author: BECK, Judge: BROSKY, Judge, WIEAND, Judge,

text:
    540 A.2d 563
    Frederick E. WILLIAMS, Jr., Appellant at No. 3139PHL86, v. Esther M. WILLIAMS, Appellant at No. 3245PHL86.
    Superior Court of Pennsylvania.
    Argued May 5, 1987.
    Filed April 15, 1988.

      Roger V. Wiest, Sunbury, for appellant (at 3139) and appellee (at 3245).
    J. Robert Zane, Schuylkill Haven, for appellant (at 3245) and appellee (at 3139).
    Before BROSKY, WIEAND and BECK, JJ.
   BECK, Judge:

Esther M. and Frederick E. Williams were married in 1970, separated in 1979, and divorced in 1983. They have no children. Both were previously married. The husband was born in 1933, and the wife in 1925. The husband is a disabled veteran with a monthly income of approximately $1150 from his disability pension and $100 from rental income from marital property. He also deals in antiques and earns an unspecified income.. The wife left high school in the twelfth grade and worked as a presser in a garment factory throughout the marriage. She has been unemployed since June 1984 and has no source of income other than temporary unemployment compensation.

In this appeal and cross appeal the parties raise issues relating to equitable distribution, alimony and attorneys’ fees.

I. Equitable Distribution

In reviewing a trial court’s determination of equitable distribution, an appellate court’s scope of review is abuse of discretion. Absent clear and convincing evidence, an appellate court will not reverse the trial court’s determination. Estep v. Estep, 353 Pa.Super. 227, 509 A.2d 419 (1986) (on remand from 508 Pa. 623, 500 A.2d 418 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985).

The court awarded the husband one-half the value of the marital property, consisting of three pieces of real estate. The total value of the real estate is $85,000. Husband asserts that he is entitled to greater than the fifty percent share because he either owned the property prior to marriage and contributed it to the marriage or the marital property was purchased with proceeds from the sale of other property he owned prior to marriage. We disagree.

After marriage, husband transferred an interest in three pieces of real property to his wife and himself as tenants by the entireties. The real estate consisted of the marital home, a small commercial trailer park, and other real estate which was sold during the marriage. The proceeds from the sale of this real estate were used to purchase a property in Florida. Husband concedes all of the real estate is marital property. Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223 (1986).

In reviewing the distribution of marital property upon dissolution of a marriage we must examine the equitable distribution scheme enacted in the Divorce Code, Pa.Stat. Ann, tit. 23, § 401 (Purdon Supp.1987). Under the Code, the legislature instructed the trial court to consider all factors relevant to equitable distribution, including ten factors specifically enumerated in the Code, so that the plan of distribution will be economically just. See Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984), rev’d. on oth. grds., 509 Pa. 282, 502 A.2d 109 (1985).

Husband argues that in considering these factors, the court must give additional points to the party who owned the property prior to marriage and then transferred the property to tenancy-by-the-entireties during marriage. The husband supports his argument by reference to Section 401(d)(7) of the Code, set forth in footnote one, which provides in part that one of the factors to be considered in equitable distribution is the contribution of each party to the acquisition of marital property. In fact, the husband asks us to fashion a principle that would require a court to give overriding consideration to that factor, so that as donor of the real estate to the marriage, he will get extra credit which translates to a greater share of the value of the real estate upon equitable distribution.

We disagree with husband’s contention. First we note that Section 401(d)(7) does not afford any special consideration to a pre-marital acquisition that later becomes marital property. As to marital property, Section 401(d)(7) instructs the court to give consideration to the “acquisition, preservation, depreciation or appreciation of marital property.” The weight to be accorded the acquisition factor depends upon the facts of each case. The court must consider this factor along with the other relevant 401(d) factors. We know of no reason nor has appellant proposed any reason why the weight of this factor should be assigned greater value than the other enumerated factors.

We find that the court properly considered the acquisition factor along with the other relevant 401(d) factors. In distributing half the value of the three pieces of real estate to the wife, the court properly weighed the numerous factors presented by this case. Specifically, the court gave weight to the following facts in husband’s favor: the husband acquired the properties prior to marriage, transferred the properties to the marital unit during the marriage and made a proportionately greater share of payment for real estate related expenses than the wife. The court balanced these factors against the following facts in wife’s favor: the wife made monetary and physical contributions to renovating the marital residence, was both a wage-earner and homemaker, and contributed a $7,500 inheritance to the marital unit. Moreover, the court considered that at the time of the hearing the wife was 60 years old and had limited opportunity to procure gainful employment and that husband’s future pension and other income would be greater than wife’s potential income, which might be limited to social security. The court acted properly and did not abuse its discretion.

We note that although it is incumbent on the court in making equitable distribution awards to consider each asset and distribution individually, it is also necessary for the court to review the entire picture and adjust the distribution of each asset so that the total distribution to each party shall be economically just.

II. Real Estate Related Expenses and Rents

As noted above, one of the items of marital property in this case is a trailer camp which yields approximately $100 per month in rent. In her cross-appeal, wife asserts that she is entitled to one-half of this rental income. She contends that the court should not have given husband an exclusive credit for one-half of any payments for real estate related bills paid by him without giving wife a similar credit and that rents received by husband and the fair rental value of the properties should be accounted for to wife.

This issue is poorly framed and difficult to understand. Apparently, the wife is arguing that the trial court abused its discretion by both permitting the husband to keep the total monthly rentals from the trailer park and also giving the husband one-half credit for certain unspecified real estate related costs that he bears. The wife also suggests that the court abused its discretion by not awarding her a credit for any real estate costs she might bear. The credit to the husband to which the wife refers is presumably the credit the trial court allowed to the husband at the time the properties are sold and distributions of the proceeds are made to the parties. Finally, wife also argues that this credit to the husband is overbroad because it has no time limits.

The record reveals that the husband has been primarily responsible for real estate related expenses since the parties separated. It is apparent that the purpose of the court’s order was to establish that each party was entitled to one-half the value of the real estate from the time of separation. In order to maintain that ratio, the court directed the husband to take credit for one-half the expenditures he makes on the real estate after separation. We do not find this credit overbroad since it is limited in time to payments from the date of separation to the date of sale. We find no abuse of discretion.

We further find no abuse of discretion in the trial court’s award of rental income to the husband until the date of sale of the properties. This award was employed by the court to counter-balance the alimony award to the wife. Since under the peculiar facts of this case both the rental income and the alimony will terminate upon the sale of the properties, we find no abuse of discretion in the trial court’s award of rental income exclusively to the husband for the short period of time prior to sale of the properties.

III. Alimony

The trial court awarded wife $300 a month from the time the trial court adopted the master’s report until the earlier of when: 1. the wife received $10,000 in proceeds from the sale of marital real estate; or, 2. July 16, 1987, when the wife became eligible for Social Security benefits. Both parties contest the award of alimony.

As in the case of equitable distribution, our standard of review of questions relating to alimony is limited to a determination of whether the trial court abused its discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

The legislative directive regarding alimony begins with the following provision:

The court may allow alimony, as it deems reasonable ..., only if it finds that the party seeking alimony: (1) lacks sufficient property, including but not limited to any property distributed ..., to provide for his or her reasonable needs; and (2) is unable to support himself or herself through appropriate employment.

Pa.Stat.Ann. tit. 23 § 501(a).

Section 501(b) provides that in determining whether alimony is necessary and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including fourteen specifically listed factors. Id. § 501(b).

Among these factors are the following, which we find to be particularly relevant in this case:

1. § 501(b)(1): the relative earnings and earning capacities of the parties;
2. § 501(b)(2): the ages, and the physical, mental and emotional conditions of the parties;
3. § 501(b)(3): the sources of income of both parties including but not limited to medical, retirement, insurance or other benefits;
4. § 501(b)(9): the relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

Section 501(c) further provides that unless a compelling impediment to gainful employment of the recipient spouse is present, the court should limit the duration of an alimony award to a period of time that is reasonable for the purpose of allowing the recipient to meet his or her reasonable needs. Id. § 501(c).

