source: Caselaw Access Project

author: MONTEMURO, Judge: OLSZEWSKI, Judge, TAMILIA, Judge, KELLY, Judge,

license: Public Domain

text:
    576 A.2d 1049
    COMMONWEALTH of Pennsylvania v. Bruce A. KOHL, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1989.
    Filed June 18, 1990.
    Petition for Allowance of Appeal Granted Nov. 14, 1990.

      Michael Brunnabend, Allentown, for appellant.
    Richard R. Tomsko, Asst. Dist. Atty., Allentown, for Com., appellee.
    Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, intervenor.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, KELLY and JOHNSON, JJ.
   MONTEMURO, Judge:

Following a trial by jury, appellant, Bruce Kohl, was convicted of two counts of homicide by vehicle while under the influence of alcohol, two counts of homicide by vehicle, two counts of driving while under the influence of alcohol or controlled substance, and the summary offenses of reckless driving and driving a vehicle at unsafe speed. The trial court denied appellant’s post-trial motions and sentenced appellant to the mandatory minimum sentence of not less than three (3) years to a maximum of seven (7) years on the four homicide counts, and imposed a fine and a sentence of not less than thirty (30) days nor more than twelve (12) months on the summary offenses. Following denial of his Motion to Modify Sentence, appellant brought this timely appeal. On appeal, appellant challenges the constitutionality of a blood alcohol test performed on a sample of his blood under the authority of the implied consent law, 75 Pa.C.S.A. § 1547(a). We find that the blood test was constitutionally invalid, and remand and reverse for a new trial.

Appellant’s convictions stem from a one-car collision which occurred at approximately four o’clock in the morning on March 30, 1985. While proceeding around a sharp bend in the road, appellant’s car struck a utility pole and then a nearby retaining wall, causing the death of his two passengers, Jeffrey Greb and Mark Moser. The police arrived at the scene shortly after the accident, in time to remove appellant and the two passengers from the car before the car burst into flames. Jeffrey Greb died at the scene of the accident, and Mark Moser died while being transported to the hospital.

Appellant, rendered unconscious by the accident, was taken from the accident scene to the hospital. He remained unconscious throughout the day. When appellant was brought into the hospital, the emergency room doctor ordered a blood test of appellant for basic blood work. A police officer went from the scene of the accident to the hospital. When he arrived at the hospital, the officer requested that a blood sample be taken from appellant for analysis as to alcohol content. The police officers investigating the accident did not smell alcohol on appellant’s breath or notice any other signs of alcohol consumption by appellant.

A hospital technician performed a blood alcohol analysis on the sample taken for medical reasons and on the sample drawn by request of the police officer. The analysis on the test requested by the police produced a blood alcohol level of 0.15%. There were no results of the analysis performed on the sample drawn for medical purposes. At the time the blood was drawn from his body, no charges had been filed against appellant, appellant was not under arrest, and the police did not have a warrant to conduct the test. Appellant was arrested upon his release from the hospital on April 29, 1985.

In his pretrial motion, appellant moved to suppress the results of the blood test on the basis that the test violated his constitutional rights in that the police lacked probable cause to order the test and appellant did not consent to the test. The trial court denied the motion to suppress, finding that on the basis of the facts of this case, probable cause to order the search did exist. Following his trial and conviction, appellant filed post-verdict motions, which were denied by the trial court.

On appeal, appellant claims that the trial court erred in admitting the results of the blood alcohol test performed on the sample of his blood because the test violated the Fourth Amendment. We agree.

The blood alcohol test performed on appellant was authorized by the “implied consent law” set forth in 75 Pa.C.S.A. § 1547(a):

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

75 Pa.C.S.A. § 1547(a).

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...”

The administration of a blood alcohol test is a search falling within the protection of the Fourth Amendment. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 1412, 103 L.Ed.2d 639 (1989), citing Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966), Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985).

The Fourth Amendment applies only to searches and seizures effected by the Government or its agents. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 320-21 (1985), quoting United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1985) (citations omitted). Here, appellant’s blood was drawn and tested for alcohol content by hospital technicians at the request of the police officer. The hospital personnel acted as agents of the Commonwealth in administering the test. See Commonwealth v. Cieri, supra, 346 Pa.Superior Ct. at 85, 499 A.2d at 321 (where private hospital nurse withdrew defendant’s blood according to routine hospital procedure, and later forwarded sample to police for blood alcohol test, nurse acted as an “instrument” or “agent” of the government). Thus, the blood alcohol test performed on appellant’s blood sample must meet the test of reasonableness under the Fourth Amendment.

I. ADMISSIBILITY OF THE BLOOD ALCOHOL TEST UNDER § 1547(a)(1)

This Court has previously upheld the constitutional validity of a warrantless search conducted under § 1547(a)(1), interpreting the requirement that the officer have “reasonable grounds” to believe that the driver was driving under the influence as requiring that the officer have “probable cause” to believe that the driver was under the influence. Commonwealth v. Quarles, 229 Pa.Super. 363, 388, 324 A.2d 452, 466 (1974). See also Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185, 189 (1989); Commonwealth v. Cieri, supra 346 Pa.Super. at 87, 499 A.2d at 322. Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance. Smith, supra 382 Pa.Super. at 296, 555 A.2d at 189; Commonwealth v. Pelkey, 349 Pa.Super. 373, 378-79, 503 A.2d 414, 416 (1985), citing Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969).

The trial court held that the test performed on appellant’s blood sample fell within the purview of § 1547(a)(1), finding that the police officer had probable cause to believe that appellant had been driving while under the influence. In reaching this conclusion, the trial court cited the following facts:

The police knew that a serious one-car accident at 4:00 A.M. had occurred causing the death of two men and serious injury to a third. Defendant was found unconscious and pinned behind the steering wheel of his car. They believed that the defendant had operated his vehicle at an excessive rate of speed due to the excessive damage to the car on a roadway and bridge with posted speed limits of 35 m.p.h. The pavement was dry, the visibility clear and there were no obstructions of any kind that would inhibit the defendant’s driving. The accident scene contained no brake marks or attempts to steer the vehicle away from the telephone pole and cement wall where the car finally came to rest.

Suppression Court Opinion at 13.

We disagree that these facts establish the requisite probable cause to believe that appellant was driving while under the influence. This case is markedly different from those cases in which this Court has held that the probable cause requirement of § 1547(a)(1) had been met. In Commonwealth v. Smith, supra, 382 Pa.Super. at 297, 555 A.2d at 189, this Court held that the police officer had probable cause to believe the defendant had been driving under the influence of alcohol where the defendant smelled of alcohol and had glassy, bloodshot eyes, and the accident consisted of defendant’s car rolling over at least once. In Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), the Court found the police officer had probable cause to believe appellant had been driving under the influence where appellant’s eyes were bloodshot, his speech was slurred, and he had a strong odor of alcohol on his breath. In Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987), allocatur denied, 517 Pa. 604, 536 A.2d 1329 (1987), the Court held that probable cause existed where the arresting officer observed that defendant was involved in a one-car accident and the officer detected an odor of alcohol on defendant’s breath. In Commonwealth v. DeFaveri, 352 Pa.Super. 96, 507 A.2d 398 (1986), appeal denied, the Court found that probable cause existed where a serious accident had occurred, and defendant smelled strongly of alcohol and was combative at the scene of the accident. In Commonwealth v. Pelkey, supra, probable cause existed where a serious motor vehicle accident had occurred involving a driver who was found in a semiconscious state with the odor of alcohol on his breath. 349 Pa.Super. at 379, 503 A.2d at 416. In Commonwealth v. Cieri, supra, the Court held that probable cause existed where the police sergeant and the hospital nurse smelled alcohol on appellant’s breath, there was evidence of marijuana use in appellant’s car, and a serious accident had occurred. 346 Pa.Super. at 88-89, 499 A.2d at 323. In Commonwealth v. Guiliano, 274 Pa.Super. 419, 424, 418 A.2d 476, 479 (1980), probable cause existed where appellant’s pupils, eyes, and speech all suggested consumption of alcohol, and a serious one-car accident had occurred. In Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.3d 995 (1978), the Court held that probable cause existed where police officers smelled alcohol on appellant, appellant was “stuporous” at the time the blood was taken, and an accident had occurred.

Significantly, in each of these cases there was some indicia of alcohol or drug consumption by the defendant before the police requested a blood or breathalyzer test. Here, neither the officer nor the hospital personnel detected any signs of alcohol consumption by appellant. There was no odor of alcohol on appellant, there was no evidence of bottles or cups that may have contained alcohol, and no one observed appellant driving erratically. Based upon these facts and the facts supporting the finding of probable cause in the cases cited above, we hold that the police did not have probable cause to believe appellant was driving under the influence. In the absence of any evidence of alcohol or drug use, the occurrence of a one-car accident during the early morning hours of a clear, dry day in an area with a low accident incidence rate is not a sufficient factual basis to support the belief that the driver was under the influence of alcohol.

