author: MONTGOMERY, Judge: TAMILIA, Judge,

text:
    565 A.2d 173
    AMERICAN ASSOCIATION OF MEAT PROCESSORS, Appellee, v. CASUALTY RECIPROCAL EXCHANGE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1989.
    Filed Oct. 17, 1989.

      William A.K. Titelman, Harrisburg, for appellant.
    Linus E. Fenicle, Harrisburg, for appellee.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This action was instituted by the Plaintiff-Appellee, the American Association of Meat Processors, against the Defendant-Appellant, Casualty Reciprocal Exchange, seeking the payment of a minimum of ten percent of the yearly premiums paid by participants in a program of workers’ compensation insurance issued by the Appellant insurer, pursuant to the sponsorship of the Appellee Association. The Association claimed it was entitled to such a recovery based upon an alleged agreement between the parties. The insurer maintained that there was no agreement requiring it to make such a payment to the Association. The dispute involved a period described by the parties and the trial court as the April 1, 1983 — March 31, 1984 insurance year.

The dispute proceeded to a non-jury trial. The trial court determined that an oral agreement existed for the Appellant to pay the Association an annual dividend or savings, equal to a minimum of ten percent of the premiums derived by the Appellant from the program. Accordingly, the trial court issued an Opinion and Order, awarding the Association an amount equal to ten percent of the premiums paid by Association members to the insurer, during the period in question, for the workers’ compensation coverage endorsed by the Association.

The insurer filed post-trial motions requesting the entry of judgment n.o.v., or alternatively, a new trial. The Association also filed a post-trial motion, urging that it should have been awarded prejudgment interest. The court en banc issued a final Order which denied the motion of the insurer for judgment n.o.v. or a new trial, but granted the request of the Association for interest. After judgment was entered in the trial court, the instant appeal was filed by the Appellant. Three basic claims of error are properly presented for review.

The first contention of the Appellant is that the trial court improperly determined that an agreement existed which required the Appellant to pay the Appellee ten percent of the annual premiums from the policies purchased by members of the Association in the sponsored workers’ compensation insurance program. It is claimed that prior annual payments which had been made were merely voluntary, and established no right in the Association to receive a similar payment during the 1983-1984 insurance year, in exchange for the Association’s endorsement of the program in issue.

From our review of the entire record, we are convinced that the trial court had substantial evidence to support its determination that an oral agreement existed between the parties which required the insurer to make the payment which was sought in this action by the Association. In determining whether or not an alleged oral agreement existed, a court should look to all of the surrounding circumstances, and the course of dealings between the parties, to ascertain the intent of the parties. Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 228 A.2d 656 (1967). The evidence of record in this case shows that in March, 1967, the Association was solicited by the insurer to establish a group workers’ compensation insurance program for members of the Association. From 1968 through 1984 the Association endorsed the Appellant’s workers’ compensation program and a number of its members purchased policies for such coverage during each such year. Consistently each year, a payment was made by the insurer to the Association, equal to no less than ten percent of the total premium paid. In addition, evidence was presented of correspondence the insurer sent to the Association, making reference to a “ten percent minimum regardless of loss ratio” and a “practice to pay a minimum of (10%)”. During the span from 1968 through 1983, the annual payment or “dividend” to the Association from the insurer varied from a minimum of ten percent of premium dollars, during six or seven of those years, to a high of twenty-three percent in 1973. Each year, a report was sent to the Association by the insurer, together with a check representing the annual payment.

The annual payment sought in this action by the Association was withheld by the insurer after the Association gave notice that it would no longer endorse the Appellant’s workers’ compensation insurance program. Evidence was presented that prior to that cancellation notice, however, representatives of the insurer gave assurance, both orally and in writing, that whatever the Association did concerning its endorsement, the payment for the April 1, 1983— March 31, 1984 insurance year would be handled the same as in prior years. However, subsequent to the Association’s announced cancellation of its endorsement and the beginning of its endorsement of another insurer to provide coverage under the program, the Appellant refused to send its standard yearly report and refused to pay the “dividend” to the Appellee.

It is clear that the trial court did not abuse its discretion or otherwise err in determining that such facts established an oral agreement which required the Appellant insurer to pay the Appellee Association a minimum of ten percent of the premiums paid, under the workers’ compensation insurance program, during each year when the program was endorsed by the Association. All of the surrounding circumstances, especially the 15 year course of dealings between the parties, certainly demonstrated a mutual understanding regarding the insurer’s obligations to make an annual payment in return for the endorsement of the Association, from which the insurer derived substantial business. The Association provided its endorsement during the 1983-1984 insurance year, and was entitled to the annual payment for that period. Accordingly, we reject the Appellant’s initial claim of error.

The second argument of the Appellant is that a purported understanding for the payments sought by the Association would be unenforceable, because the payment and acceptance of rebates are illegal under applicable insurance statutes in our Commonwealth. In support of that position, the Appellant cites the Act of May 17, 1921, P.L. 789, art. VI, §§ 635 and 636, 40 P.S. §§ 275 and 276. The thrust of § 275 is against the placement of insurance at a favorable rate regardless of the mode or manner in which such favored rate is obtained, and in circumstances that are not available to all other insured of the same class. McDowell v. Good Chevrolet-Cadillac, Inc., 397 Pa. 237, 154 A.2d 497 (1959). Section 276 prohibits insured persons or parties or applicants for insurance from receiving any rebates of premiums, or all or any part of the commissions of an agent or broker, or any other favor or advantage, valued consideration or inducement other than such as are specified in the policy.

It is evident that neither of these anti-rebate statutes apply to the type of payment sought by the Appellee in the instant case. The Appellee was not an insurance agent, solicitor, or broker in this arrangement, nor was it an insured, within the meaning of the Pennsylvania insurance laws. It was not a party to the insurance policy or contract which existed in each case between one of its members and the Appellant. Accordingly, the anti-rebate laws cited by the Appellant provide no support for its position that illegality precluded the trial court’s enforcement of its agreement to pay the amount in dispute.