In applying these Code sections both trial courts and this Court must keep in mind that the overriding goal of alimony in this Commonwealth is the effectuation of economic justice between the parties. We must, therefore, not require an overly mechanistic consideration of the relevant factors where to do so would result in an unjust or unreasonable decision. Id. § 102(a)(6); Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985); Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983).

In this case, the husband contends that the award is an abuse of discretion because the wife is able to find appropriate employment and because his monthly income is limited to approximately $1,150 in veterans’s disability payments and $100 in rental income from the trailer park.

We conclude that in awarding the wife alimony the court did not abuse its discretion. The alimony award succeeds in providing for the wife’s reasonable needs until she receives some proceeds from the sale of the real estate or until she receives social security. The award is properly based upon the court’s finding that at the age of 60, wife would have little success in securing employment, even with additional training, whereas the husband receives approximately $1,100-$1,200 monthly in veteran’s benefits, $100 monthly in rental income and an unknown income from dealing in antiques.

Thus, the trial court’s award of the modest sum of $300 a month to the wife for a limited period of time resulted from the court’s consideration of precisely those factors that the Code deems appropriate. The court awarded only $300 a month in recognition of the husband’s limited income and the generally modest financial condition of both parties throughout the marriage and thereafter. However, the court also took cognizance of the wife’s even more severely limited present income in the sole form of unemployment compensation benefits and of her age and probable inability to re-enter the workforce.

Moreover, the court here appropriately limited the duration of the alimony by fixing its termination date at the earlier of when the wife could begin to receive social security benefits or when she would receive her share of the proceeds of the sale of certain marital property, which itself would provide wife with a means of self-support. We find the latter limitation on the duration of the alimony to be a particularly equitable approach. Although the wife here may never be able to support herself through appropriate employment and thus be rehabilitated in the sense that Section 501(c) of the Code specifically addresses, she will be financially “rehabilitated” when she receives her property distribution and/or social security benefits.

Thus, this trial court followed the mandate of the Code to do economic justice between the parties after a full consideration of the relevant factors and in particular sufficiently considered the limited means of appellant in awarding only $300 a month for a reasonably limited time. It is precisely this flexibility in determining the appropriateness, amount and duration of alimony, after close consideration of both parties’ needs and abilities, that the Code requires of our trial courts.

The husband also attacks the alimony award by contending that the trial court violated Pa.R.C.P. 1920.54 and thus abused its discretion in awarding alimony without an effective date and a limit on its duration. We consider the challenge to the date alimony starts and the date it stops separately.

The husband claims that the alimony award was improper because the termination date was not specified. His contention is meritless. The trial court correctly explains that the termination date is set by the earlier of two dates: the date the wife received $10,000 from sale of the marital real estate or July 16, 1987, when wife is sixty-two, whichever is sooner. Two possible precise dates are set out, and there is no lack of clarity as to when the husband’s obligation ceases.

The date when the alimony order becomes effective is also clearly set forth in the court’s order of November 12, 1986. September 5, 1985 is the date when the husband’s alimony obligation begins.

The last challenge to the trial court’s alimony award in this case is the wife’s, who contends that the alimony award should have been permanent. As we have previously indicated, the trial court achieved a highly equitable result by awarding a limited amount of alimony but also in finding that the wife would have sufficient funds in future from Social Security and the proceeds from the sale of the real estate to provide for her reasonable needs. Therefore the trial court correctly concluded that the wife did not qualify for permanent alimony under Section 501.

IV. Attorneys’ Fees

The last issue we must consider is the wife’s allegation that the trial court erred in denying her an award of attorneys’ fees. Although wife’s argument in support of this allegation of error is extremely unclear, in the body of wife’s brief to this Court, she would appear to be challenging the trial court’s denial of both her attorney’s fees, costs and expenses incurred in the divorce and equitable distribution proceeding and also those that she incurred in connection with an action she pursued against the husband in Florida. We glean from the record that the action in Florida arose because the husband had conveyed the Florida property, to which we have previously referred, from the tenancy by the entireties to himself alone. Wife brought the action in Florida to set aside the conveyance as fraudulent and she prevailed. She then sought to recover her fees and expenses associated with that proceeding in the divorce action.

The master’s report states that the master declined to consider the fees, costs and expenses incurred in the Florida proceeding on the ground that they were incurred in a proceeding collateral to the divorce action itself. The master also declined to award the wife her fees, costs and expenses in the divorce proceeding on the ground that although she was in need of the award, the husband would be unable to pay these fees, costs and expenses.

The trial court’s entire treatment of this issue was as follows:

The Defendant takes exception to the fact that the Master refused to recommend that the Defendant be awarded counsel fees. 23 P.S. § 401(b) provides that “... the Court may order ... reasonable counsel fees and expenses ... Upon final disposition, the Court may award costs to the party in whose favor the order or decree is entered, or may order that a party pay his or her own costs or may order that the costs be divided equitably as it shall appear just and reasonable.”
The Defendant’s $3,000.00 in costs, counsel fees and expenses incurred in the proceedings to transfer the title back to joint ownership for the Ft. Myers property should not be considered in the present proceedings since these expenses arose from a separate proceeding. It is not feasible to assess the costs of the Defendant to the Plaintiff given his limited income and his alimony obligation of $300.00 per month.

Trial Court Opinion at p. 8.

Thus, it would appear that the trial court only considered the wife’s claim for fees, costs and expenses in the Florida action and perhaps for her costs in the divorce action, despite the fact that nothing in the record indicates to us that the wife waived her claim to fees and costs in the divorce action at the trial court level. Because wife has preserved both her claim as to the Florida action and as to the divorce proceeding, we will consider both claims. However, we will consider only wife’s claims for counsel fees and not her claim for expenses or costs, since wife’s Statement of Questions in her brief to this Court makes reference only to counsel fees. Pa.R.A.P. 2116; Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983).

Although Section 401(b) of the Divorce Code allows a court to make an award of counsel fees, it does not provide any guidance as to how a court shall determine where such an award would be appropriate. This guidance is found in our case law, which has developed in two directions. Although many cases require the petitioning spouse to demonstrate that he/she is in actual need of the award of fees in order to achieve “par” in protecting his/her rights in the divorce action, other cases indicate that the trial court may be guided by a somewhat broader spectrum of considerations in deciding to award counsel fees. Johnson v. Johnson, 365 Pa.Super. 409, 421, 529 A.2d 1123, 1129 (1987) (Beck, J., concurring), and cases cited therein. The latter cases indicate that the trial court should consider all relevant factors, including equitable considerations. Id.

In the instant case, the master found that the wife was in actual need of an award of those fees she incurred in the prosecution of the divorce action itself. However, the master also concluded that the husband did not have the ability to pay these fees and the trial court apparently agreed with this disposition.

We conclude that the court’s determination as to the wife’s fees in the divorce action was correct. Until the property is sold, both husband and wife lack sufficient resources to pay wife’s attorney’s fees. However, upon husband’s and wife’s receipt of the distribution from the sale of real estate, the wife as well as the husband will be capable of paying the fees. Therefore, we affirm the court’s conclusion that the husband presently lacks ability to pay the wife’s attorney’s fees and the wife will be able to pay her own attorney’s fees after the property is sold and distribution made.

Before turning to a consideration of the final issue presented for review, i.e., the wife’s entitlement to counsel fees incurred in the Florida action, we note that, unlike the prior sections of this opinion, what follows does not represent the view of a majority of the members of this panel. As to this issue alone, the panel has not come to a majority view. As the dissenting opinions of Judges Wieand and Brosky, appended below, clearly state, both Judges Wieand and Brosky would affirm the trial court’s denial of these fees to the wife, albeit for different reasons. Judge Wieand would hold that the wife is not substantively entitled to these fees. Judge Brosky would hold that the wife has failed to preserve this, or any other, issue for appellate review. The author of this opinion would hold that the wife is entitled to these fees and would reverse and remand for a determination of the amount of fees due and an award thereof. Given this configuration of views, our disposition of this issue must be affirmance of the trial court, since that is the disposition supported by two of the three members of the panel. Moreover, the discussion of this issue that follows is the expression of the view of only the author of this opinion and, therefore, does not have any precedential value. For this reason, the following discussion is largely phrased in the first person.