Because the police did not have probable cause to believe that appellant was driving under the influence of alcohol, we hold that the blood test was not valid under § 1547(a)(1) of the implied consent law.

II. ADMISSIBILITY OF THE BLOOD ALCOHOL TEST UNDER § 1547(a)(2)

The trial court found that the blood test was also valid under § 1547(a)(2), because appellant had been the operator of a vehicle involved in an accident resulting in death and bodily injury which required treatment at a medical facility. Undoubtedly, the conditions of § 1547(a)(2) were met. Appellant challenges § 1547(a)(2) as unconstitutional under the Fourth Amendment.

In our opinion in the companion to this case, Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990) (en banc), we held that a blood test administered on the basis of § 1547(a)(2) violates an individual’s federal and state constitutional right against unreasonable searches and seizures. We reasoned that the conditions set forth in § 1547(a)(2) do not establish probable cause to believe that the driver of the vehicle involved in the accident was under the influence of alcohol or a controlled substance, and, therefore, a test authorized by § 1547(a)(2) is constitutionally invalid. Hence, we find that the test performed on appellant was not valid under § 1547(a)(2).

We hold that the blood alcohol test performed on appellant violated his constitutional right against unreasonable searches and seizures. The results should not have been admitted against him at trial. See Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313, 317 (1988). We vacate the judgment of sentence and remand for a new trial.

Vacated and remanded. Jurisdiction is relinquished.

CIRILLO, P.J., and CAVANAUGH, DEL SOLE and JOHNSON, JJ., join.

OLSZEWSKI, J., files a concurring opinion.

TAMILIA, J., files a dissenting opinion joined by BROSKY, J.

KELLY, J., files a dissenting opinion.

OLSZEWSKI, Judge,

concurring.

I agree with the decision reached by the majority; however, I write separately to emphasize the limited scope of our decision.

The decision reached by the majority is compelled by long-standing precedent. Taking blood samples constitutes a search and seizure. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Contrary to the implication of 75 Pa.C.S.A. § 1547(a), drivers cannot be “deemed” to consent to warrantless searches and seizures as a condition on the right or privilege of driving. Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452, 460-462 (1974). The blood test must fall under some recognized exception to the warrant requirement. Id.

Ordinarily, blood tests are justified on grounds of probable cause. 75 Pa.C.S.A. § 1547(a)(1); Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452, 460-462 (1974) (holding that blood tests are constitutional where there is probable cause). In the present case, the blood test was based solely on the severity of the accident, applying 75 Pa.C.S.A. § 1547(a)(2). Severity of the accident, standing alone, is not sufficient grounds to justify a warrantless blood test; accordingly, 75 Pa.C.S.A. § 1547(a)(2) is unconstitutional.

Where, as here, the only reason for the blood test is the severity of the accident, a blood test is an illegal search and seizure. If the police officer in this case had noticed any signs of intoxication, such as an odor of alcohol, bloodshot eyes, lack of coordination or slurred speech, the blood test would have been authorized by 75 Pa.C.S.A. § 1547(1). See, e.g., Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987), Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985) (probable cause based on existence of an accident and odor of alcohol on the driver’s breath). Consequently, our decision affects only those cases in which the officer requesting the blood test has no reason to suspect intoxication.

TAMILIA, Judge,

dissenting.

The majority Opinion vacates the judgment of sentence and remands the case for a new trial by holding that the blood alcohol test performed on appellant violated his constitutional rights pursuant to the fourth amendment of the United States Constitution and Article I, section 8, of the Pennsylvania Constitution. I respectfully dissent and would hold that 1) the Implied Consent Statute, 75 Pa.C.S. § 1547(a)(2), clearly creates a constitutionally permissible basis for a search based upon special need in the exercise of a governmental interest; 2) the admission of testimony from a pathologist as to the probable speed of the vehicle was not reversible error, and 3) the mandatory sentencing provisions of the drunk driving laws are constitutional and 4) they do apply to person over 18 years and under 21 years of age. I would, therefore, affirm the judgment of sentence of the trial court.

The facts of this case may be briefly stated as follows. The appellant Bruce Kohl, who was 18 years of age at the time, was involved in a one-car accident on March 30, 1985 at approximately 4:00 a.m. Appellant’s vehicle struck a pole and then hit a retaining wall. When police arrived at the scene, they found appellant unconscious behind the wheel of the car which contained two other passengers. The three occupants were removed from the car shortly before it burst into flames. One passenger was dead at the scene, the other died in an ambulance en route to the hospital. Appellant was taken to the hospital by Medi-vac and remained unconscious throughout the following day. During that time, police, following investigation of the accident scene, went to the hospital and requested that a blood sample be taken from defendant for analysis as to alcohol content. A second sample had been ordered by the emergency room doctor, but it does not enter into the consideration here. Between March 30th and April 23rd, appellant was unavailable for questioning, despite several attempts by police, as he was hospitalized and doctors would not permit questioning. Arrest warrants were issued on April 29, 1985 based on laboratory findings that appellant’s blood alcohol content was .15 per cent.

On April 23, 1985, police were informed appellant could be questioned and, upon contacting him in his hospital room and informing him of his rights, defendant declined to answer any questions by the officer.

Subsequently, a motion was made to suppress the blood tests on the ground of infringement of his constitutional rights. Appellant moved to quash indictments and to discharge all charges pending against him. The motions to quash and discharge were denied and the case proceeded to a trial by jury, following which appellant was convicted of two counts each of homicide by vehicle, homicide by vehicle while under the influence of alcohol and driving under the influence. For the vehicular homicide while driving under the influence convictions, appellant was sentenced to three to seven years imprisonment on each count, to run concurrently. For driving under the influence, he was fined $300 and sentenced to 30 days to 12 months imprisonment, consecutive to the homicide sentences.

In deciding this case, the majority relies on the rationale and conclusions it developed in Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990), as the constitutionality of the implied consent law was similarly at issue there. This case, to a far greater extent than Danforth, establishes the wisdom of the legislation and the necessity for the Commonwealth to create a “special need” exception to fourteenth amendment search and seizure requirements of warrant or probable cause in order to obtain blood samples where injury requiring medical attention or death occurs in motor vehicle accidents.

The trial court found that either under 75 P.S. § 1547(a)(1) or section 1547(a)(2), there was probable cause to obtain a blood test, or implied consent to do so. The trial court does not discuss the issue of constitutionality further but relies on the findings by the suppression judge. The suppression judge likewise found that the facts in this case satisfied the reasonable grounds requirement of section 1547(a)(1). In both the suppression and trial Opinions, the judges relied on the facts that this was a serious single vehicle accident at 4:00 a.m., causing the death of two men and serious injury to a third. Police believed appellant had operated his vehicle at an excessive rate of speed, due to the damage to the car, on a roadway posted for 35 miles per hour. The roadway was dry, visibility clear and without obstruction to inhibit defendant’s driving. There was no evidence of braking or skid marks. Police could not communicate with defendant due to his unconscious condition, and the automobile was consumed by flames almost immediately after removal of the three occupants.

As to section 1547(a)(2), the suppression court properly accorded a strong presumption of constitutionality to lawfully enacted legislation. Martin v. Unemployment Compensation Board of Review 502 Pa. 282, 466 A.2d 107 (1983), cert. denied 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 541 (1984).

While the trial court found that despite lack of evidence of alcohol ingestion from odors or physical signs exhibited by the appellant, there was other evidence from the circumstances surrounding the accident to give rise to a reasonable belief (probable cause) that the driver was intoxicated, permitting the prearrest testing of appellant pursuant to Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974); Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985), and Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985). However, in each of those cases, the odor of alcohol was detected on drivers not involved in serious accidents. Here, appellant was seriously injured and his two passengers killed but no odor of alcohol was detected nor was there present any other behavior or observations giving rise to a reasonable belief of alcohol ingestion. Thus reliance on section 1547(a)(1) does not address the issue of constitutionality framed by this case;2 nor does Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185 (1989), which has facts similar to those in this case except that the odor of alcohol was detected and the constitutional issue was not present.