The Appellant’s final argument is that the Appellee was not entitled to an award of prejudgment interest. It contends that because the amount of “dividends” due could not be ascertained by mathematical calculation, an award of such interest was improper. In support of that position, the Appellant cites Black Gold Coal Corp. v. Shawville Coal Co., 730 F.2d 941 (3rd Cir.1984). We cannot agree. The trial court awarded the Appellee the minimum amount to which it was entitled under the agreement which the court found to be in existence between the parties. That amount was ten percent of the annual premiums paid by members of the Association for the workers’ compensation insurance coverage sponsored by the Appellee. Such an amount was readily ascertainable. Accordingly, we find no merit in the Appellant’s third claim of error.

A section of the Appellant’s Brief to our Court is captioned: “The Agreement at Issue is Subject to the Provisions of the Insurance Laws of the Commonwealth”. Other than issues which we have already discussed which were preserved in Appellant’s written post-trial motions, that part of the Brief also raises questions which were not addressed to the trial court in such post-trial motions. We must deem such contentions to have been waived. Cucchi v. Rollins Protective Services Company, 377 Pa.Super. 9, 546 A.2d 1131 (1988).

The Order of the trial court is hereby affirmed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting.

I respectfully dissent to the position taken by the majority that there existed an enforceable agreement between American Associates of Meat Processors (Association) and Casualty Reciprocal Exchange (Casualty). The oral agreement between the Association and Casualty was for Association to endorse Casualty resulting in Association members purchasing Casualty insurance in return for which the Association members would receive a return of at least ten percent of the premiums paid each year. While this practice continued for at least 15 years, and was interrupted only during the last year when the Association terminated its relationship with Casualty, I do not believe the Association can enforce the agreement. The agreement only has validity within the context of the insurance law. I believe 40 P.S. § 275, Rebates and inducements prohibited, clearly governs this matter. However the Association viewed the arrangement, Casualty at this time treats it as an agency relationship in which the Association procured the clients with whom Casualty entered into individual contracts. These contracts permitted but did not require Casualty to pay rebates, which was permissible under section 275. See Girard Trust Bank v. Life Insurance Co. of North America, 243 Pa.Super. 152, 364 A.2d 495 (1976). When the money was paid to Association, which could receive it pursuant to assignments to them of individual amounts, they returned most of the premiums, except for a small percentage, to the individual insureds. Independent of the rebates, the Association received sums each year for promotional activity on the part of Casualty. Despite the fact that Casualty refused to pay the rebate the year the Association withdrew its endorsement, which may likely be the reason for non-payment, Casualty alone had the right to determine whether a dividend (rebate) was payable. It is acknowledged that Casualty suffered a loss in its cost-receipt ratio during that year as well as earlier years. Payment during earlier loss years could be justified by desire to retain the large account with hopes that the future would show an improvement. Such a decision could be a rational one whereas payment of a rebate when the account was terminated in the face of a loss in cost-premium ratio would not. Since the decision by Casualty was one it alone had the option to make in terms of its dividend policy, compelling it to make such rebate when it could not be justified on a business basis, clearly would bring them into violation of section 275.

While appellee maintains the illegality of the agreement was not alleged in the complaint, as appellant has stated in its brief and as concurred in by the en banc Court, the defense of illegality of an agreement may be raised at any time and is never waived. Shafer v. A.I.T.S., Inc., 285 Pa.Super. 490, 428 A.2d 152 (1981).

Since the rebates in this instance, to be in compliance with the law, were payable only to the policy holders, and whether or not they would be made in any given year was a determination which could only be made by Casualty, despite any understanding with Association, there was no enforceable agreement with Casualty to compel payment in this instance. I would vacate the Order of the trial court and grant judgment n.o.v.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    565 A.2d 177
    COMMONWEALTH of Pennsylvania v. Kevin BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 31, 1989.
    Filed Oct. 18, 1989.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, BECK and MELINSON, JJ.
   BECK, Judge.

This is an appeal by Kevin Brown from a judgment of sentence imposed by the Court of Common Pleas of Philadelphia County following his conviction for possession of a controlled substance and possession with intent to deliver a controlled substance. The sole question presented is whether the trial court erred by failing to suppress a bag of cocaine that appellant discarded after he was approached by two pólice detectives. After careful consideration, we affirm the judgment of the trial court.

Our standard of review is well established.

When reviewing the denial of a motion to suppress our responsibility is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Granger, 364 Pa.Super. 453, 457, 528 A.2d 244, 246 (1987) (quoting Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976)). Viewed in the light most favorable to the Commonwealth, the relevant facts are as follows.

On July 24, 1987, at about 10:15 A.M. Detective Furlong of the Philadelphia Police Department saw appellant park a car on the 1600 block of Point Breeze Avenue in Philadelphia and walk across a vacant lot onto the 2200 block of Fernon Street. Detective Furlong was aware that appellant previously had been arrested for burglary and he decided to keep a close watch on appellant to see if appellant would attempt another burglary. Furlong contacted his partner, Detective Feldmyer, and summoned him for assistance.

During the following half-hour, Furlong observed appellant walking up and down Fernon Street and talking to people. At about 10:50 A.M., appellant started to walk across the vacant lot toward his car which was parked at the curb of Point Breeze Avenue which abuts the vacant lot. At this point, Furlong began walking very quickly in appellant’s direction. Meanwhile, Detective Feldmyer drove an unmarked police car over the curb and onto the sidewalk that bordered the vacant lot and stopped parallel to and a few feet in front of appellant’s car. On the way to his car, appellant walked around Feldmyer’s vehicle, pretended to trip, and tossed a plastic bag under his own car. Feldmyer said, “How you doing, Kevin.” and appellant responded “What’s up.” Furlong retrieved the plastic bag and noticed that it contained small tubes packed with white powder. Furlong then placed appellant under arrest.