Although as we indicated above, a substantial body of case law concerning counsel fees in divorce actions has developed, the wife’s other claim for fees in this case, relating to fees incurred in the Florida action, presents a question as to which I have located no specific authority. Summarily stated, this case requires us to decide if a spouse should be entitled to counsel fees where she has been forced through the fraud of the other spouse to secure legal representation and commence a proceeding collateral to the divorce itself in order to protect her rights as to concededly marital property.

As we have stated, several cases indicate that a court may be guided by equitable considerations in granting an award of fees. See, e.g., Johnson v. Johnson, 365 Pa.Super. 409, 420-22, 529 A.2d 1123, 1129 (Beck, J., concurring); Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). This line of precedent focusses on more than the need of the petitioning spouse and permits the court to remedy a perceived inequity through an award of fees. As the concurrence in Johnson v. Johnson indicated:

Permitting the court to focus on all relevant factors is the preferable approach. If one spouse’s action or inaction significantly raises legal fees or costs for the other unnecessarily, is it equitable for the second spouse to bear the added burden even if such spouse can afford it?

Johnson v. Johnson, 365 Pa.Super. at 422, 529 A.2d at 1129 (Beck, J., concurring).

The instant case presents just such a situation. Here, the husband’s fraudulent transfer of marital property to himself alone was the sole impetus for the wife’s Florida action and, therefore, the sole reason why she incurred substantial legal fees over and above what she otherwise would have incurred in achieving an equitable distribution of the marital property. Although the fees incurred in Florida were not directly incurred in the divorce action itself, the Florida action was intimately connected to the divorce. Indeed, husband’s fraudulent transfer of the marital property in Florida constituted a clear attempt to defraud wife of a distribution in the divorce proceeding of a portion of the marital property. Wife’s action in undoing this fraud was, therefore, equally linked to the divorce.

I recognize that notwithstanding husband’s fraudulent transfer of the Florida property, the wife might still have succeeded in having the property classified as marital property in the divorce action since the property had been held as a tenancy by the entireties during the marriage. This, however, is not an adequate reason for denying wife these fees. Despite the fact that the wife might have succeeded in having the Florida property classified as marital property even after the fraudulent transfer, her burden in doing so might well have been increased. Moreover, even if the property were so classified, the wife might have achieved only a Pyrrhic victory. In a marital estate such as this one, with limited resources, it may be quite possible for the husband fraudulently to dispose of the property, consume the proceeds and leave the wife in a position where she is entitled to a proportionate share of the property but has no source from which to collect it. Moreover, in this case, the master did in fact find that the wife was in need of an award of fees. Husband’s conduct with regard to the marital property in Florida only served to exacerbate wife’s already strained financial condition.

Thus, I would hold that where, as here, one spouse is forced to incur legal fees to respond to the fraud of the other spouse, an award of those fees to the defrauded spouse is appropriate. In such a case, to permit the need of the petitioning spouse or the ability of the other to pay alone to determine whether fees should be awarded would allow a substantial inequity to remain unremedied. In the context of fraud, need and ability to pay should not be considerations at all. The fraud itself gives rise to the right to counsel fees. If husband had not undertaken the fraudulent conveyance, then wife would not have had to procure legal service. Where his fraudulent action is the reason she has incurred legal fees, he is required to pay them. I would, therefore, remand to determine the amount of counsel fees to which wife is entitled.

V. Disposition

The order of the trial court is affirmed. This disposition reflects the following configuration of views of the panel members as to the issues presented on appeal:

1. Issues presented in husband’s appeal: All panel members join in the lead opinion. Thus, the trial court’s disposition of these issues is affirmed and the lead opinion’s discussion of these issues has precedential value.
2. Issues presented in wife’s appeal:
a. Issues other than Florida fees issue:
Judge Wieand joins the lead opinion in affirm-all of these issues.
Judge Brosky would find all of the wife’s issues waived and would, therefore, affirm.
Thus, the trial court’s disposition of these issues is affirmed and the lead opinion’s discussion of these issues has precedential value.
b. Florida fees issue:
Judges Wieand and Brosky would affirm the trial court’s denial of the wife’s claim for fees in the Florida action, but on different grounds.
The author of the lead opinion would reverse and remand for a determination of the amount of the fees incurred in Florida and for an award thereof to the wife.
Thus, the trial court’s disposition of this issue is affirmed and the lead opinion’s discussion of this issue has no precedential value.

BROSKY, J., files a concurring opinion.

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

BROSKY, Judge,

concurring:

I concur in the lead opinion’s affirmance of the order below. I also concur in the resolution of the issues presented in the husband’s appeal. However, with respect to the wife's appeal, I would decline to reach the merits of the issues presented, as it is my position that the wife has failed to preserve any issues for appellate review.

Pa.R.C.P. 1920.55(a) sets forth the following requirements for the filing of exceptions to the Master’s report:

Rule 1920.55 Master's Report. Notice. Exceptions. Final Decree.
(a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.

(Emphasis supplied). In the matter sub judice, the wife did not request leave of court for an extension of time to file her exceptions, but merely obtained the consent of the husband to said extension. The wife then filed her exceptions two days after the expiration of the ten-day period specified in the rule. The trial court made no reference to the late filing, but merely denied all exceptions in its order of November 12, 1986.

A panel of this Court has held that, where the lower court has proceeded to address exceptions that have been filed untimely without prior leave of court, this Court must conclude that a waiver of the issues raised in those exceptions has taken place. See Sipowicz v. Sipowicz, 358 Pa.Super. 319, 517 A.2d 960, 962 (1986) (Wieand, J. Concurring and Dissenting). Moreover, even where the opposing party has failed to raise the fact of waiver, it is incumbent upon this Court to raise the issue sua sponte, as one of appealability and jurisdiction. Id.

It is not, however, my intention to depreciate the gravity of the issue presented in the wife’s appeal pertaining to the trial court’s denial of an award of counsel fees flowing from the Florida proceeding. I am patently aware of the view that has been expressed, by way of dicta, by my colleague Judge Beck in her lead opinion, and the dissenting view expressed by my colleague Judge Wieand. Certainly, the propriety of awarding counsel fees incurred in a separate lawsuit for equitable reasons is an issue which must be resolved at some time. However, as the matter sub judice shall not be yielding a precedential resolution of the issue, and in light of my position that the issue has been waived, I do not wish to add further dicta, which can only be confusing to the bench and bar. I, therefore, decline to discuss the merits of the Florida counsel fees issue.

WIEAND, Judge,

concurring and dissenting:

I agree that the order of the learned trial judge must be affirmed. I disagree with the notion advanced by the author of the lead opinion that the courts in Pennsylvania can award counsel fees incurred by a party in prosecuting or defending a separate action which has been litigated finally in the courts of another state. In my judgment, the trial court correctly denied a claim for counsel fees incurred by the wife in a separate action in Florida.

The American rule is that each party in an adversary proceeding must pay his or her own counsel fees, absent an express statutory allowance of counsel fees, a clear agreement between the parties, or some other established exception. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975); Shapiro v. Magaziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965). In the instant case, there is neither statutory authority nor agreement which would compel the husband to pay counsel fees incurred by his wife in a separate action between the two parties in Florida. The allowance of counsel fees in that action should be determined according to the law of Florida and, if recoverable, should be allowed only as an incident of the principal action in that State.

It is elementary that the judgment of every court on matters within its jurisdiction is conclusive on every other court. 20 P.L.E. Judgments § 251. “The doctrine of res judicata precludes the parties from relitigating controversies which have been settled by a valid final judgment of a court of competent jurisdiction____” Id. “A single claim or demand cannot be divided and made the subject of several actions, and if actions are brought for different parts of a single demand a judgment on the merits in one is available as a bar to the others.” 20 P.L.E. Judgments § 258. See: Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968).