All relevant preliminary issues raised by the implied consent provision in section 1547(a)(2) have been resolved by Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), as thoroughly discussed in Commonwealth v. Danforth, 395 Pa. Super. 1, 576 A.2d 1013 (1990) (Tamilia, J., dissenting). While Skinner refused to consider whether a regulation, fulfilling a governmental special need to protect persons from injury and death in the operations of railroad, requiring blood, breath or urine testing in the event of an accident resulting in injury or death, was constitutional if such results were used in criminal prosecution, I fail to see how such a result could be denied. This case, far more than Danforth, illustrates the absolute necessity of section 1547(a)(2), which, in its very narrow and limited manner, provides the necessary legal basis for testing. To hold otherwise would be to permit the most serious and egregious cases, which the statute was designed to prevent, to go undetected because of inability of the police to conduct even a cursory preliminary evaluation. Danforth and this case raise the additional problem of detecting possible drug use when behavior cannot be observed, since the odor of most drugs is not detectable and the behavioral observa-' tions are not possible, or may be compatible with other factors related to the accident and emergency treatment. When persons are dead or so badly injured they must be transported forthwith to a hospital in an unconscious state, the usual opportunity to observe behavior or detect odors of alcohol is simply not present. The first duty is to save lives under the facts, whereas, in an ordinary DUI stop, ample opportunity exists to establish probable cause for testing. The statute requires that when conditions are relatively normal in the usual stop, reasonable cause must exist to require testing. Common experience informs us that this is usually sufficient as the indicators of alcohol or drug use are detectable by a trained observer such as a police officer. As Skinner explained, this is sufficient under the fourteenth amendment to go forward with a test without a warrant. In the more serious and difficult situation, when an injury requiring medical treatment or death occurs, the law does not require preliminary attempts to establish probable cause, as treatment and care become paramount. Under those circumstances, probable cause is not essential because the Commonwealth has placed such great importance on detecting and preventing the most serious consequence of driving while intoxicated, as a condition of granting the privilege (or right) to drive, implied consent substitutes for reasonable belief. For this Court to hold otherwise creates a huge gap in effective deterrence and prosecution of the worst cases involving driving while under the influence. There are no means to deal with this special governmental need to reduce the enormous cost in life and property resulting from driving under the influence other than the implied consent law detailed in section 1547(a)(2). See Danforth, supra (Tamilia, J., dissenting).

As to the remaining issues that the pathologist was erroneously permitted to testify as to the speed of the automobile, and the mandatory sentencing provision is unconstitutional, both are without merit.

As to the first, Dr. Mihalakis, a forensic pathologist, was interrogated extensively in direct and cross-examination as to his qualifications. Following the interrogation, the trial judge found him qualified to testify as to the speed of the vehicle.

Dr. Mihalakis testified that, since 1963, he has been privy to 30 to 50 cases of vehicular deaths each year and that he previously testified, on at least six occasions in Pennsylvania courts, on the speed of vehicles based on the injuries sustained by passengers. Defense counsel was afforded wide latitude to address his concerns to the jury and having done so, it was properly within the jury’s discretion to accept or reject the doctor’s opinion. Expert testimony is admissible when it is offered by a witness with any reasonable pretension to specialized knowledge on the subject under investigation. See Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979), citing Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974).

(Slip Op., Davison, J., p. 5.) I see no reason to go beyond this accurate statement of the law to affirm the court’s holding on this issue.

As to the validity of the mandatory sentencing provisions, their constitutionality is beyond dispute. The appellant makes an unsupported bald statement that the laws are unconstitutional. However, in his brief, the appellant acknowledges the DUI law was held to be constitutional in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), Commonwealth v. Kunselman, 363 Pa.Super. 475, 526 A.2d 443 (1987), and Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). Since our Supreme Court has resolved this issue, appellant’s allegation of unconstitutionality must be unavailing before this Court and need not be addressed further. Neither is appellant’s plea that an 18 year old should not be subject to the driving under the influence laws, since he is not permitted to drink until he is 21 years old. This argument is specious at best. The prohibition of sale or use of alcohol to persons under 21 is in recognition that persons under 21 are more apt to be harmed or cause harm by drinking than those over 21. To permit a person to be immunized from the consequence of his illegal act, when the act and the resulting crime are both punishable, is an argument that defies reason.

I would affirm the jury convictions and judgment of sentence.

Joined by BROSKY, J.

KELLY, Judge,

dissenting.

I agree, on different grounds, that 75 Pa.C.S.A. § 1547(a)(2), is unconstitutional. I find, however, that reasonable suspicion existed to justify the blood test in the instant case. Hence, I dissent and would affirm judgment of sentence.

I. Constitutionality of 75 Pa.C.S.A. § 1547(c)

As enacted, the current implied consent statute leaves unfettered discretion to the officer in the field to determine whether or not to invoke implied consent and request that a conscious driver submit to the blood test or direct that the test be performed on an unconscious driver. 75 Pa.C.S.A. § 1547(a)(2). While every driver who falls within the triggering language of the statute is deemed to consent, there is no requirement that all deemed to consent be tested. Rather, the officer in the field may pick and choose which to test on an entirely ad hoc basis. The absence of sufficient restrictions on the officer’s discretion as to which conscious drivers are to be requested to submit to a blood test, or which unconscious drivers are to be subjected to the blood test, renders the implied consent provision unconstitutional, even if a mandatory “request or test” provision applicable to all such drivers could pass constitutional muster Cf. Florida v. Wells, — U.S. -, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Leninsky, 360 Pa.Super. 49, 519 A.2d 984 (1986). Hence, I agree that the statute is unconstitutional.

I do not find it necessary here to determine if the rationale of “special need” to preserve highly evanescent evidence of blood alcohol content at the time of a serious train accident via warrantless, suspicionless blood testing of train crews for non-criminal prosecution, regulatory purposes in Skinner v. Railway Labor Executive Assn., 489 U.S. -, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), could be extended to permit warrantless, suspicionless blood tests of drivers involved in serious automobile accidents, for criminal prosecution purposes. Nonetheless, in response to the majority’s broad prohibition, I note that I would be inclined to agree with Judge Tamilia that the rationale of Skinner should be extended to cover implied consent cases, provided the officer’s discretion, as to which persons (deemed to have consented) would be tested, was regulated in a rational and systematic manner.

II. Presence of Reasonable Suspicion

I find that reasonable suspicion existed in this case to believe that appellant was intoxicated at the time of the accident. Given the circumstances presented, I find that reasonable suspicion was sufficient to justify the blood test, and to render that test constitutionally reasonable.

At approximately 4:00 a.m. on Saturday, March 30, 1985, Jeffrey Greb and Mark Moser were passengers in a car driven by appellant, Bruce A. Kohl. Though the pavement was dry and visibility was clear, the car failed to negotiate a turn, struck a telephone pole, and then an embankment.

Police arrived at the scene moments later. They pulled appellant from behind the steering wheel and removed his passengers shortly before the demolished vehicle burst into flames. Jeffrey Greb was pronounced dead at the scene; Mark Moser died en route to the hospital. Appellant, who was unconscious, was transported to the hospital by medivac helicopter. The police at the scene had no opportunity to question or examine appellant for signs of intoxication at the scene. After appellant had been evacuated, the investigation at the scene continued, and revealed several critical facts. The pavement was dry and visibility was clear, the car had been travelling at a high rate of speed, and the brakes were not applied prior to impact.

I find that a reasonable suspicion of possible intoxication is raised when a car carrying three young men at 4:00 a.m. on a Saturday morning fails to negotiate a curve at a high rate of speed, and a telephone pole is struck without the brakes having been applied, despite dry pavement and clear visibility. While other less burdensome alternatives might be more appropriate to confirm or dispel such reasonable suspicions when the driver is conscious and cooperative, I have no difficulty in affirming a request for a minimally intrusive blood test under the circumstances as presented here.

When there is reasonable suspicion to believe a motorist has driven while being intoxicated, the police are fully authorized to detain the motorist, question the motorist, and request the performance of simple tasks like walking a straight line, focusing on a moving pen, picking up change while standing on one-foot, or reciting the alphabet. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (upon reasonable suspicion, detained motorist requested to perform balancing test); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (upon reasonable suspicion, detained motorist requested to touch his finger to his nose and to walk a straigh line). Those activities, or even simply observing the suspect’s demeanor during a brief investigation detention, provide the officer with an opportunity to look for common signs of intoxication, including odor of breath, flushed appearance, lack of muscular coordination, speech difficulties, disorderly or unusual conduct, mental or visual difficulties, sleepiness, dizziness, and nausea. See Commonwealth v. Leninsky, supra, 519 A.2d at 990 n. 6. Observation of any such symptoms in a driver involved in a serious automobile accident gives rise to probable cause, and fully justifies a constitutionally reasonable, warrantless, minimally intrusive blood test. See Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987); Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985).

When, as here, there is a serious accident and a driver/suspect is in need of prompt medical attention, the investigating officers must yield to that exigency, and fore-go investigative detention, questioning, and observation. It is the medical exigency requiring officers to forgo lawful investigative detention which I find creates a “special need” which renders a warrantless, minimally intrusive blood test based upon reasonable suspicion, constitutionally reasonable in such cases, especially when the suspect is unconscious.

The purpose of a blood test in such circumstances is to confirm or dispel suspicions of intoxication by preserving highly evanescent evidence of the blood alcohol content at the time of the accident, when lawful alternatives are precluded by the exigency of the suspect’s medical emergency. It should not be forgotten that, in the circumstances presented here, such evidence may acquit one whom circumstances might otherwise convict by preserving potentially exculpatory evidence which an unconscious driver cannot act on his or her own behalf to preserve.