Appellant argues that the bag of cocaine should have been suppressed because it was abandoned as a result of unlawful police conduct. In order to determine whether the conduct of the police was unlawful, we must focus on the contact between appellant and the detectives immediately before appellant discarded the cocaine. We must decide whether Feldmyer’s action in parking on the sidewalk next to appellant’s vehicle when combined with Furlong’s action in walking quickly in appellant’s direction constitutes a seizure of the person within the meaning of the fourth amendment.

Encounters between the public and the police that do not involve a formal arrest may be categorized as mere encounters, non-custodial detentions, and custodial detentions. Commonwealth v. Ellis, 379 Pa.Super. 337, 353, 549 A.2d 1323, 1331 (1988). The term “mere encounter” refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the fourth amendment. For example, a “mere encounter” occurs if the police simply approach a person on a public street in order to make inquiries. See Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241 (1977).

On the other hand, both non-custodial detentions and custodial detentions are seizures of the person that trigger fourth amendment protection. See Dunaway v. New York, 442 U.S. 200, 207-211, 99 S.Ct. 2248, 2253-2256, 60 L.Ed.2d 824 (1979); see generally 2 LaFave, Search and Seizure § 5.1 (2d ed.1987) and 3 LaFave, Search and Seizure, §§ 9.1-9.6 (2d ed.1987). A non-custodial detention or “forcible stop” occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. See Commonwealth v. Williams, 287 Pa.Super. 19, 22, 429 A.2d 698, 700 (1981). In order to justify a forcible stop under the fourth amendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Custodial detention is a more severe form of government intrusion in which the conditions or duration of the police detention approximate the level of restraint associated with a formal arrest. See Ellis, 379 Pa.Super. at 356, 549 A.2d at 1332. In order to justify custodial detention, the police must have probable cause to believe that an offense has been or is being committed. Dunaway v. New York, 442 U.S. at 216, 99 S.Ct. at 2258.

In the case sub judice, appellant clearly was not subjected to custodial detention at the time he disposed of the cocaine. Appellant does not disagree but argues that prior to abandoning the cocaine, he was subjected to noncustodial detention, i.e. a forcible stop, and that this forcible stop was illegal because the detectives had no reasonable suspicion that he had engaged in criminal activity. The Commonwealth responds that the conduct of the police constituted a non-coercive encounter and that appellant was not subjected to any form of seizure. Therefore appellant was not entitled to fourth amendment protection, and the question of whether the detectives had a reasonable suspicion that appellant had engaged in criminal activity was irrelevant. For the reasons that follow, we agree with the Commonwealth position.

In Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), the United States Supreme Court clarified the distinction between a seizure and a non-coercive encounter. In that case, the defendant began running after sighting a police cruiser, and the police drove alongside him for a short distance in order to investigate. After observing the defendant discard what appeared to be packets containing drugs, the police overtook the defendant and arrested him. The Supreme Court unanimously held that the police had not seized the defendant at the time he abandoned the contraband.

In the majority opinion, Justice Blackmun emphasized that: “the police can be said to have seized an individual ‘only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id. at 573, 108 S.Ct. at 1979, 100 L.Ed.2d at 572 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Opinion Announcing the Judgment of the Court)). Applying this test, Justice Blackmun concluded:

[T]he police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [the defendant’s] freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block [the defendant’s] course or otherwise control the direction or speed on his movement. While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. Without more, the police conduct here — a brief acceleration to catch up with [the defendant] followed by a short drive alongside him — was not “so intimidating” that respondent could reasonably have believed that he was not free to go about his business.

Id., 486 U.S. at 575-576, 108 S.Ct. at 1980-1981, 100 L.Ed.2d at 573 (citations and notes omitted).

We note that the Chesternut decision is consistent with Pennsylvania search and seizure jurisprudence. For many years, Pennsylvania courts have applied a similar test in order to determine whether a defendant abandoned property as a result of an illegal police seizure of the person. In Commonwealth v. Hall, supra, three police officers in an unmarked car observed the defendant standing in front of a tavern. The officers made a U-turn, double parked, and exited their vehicle with the intent of confronting the defendant. As the officers approached within ten feet of the defendant, he dropped a ball of Kleenex that contained foil packets stuffed with heroin. The Pennsylvania Supreme Court concluded that although the police had no basis for concluding that criminal activity was afoot, the heroin should not be suppressed because the activity of the police did not constitute a seizure. The Court noted that suppression would have been appropriate if “the circumstances [had] clearly demonstrated that the police officer was exercising force, i.e., showing authority, sufficient to warrant a conclusion by ‘a reasonable man, innocent of any crime,’ that the officer was attempting to effectuate a ‘forcible stop’ as opposed to a mere ‘contact’ ”. Id., 475 Pa. at 487-88, 380 A.2d at 1241 (quoting Commonwealth v. Jones, 474 Pa. 364, 373, 378 A.2d 835, 840 (1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978)). The Court concluded that by double parking and walking toward the defendant, the three policemen would not have put a reasonable person on notice that he was not free to depart. See also Commonwealth v. Bulling, 331 Pa.Super. 84, 103, 480 A.2d 254, 264 (1984) (collecting cases on abandonment of property upon approach by police).

In the instant case, we find that the police conduct at issue was not significantly more coercive than the police conduct in Hall and in Chesternut. The encounter between appellant and the police took place along the side of a public street in an urban area during the day. Neither Furlong nor Feldmyer ever commanded appellant to halt, or touched appellant, or threatened appellant or displayed any weapon. Furlong simply walked in the appellant’s direction while Feldmyer drove an unmarked vehicle onto the pavement and parked in close proximity to appellant’s car. To borrow a phrase from Chesternut, the sight of the police vehicle driving over a curb and onto the sidewalk may have been “somewhat intimidating.” Moreover, the detectives unmistakably indicated that they wanted to speak with appellant. Yet we cannot say that a reasonable person in appellant’s position would have concluded that the detectives were prepared to use force to prevent him from leaving. Accordingly, we shall not disturb the trial court’s decision to deny the suppression motion.