The right to recover counsel fees, in those situations in which it is allowed, is a part of and must be asserted in the principal action. A separate action to recover counsel fees is not permitted; it constitutes an impermissible splitting of a single cause of action. Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982); Leomporra v. American Baking Co., 198 Pa.Super. 545, 549-550, 178 A.2d 806, 807 (1962). The allowance of counsel fees, where recoverable, rests largely in the discretion of the trial court which heard the principal action. In re Ward’s Estate, 350 Pa. 144, 148, 38 A.2d 50, 52 (1944). Its decision is not subject to later review by the courts of another jurisdiction.

The claim for counsel fees which the author of the lead opinion would allow was an incident of the action which the wife prosecuted against the husband in Florida. The judgment entered by the Florida court in that action is final. It is final as to issues actually litigated and also as to issues which might have been litigated therein. Whether or not a claim for counsel fees was made in the Florida action, the final judgment entered therein is a bar to a claim for those counsel fees in a subsequent action in Pennsylvania.

The Pennsylvania Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq., does not purport to authorize Pennsylvania divorce courts to award counsel fees to the parties on account of separate litigation between the parties in another state. The author of the lead opinion has been unable to cite any authority that would permit the courts of Pennsylvania to make awards for counsel fees incurred in prosecuting or defending a separate action in another jurisdiction. My research also has disclosed no such authority. To allow Pennsylvania courts to second guess the courts of another jurisdiction with respect to counsel fees incurred in litigation pursued in the courts of such other jurisdiction would be improvident, unwieldy, and unwise and would violate principles of res judicata.

Therefore, I disagree with that portion of the lead opinion which would make in this action an award of counsel fees incurred by the wife in a separate action in Florida. The order of the trial court must be, as it is, affirmed.

      . These factors are:
      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 acquisitions 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. Pa.Stat.Ann. tit. 23, § 401(d).

      . The court permitted no testimony on the exact pension income which ranges from $1,100 to $1,200 monthly for 100% disability.

      . Section 401(b) of the Divorce Code, 23 P.S. § 401(b) authorizes an award of counsel fees only in connection with the underlying divorce action. It provides that “[t]he court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.”


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    540 A.2d 573
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank CHIN.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1988.
    Filed April 15, 1988.

      Catherine Marshall, Assistant District Attorney, Philadelphia, for Com., appellant.
    Gerald A. Stein, Philadelphia, for appellee.

      Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   CIRILLO, President Judge:

The Commonwealth appeals an order of the Court of Common Pleas, Philadelphia County, granting Frank Chin, a resident alien, a new trial under the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551. We reverse.

Frank Chin entered a guilty plea to charges of possession of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced to two years probation and a three hundred dollar fine. Approximately two years later, defendant filed a petition for relief under the Post Conviction Hearing Act alleging that his counsel, Mr. McWilliams, was ineffective for failing to advise him of the possible deportation consequences of a guilty plea. Chin alleged that as a result of the guilty plea, his immigration status has been seriously jeopardized and he is subject to possible deportation. Chin also alleged that had he known of these consequences, he would not have entered a guilty plea.

Trial counsel testified that he was unaware of the fact that defendant was a resident alien and unaware of the possible consequences of the plea until just prior to entry of the plea when the assistant district attorney brought the situation to counsel’s attention. At this time, McWilliams advised Chin of what he had learned and advised him also to seek other counsel experienced in the area of immigration to address those problems. Direct examination of Frank Chin at the hearing on the PCHA petition reveals the following:

Q: What did Mr. McWilliams tell you about what would happen if you received probation — what would happen to you from the Immigration Service?
A: Well, he told me that if I am found guilty I will be deported, but if I wasn’t found guilty and on probation I wouldn’t be bothered, the Immigration wouldn’t be bothered.
The Court: Would it be correct to say if you were found guilty by a trial you would be deported and if you pled guilty and got probation you would not be deported?
A: That’s correct.
Q: (by counsel) Did you understand that you could still be deported even though you pled guilty and were placed on probation?
A: No, I didn’t.
Q: If you had known that you would have been subject to deportation from the United States as a result of pleading, guilty and being placed on probation, would you have pled guilty?
A: No, I wouldn’t plead guilty, sir.
Mr. McWilliams testified as follows:
A: The District Attorney made an offer of probation, one on each count. He also said to me — advised me that I had a problem because my client was not a citizen and he ran the risk of deportation. I went back and advised my client that in either case he ran the risk of being deported. I believe he was on a green card. But he was advised in either alternative. Then we discussed it, and we finally came to the agreement that no matter what happened, whether we tried the case or took the plea, which I felt was to his benefit, he would still run the risk of being deported, and I remember advising him that he would have to get a special attorney for that because it was a specialized deal.
Q: Well, then you explained to him, it’s your testimony, that if he either pled guilty or went to trial and was found guilty that he ran the risk of being deported. Isn’t that right?
A: Exactly, and it was decided to take the offer of probation, there was no sense in waiting for the trial, that this seemed to be a fair offer.
Q: Do you recall telling Mr. Chin that if he received probation or if he pled guilty that day that he did not risk the chance of deportation?
A: Absolutely not, and in fact, I remember emphasizing the fact that he was in a dilemma either way he went, that he faced deportation. And again, I remember I told him he should get a special attorney with respect to the immigration problem because it was a specialized field.

Counsel has a duty to inform a defendant resident alien of the consequences his guilty plea might present with respect to his immigration status and possible deportation. Commonwealth v. Wellington, 305 Pa.Super. 24, 28, 451 A.2d 223, 225 (1982). Here, the trial court acknowledged that Mr. McWilliams did, in fact, advise Chin of such probabilities because it faulted McWilliams for doing so at the “eleventh hour.” We recognize that counsel advised his client late in the proceedings, and we realize also that he may not have done so at all had it not been for the assistant district attorney’s timely notification to McWilliams. However, the determination of ineffectiveness in this case does not rest on when Chin was advised of his dilemma, but rather if he was so advised. See Wellington, 305 Pa.Super. at 28, 451 A.2d at 225.

In order to support a claim of ineffectiveness, the defendant must demonstrate that the underlying issue is of arguable merit. If so, inquiry must then be made into whether or not the course of action chosen by counsel was reasonably designed to protect the defendant’s best interests. Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, the defendant must show that he was actually prejudiced as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The law presumes that counsel was effective, therefore the burden of establishing ineffectiveness rests squarely upon the appellant. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986).

We find that appellant has failed to establish that his is claim is of arguable merit. Counsel testified that he discussed the issue and the alternatives with his client. The PCHA court, in its findings, did not disagree. The court found that counsel in fact advised Chin of the consequences of his guilty plea, albeit at the “eleventh hour.” The court stated: “Counsel ... should have advised the defendant of the plea consequences before the ‘eleventh hour’ prior to entering the plea.” The court also found that counsel admitted that he was inexperienced in immigration law and advised Chin to seek other counsel to address those problems. We cannot find counsel ineffective under these circumstances. The fact that counsel’s advice was rendered just prior to entry of the guilty plea does not constitute ineffectiveness. See Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977); see also Commonwealth v. Austin, 274 Pa.Super. 1, 417 A.2d 1220 (1980) (a finding of ineffectiveness of counsel cannot rest merely on the fact that counsel did not extensively consult with his client); Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979) (mere shortness of time spent conferring with a client does not constitute a basis for a finding of ineffectiveness). Allegations of ineffectiveness of counsel in connection with a guilty plea will provide a basis for relief only if ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984); Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983).

After reviewing the record, we are inclined to agree with the Commonwealth that Chin understood that he faced the risk of deportation if he proceeded to trial, and faced the same risk if he entered a guilty plea. We also agree with the Commonwealth that Chin made a reasoned decision to choose guaranteed non-confinement with the guilty plea rather than risking imprisonment from a conviction following trial. The court’s order withdrawing the guilty plea and. granting a new trial is reversed.