Hence, I dissent.

      . 75 Pa.C.S.A. § 3735.

      . 75 Pa.C.S.A. § 3732.

      . 75 Pa.C.S.A. § 3731(a)(1) and (4).

      . 75 Pa.C.S.A. § 3714.

      . 75 Pa.C.S.A. § 3361.

      . 75 Pa.C.S.A. § 1547(a). (Purdon 1984).

      . U.S. CONST. amend. IV.
      Constitutional protection against unreasonable searches and seizures is also provided in article I, section 8 of the Pennsylvania Constitution:
      The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause ...
      PA. CONST, art. I, § 8.

      . We disagree that the cases cited by Judge Kelly in his Dissenting Opinion in support of his conclusion that § 1547(a)(2) is unconstitutional are dispositive of the question, because those cases involve inventory searches of automobiles, random stops of drivers to check the driver’s license and the registration of the vehicle, and police roadblocks and checkpoints. These types of searches have long been recognized as being "limited in magnitude compared to other intrusions,” see Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); thus, we find that the analysis set forth in the cases is not readily applicable to the blood, breath and urine tests authorized by § 1547(a). Moreover, we disagree that the constitutionality of the blood test in this case is appropriately resolved by Judge Kelly's newly developed "reasonable suspicion/medical exigency” test. As discussed in part I, supra, if a police officer has probable cause to believe that the motorist has been driving under the influence, the officer may lawfully administer a blood, breath or urine test pursuant to section 1547(a)(1). Further, the fact that a search may lead to "potentially exculpatory” evidence has never been a justification for making an unconstitutional search valid. If that were the test, then every search would be constitutionally valid because any search has the potential for dispelling suspicions that a crime has been committed.

      . Appellant also contends that (1) the trial court erred in allowing a pathologist to testify over objection to the speed of his vehicle; (2) the mandatory sentencing provision for the crime of homicide by vehicle while driving under the influence of alcohol is unconstitutional. Because of our disposition of appellant’s suppression claim, we need not address these issues.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3735.

      . 75 Pa.C.S. § 3731.

      . Implied Consent Law, 75 Pa.C.S. 1547(a)(2):
      (a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have giveen consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
      (2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

      . Evidence in this case indicated that it is standard medical practice to conduct blood alcohol tests on auto accident trauma patients. In this case, a blood alcohol test had already been ordered by appellant's treating physician when the officer’s request was made. Blood alcohol tests generally are minimally intrusive. When the suspect is a patient subject to the same test for medical purposes, the disclosure of the results of a dual purpose test, or the drawing of two vials of blood for testing, is even less intrusive.


author: HOFFMAN, Judge:

text:
    576 A.2d 1060
    Linda C. WAYDA v. Robert E. WAYDA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed June 14, 1990.

      J. Ross McGinnis, York, for appellant.
    Donald B. Hoyt, York, for appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an April 13, 1989 Order of equitable distribution awarding wife-appellee alimony pendente lite, counsel fees, and 70% of the marital assets, and awarding 30% of the marital assets to husband-appellant. Appellant contends that the trial court erred in: (1) awarding a 70-30 division of marital assets; (2) directing that appellee pay-appellant his share of the marital property via interest-free installments; (3) finding that appellee’s father did not forgive all or part of a $1,600 loan he had made to the parties during the marriage; (4) finding that appellee was not obligated to pay appellant one-half of the cost of preparing a joint tax return and one-half of the tax savings obtained due to the filing of that return; (5) utilizing the testimony of appellee’s appraiser in its estimation of the value of the marital residence; (6) including funds appellant received from the sale of two BMW automobiles in its estimation of marital assets; and directing appellant to (7) pay appellee alimony pendente lite, as well as (8) counsel fees and costs. For the reasons that follow, we vacate the Order below and remand for proceedings consistent with this opinion.

The parties in this action, appellant Robert Wayda and appellee Linda Wayda were married in May of 1970. On January 6, 1987, appellee filed a divorce complaint pursuant to Section 201(a)(6) of the Divorce Code. The parties separated on October 10, 1987, and the Divorce Decree was entered on April 4, 1988. On March 29 and 30, 1988, hearings regarding equitable distribution and counsel fees were held before a Master. Further evidence in the form of depositions of the parties and witnesses was taken on March 31, 1988 and April 20, 1988. The divorce was granted on April 4, 1988. On October 28, 1988, the Master filed his Report on the economic issues recommending that appellee receive 65% of the marital assets, and that appellant pay alimony pendente lite and counsel fees. Appellant filed numerous exceptions to the Report. On April 13, 1989, the Court of Common Pleas of York County issued its Opinion and Order accepting the Master’s recommendation in part, modifying it in part and dividing the marital assets 70-30 in favor of appellee. This appeal followed.

The fashioning of an award of equitable distribution rests in the discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. See Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983). In reviewing the lower court’s action, we must apply the Divorce Code to the record to determine whether the hearing court abused its discretion; we will find an abuse of discretion only if the hearing court misapplied the law or failed to follow proper legal procedure. Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988) (citations omitted); see also Madden v. Madden, supra.

Section 401 of the Divorce Code sets forth certain factors courts are to consider in their division of marital property as follows:

(1) The length of the marriage
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisition of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.
(11) Whether the party will be serving as the custodian of any dependent minor children.

23 Pa.S.A. § 401(d). The weight to be given to the factors above in determining the equitable distribution of assets is within the discretion of the trial court. Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); cf. Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (weight to be accorded evidence in equitable distribution action within discretion of fact finder).

Appellant’s first argument is that the trial court failed to consider all the relevant factors when it made a 70-30 equitable distribution of the parties’ marital property. Specifically, appellant contends that the court erred in failing to consider the poor initial condition of the marital residence and his contributions to the improvement of that property in accordance with Section 401(d)(7).

A close examination of the record reveals that information concerning the initial condition of the residence was specifically presented to the Master, and was part of the record before the court below. See N.T. March 30, 1988 at 107, 113, 120-21, 137-38. Thus, this information was before the court, and, as we have noted above, the court was free to assign it whatever weight it chose. Campbell v. Camp bell, supra. We cannot hold that the court’s failure to specifically discuss this information constitutes an abuse of discretion.

Appellant’s next claim concerns the trial court’s determination that he was more likely to acquire capital assets than appellee. He argues that the trial court failed to consider the fact that appellee’s station was above his, and that “the capital assets acquired by the parties were all initially acquired with the assistance of [appellee’s] family.” Appellant’s Brief at 17. In effect, appellant suggests that the trial court erred in finding that he was more likely to acquire capital assets than appellee, because appellee can expect to receive gifts of capital assets from her parents. We disagree.

In evaluating appellant’s claim we are guided by the principles enunciated in Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988):

We must read Section 401(d) dealing with factors to be considered in making equitable distribution in light of Section 401(e)(3) which states:
(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
It is clear under Section 401(e)(3) that any inheritance that appellant might receive from his parents during his marriage would not be marital property____ [T]he legislature did not intend that the court consider as a factor in making equitable distribution the possibility of an inheritance____ It would be patently incongruous for the court to properly consider the possibility of an inheritance when such an inheritance would not be marital property. We therefore hold that the court did not abuse its discretion by not considering the possibility that wife’s parents might make her a gift of capital assets in the future____
Any possibility of an inheritance is too tenuous to attribute any weight to it.

Id., 372 Pa.Superior Ct. at 197-98, 539 A.2d at 397. The Gruver court thus found that it would be unreasonable to include possible inheritances in its equitable distribution calculations because that property, even if it had been received by a spouse before divorce, would not be part of the marital estate, and the possibility that a party might receive a gift of capital assets is too speculative. As the trial court noted, Section 401(e)(3) excludes “gifts” from marital property. Thus, in light of Gruver, appellant’s argument that the trial court erred by failing to consider potential gifts to appellee in its division of the marital assets is clearly meritless.

Appellant’s second argument is that the trial court erred by allowing appellee to pay him for his share of the marital property in installments over a ten year period. Alternatively, he argues that the trial court erred by failing to order appellee to pay interest on the installments. Before turning to these manner of distribution arguments, we should emphasize the flexible, realistic approach required by the Divorce Code. The purpose of the equitable distribution provisions of the Divorce Code is to “effectuate economic justice between parties who are divorced or separated and ... insure a fair and just determination and settlement of property rights.” 23 Pa.S.A. § 102(a)(6). See Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985) (court must allocate marital assets fairly, consistent with legislative intent to effectuate economic justice between parties); see also Bacchetta v. Bacchetta, supra (by providing for distribution of property acquired during marriage, Divorce Code permits correction of economic injustices). Furthermore, the Divorce Code itself states that:

the court shall ... equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems fit...”