In arguing for the opposite conclusion, appellant relies primarily on two considerations. First, appellant notes that his confrontation with Furlong and Feldmyer on Point Breeze Avenue was not his first encounter with the two detectives. Appellant had previously come into contact with the detectives at the time he was arrested for burglary. We agree that prior contact between a defendant and a police officer may be relevant to the question of whether the police officer subjected the defendant to a forcible stop. This prior contact is one factor that should be considered when determining whether under the totality of the circumstances a reasonable person in the defendant’s position would have felt restrained. In the case sub judice, however, the record indicates that the only prior contact Furlong and Feldmyer had with appellant was when they lawfully searched appellant after he had been arrested by other policemen on burglary charges. Under these facts, appellant’s prior contact with the detectives was of minimal importance.

Appellant also relies on the passage in Chesternut where the Court explained that a seizure may occur where the police operate a car “in an aggressive manner to block [the defendant’s] course or otherwise control the direction or speed of his movement.” 486 U.S. at 575, 108 S.Ct. at 1980, 100 L.Ed.2d at 573. We recognize that under some circumstances the use of a police vehicle will have a restraining effect on a member of the public. For example, in Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978), the defendant abandoned a bag of marijuana after a police car drove into a parking lot and pulled directly in front of the defendant’s Ford Mustang. The suppression court found that the officer had positioned his car in such a way as to block the defendant from exiting the parking lot. On appeal, the Pennsylvania Supreme Court affirmed the decision to suppress the marijuana. Cf. United States v. Kerr, 817 F.2d 1384 (9th Cir.1987) (forcible stop occurred where police car pulled behind defendant who was backing out of a one-lane dirt driveway).

On the other hand, in the instant case, the police interference with appellant’s freedom of movement was de mini-mus. The record does not indicate that the detectives blocked appellant’s car or prevented appellant from reaching his car. Indeed, appellant walked around Feldmyer’s vehicle and tossed a bag of cocaine under his own car. Feldmyer “controlled” appellant’s speed and direction only in so far as appellant was forced to deviate by a few feet from the path he would otherwise have taken from the vacant lot to the street. We find that the police did not forcibly stop appellant when they caused him to alter his movements in this manner.

Since appellant was not subjected to a forcible stop, we need not consider whether the police had any reasonable basis for concluding that criminal activity was afoot. The police did not violate appellant’s constitutional rights, and the trial court did not err by finding that appellant did not abandon the cocaine as a result of police coercion.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result.


author: DEL SOLE, Judge:

text:
    565 A.2d 181
    George F. CARR and Rosemary A. Carr, his Wife v. Helen M. DOWNING a/k/a Helen M. Brinton, Appellee. Appeal of Rosemary CARR, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1989.
    Filed Oct. 23, 1989.

      Andrew S. Wade, West Chester, for appellant.
    Kenneth A. Roos, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Appellants file the instant appeal from a final order of court denying their request for specific performance. The court entered its order upon a finding that Appellants’ post-trial motions were untimely filed. We agree with this conclusion and affirm the court’s final order.

An Adjudication and Decree Nisi were filed on November 10, 1988. Pennsylvania Rule of Civil Procedure 227.1(c)(2) provides that post trial motions be filed within ten days after “the filing of the decision or adjudication in the case of a trial without jury or equity trial.” It is undisputed that Appellants’ motions were not filed within ten days of the filing of the court’s Adjudication and Decree Nisi, however, Appellants submit that the time period for purposes of Rule 227.1 did not commence until notice of the adjudication was sent to the parties. We agree.

Rule 108(b) of the Rules of Appellate Procedure provides: Civil Orders. The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).

Rule of Civil Procedure 236(b) states that the “prothonotary shall note in the docket the giving of the notice.” Thus, notice is essential to compute the relevant ten-day time period under Rule 227.1.

In the instant case, the record includes the court’s Adjudication and Decree Nisi. It is stamped “Filed” in the office of the Prothonotary on November 10, 1988. The document is also stamped at the top with the words “Order sent _ Date.” In the blank the date 11-10-88 is handwritten. Also handwritten on the back of the page is the name of Appellants’ counsel as well as the names of opposing counsel.

We also point out that the prothonotary’s indication of notice corresponds with Appellants’ acknowledgment of receipt. Appellants state in their “Application for Leave to Amend Exceptions and File Nunc Pro Tunc” that Friday November 11th [the day after the prothonotary indicated that the order was sent] was a legal holiday and that “Andrew S. Wade [Appellants counsel] did receive a copy of the Adjudication and believes that he received the Adjudication on or after [Tuesday] November 15, 1988.”

Since a copy of the order was marked as sent to Appellants’ counsel on November 10th, the 10 day period began to run on that date. Appellants’ post-trial motions which were not filed until November 29, 1988 were untimely.

In conclusion, we note that the supreme court’s recent decision in Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) is inapplicable to this case. In Kurtas the untimely post-trial motions were filed without objection, and thereafter the trial court ruled on the merits of the claims of error presented in these motions. In contrast, in this case, the opposing party raised an objection to the untimely filed motions and the trial court dismissed the motions because they were untimely filed.

Order affirmed.

      . Although we reject Appellants’ contention that indication of notice was absent from the record, we note that the motion would have been untimely even if we were to accept their position that the period should not begin to run until they received notice. Appellants acknowledge receipt of notice on November 15, 1988. The 10-day time period would have expired on Friday November 25, 1988, a legal holiday. Since the last day fell on a legal holiday, the rules would have permitted the motion to be filed Monday, November 28. See Pa.R.C.P. 106(b). As stated, the motion was not filed in this case until Tuesday, November 29, 1988.


author: HESTER, Judge:

text:
    565 A.2d 182
    CITY OF PHILADELPHIA v. CHICKEN’S PLACE, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1989.
    Decided Oct. 20, 1989.