Order reversed.


author: JOHNSON, Judge:

text:
    540 A.2d 576
    Mary BARTUS v. Ronald W. BARTUS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1988.
    Filed April 11, 1988.
    George Pettrone, Pittsburgh, for appellee.
    Before McEWEN, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Ronald W. Bartus appeals from one proviso of an order entered November 19, 1986 by the Honorable Lawrence Kaplan, of the Court of Common Pleas of Allegheny County, Family Division. This proviso referred the enforcement of a dispute as to the transfer of personalty arising pursuant to a marital separation agreement to compulsory arbitration. We quash this appeal as interlocutory.

As this Court has stated:

[A]n appeal will lie only from a final order unless otherwise permitted by rule or statute. A final order is one which either ends the litigation or disposes of the entire case. Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can only be reached after an examination of its ramifications. (Citations omitted.)

Katz v. Katz, 356 Pa.Super. 461, 464, 514 A.2d 1374, 1376 (1986).

Allegheny County Local Rules for Compulsory Arbitration provide:

Rule 1301. Scope.

(*1) The following civil actions, proceedings and appeals or issues therein where the demand is for $10,-000.00 or less (exclusive of interests or costs) shall first be submitted to and heard by a board of three members of the bar of the court:
(a) Assumpsit cases, except:
(i) Where an accounting is demanded.
(e) Matters transferred to compulsory arbitration by the court even though the original demand may have exceeded 10,000.00 (exclusive of interest and costs).
(*2) Actions, proceedings, appeals or matters other than those set forth in *1 shall not be submitted to, transferred by a court to, heard or determined by a Board of Arbitrators appointed under 42 Pa.C.S. § 7361.

Allegheny County Local Rule *1301.

An order directing that a Board of Arbitrators hear a dispute is not a final order. Neither party is put out of court and the order does not determine the claims which have been raised. This order is not a final order from which an appeal may be taken pursuant to Pa.R.A.P. 341, nor is it an interlocutory order from which appeal is authorized by Pa.R.A.P. 311. Nor do we find this order to be appealable under the doctrine enunciated in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), adopted by this Commonwealth in Bell v. Beneficial Consumers Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). The Cohen doctrine holds an order appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment, the claimed right will be irreparably lost. National Recovery Systems v. Perlman, 367 Pa.Super. 546, 549, 533 A.2d 152, 153 (1987).

We do not find that if review is postponed until final judgment, the claimed right will be irreparably lost. Appellant complains that the equitable relief of specific performance is the only appropriate relief in a dispute over the disposition of personal property. Appellee rightly points out that parties can obtain equitable relief in an arbitration case variously; they may settle the case either before or after the arbitration judgment or they may exercise the statutory right to appeal de novo to a court with equity jurisdiction. 42 Pa.C.S. § 7361(d).

Appeal quashed.

      . The trial court issued the following order:
      AND NOW, to-wit, this 19th day of November, 1986, upon consideration of Plaintiffs Motion to Enforce Separation Agreement:-
      1. As to personalty is referred to arbitration;
      2. Refile on custody forms for review of custody;
      3. Husband to pay $800.00 for the three summer months.

      . The question as to which division of a court of common pleas is the proper forum for commencing an action in assumpsit involving a marital agreement is a question of internal common pleas court administration. Cf. Binder v. Miller, 456 Pa. 11, 317 A.2d 304 (1974); 42 Pa.C.S. § 952.


text:
    540 A.2d 577
    Ermyl E. GIBSON, Appellant, v. Elsie K. GIBSON.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1988.
    Filed April 11, 1988.
    John M. Leonard, Latrobe, for appellant.
    Jane U. Criste, Johnstown, for appellee.

      Before McEWEN, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

We are asked to decide whether a pendent prior divorce action provides sufficient grounds to dismiss a second divorce complaint brought in an adjacent county by the same plaintiff. In light of the objectives of the Divorce Code of 1980, we find that it is sufficient and we therefore affirm.

Appellant Ermyl E. Gibson (Husband) appeals from the trial court’s order of July 1, 1987 sustaining the Preliminary Objections of the appellee Elsie K. Gibson (Wife). The order dismissed Husband’s second Complaint in Divorce filed in Westmoreland County on April 2, 1987. By preliminary objection Wife maintains that a prior divorce action, still pending in Somerset County, warrants dismissal of the second action. Husband argues that the trial court erred in finding that the prior case was the same as the second and in thus dismissing the second action. He contends that because the second action alleges a different ground for divorce, it is a new, distinct case.

We should affirm the grant of the preliminary objections if the dismissal is clearly warranted and free from doubt. Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982) (en banc). In ruling on the preliminary objections, we must consider only those facts set forth in the complaint itself. International Union of Operating Engineers, Local No. 66 v. Linesville Construction Company, 457 Pa. 220, 322 A.2d 353 (1974). The facts before this court as set forth in Husband’s complaint are as follows:

A prior Action in Divorce was filed by [Husband] ... in the Court of Common Pleas of Somerset County— This Action is still pending, however, [Husband] has filed a Motion to Discontinue the Action in Somerset County. The prior action that is still pending in Somerset County alleges irretrievable breakdown of the marriage only and requests a Divorce pursuant to Section 201(c) of the Divorce Code____ [Wife] filed an answer to the Complaint ... in Somerset County, however, no other action has been taken in that case by either party____

We take judicial notice that the Court of Common Pleas of Somerset County denied Husband’s Motion to Discontinue his action there by Order of April 9, 1987. On April 2, 1987, Husband filed a new Complaint in Divorce in Westmoreland County alleging indignities. Wife filed preliminary objections to the complaint pursuant to Pa.R.C.P. 1017(b)(5) asking the court to dismiss the complaint on the basis of the prior action pending in Somerset County. A trial court en banc heard arguments. On July 1, 1987, the Honorable John E. Blahovec by order and opinion sustained Wife’s objections and dismissed the action, relying on the liberal joinder provisions of the Divorce Code of 1980, which would allow Husband to seek relief in the Somerset County action by simply amending- his complaint to include indignities grounds.

In Gantz v. Gantz, 338 Pa.Super. 528, 488 A.2d 17 (1985), upon which the trial court relies, this Court held that the intent of the Divorce Code of 1980:

is to make mandatory, rather than permissive, the consolidation of all issues germane to the dissolution of a marriage so as to prevent fragmentation____

Gantz, 338 Pa.Super. at 532, 488 A.2d at 19. We agree with the trial court’s application of Gantz. In Gantz, the wife was the defendant in a Delaware County Divorce action in which the sole issue was dissolution of the marriage. She then instituted another divorce action in Montgomery County which included economic issues. Subsequently she filed exceptions to the original Delaware County action. These alleged that the Delaware County court was without jurisdiction to proceed to final judgment because of the existence of the Montgomery County action which included the economic claims. The Delaware County court issued a divorce decree from which the wife appealed. This Court found that the filing of the Montgomery County action was “violative of the spirit, if not the letter of the joinder and counterclaim provisions of the 1980 Divorce Code,” Gantz, 338 Pa.Super. at 532-33, 488 A.2d at 19. The Court wrote that while the rules prior to the Divorce Code of 1980:

allowed for ... counterclaims while making them clearly permissive in nature and retained the option of separate actionsf,] [w]e feel that 23 Pa.C.S. § 301(a) must be interpreted to require consolidation of all issues in divorce so as to counter the “monumental waste of judicial time and litigant’s money” which is represented by continued application of an antiquated procedure no longer justifiable by circumstances or policy.

Gantz, 338 Pa.Super. at 532, 488 A.2d at 20 (citations omitted). The Gantz holding is broad in scope and does not warrant Husband’s narrow reading that Gantz, involving a complaint and a counterclaim, is not applicable to the case at bar, which involves two complaints.