23 Pa.S.A. § 401(d) (emphasis supplied).

Appellant has cited no authority, and our research has revealed none, in support of his argument that appellee should be required to pay him his complete share of the marital assets in a lump sum. The trial court had the discretion to decide that appellee pay appellant via any method it saw fit, so long as the result was a “fair and just” determination of the parties’ rights. We have reviewed the record, and find no evidence that the trial court misapplied the law or failed to follow proper procedure in deciding that appellee should make that payment via installments to be paid over a ten year period. Therefore, we cannot conclude that the trial court’s decision in this regard constituted an abuse of discretion.

Appellant’s claim that the trial court abused its discretion by failing to order that the installment payments carry interest is more problematic. The trial court reasoned that because appellee’s parents made the parties an interest free loan by which the marital residence was acquired, the installment payments appellee makes to appellant in satisfaction of his share of the marital assets should not carry interest. This rationale possesses a certain symmetry, in light of the fact that the marital residence was the principal marital asset (representing approximately $163,000 of the $176,000 value of the total marital property). However, a closer examination of this scheme of distribution reveals that it is not a realistic and fair method of distributing appellant’s supposed 30% of the marital assets. The difficulty with the court’s order in this regard is two-fold. First, even if the interest-free payment was fair as a general matter in light of the earlier loan, the value of the marital residence does not represent the total value of the marital assets. See Master’s Report, October 28, 1988 at 7-8. Therefore, not all of appellant’s share of the marital property can be said to have been derived from the interest free loan from appellee’s father. Second, the fact that the benefits are deferred over time calls into question the accuracy of what the court intended to be a 70-30 distribution. The trial court found that appellant was entitled to receive 30% of the value of the marital assets as of the time of the distribution. See Lower Court Opinion at 3-4. However, because of inflation and appellant’s inability to have use of the money, the value of the money appellant would receive over ten years would be less than the value of the money he would have received in 1988, the time of the distribution. Thus, under this scheme, appellant in fact will not receive 30% of the then-present value of the property. As appellant notes, the effect of this arrangement is to “provide [appellee] with an interest free loan ... [Appellant will receive a significantly smaller share of the marital property to which he is entitled if [appellee] is permitted to pay via an interest free arrangement.” Appellant’s Brief at 21. If the trial court intended that appellant receive less than 30% of the marital assets, it should have stated so. The question of whether installment payments made by one spouse to another pursuant to a division of marital property should bear interest is one of first impression in Pennsylvania. However, we are convinced that, at least on the facts of this case, the failure to account for the effect of such a deferred payment was an abuse of discretion. Therefore, we hold that the trial court abused its discretion in ordering that appellee pay appellant his share of the marital assets via interest free installments because it did not “effectuate economic justice” or “insure a just and fair determination and settlement of property rights” as required by § 102(a)(6) of the Divorce Code. Accordingly, we remand this issue, and direct the trial court to fashion an order that takes into account the effect of inflation on the value of appellant’s award.

Appellant’s third argument is that the trial court erred in finding that the parties owed appellee’s parents $1,600. Appellant’s Brief at 25. Specifically, he argues that the debt was satisfied in part because (a) appellee’s father failed to cash two four hundred dollar checks delivered to him in an attempt to satisfy the debt; and (b) by agreement with her father, appellee performed work on the marital residence that had a value of four hundred dollars. Appellant also argues that (c) the court failed to take note of one $400 payment that he and appellee made to her parents.

With regard to the two uncashed checks, appellant claims that because he delivered them to appellee’s father in an attempt to satisfy the debt, and appellee’s father never cashed the checks, $800 of the debt should be forgiven. As the Master noted in his report, however, when an indebtedness is not evidenced in writing, it can only be forgiven by a written receipt or other sufficient writing giving clear proof of the gift. See In re Russell’s Estate, 385 Pa. 557, 123 A.2d 708 (1956). Here, the record reveals that appellee’s father brought suit to recover the balance owing him when it appeared that the parties would not repay the loan, and that he did not cash the checks in question solely because the parties were then having financial difficulties. See R.R. at 69a; N.T. April 20, 1988 at 53. Furthermore, there is no written evidence that appellee’s father intended to forgive the debt. Appellant’s arguments regarding forgiveness of the loan from appellee’s father, therefore, are meritless.

Appellant’s next claim is that appellee entered into an agreement with her father by which she did work around the marital residence in exchange for a reduction in the debt. The record reveals that only appellee testified that such an arrangement existed. See N.T. April 20, 1988 at 123. The court was free to assign whatever weight it chose to this testimony, and apparently chose not to acknowledge the existence of such an agreement in the absence of other written evidence. See Master’s Report at 10, Lower Court Opinion at 7. In the absence of an error of law or an abuse of discretion, this court is bound by the findings of fact of the lower court. See Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). Here, a careful review of the record reveals no evidence that the trial court abused its discretion in not finding that such an agreement existed.

Finally, with regard to appellant’s last claim concerning the $1,600 loan, close examination of the record indicates that the court apparently overlooked the April, 1987 four hundred dollar payment, which was listed in revised plaintiff’s Exhibit 19. Thus, upon remand, we direct the trial court to deduct that $400 payment from its estimate of the amount the parties owe appellee’s parents.

Appellant’s fourth argument is that the trial court erred by not holding appellee to an alleged agreement which would require her to reimburse him for one-half of the cost of preparing their joint tax return and one-half of the tax savings that resulted from the filing of that return. Specifically, he argues that appellee was overcompensated for her agreement to file the joint return. He also asserts that appellee received the benefit of having his accountant prepare the joint return, and thus, she should be required to pay one-half of the accountant’s bill. We agree with appellant’s first argument, and disagree with the second.

It is well-settled in Pennsylvania that where the words of a contract are clear and unambiguous, the intent of the parties must be determined exclusively from the agreement itself. Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1 (1984). Furthermore, it is settled that:

where the written contract covers or purports to cover the entire agreement of the parties, and there is no ... proof that anything was omitted therefrom [or included therein] by fraud, accident, or mistake, all prior and contemporaneous negotiations, representations and verbal agreements are superceded by the written agreement, and parol [extrinsic] evidence is inadmissible to alter or contradict or vary or add to or subtract from or modify or supercede the written contract.

McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 283 (1969) (citations omitted). Here, the record reveals that the parties agreed that appellant would pay appellee $666.50 if she signed and filed a joint tax return. See Defendant’s Exhibit 28, R.R. at 139a. Neither party disputes the existence of this agreement. We agree, therefore, with the court’s finding that the parties are bound by the agreement.

The question we must determine is whether the effect of the agreement was properly factored into the award below. The agreement in question was contained in a letter dated August 12, 1987, written by one of appellee’s attorneys. That attorney was out of town as of September 27, 1987, when another attorney from his firm wrote a letter in which he insisted that appellant pay appellee the entire tax savings, or lose appellee’s cooperation altogether. See R.R. at 141a. Counsel’s insistence that appellant pay appellee the entire tax savings contradicted the terms of the August 12 agreement. In response to the second letter, appellant’s counsel paid appellee all of the savings obtained as a result of the filing of the joint return, approximately $1,400. Instead of directing appellee to pay appellant back the overpayment, however, the court held appellant to the terms of the second letter, and excluded the tax savings from the rest of its equitable distribution calculations. This resulted in appellee receiving twice as much money as she was entitled to under the agreement without that benefit being factored into the court’s calculation of her share of the marital assets. Because we can discern no basis for the court’s failure to properly factor this agreement into its award, we must conclude that the court abused its discretion in this regard. We therefore remand and direct the trial court to account for the extra money appellee received in its calculation of the financial relationship between the parties.

Appellant also claims that appellee received the benefit of his accountant’s work in preparing the joint return and thus she should have to pay one-half of his accountant’s fees of $1550. We disagree.

The parties’ agreement, as evidenced by appellee’s letter of August 12,1987, clearly and unambiguously stated that appellant was to pay appellee half of the tax savings obtained by filing a joint return, minus the cost she would have incurred in filing her individual return. There is no reference to any accountant’s bills, and close examination of the record reveals no evidence that the parties intended that appellee should help appellant pay his accountant’s expenses. Furthermore, since appellee’s expected benefit was $666.50, any evidence that she agreed to pay appellant half of his accounting expenses or $775 would amount to a material alteration of the terms of the contract which, as we have noted above, cannot be accomplished by parol evidence. Accordingly, the trial court did not abuse its discretion in refusing to order wife to pay one-half of appellant’s legal fees.

Appellant’s fifth argument is that the court erred by not accepting the appraisal of Phillip Eppley in valuing the marital residence at $190,000 as specified in a stipulation by the parties. We agree.

Parties are free to bind themselves by stipulation on all matters not affecting the jurisdiction and prerogatives of the court, and the court has the power to enforce those stipulations. Longenecker v. Matway, 315 Pa.Super. 411, 462 A.2d 261 (1983); see also Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981) (any matter involving individual rights or obligations of parties may be subject of stipulation); Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979) (parties may bind themselves by stipulations so long as they do not affect jurisdiction of court and provided stipulations are not in contravention of peremptory statutory requirements).