      Cheryl B. Wolf, Philadelphia, for appellant.
    Robin R. Bridges, Philadelphia, for appellee.
    Samuel Shevlin, Philadelphia, for Charles Davis, participating party.
    Before CIRILLO, President Judge, and ROWLEY and HESTER, JJ.
   HESTER, Judge:

Chicken’s Place, Inc. appeals from the order entered in the Court of Common Pleas of Philadelphia County on November 22, 1988, which granted it the right to redeem certain real property upon the payment of $25,000.00 and a specified amount of interest. For the reasons set forth below, we affirm.

The relevant facts may be summarized as follows. On January 5, 1987, due to unpaid municipal taxes, the Sheriff of Philadelphia offered appellant’s property, a commercial building located on West Queen Lane, for sale. Appellee Charles Davis submitted the winning bid and purchased it for $25,000.00. Seven months later, the sheriff’s deed conveying the premises was acknowledged.

On April 8, 1988, appellant petitioned for redemption of the property. During the pendency of the proceedings concerning that petition, a fire damaged the building which, throughout these events, remained in appellant’s possession and control. Appellant paid no rent. Shortly thereafter, appellant, at its own expense, began repairing the structure.

Five months after appellant filed its petition, the trial court entered an order granting it the right to redeem the property upon the payment of a sum to be determined later. In conjunction with that order, a memorandum was filed which indicated that appellant should bear the burden of the fire loss. On November 22, 1988, the court entered a second order designating that appellant had to pay $25,-000.00 plus interest at ten percent per annum from the date that the sheriff’s deed was acknowledged, August 17, 1987, to redeem the property. This timely appeal followed.

The issue raised on appeal concerns who should bear the risk of loss resulting from the fire which severely damaged the uninsured premises. Appellant, by his argument, attempts to impose a duty upon appellee to purchase insurance. Since appellee breached that duty, appellant contends that it is entitled to a credit against the redemption price for the property. In order to determine the validity of that contention, we must determine whether appellee owed such a duty and the consequences flowing from its breach.

Appellant’s first assertion is that 53 P.S. § 7293 requires that the purchaser of property at a tax sale must, for the protection of the original owner’s right of redemption, insure it. This assertion is without merit.

In pertinent part, 53 P.S. § 7293, the statute that sets forth the procedure for redeeming property sold under a tax or municipal claim, states:

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgment of the sheriffs deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriff’s deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to the interest at the rate of ten per cent per annum thereof from the time of each of such payments. If both owner and creditor desire to redeem, the owner shall have the right so to do only in case he pays the creditor’s claim in full. If more than one creditor desires to redeem, the one who was lowest in lien at the time of sale shall have the prior right, upon payment in full of the claim of the one higher in lien. Within the year, one who was lower in lien may redeem from one higher in lien who has already redeemed, and the owner may redeem from him; and so on throughout, in each case by paying the claim of the one whose right was higher; and one higher in lien may redeem from one lower in lien unless his claim is paid; but in each case the right must be exercised within the year.

Id. (emphasis added). Keeping in mind that we may not disregard the letter of a statute under the pretext of pursuing its spirit when its words are free of ambiguity, 1 Pa.C.S. § 1921, we turn to appellant’s claim.

It is clear that 53 P.S. § 7293 does not impose a duty upon the purchaser of property at a tax sale to purchase insurance to protect the original owner’s interest during the allowable period of redemption. Our review of the pertinent part of that statute reveals that it merely provides for the reimbursement, by the redemptor, of the purchaser of property sold at a tax sale for certain expenses, including those relating to insurance, actually incurred with respect to it. It in no way suggests or implies that there is any duty to purchase insurance for such property. Since the statutory language is free from ambiguity, we decline to give it the construction urged by appellant. Therefore, his claim must fail.

Appellant next asserts that since the purchase of insurance was necessary to protect the interests of the parties, the municipality, and the public, appellee had a duty to insure the premises from hazards. This claim is frivolous.

Appellant’s claim is similar to one sounding in tort. Since appellant uses tort principles to frame his claim, we will use them to address it. In a tort case, the focus for a determination of whether a person owes a duty is an examination of the conduct of a reasonable man under the circumstances. See Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986). Instantly, we conclude, as a matter of law, that a reasonable man with a defeasible interest in property would not necessarily insure it against hazards until such a time that his interest became indefeasible. Consequently, we find that appellee did not have a duty to insure the premises.

Finally, appellant asserts that the trial court erroneously refused to credit it for the sums actually expended in repairing the structure following the fire. In support of this assertion, it contends that since appellee failed to insure the property, the risk of loss resided with him. This claim is frivolous. As demonstrated above, appellee was under no duty, either by statute or the common law, to insure the premises. Therefore, his failure to purchase insurance may not be the basis for saddling him with the risk of loss and costs that were voluntarily assumed by appellant, the redeeming party, and intended to benefit only it. Compare City of Philadelphia v. Watkins, 343 Pa.Super. 380, 494 A.2d 1135 (1985) (if redeeming party benefits from necessary renovations made by tax-sale purchaser, he must reimburse the purchaser).

Our review of the record reveals that the trial court set the redemption price in accordance with the statutory requirements. Therefore, we decline to disturb its decision.

Order affirmed.

      . We note that the caption in this matter incorrectly designates the City of Philadelphia as the appellee instead of Charles Davis.


author: CERCONE, Judge: JOHNSON, Judge,

text:
    565 A.2d 448
    Arlene H. KLEBACH v. MELLON BANK, N.A., Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1989.
    Filed Sept. 12, 1989.
    Reargument Denied Nov. 6, 1989.

      Jesse L. Katz, Pittsburgh, for appellant.
    William J. Helzlsouer, Dravosburg, for appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order entered July 14, 1988 in the Court of Common Pleas of Allegheny County, Civil Division which removed a lien filed by Mellon Bank against real property owned by appellee. We affirm.