The facts in the case before us argue strongly for the consolidation of all the claims into one action. Husband’s two divorce complaints relate to the same issue, whether or not a divorce should be granted. That each complaint alleges a different ground for divorce is immaterial. This Court’s rationale in Restifo v. Restifo, 339 Pa.Super. 352, 489 A.2d 196 (1985) supports our conclusion. Restifo held that the husband was entitled to present evidence on his counterclaim for adultery and indignities before the court ruled on the merits of the wife’s no-fault claims. The Court pointed out that the Divorce Code sets forth fault and no-fault bases as alternative grounds for divorce. See 23 Pa.C.S. § 201. Therefore, the proper way for a court to decide a divorce case is to consider together all the evidence supporting each ground. After hearing all the evidence, the court then determines upon which basis it will grant the divorce. ■ Restifo, supra. The court, not the parties, decides upon the ground for divorce.

Husband relies on a Northumberland County case, Tobias v. Tobias, 19 Pa.D. & C.3d 354 (1981). Tobias held that a prior divorce action filed in 1976 alleging indignities did not bar an action brought under the 1980 Code in another county alleging irretrievable breakdown. Hence, Tobias is inapposite. Husband ignores its determinative historical context and thus distorts its holding. The 1976 fault-based action was brought under the old divorce law, while the second, no-fault action was brought after the 1980 Code became effective. The bill of particulars required under the old law to prove an action based on fault grounds such as indignities has no application in a no-fault action under the new Code. Jakstys v. Jakstys, 326 Pa.Super. 367, 474 A.2d 45 (1984). Under these transitional circumstances, the Tobi as court let both actions stand.

We now have before us an entirely different situation. Both of Husband’s complaints were brought under the Divorce Code of 1980. Section 301 of the Code mandates that all issues involved in one divorce be tried together. Gantz v. Gantz, supra. Marinello v. Marinello, 354 Pa. Super. 471, 512 A.2d 635 (1986) (en banc). See also Altschuler v. Altschuler, 334 Pa.Super. 111, 482 A.2d 1106 (1984). As the trial court in the case at bar stressed, “With the liberal joinder provisions of the Code, there is no logical reason to permit maintenance of separate divorce actions.” Opinion of 7/1/87 at 4.

We adopt the reasoning of Judge Blahovec. Two actions for this one divorce would foster fragmentation, create economic hardship for one of the parties and destroy judicial economy. Nor is husband prejudiced by the dismissal of his Westmoreland County action. He can amend his Somerset County complaint to include the ground of indignities. The trial court’s granting of Wife’s preliminary objections was warranted by the Divorce Code of 1980. We thus affirm the Westmoreland County court’s order dismissing Husband’s second divorce complaint.

Order affirmed.

      . Section 301 reads in pertinent part as follows:
      23 P.S. 301. Jurisdiction
      (a) The courts of this Commonwealth.... shall have original jurisdiction in cases of divorce____and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
      (1) The determination and disposition of property rights and interests between spouses____
      (2) The future care, custody and visitation rights as to children____
      (3) Any support or assistance which shall be paid for the benefit of any children of such marriage____
      (4) Any property settlement____
      (5) Any other matters pertaining to such marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action.
      23 P.S. § 301 (Purdon Supp.1987).
      Former Pa.R.C.P. 1130(b) barred counterclaims in divorce actions. The rule was amended in 1961 to allow such a counterclaim. Even under the old rule, two separate divorce actions in the same county, each brought by one spouse, could be consolidated. Rules 1121 to 1137 were rescinded June 27, 1980, effective July 1, 1980, the effective date of the new Divorce Code. See Goodrich Amram 2d § 1130(b):l. Both the Gantz Court and the trial court in the instant case identified a source of confusion on the subject of joinder of claims and parallel jurisdiction in divorce cases. The case of Betz v. Betz, 103 Pa.Super. 306, 157 A. 359 (1931), decided at a time when counterclaims were not permitted in divorce, has been relied upon in recent lower court decisions. See Gantz, 338 Pa.Super. at 532 n. 4, 488 A.2d at 20 n. 4. Betz held that parallel jurisdiction was permissible because it was the only way to eliminate the deadlock which resulted from the denial of a divorce to a plaintiff when the defendant also had grounds for divorce. Gantz, supra; Goodrich Amram 2d 1130(b):!. This ruling came before the 1961 amendment to Rule 1130(b) and of course came before the 1980 Code.

      . The Tobias court applied the test articulated in Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900) that a prior action bars a present one if the case is the same, the parties are the same, and the rights asserted and the relief prayed for are the same. The court concluded that the cases in question were not the same because the grounds for divorce and the proof required under the old law are radically different from the grounds for divorce and the proof required under the Code of 1980. A recent decision by this Court applied the Hessenbruch test to a challenge to parallel divorce actions brought under the new Code and reached the opposite result. See Lowenschuss v. Selnick, 324 Pa.Super. 193, 471 A.2d 529 (1984). Applied to the case before us, the test yields the conclusion that the rights at issue in the two divorce actions are the same, the right to a divorce. The relief sought is the same, the grant of a divorce. Hence, the two cases are the same and, under Hessenbruch, it is proper to dismiss the second action.


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    540 A.2d 580
    COMMONWEALTH of Pennsylvania v. ALPHA EPSILON PI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed April 21, 1988.

      James Jubelirer, State College, for appellant.
    Sharon L. Potter, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Alpha Epsilon Pi, through David A. Vincoff, was found guilty of disorderly conduct by a district justice and ordered to pay a fine of $50.00 and costs in the amount of $48.50. An appeal of the summary conviction to the common pleas court produced a de novo non-jury trial before the Honorable David E. Grine. The fraternity was again found guilty. The trial court assessed the same fine, plus costs. This direct appeal follows denial of post-verdict motions. We affirm.

Appellant presents two issues for our determination:

1. Did the trial court erroneously overrule defendant’s demurrer where the prosecution had been brought under a general provision of the Crimes Code, and a more specific local ordinance was applicable to the factual circumstances alleged?
2. Was the verdict contrary to the evidence and to the weight of the evidence?

With respect to the first issue, we agree with the learned trial court’s conclusion that no law or authority exists that mandates that a police officer must charge under a local ordinance as opposed to a section of the Crimes Code. Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793 (1943), relied upon by Appellant, involved two acts of assembly (the Penal Code and Election Code). Likewise, Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962) involved the applicability of a penal provision of the Unemployment Compensation Law as against the Penal Code.

In the same vein, Commonwealth v. Litman, 187 Pa.Super. 537, 144 A.2d 592 (1958) called upon this court to choose between the provisions of the Medical Act of 1939 and the Penal Code. In Commonwealth v. Brown, 269 Pa.Super. 150, 409 A.2d 108 (1979) we were asked to consider the applicability of two separate sections of the Crimes Code, one dealing with forgery, the other relating to unlawful use of credit cards.

Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980), like Brown I, supra, involved the Election Code and the Crimes Code. Finally, Commonwealth v. Lawson, 315 Pa.Super. 84, 461 A.2d 807 (1983) called upon this court to compare and contrast two discrete sections of the Crimes Code.

In all of the cases cited by Appellant, our courts were dealing with either two different statutes enacted by the General Assembly, or specific sections contained within the same statute. Inexplicably, the Commonwealth, through its Brief for Appellee, invites us to consider the Statutory Construction Act of 1972, and particularly 1 Pa.C.S.A. § 1933. We reject this invitation since the Statutory Construction Act is only applicable when construing a general provision in a statute which is in conflict with a special provision in the same or another statute.

Appellant recognizes, to its credit, that all of the cases upon which it relies for authority are distinguishable from the case now before us, since none of them involves a general statute and a specific ordinance. Appellant points out that former Pa.R.Crim.P. 51 D, prior to its repeal effective January 1,1986, would have disposed of this issue, since it mandated that a charge be brought under an Act of Assembly where the same conduct was also proscribed by a local ordinance.