Here, the record reveals that appellant and wife entered into a stipulation that reads as follows:

The joint residence of the parties is marital, having been given to both the husband the wife [sic] by the wife’s parents. The parties will have Phil Eppley appraise the property.

R.R. at 5a. Despite this stipulation, the trial court failed to hold appellee to Mr. Eppley’s appraisal, and instead valued the marital residence at $163,750, a figure that represents the average of Mr. Eppley’s estimate and that of appellee’s appraiser. Lower Court Opinion at 10. This action was in contravention of the parties’ valid stipulation, and therefore constitutes an abuse of discretion. On remand, we direct the trial court to value the marital residence according to Mr. Eppley’s appraisal.

Appellant’s sixth argument is that the court erred by including the value of two BMW automobiles appellant had owned and sold in its estimate of marital property for the purposes of equitable distribution. Specifically, appellant argues that the value of the automobiles should have been excluded because before appellee sought equitable distribution and while they were still living together, he sold the automobiles and used the proceeds from the sale to satisfy their marital debts. We disagree.

In Pennsylvania marital property that is disposed of in good faith and used to satisfy marital debts is excluded when distributing marital property. Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988). The burden of proving such a use, however, is on the spouse who claims the exclusion. Id. Furthermore, the determination whether the property has been so utilized is within the trial court’s discretion. See Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (1986); Sergi v. Sergi, supra. Finally, as noted above, in the absence of an error of law or abuse of discretion, this court is bound by the findings of fact of the lower court regarding appellant’s disposition of the proceeds from the sale of the automobiles. See Ecksel v. Orleans, supra.

Here, a close examination of the record convinces us that the court did not abuse its discretion in including the value of the two automobiles. The only definite evidence appellant cites in support of his assertion is his own self-serving statement. Although appellant has provided copies of bills he paid during the period following his sale of the two automobiles, he has not shown any exceptional circumstances that would have forced him to use the proceeds from the automobiles to satisfy those obligations instead of his ordinary income. Indeed, appellant introduced no supporting evidence to establish a connection between those proceeds and marital debts. Finally, the trial court found that the bills appellant produced were not ineluctably related to the money he received from the sale of the automobiles. See Lower Court Opinion at 12. On such a record, we cannot hold that the trial court abused its discretion in finding that appellant failed to show that the proceeds from the sale of the BMWs were used to satisfy marital obligations.

Appellant’s seventh argument is that the trial court erred in directing him to pay alimony pendente lite (APL). Specifically, appellant argues that the trial court miscalculated his monthly expenses and that appellee did not show that she required APL to maintain this action or defend herself in the divorce action.

An award of alimony pendente lite is designed to enable the dependent spouse to maintain or defend the action in divorce. Although the Divorce Code does not specify the grounds upon which an award of alimony pendente lite is to be made, this Court has held that the trial court making an award of alimony pendente lite should consider the respondent’s ability to pay, the petitioner’s separate estate and income, and the general character, situation, and surroundings of the parties____

Miller v. Miller, 352 Pa.Super. 432, 437, 508 A.2d 550, 553 (1986) (citations omitted). See Barner v. Barner, 364 Pa. Super. 1, 527 A.2d 122 (1987) (same); Bees v. Bees, 255 Pa.Super. 19, 386 A.2d 114 (1978) (purpose of alimony pendente lite is to provide financially dependent spouse with income during pendency of divorce proceedings; elements to consider are respective incomes, estates and earning capacities of parties, and surrounding circumstances).

Our standard of review of awards of alimony pendente lite is well settled:

If a support order is bolstered by competent evidence, the order will not be reversed absent an abuse of discretion by the trial court. This scope of review applies equally to child support and alimony pendente lite orders.

Fichthorn v. Fichthorn, 368 Pa.Super. 305, 307-08, 533 A.2d 1388, 1389 (1987) (citations omitted); see also Barner v. Barner, supra (same); Miller v. Miller, supra (absent abuse of discretion, trial court’s award of alimony pendente lite will not be disturbed); McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985) (in reviewing award or denial of alimony pendente lite, appellate court is limited to determination of whether trial court abused its discretion). In determining whether the trial court’s decision constitutes an abuse of discretion, we generally evaluate its reasonableness in light of the record and its relation to the purposes of the Divorce Code as set forth in Section 401(d), supra. See, e.g., Fichthorn v. Fichthorn, supra; Barner v. Barner, supra; McNulty v. McNulty, supra.

Appellant argues that the court’s Order that he pay APL was erroneous because the trial court’s estimate of his expenses was inconsistent with his Income and Expense Statement. However, the trial court was not required to accept the figures suggested in the expense statements, and was free to assign whatever weight it chose to the evidence appellant presented. See Ecksel, supra. In its Opinion, the trial court took explicit note of the parties’ respective financial situations, and based on that evidence, entered an Order that appellant pay appellee $75 per week in alimony pendente lite. See Lower Court Opinion at at 14-15. Our examination of the record supports the trial court’s finding regarding the parties’ relative financial situations. See Appellee’s Income and Expense Statement, Record at 7; Appellant’s Income and Expense Statement, Record at 12. Because those determinations formed the basis upon which the trial court entered its order of alimony pendente lite, we cannot say that the court’s actions did not “effectuate economic justice” between the parties or that the court’s decision failed to “insure a fair and just determination” of the issue of alimony pendente lite as required by Section 401(d) of the Divorce Code. We therefore find no abuse of discretion as to this issue.

Appellant’s final argument is that the trial court erred by ordering that he pay appellee’s counsel fees and expenses. Specifically, he argues both that the record shows that he cannot afford to pay appellee’s legal expenses, ánd that appellee has not shown that she is unable to pay them herself. We disagree.

[I]t is appropriate to award counsel fees “when necessary to put the parties ‘on a par’ in defending their rights or in allowing a dependent spouse to maintain or defend and action for divorce.” Whether or not to award counsel fees and expenses in a divorce case, and the amount to be awarded is a matter within the sound discretion of the trial court____ We will not reverse the action of the trial court with regard to its award of counsel fees absent an abuse of discretion.

Gioia v. Gioia, 382 Pa.Super. 538, 549, 555 A.2d 1330, 1336 (1989); see also McNulty v. McNulty, supra. The record reveals that the trial court based its decision to require appellant to pay $3,500 toward appellee’s counsel fees on its estimate of the parties’ relative incomes and expenses. See Lower Court Opinion at 17. Other than his assertion that the court miscalculated his expenses, appellant does not challenge the reliability of the court’s figures. As we have noted above, the trial court was free to assign whatever weight it chose to appellant’s evidence, and our prior review has revealed that the trial court’s estimate of his expenses did not constitute an abuse of discretion. Furthermore, appellant does not question the accuracy of the balance of the court’s figures regarding the parties’ income and expenses. Therefore, we cannot say that the trial court’s use of those figures as a basis for granting wife’s request for counsel fees constituted an abuse of discretion.

For the foregoing reasons, we find that the trial court abused its discretion in: (1) directing appellee to pay appellant his share of the marital assets via interest-free installments; (2) not taking into account a $400 payment from the parties to appellee’s father; (3) failing to consider that appellee received more than she was entitled to under the tax agreement; and (4) utilizing the testimony of appellee’s appraiser in its valuation of the marital residence. Accordingly, we vacate the Order of equitable distribution and remand for proceedings consistent with this opinion.

Case remanded. Jurisdiction relinquished.

      . 23 Pa.S.A. § 101 et seq.

      . Because this action was commenced prior to the February, 1988, amendments to the Divorce Code, appellant contends that the prior version of the Code is applicable to his claims. See Appellant’s Brief at 16. Our Supreme Court, however, has held that the equitable distribution provisions of the Code constitutionally can be applied to property rights which vested prior to the Code’s effective date. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988); see also Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). We note that the only difference between the present Divorce Code and the prior version is the addition of factor number eleven relating to which parent will serve as custodian of any dependent minor children. See 23 Pa.S.A. § 401(d), infra. Appellant does not show how he was harmed by the trial court’s application of the present version of the Code to this case. Furthermore, the trial court explicitly held that it did not need to apply factor number eleven to this case to find that a 70-30 division of the marital assets was equitable. Accordingly, we see no error in the trial court’s application of the new Code, and we will utilize the present version of the Code in our evaluation of appellant’s claims.

      . Appellant also argues that the court failed to consider that his health was poor. This argument is unsupported by the record. Although appellant entered psychological counseling for the stress related to the divorce, appellant testified that he was otherwise in good health. See N.T. March 30, 1988 at 97.