The record discloses that Mellon Bank, N.A. (hereinafter “Mellon”), filed a judgment by confession against Edward R. Klebach, the former husband of Arlene H. Klebach, in December of 1982. This judgment was entered on December 14, 1982 in Allegheny County and was indexed solely against Edward R. Klebach. On the date of entry, Edward and Arlene Klebach were husband and wife and held title by the entireties to the marital residence located at 633 Regency Drive in Plum Borough, Pennsylvania. The Klebachs were, however, in the midst of a divorce proceeding. Prior to the divorce decree, husband and wife, on December 28, 1982, entered into an agreement in which husband promised to convey his interest in the family residence to the wife, said conveyance to be made simultaneously with the signing of the agreement. On December 30, 1982, the divorce decree was entered in Allegheny County directing Mr. Klebach to convey all of his interest in the marital residence to Mrs. Klebach and incorporating the terms of the agreement. In accordance with the judicial decree, Edward and Arlene Klebach duly executed a deed on January 4, 1983 which was recorded on January 13, 1983.

The case sub judice arose in October of 1987, when appellee, Arlene Klebach, filed an action to quiet title on the Regency Drive property by removing the judgment lien filed by Mellon against her former husband. On December 4, 1987, Mellon revived the judgment against Edward R. Klebach and added Arlene H. Klebach as terre-tenant of the Regency Drive property. After argument before the Honorable Eugene B. Strassburger III, judgment was granted on the pleadings. The lower court entered an order on July 14, 1988 which declared that Mellon had no lien on the property in question. The instant timely appeal followed.

Appellant Mellon raises three issues for our consideration: (1) whether the lower court erred in granting judgment on the pleadings when a factual issue remained undetermined, namely, whether appellee and her former husband transferred property pursuant to their divorce agreement thereby effectively rendering Edward Klebach insolvent; (2) whether the lower court erred in failing to consider that pursuant to statutory law, property held by a husband and wife as tenants by the entireties is immediately converted to ownership as tenants in common upon the entry of a divorce decree; and (3) whether the transfer of property from ownership by appellee and her former husband to ownership by appellee alone violated the constitutional rights of Edward Klebach’s creditors. Thus, the gravamen of appellant’s complaint is that the lower court permitted appellee and her former husband to perpetrate a fraud upon the creditors of Edward Klebach in derogation of the statutory law of this Commonwealth.

Our scope of review is plenary when reviewing a trial court’s decision to grant judgment on the pleadings. Keystone Automated Equipment v. Reliance Insurance Co., 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), allocatur den. 519 Pa. 654, 546 A.2d 59 (1988). Our appellate role is to determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Id.; Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). An appellate court must confine its consideration to the pleadings and relevant documents, accept as true all well pleaded statements of fact by the party against whom judgment was granted, and consider only those facts that the party against whom judgment was granted specifically admits. Keystone Automated Equipment, supra 369 Pa.Super. at 475, 535 A.2d at 649. However, we may not consider conclusions of law or unjustified inferences asserted by either party. Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 216, 514 A.2d 576, 578 (1986), allocatur den. Jan. 15, 1987. Judgment on the pleadings may only be granted where no material facts are in dispute and the case is so free from doubt that a trial would clearly be a fruitless exercise. Keystone Automated Equipment, supra 369 Pa.Super. at 475, 535 A.2d at 649. We note that in an action to quiet title, an appellate court ordinarily will not reverse the determination of the lower court absent error of law or a capricious disregard of the evidence. Castronuovo v. Sordoni, 357 Pa.Super. 187, 191, 515 A.2d 927, 929 (1986).

The first and third issues raised by appellant turn on the same facts and we will consider them together. Appellant first contends that the lower court erred in granting judgment on the pleadings because a factual issue remained unresolved. Specifically, appellant argues that it is not possible on the basis of the pleadings to resolve the question of whether appellee and her former husband concluded a divorce agreement with the intent to defraud Edward Klebach’s creditors. The gravamen of appellant’s complaint as set forth in the third issue is that permitting the Klebachs to transfer property rights away from Edward Klebach pursuant to the divorce agreement, but without the consent of his creditors, rendered Mr. Klebach insolvent in violation of the constitutional rights of the creditors. For the following reasons, we disagree with both contentions.

The law of Pennsylvania is quite clear that a judgment creditor may execute on entireties property to enforce his judgment if both spouses are joint debtors. Arch Street Bldg. & Loan Assn. v. Sook, 104 Pa.Super. 269, 158 A. 595 (1932); In re Riley, 48 B.R. 194 (Bankr.E.D.Pa.1985); Matter of Cipa, 11 B.R. 968 (Bankr.W.D.Pa.1981). However, if only one spouse is a debtor, entireties property is immune from process, petition, levy, execution or sale. Amadon v. Amadon, 359 Pa. 434, 59 A.2d 135 (1948); In re Williamson, 11 B.R. 791, 795 (Bankr.W.D.Pa.1981). See Sterrett v. Sterrett, 401 Pa. 583, 585, 166 A.2d 1, 2 (1960); McGary v. Lewis, 384 Pa. 173, 119 A.2d 497 (1956). In the latter situation, the judgment creditor has only a potential lien against property held by the entireties based on the debtor spouse’s expectancy to become sole owner. Wylie v. Zimmer, 98 F.Supp. 298 (E.D.Pa.1951). See also Iscovitz v. Filderman, 334 Pa. 585, 6 A.2d 270 (1939) (property lawfully held by husband and wife as tenants by entireties cannot be reached by creditors of husband). Further, where a husband and wife own property as tenants by the entireties, they may alien it without infringing upon the rights of one spouse’s creditors. Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976) (Per Eagen, J., with two justices concurring and three justices concurring in the result); Murphey v. C.I.T. Corp., 347 Pa. 591, 33 A.2d 16 (1943).