We do not find the repeal of Rule 51 D to be inconsistent with the conclusion we reach. Appellant contends that a prosecution must be based on a local ordinance, where the specific provision of the ordinance involves the same conduct as may be proscribed by the Crimes Code. Finding all of the authority advanced by Appellant to be inapposite, and finding no authority for such a proposition through our own research, we reject the first issue as being without merit.

As its second issue, Appellant contends that the verdict was contrary to the evidence and to the weight of the evidence. Based upon our review of Appellant’s Brief, we will treat this as an attack upon the sufficiency of the evidence, which was properly preserved for review through Appellant’s “Motion for New Hearing and in Arrest of Judgment.” See Commonwealth v. Roth, 366 Pa.Super. 575, 579, 531 A.2d 1133, 1135 (1987).

Our scope of review, as set forth in Roth, supra is:

In testing the sufficiency of the evidence, we must view the evidence in a light most favorable to the Commonwealth as the verdict winner and draw all reasonable inferences upon which the fact finder could have properly based its verdict____ A determination must be made as to whether there exists sufficient evidence to enable the trier of fact to find, beyond a reasonable doubt, every element of the crime for which the appellant has been convicted.

Id., 366 Pa.Superior Ct. at 579, 531 A.2d at 1135 (citations omitted).

The evidence at the trial came from Officer Michael Territo of the State College Police Department. On Wednesday, August 27, 1986, Officer Territo received a complaint from a borough resident living at 317 East Prospect Avenue. Based upon the call the officer proceeded by patrol car to the 300 Block of East Fairmount, a street within the borough running parallel to East Prospect and one block distant.

The Alpha Epsilon Pi fraternity occupies a two-story dwelling house at 321 East Fairmount, at the intersection of Locust Lane. There are other fraternity houses nearby. Officer Territo stopped and parked his car one-half block west of the Alpha Epsilon Pi house. He got out of his car, stood beside it, and listened. He heard music coming from within the fraternity house, which was at least fifty yards from where he had stopped.

He then moved his vehicle closer to the fraternity house and established that the same noise he had heard from a distance was coming out of the fraternity house. He observed between thirty and forty people out on the lawn of the fraternity house, drinking beer, laughing and talking. The windows of the fraternity house were open. The noise from the house could easily be heard. Officer Territo considered the amount of noise coming from the house to be unreasonable for that time in the evening.

Officer Territo then went to the door of the house, asked to speak with someone about the noise, and met David A. Yincoff. A citation was issued for disorderly conduct. The elements of disorderly conduct here applicable are as follows:

(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(2) makes unreasonable noise.
(c) Definition. — As used in this section the word “public” means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.

18 Pa.C.S. § 5503.

Two elements must be proven in order to support a conviction for the summary offense of disorderly conduct. A person must be shown to have made an unreasonable noise. Also, the noise must be made with either (a) the intent to cause public inconvenience, annoyance or alarm, or (b) recklessly creating a risk thereof.

Appellant argues that neither element has been established.

With regard to the first element, Appellant urges us to apply the standard laid down in Commonwealth v. Weiner, 230 Pa.Super. 245, 326 A.2d 896 (1974), a case wherein this court reviewed the constitutionality of the predecessor disorderly conduct statute, Section 406 of the Penal Code of 1939, 18 Pa.C.S. § 4406. There, we quoted, with approval from Commonwealth v. Greene, 410 Pa. 111, 189 A.2d 141 (1963) wherein the late Mr. Justice Musmanno determined that noise must be “unseemly” to constitute disorderly conduct, and that “unseemly” is understood to mean “not fitting or proper in respect to the conventional standards of organized society, or a legally constituted community.” Id., 410 Pa. at 113, 189 A.2d at 143.

The enactment of the Crimes Code resulted in the elimination of the statutory phrase, “any loud, boisterous and unseemly noise.” The present requirement, tracking the Model Penal Code, is that the noise be “unreasonable.” None of the appellate cases which have reviewed § 5503 of the Crimes Code since 1973 have been required to examine and construe the term “unreasonable noise” in the context of a music sound system. The statute itself focuses on public inconvenience or annoyance. It goes on to include “any neighborhood” within the definition of the word “public.” 18 Pa.C.S. § 5503(a), supra.

In the case before us, the police officer had proceeded to a borough neighborhood at 11:20 p.m. on a Wednesday night. He went to the area after receiving a complaint from a resident of that neighborhood. Stopping in his car some fifty yards from the Appellant’s premises, he heard the sound of music coming from the fraternity house. He observed and overheard a group of thirty or forty people outside the house, on the lawn, laughing, talking and drinking beer. The noise continued up to the time that Officer Territo requested that the volume of the music be turned down. Given the time of day, the officer’s ability to hear the noise from a distance of fifty yards during a warm, summer night, and the initial complaint to the officer which was made by a resident living at least one block away, we cannot say that the trier of fact could not have found the noise to have been unreasonable.

Appellant also contends that the necessary element of intent was not shown through Officer Territo’s testimony. Appellant argues that one unverified complaint, involving noise coming from a fraternity house along a “fraternity row” can hardly be considered inconvenient, annoying or alarming to the general public. We would first observe that our focus here is not on the general public, or even on the traveling public, as may have been the case under the since-repealed Penal Code. Rather, our focus is on the neighborhood in which the alleged offense occurred.

Officer Territo testified that there are other fraternity houses within the immediate neighborhood. But he also testified that within fifteen yards of the subject fraternity house, and in fact just across Locust Lane, non-fraternity house residences are found. We are satisfied that any residences near enough to receive the noise emanating from the fraternity house are within the “neighborhood” for purposes of establishing disorderly conduct.

Finally, as set forth above, the intent element may be satisfied on a showing of recklessly creating a risk of public inconvenience or annoyance. Here, a music sound system was operated at 11:20 at night, from a dwelling house with the windows open, such that the sound was heard by a resident living on a parallel street one block distant, and the sound continued such that it was readily heard by an investigating police officer at a distance of fifty yards from the house. These facts are sufficient to permit the trier of fact to find a reckless disregard for public inconvenience and annoyance.

We find both of Appellant’s contentions to be without merit. Accordingly, the judgment of sentence is affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I join the Majority’s disposition of Appellant’s first issue. However, I would not reach that issue insofar as I believe there lacked sufficient evidence to support a conviction for disorderly conduct. “In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228, 1229 (1984).

An essential element of disorderly conduct is that the defendant “[made] unreasonable noise.” The testimony at trial, at most, established that one resident of the neighborhood in which the fraternity house was situated called in a noise complaint. Instead of speaking directly with the complainant whose home was approximately one block away from the fraternity house, Officer Territo decided to listen to Appellant’s party from 50-60 yards away. From this closer vantage point, the officer made the decision that a disorderly conduct citation was appropriate. I cannot agree with the Majority’s conclusion that one unsubstantiated noise complaint, and the subjective view of a police officer stationed very near to the house, manifests a showing of unreasonable noise.

Of greater importance is the fact that notably absent from the record is any testimony that would establish the necessary mens rea for disorderly conduct. There is no indication that the fraternity intended to cause any “public inconvenience, annoyance or alarm.” Likewise, nothing in the record indicates that Appellant “recklessly” achieved such a result. Recklessness under the statute denotes a conscious disregard of a substantial risk that public annoyance or alarm would result from certain conduct, or a gross deviation from the standard of conduct that a reasonable person would observe under the circumstances. Commonwealth v. Weiss, 340 Pa.Super. 427, 434, 490 A.2d 853, 857 (1985). Instantly, Officer Territo admitted at trial that it was a warm evening, the members of the fraternity moved the party outside, and listened to music through open windows. When they were directed to turn the music down, they promptly complied. On this meager evidence alone, I do not agree that Appellant’s conduct amounted to recklessness. Therefore, I am of the opinion that the judgment should be reversed.

