trial court that Husband’s failure to follow the dictates of the prior court order is outrageous, and we will not permit Husband to benefit from his prior contemptible action. We find no abuse of discretion in the court’s finding that Husband reimburse Wife this sum. Thus, we affirm that portion of the order dealing with the payment of postsecondary educational expenses.

Order AFFIRMED.