In the instant case, Edward and Arlene Klebach entered into an agreement on December 28, 1982, whereby Arlene Klebach was to receive sole ownership of the marital residence in lieu of any other claim she might have in her husband’s other interests. The Klebachs were still husband and wife on the date they signed the settlement agreement. Under the law of this Commonwealth, the Klebachs were free to dispose of entireties property pursuant to such an agreement concluded during the term of their marriage without implicating the rights of third party creditors of only one spouse. See C.I.T. Corporation v. Flint, 333 Pa. 350, 5 A.2d 126 (1939) (where husband and wife hold title as tenants by entireties, owner of judgment against husband holds it subject to its possible extinction as lien by change of title caused by act of parties and creditor has no standing to complain of conveyance which prevents property from falling into his grasp). See also Stop 35, Inc. v. Haines, 374 Pa.Super. 604, 543 A.2d 1133 (1988) (judgment creditor of husband could not claim conveyance of entireties property was fraudulent attempt to avoid lien because creditor had no interest in entireties property and could not acquire any interest in such property while both husband and wife were alive and married to one another).

At the time the agreement was concluded between Mr. and Mrs. Klebach, Edward Klebach held no separate interest in the marital residence to which Mellon’s lien could attach. Entireties property is simply unavailable to satisfy claims of a creditor of only one of the joint tenants. Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d 784 (1982). It must be kept in mind that the agreement between husband and wife in this case was incorporated into the divorce decree thus carrying along with it the full implication and objective of the Divorce Code. That is, “to effectuate economic justice between the parties who are divorced or separated ... and insure a fair and just termination in settlement of their property rights.” 23 Pa.C.S.A. § 102(a)(6). In this case, the wife gave up all her interest in her husband’s office building, his insurance brokerage business, all rights to her husband’s deferred compensation and extended earnings and she released all rights to equitable distribution of other property. She also assumed the mortgage on the house and released her husband from any responsibility as to mortgage payments when the agreement pertaining to the property transfer was entered into. This exchange of considerations made for a binding contract between husband and wife entered into prior to the divorce decree and was ultimately strengthened by its incorporation into the divorce decree. Under these circumstances, 68 P.S. Section 501 does not intrude upon the wife’s interest in this case. We therefore uphold the action of the lower court with regard to appellant’s first and third claims because no factual question remained unresolved regarding the alleged attempt of the Klebachs to fraudulently convey property in derogation of the constitutional rights of Mr. Klebach’s creditors.

The remaining argument raised by appellant is that the lower court erred by failing to consider the effect of Chapter 13 of Title 68 which contains the following provision:

§ 501. Divorced tenants by entireties hold as tenants in common; suit for sale and division of proceeds
Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit against the other to have the property sold and the proceeds divided between them.

68 P.S. § 501. Appellant contends that § 501 operated to sever the tenancy by the entireties on the Regency Drive property as of December 30, 1982 so that the judgment lien against Edward Klebach attached before the Klebachs jointly conveyed the property to Arlene Klebach on January 4, 1983. Mellon’s argument is therefore that the lower court’s order striking the lien was incorrect as a matter of law.

A recent decision of this court clearly states that in a bifurcated divorce action, § 501, supra, operates to sever a tenancy by the entireties upon entry of the divorce decree, although such property does not lose its marital character. Jawork v. Jawork, 378 Pa.Super. 89, 94-95, 548 A.2d 290, 292 (1988). Accordingly, we must agree with appellant that the lower court was incorrect in its conclusion that § 501, supra, did not survive enactment of the Divorce Code of 1980. See id. (holding that 68 P.S. § 501 must be read in pari materia with the Divorce Code). We are nevertheless unable to offer appellant relief for two reasons. First, the instant case does not involve a bifurcated divorce and thus our decision in Jawork is not dispositive of all aspects of the issue now before us. Second, although we cannot endorse the rationale of the lower court, we believe that the correct result was reached. As an appellate court, we are free to affirm an order of the lower court if it is correct for any reason, regardless of the grounds relied upon by the court below. Gwinn v. Kane, 465 Pa. 269, 348 A.2d 900 (1975).

The longstanding rule in this Commonwealth is that property subject to an order of court is in custodia legis, or under the wardship of the court, pending compliance with the order. Lappas v. Brown, 335 Pa.Super. 108, 113 n. 4, 483 A.2d 979, 982 n. 4 (1984). The entireties property in question was under the jurisdiction of the lower court pursuant to a divorce proceeding. This property was in fact the subject of a judicial order entered by the divorce court on December 30, 1982. As such, it was properly held in custodia legis until the parties to the action complied with the order of the lower court. In Pennsylvania, property so held is not subject to attachment by judicial liens. Lappas v. Brown, supra. See also Weicht v. Automobile Banking Corp., 354 Pa. 433, 47 A.2d 705 (1946) and Buchholz v. Cam, 288 Pa.Super. 33, 430 A.2d 1199 (1981) (property in custodia legis is not subject to attachment until purpose for which Commonwealth holds it has been effectuated). See generally Ross v. Clarke, 1 Dall. 354, 1 L.Ed. 173 (1788) (inception of rule in Pennsylvania that property in the custody of the law is not subject to attachment); cf. Bulkley v. Eckert, 3 Pa. 368 (1846) (early formulation of Pennsylvania rule that property held by a public official in his authorized capacity is not subject to attachment by creditors). Although the cited cases apply to personal property, there is no law that we can find nor is there anything so particularly unique about the principle of “custodia legis” which forbids its application, under the facts of this case, to real property.

The property in question was never subject to attachment by appellant’s lién. From December 30, 1982 until January 4, 1983, the property was in the custody of the divorce court pending execution of a deed in compliance with court order. Mellon’s lien therefore never attached, and the lower court in the instant case correctly granted appellee’s request to quiet title by striking the lien.