      . See, Commonwealth v. Roth, supra (hazardous or physically offensive condition); Commonwealth v. Weiss, 340 Pa.Super. 427, 490 A.2d 853 (1985) (obscene language); Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982) (obscene language); Commonwealth v. Kidd, 296 Pa.Super. 393, 442 A.2d 826 (1982) (tumultuous behavior or obscene language); Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980) (unreasonable noise/epithet analysis); Commonwealth v. Hughes, 270 Pa.Super. 108, 410 A.2d 1272 (1979) (threats and obscenities).


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    540 A.2d 584
    Howard R. HORN, an individual and Jill A. Horn, an individual, Appellants, v. ERIE INSURANCE EXCHANGE, Ronald M. Kean and Pamela Kean, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1988.
    Filed April 18, 1988.

      Robert W. Deer, Pittsburgh, for appellants.

      Richard Levine, Pittsburgh, for appellees.
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a trial court may act sua sponte to transfer to another forum an action whose venue has been properly laid.

An action for declaratory judgment was filed in Allegheny County by Howard R. Horn and Jill Horn, his former wife, to adjudicate whether Erie Insurance Exchange (Erie) was required by the terms of its homeowner’s policy to defend an action brought against the Horns in Washington County. That action, filed by Ronald and Pamela Kean, had charged the Horns with negligently and/or fraudulently selling their Washington County residence to the Keans without disclosing that the property was termite-infested and structurally damaged. On April 28, 1987, the court in Allegheny County granted partial judgment on the pleadings in the declaratory judgment action and directed Erie to provide a defense to the Horns in the Washington County action. Erie thereafter undertook to provide the Horns with a defense in Washington County on the Keans’ cause of action for negligence, but it refused to defend the Horns against the claim which was based on intentional fraud. Both parties in the declaratory judgment action subsequently requested the court in Allegheny County to clarify its order. The trial court denied both motions and sua sponte transferred the declaratory judgment action to Washington County. The Horns appealed. They contend that the trial court erred when it transferred venue sua sponte.

It is undisputed that venue in the declaratory judgment proceeding was properly laid in Allegheny County. The forum was selected by the plaintiffs. Their choice is entitled to weighty consideration and should not lightly be disturbed. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 82, 461 A.2d 805, 806 (1983). See also: Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985). Although Pa.R.C.P. 1006(d) authorizes a court to transfer an action to the appropriate court of any other county where the action could originally have been brought “for the convenience of parties and witnesses,” this rule is implicated only “upon petition of any party.” In this case, neither party requested a change of venue for the convenience of the parties and witnesses; and there is no basis apparent on this record that a transfer to Washington County would serve the stated purpose of the rule. Inasmuch as venue was properly laid in Allegheny County, therefore, the trial court abused its discretion by sua sponte transferring venue to another forum which, for reasons perceived by the transferring court, could more conveniently decide the case. See: Triffin v. Turner, 348 Pa.Super. 6, 9, 501 A.2d 271, 273 (1985).

Erie argues that a court may transfer venue on its own motion for reasons of “judicial economy,” to eliminate “inconsistent results,” and to avoid “prejudice.” However, Pa.R.C.P. 1006 “does not suggest that a forum non conveniens transfer may be based upon possible inconvenience to the transferring court if that court were required to try the case.” Ernest v. Fox Pool Corp., supra 341 Pa.Super. at 75-76, 491 A.2d at 156. A trial court may not utilize a transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it. Neither the parties nor the trial court has demonstrated that it would be more convenient for the parties or the witnesses to litigate the declaratory judgment action in Washington County. The substantive issue involved in the action is primarily one of law, involving, as it does, a determination of Erie’s duty to defend a separate action. This can be determined in Allegheny County, the forum selected by the plaintiff, without inconvenience to witnesses and without prejudice to the parties.

The order transferring venue is reversed.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

I concur in the result. I agree that venue was proper in Allegheny County because Appellant Jill Horn resides in Allegheny County. However, under the appropriate circumstances, I believe that a trial court may transfer venue sua sponte in order to adjudicate cases in the most expeditious manner possible and at the least expense and inconvenience to all concerned.

The question of venue is not simple to resolve. The Superior Court has recently dealt with this subject in Korn v. Marvin Fives Food Equipment, 362 Pa.Super. 559, 524 A.2d 1380 (1987), and in Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987). In both Korn and Petty, identical language is used in discussing considerations for change of venue on forum non conveniens grounds.

When exercising its discretion on a motion to transfer for the convenience of the parties and witnesses, the court should consider those elements which affect the private interests of the litigants which include: the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be a question as to the enforceability of a judgment if one is obtained. The court must also consider those elements in which the public has an interest and those include: problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law. (Emphasis added).

Korn, 524 A.2d at 1382; Petty, 525 A.2d at 1232.

I am aware that in neither of these cases did the trial court act sua sponte to transfer the case to another forum. Nevertheless, it is my opinion that such an action is within the discretion of the trial court when it concludes that the considerations for determining proper venue have been abused.

A hypothetical example of this is when a case is filed in Allegheny County, although the plaintiffs are residents of Washington County, the cause of action arose out of incidents which occurred in Washington County, and two of the three named defendants are residents of Washington County. The third defendant concededly does business in Allegheny County. (Although it may very well do business in any number of the sixty-seven counties of Pennsylvania as well). Under such circumstances, the provisions of Pa.R. C.P. 1006(c) would permit the bringing of the cause of action in Allegheny County.

In a situation of this nature, the court must contend with questions about the convenience of the parties and even greater problems created by the elements in which the public has an interest.

Article 5, Section 1 of the 1968 Pennsylvania Constitution requires that the judicial system shall be unified, consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace.

Notwithstanding this requirement, a unified system of funding has not been achieved. The Commonwealth pays the salaries of the judges and makes a minimal contribution to the expenses of operating the courts of common pleas. The individual counties fund the overwhelming bulk of the cost of maintaining the courts within its judicial district.

Why should the taxpayers of Allegheny County be burdened with the expenses of determining a law suit (such as the one in the above hypothetical), with which they have no connection. If a trial court did not transfer such a case it would be ignoring the elements in which the public had an interest. There is no nexus between Allegheny County and such litigation. The only reason that venue is even proper is because one of the defendants does business in this county. Cases of this nature add considerably to both the congestion of large metropolitan jurisdictions and the costs of financing them. Upon evaluation of the situation, a trial judge would be serving the public expediently by changing the venue of a cáse to a place having a relationship to, and a basis for, adjudicating the matter.

I am mindful of the Pennsylvania Supreme Court decision in Allegheny County v. Commonwealth of Pennsylvania, 517 Pa. 65, 534 A.2d 760 (1987), in which the Court held that the present statutory funding for the judicial system offended the constitutional mandate for a unified system. The General Assembly must now enact appropriate funding legislation consistent with the Court’s opinion. Hopefully, the current funding problem as it applies to questions regarding venue will be eliminated.

Until such legislation is implemented, I propose that pending suits with illogical questions of venue are transferable sua sponte by the trial court in keeping with public policy.

      . The order refused a request for the summary entry of an order requiring Erie to indemnify the Horns for any liability determined by the Washington County action or to reimburse the Horns for their legal costs. The court's order was consistent with the rule of law which holds that an insurer is obligated to provide a defense until it is clear that the action does not involve a matter for which coverage has been provided. See: United Services Automobile Ass’n v. Elitzky, 358 Pa.Super. 362, 368, 517 A.2d 982, 985 (1986); Vale Chemical Co. v. Hartford Accident and Indemnity Co., 340 Pa.Super. 510, 518 n. 7, 490 A.2d 896, 900 n. 7 (1985).

      . Pa.R.App.P. 311(c) permits an immediate appeal from an order in a civil proceeding changing venue and transferring a case to another court of coordinate jurisdiction.

      . The Horns have also requested "definitive guidance on the scope of Erie’s duty to defend.” We decline to render the advisory opinion which they seek.

      . Erie has offices in Allegheny County; Jill Horn resides in Pittsburgh; and Howard Horn presently resides in Michigan. All have retained Allegheny County attorneys.