      . We have indirectly discussed this issue in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986) (reviewing court found no abuse of discretion in trial court’s requiring husband to pay wife’s share of martial assets in lump sum even if he had to take out loan to do so, because if he paid her over time he would be required to pay her interest, just as he would a bank). Accord Daly v. Daly, 179 N.J.Super. 344, 432 A.2d 113 (App.Div.1981) (where realization of distributive share of marital property delayed, husband-appellant entitled to reasonable rate of interest).

      . Appellee asserted that she is entitled to keep the money because “[t]he amount of money that ... Mr. Wayda sent over, was the benefit that Linda’s signature on the tax return made. If she had not signed the tax return, the account would have been $6,000 due.” N.T. April 20, 1988 at 158. There are two problems with this argument. First, it is unsupported by the record as the August 12, 1987 letter , that contains the original terms of the agreement also notes that husband’s individual tax liability is $4,489. Defendant’s Exhibit 28, R.R. at 139a. Second, as noted above, the parties do not dispute the existence of the agreement, which states that appellee is only entitled to half of the tax savings less the amount she would have paid had she filed individually. The parties are bound by this agreement, and therefore appellee is not entitled to keep all of the tax savings. •


author: BECK, Judge:

text:
      576 A.2d 1070
    Anthony S. ZULLO v. Patricia K. ZULLO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1990.
    Filed June 15, 1990.
    Petition for Allowance of Appeal Granted Sept. 7, 1990.

      Charles E. Kurowski, Canonsburg, for appellant.
    Christopher E. Miles, Washington, for appellee.
    Before McEWEN, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from an order of the trial court terminating alimony payments as a result of the remarriage of the recipient wife. Appellant Patricia Zullo (“wife”) argues that the trial court erred in terminating the alimony award because the payments she was receiving, although termed “alimony” in the divorce decree, were in reality reimbursement for a marital debt that her former husband owed her. Appellee Anthony Zullo (“husband”) contends that the court’s award was alimony despite the fact that it was designed solely to recompense wife for her assumption of the marital debt.

The trial court reasoned that both the language of the court order and the conduct of the parties established that the payments at issue were alimony payments which, by statute, must terminate at the remarriage of the recipient spouse. We conclude that, under the circumstances of this case, the trial court’s award was not “alimony” as understood in conventional terms and does not terminate upon the remarriage of the spouse entitled to it. Instead we find that the award was intended by the court and the parties to constitute repayment of a specific and identifiable debt owed to wife by her former husband, and does not terminate until the debt is repaid. The basis for repayment to the wife is equitable reimbursement, Bold v. Bold, 524 Pa. 487, 574 A.2d 552 (Pa.1990).

The parties were married for a relatively short period between 1981 and 1984. They had no children together. Wife entered the marriage with a $30,000 mortgage on her home. Her home became the marital residence although not marital property. During the course of their marriage, the parties accumulated joint liabilities of approximately $34,000. They had few marital assets. In November 1984, just after the parties separated, wife remortgaged her house in order to pay off the debts that the parties jointly accumulated during the marriage. At the time of the remortgaging, wife was employed by a bank from which she obtained the loan. The employer-bank deducted the loan payments directly from her paychecks. Wife consolidated and undertook the repayment of the marital debt in order to retain her credit rating and, ultimately, her job.

Husband filed a complaint in divorce in December 1984 seeking the entry of a divorce decree and also equitable distribution of real and personal property. Wife answered and counterclaimed seeking alimony and alimony pendente lite and alleging that: “[wife] lacks sufficient property to provide for her reasonable needs and is unable to support herself and make payment toward the joint obligations incurred by the parties” and that the “[wife] requires reasonable support to adequately maintain herself in accordance with the standard of living established during the marriage and to continue making the necessary payments on the parties joint obligations”.

After proceedings before a master, the court ordered the husband to pay to wife alimony pendente lite in the amount of $200.00 per month “to assist her in the payment of the marital debt”. When husband failed to make the alimony pendente lite payments, wife sought and obtained a court order attaching the Workmen’s Compensation benefits owed to husband and ordering that they be paid directly to her. The wage attachment order remained in effect after the final divorce decree was entered.

In November 1986, the master submitted a final report. The master concluded, with respect to equitable distribution, that the “debts owed by the parties will be equally distributed between them, but for practical purposes, the Wife has been and will be responsible for making the majority of the payments on those debts.” Further, with respect to the alimony award, the master concluded that:

[Wife] has paid the majority of the marital debts since the separation and will continue to do so until they are paid off____ There are insufficient amounts of marital property to assist the Wife in paying off the majority of the debts owed by the parties. Both Husband and Wife are able to support themselves through appropriate employment, but each is unable to make all of the marital debt payments____ The wife is in a position where she must make the necessary mortgage payments and other payments so that the marital debt is eventually extinguished. It will be recommended that the Husband pay other similar marital debts and that is taken into consideration by the Master in his recommendation of alimony to be paid to the Wife. As to their needs, under Section 501(b)(13), the parties are relatively equal except for the fact that the Wife will be making the substantial payments on the marital debts and, therefore, alimony payments by the Husband are necessary to rehabilitate the Wife’s financial position and to allow the marital debts to be extinguished. Both parties have the ability to make equal contributions to the payment of marital debt. The alimony payment as recommended by the Master is made not for the purpose of educating or rehabilitating the Wife as noted in Section 501(b)(9) but is made for the purpose of both parties contributing to the payment of the marital debts. This contribution by the Husband to the Wife and the payment by the Wife of the majority of the marital debts will allow both parties to be placed in the same position in which they entered the marriage. The award of alimony should be considered for the period of time it will take for the parties to extinguish the marital debt, (emphasis added).

Both parties filed exceptions to the Master’s report and recommendations. In April 1987, the court entered a decree of divorce. The accompanying order mandated that “Husband shall pay to the Wife the sum of $300.00 per month alimony to assist her in extinguishing the marital debt for a period of forty-eight (48) months for a total amount due to the Wife of $14,400.00.”.

In September 1987, husband sought a reduction in alimony payments based upon an alleged change of circumstances. At the same time husband sought to terminate the wage attachment order which was still in effect. Husband’s motion was denied. Husband again sought termination of his alimony payments because wife had sold the residence and repaid the mortgage which she originally had undertaken to consolidate and pay off the marital debt. Again the court denied the motion.

Finally, in February 1989, husband sought termination of alimony based on the remarriage of wife. In addition, he sought termination of the wage attachment order and reimbursement for any payments made to wife since her remarriage in September 1988. The trial court found that both the “clear acceptance by the parties that the payments were in fact alimony and the unambiguous provisions of the statute” required him to terminate alimony payments to wife. Wife appeals the court’s order terminating the award.

Wife contends that the statutory provision which requires the termination of alimony awards upon the remarriage of the recipient spouse should not operate automatically to terminate the award in her case because she “was not receiving support through alimony but ... was receiving a repayment of marital debts created during the marriage ... ”. Husband on the other hand argues that the court and the parties treated the award as “alimony” and that wife’s decision to remarry terminates the award automatically by operation of statute. He asserts that the reasons underlying the “alimony” award are irrelevant.

In the instant case it is clear and undisputed that the amount and duration of the “alimony” award recommended by the master and ordered by the court were directly determined by the economic situation created when the wife undertook unilaterally to pay off the marital debt. No marital assets were available from which to deduct the husband’s share of this joint indebtedness. Therefore, the remedy employed by the court in its attempt to obligate the husband for his share of the debt was the award of payments to the wife which the court denominated “alimony”. In effect what the trial court constructed was an installment repayment plan whereby husband would pay to wife his share of the marital debt. The fact that this payment was called “alimony” does not change its essential nature.

Although the master and the trial court labelled the payments to the wife “alimony”, this court’s inquiry is not limited by the label placed on the award. Where the label is clearly artificial, we look to the underlying purpose that the award sought to achieve. We find the recent Supreme Court opinion in Bold v. Bold, supra, instructive. The Bold court reviewed an award designed to compensate a spouse who had supported her marital partner while the latter was in school. In Bold, the master denominated the monetary award “reimbursement alimony”, while the trial court called it “equitable reimbursement”. In approving the award the Supreme Court cautioned against placing too much emphasis on the label used. Instead, the court emphasized that its primary interest was “in effecting fairness between the parties”. Bold, 574 A.2d at 555. Therefore, the Supreme Court warned that: “Ultimately, the only criterion for fashioning the award under either analysis is fairness.” Id. at 556-557 n. 7.

It is apparent that the award in this case was not alimony as conventionally conceived. Alimony can and does serve many functions, but fundamental to its definition is the notion of “support”. By furnishing support to the recipient spouse the court seeks to mitigate the economic harm that divorce (and the concomitant dissolution of the spousal support obligation) has on a dependant and economically disadvantaged spouse. Typically, the decision regarding whether and to what degree alimony should be ordered requires an assessment, inter alia, of the needs and capabilities of the recipient and a consideration of those factors which might impede the recipient spouse’s future economic independence. See, e.g., Verdile v. Verdile, 370 Pa.Super. 475, 536 A.2d 1364 (1988); Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985); Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

Except for the assumption of the marital debt by wife, the parties were equally self-supporting and employable. Neither party needed the “support” of the other to develop or enhance an employable skill, to achieve economic parity, or to maintain a particular standard of living. The sole reason that the court granted wife “alimony” was to collect husband’s share of the marital debt. The amount of the so-called alimony was not based on a determination of the recipient’s reasonable needs nor was the duration of the award linked to any period of time necessary to allow her to become economically self-sufficient. Instead, the award was fixed by calculating the total marital debt, subtracting those amounts which were present prior to the marriage or which were assumed by the husband, and dividing the remainder to arrive at husband’s fair share. Since wife had already undertaken repayment of almost the entire debt, husband’s “alimony” payments were to last only as long as necessary to reimburse her for his share of their liabilities. The duration of the award was just long enough for the amount of the debt to be discharged, i.e. forty-eight months at $300 per month, for a total of $14,400.

We find instructive the career threshold cases wherein one spouse supports the other to enable the latter to pursue an academic or professional degree. As in the instant case, in the career-threshold cases, at the time of the dissolution of the marriage, the parties have few marital assets because the party being educated is at the threshold of his or her career. During the marriage one spouse undertook to finance the ongoing obligations of the marriage while the other spouse pursued educational goals. When the marriage is dissolved fairness requires that some form of financial reimbursement be awarded to the supporting spouse who has helped enhance the earning capacity of the other spouse. Under the Divorce Code of 1980 with its restrictive alimony provisions many supporting spouses were ineligible for alimony because they did not fit within the conventional definition of a spouse entitled to alimony. Our courts have struggled to do equity in these situations. The supporting spouse has frequently sought compensation through “reimbursement” alimony. Until recently, our courts have shown reluctance to recompense the supporting spouse through “reimbursement alimony” or on any other theory. Our Supreme Court has now broken new ground in creating a fair and equitable solution in the career-threshold cases. In Bold v. Bold, supra, the court endorsed the concept of equitable reimbursement to a spouse whose financial contributions to the education, training or increased earning capacity of the other spouse exceeded bare minimum support requirements and whose financial contribution had not yet been recouped through the marriage or otherwise. Further, the court concluded that where there is insufficient marital property available for distribution to reimburse the supporting spouse, cash payments of “equitable reimbursement” can be awarded in the discretion of the trial court. Bold, 574 A.2d at 556-57.

Similarly, in the instant case, the trial court accomplished through the vehicle of “alimony” what was actually reimbursement to wife of an outstanding debt owed to her by husband. Although the court labelled the payments alimony, they had, in fact, none of its conventional attributes and were instead the equitable reimbursement of the debt husband owed to the wife.

Having determined that the trial court’s award was equitable reimbursement and not alimony despite the label the court applied, we further conclude that the court’s award need not terminate upon wife’s remarriage. As we have noted above, alimony is conventionally designed to constitute post-divorce spousal support. Therefore, the remarriage of the recipient spouse acts to terminate alimony because the remarried spouse now shares a mutual duty of support with his or her new spouse. If it were otherwise the former spouse would be in the untenable position of supporting the present wife or husband of another person.

By contrast, however, the award in the instant case has nothing to do with support. Its underlying basis is payment of a debt not support. Certainly, under these circumstances, remarriage of the recipient does not absolve the debtor from repayment of the specific sums owed. In our view, wife should not be denied full reimbursement of the money owed her by husband simply because she remarried. The alimony section of the Divorce Code, Section 501, is not applicable.

A word of caution is in order. Usually, the appellate court will be bound by the labels the parties or the court applies to payments. The party challenging the accuracy of the label bears the burden of showing that the parties intended the payment to be something other than the label indicates.

Finally, we address the trial court’s conclusion that wife cannot deny that the award was alimony because she sought enforcement through wage garnishment, which remedy would not have been available to her otherwise. We do not view wife’s application for wage garnishment as fatal to her cause. Again we stress, as did the Supreme Court in Bold, that notions of fairness and equity must prevail. Every action wife took in the course of the instant litigation was precipitated by husband’s wrongful withholding of funds owed her. She was forced to assume the joint liabilities of her marriage because he made “little, or no, contribution toward the satisfaction of those debts”. Trial Court opinion at 1. It was the husband’s violation of the court order that forced her to seek enforcement through contempt and wage garnishment. It would be highly inequitable to penalize the wife because the trial court, relying on its own mischaracterization of the award, granted wage garnishment when husband refused to pay. In our view, the fact that wife obtained wage garnishment does not change the fundamental character of this award. We decline to use the equitable principle of estoppel to perpetuate an injustice against an innocent party.

Therefore, we reverse the trial court’s order terminating the “alimony” award. We reinstate the award to wife with further directions to the trial court to ascertain the continued necessity of the wage garnishment order. The trial court is instructed to reinstate wage garnishment if it determines it is necessary.

      . The applicable law in the instant case is the 1980 Divorce Code. 23 Pa.Stat.Ann. § 501(e) (Purdon Supp.1987).

      . Each time husband sought a reduction or termination of alimony payments based on a change of circumstances, wife argued that the changes were irrelevant because the "alimony” was solely for the repayment of a finite, previously owed debt and was not based on her need for support in a traditional alimony context. Then, as now, she contended that the amount owed to her by husband is unaltered by changing circumstances.

      . Prior to 1988, alimony was available only to those who lacked sufficient property or income to provide for his or her reasonable needs and who could not be self-supporting through appropriate employment. 23 Pa.Stat.Ann. § 501(a)(1) and (2) (Purdon Supp. 1987). Courts tended to give a restrictive interpretation to alimony awards, insisting that the statute meant for alimony to be strictly "rehabilitative". However, it was always acknowledged that, in specific cases, economic justice could only be achieved through a grant of long-term or even permanent alimony. This was particularly true when the court found that the dependent spouse was hampered by "compelling impediments to gainful employment.” See Pacella v. Pacella, supra; Mazzei v. Mazzei, 331 Pa.Super. 432, 480 A.2d 1111 (1984); Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825 (1984). See also Dyer v. Dyer, 370 Pa.Super. 377, 536 A.2d 453 (1988). In 1988, the legislature eliminated from the Divorce Code the prerequisite that alimony could be granted only if the party seeking it could not meet his reasonable needs through sufficient distribution of property nor support himself through appropriate employment. Now our courts are directed to allow alimony “as it deems reasonable, to either party, only if it finds that alimony is necessary”. 23 Pa.Stat.Ann § 501(a) (Purdon Supp.1989). Necessity is the only requirement in determining the propriety of an alimony award and that necessity is judged by numerous considerations only some of which have to do with the rehabilitation of the recipient spouse. Moreover, the duration of the alimony award is now limited only by what the court deems reasonable under the circumstances, thus eliminating any legislative mandate to link the term of alimony to such time as the recipient becomes gainfully employed. 23 Pa.Stat.Ann. § 501(c) (Purdon Supp.1989).

      . See Bold v. Bold, 524 Pa. 487, 574 A.2d 552 (1990), reversing, 374 Pa.Super. 317, 542 A.2d 1374 (1988); Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986); Lehmicke v. Lehmicke, 339 Pa.Super. 559, 489 A.2d 782 (1985).

      . New Jersey has long endorsed the concept of “reimbursement alimony” in cases where it would be "patently unfair" to leave the supporting spouse with nothing while the supported spouse "keeps not only the degree, but also all the financial and material rewards flowing from it". Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982); Reiss v. Reiss, 195 N.J.Super. 150, .478 A.2d 441 (1984), judgment affirmed in part and remanded, 205 N.J.Super. 41, 500 A.2d 24 (1985). Moreover, the Reiss courts concluded that since "reimbursement alimony” is more in the nature of recoupment of an investment or a financial advance, it should not terminate upon remarriage in the same way conventional alimony does. See also Smith v. Smith, 224 N.J.Super. 559, 540 A.2d 1348 (1988).

      . In Bold, the wife’s contributions were not directly to the husband’s educational costs but were rather in the form of household support which the court found clearly subsidized husband’s educational enterprise.

      . We note that, despite the fact that 23 Pa.Stat.Ann. §§ 401(b) and (c) of the Divorce Code suggest that wage attachment is a remedy available to effect compliance with an order of equitable distribution, a section of the Judicial Code governing Judgments and Liens, 42 Pa.Stat.Ann. § 8127, enacted in 1982, specifically limited wage garnishment to "support” orders only. In Laughlin v. Laughlin, 372 Pa.Super. 24, 538 A.2d 927 (1988), this court held that § 8127 prevailed and that equitable distribution orders could not be enforced by attachment of wages. However, the amendments to the Divorce Code, § 401(k), enacted on February 12, 1988, specifically reaffirms the court’s authority to attach wages to enforce an order of equitable distribution. It would appear, therefore, that Laughlin is no longer good law.