Order affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I must dissent. The distinguished trial judge in this case, the Honorable Eugene B. Strassburger, decided this action to quiet title and to strike a lien on his belief that all of the lienholder’s arguments turned on the question of whether the automatic conversion of a tenancy by the entireties into a tenancy in common survives enactment of the Divorce Code of 1980. The trial court examined the Act of May 10, 1927, P.L. 884, § 1, as affected by the Act of April 28, 1978, P.L. 202, No. 53 (Judiciary Act Repealer Act, “J.A.R.A.”), 68 P.S. § 501, and considered several trial court opinions within Allegheny County holding that the Divorce Code supersedes 68 P.S. § 501.

Judge Strassburger reviewed this court’s decision in Stop 35, Inc. v. Haines, 374 Pa.Super. 604, 543 A.2d 1133 (1988) holding that a separation agreement providing for the division of proceeds in the event of the future sale of entireties property does not operate to sever the tenancy by the entireties. However, at the time this case was decided in the trial court, Judge Strassburger could not have had the benefit of our decision in Jawork v. Jawork 378 Pa.Super. 89, 548 A.2d 290 (1988). In Jawork, we were asked to find that, where economic claims are bifurcated from the entry of the divorce decree, the effect of 68 P.S. § 501 is somehow stayed pending resolution of those' claims. We recognized, as did both parties to the appeal in Jawork, that a tenancy by the entireties becomes a tenancy in common, by operation of law, upon the divorce of the parties, citing 68 P.S. § 501, and went on to conclude that the status of the title after the entry of the divorce decree is unassailable. 378 Pa.Super. at 94-95, 548 A.2d at 292.

All three judges on this panel agree with Mellon Bank, appellant, that the trial court incorrectly construed the relationship between 68 P.S. § 501 and the Divorce Code. Unlike the Majority, however, I cannot find that bifurcation is determinative of the reach of Jawork. I read § 501 as covering all situations where a decree in divorce is entered. The act provides, as affected by J.A.R.A.:

§ 501. Divorced tenants by entireties hold as tenants in common; suit for sale and division of proceeds
Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit against the other to have the property sold and the property divided between them.
As affected 1978, April 28, P.L. 202, No. 53, § 2(a)[1092], effective June 27, 1980.

68 P.S. § 501.

Mellon Bank’s judgment against Edward R. Klebach was entered on December 14, 1982. On December 30, 1982, the divorce decree was entered. I find that Mellon’s judgment lien attached to Edward Klebach’s undivided, one-half interest in the property as of December 30, 1982 and remained a lien against that interest when the property was thereafter transferred to Arlene Klebach. I should therefore vacate the order granting judgment on the pleadings and striking Mellon’s lien, and remand this case to the trial court for further proceedings.

I must emphatically dissent from that portion of the Majority Opinion which appears to create a rule of in custodia legis in regards to the real estate here at issue. The Majority concedes that all of the cases cited for this principle involve only personal property. The Majority, however, goes on to apply the principle to real property “under the facts of this case.” I find it startling that the Majority has concluded, without citation to any authority, that the real estate here in question “was in the custody of the divorce court pending execution of a deed in compliance with court order”.

Where, as here, the trial court has sought to deal with three distinct issues and has resolved all of them upon a theory of law which, applying hindsight after Jawork, is clearly erroneous, I should remand the case to permit the parties to present their arguments to the trial court in the light of Jawork v. Jawork. This is particularly appropriate, I believe, where the trial judge is of proven high competence, as is the case here. To seek to affirm the trial court action on the novel theory of real estate being in the custody of the law does violence to the body of law, as I understand it, and does not advance the ultimate disposition of this dispute.

I must dissent.

      . A terre-tenant is one who acquires an interest in real estate after a judgment or mortgage lien has attached. Commonwealth Department of Public Welfare v. Andrews, 338 Pa.Super. 211, 213 n. 1, 487 A.2d 929, 931 n. 1 (1985); Adelson v. Kocher, 154 Pa.Super. 548, 36 A.2d 737 (1944).

      . We note that the lower court did not have the benefit of Jawork when ruling on the instant case.


author: TAMILIA, Judge:

text:
    565 A.2d 453
    Cora J. MALSEED, Appellant, v. Harold F. MALSEED.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1989.
    Filed Oct. 23, 1989.

      Michael F. X. Gillin, Media, for appellant.
    Lyn Schoenfeld, Media, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant wife appeals a July 11, 1988 Order which granted the parties a divorce and set forth equitable distribution and the special master’s fee.

On February 2, 1983 wife filed a complaint seeking a divorce and equitable distribution, alimony pendente lite, counsel fees, and expenses. A special master was appointed, and after considering testimony, exhibits, pleadings, and other documents, he filed his recommendation and report on November 19, 1987. Wife filed exceptions to the report on November 30, 1987. By the July 11, 1988 Order in question, the trial court granted the divorce and made the following equitable distribution: the $49,000 in equity in the marital home to be distributed 60 percent to husband and 40 percent to wife, with husband to have the option of paying wife $19,600 in cash; the shares of Sunshine Mining Company and Penn Central to be retained by each party; and an approved special master’s fee of $1,495 to be paid $747.50 by wife and $247.50 by husband. Wife filed this timely appeal.

The trial court summarized the facts as follows.

The parties in the above captioned matter were married on June 11, 1977 in Chester County, Pennsylvania and separated in October, 1982. Defendant Harold F. Malseed is forty-five years of age and was employed with the Haverford Township Police Department as a police officer from 1965 until April, 1978. After sustaining a back injury which rendered him permanently disabled, Defendant began receiving disability payments of $15,440.00 per year. Defendant also receives $10,244.00 per year from Workmen’s Compensation. Plaintiff, age forty is currently earning $16,500.00 per year as a sales representative for PSFS and attends college part-time. No children were born of the marriage. Plaintiff has one prior marriage which produced no children and ended in divorce. Defendant also has one prior marriage and continues to contribute to the support of the two children, ages sixteen and twenty.

Slip Op., Endy, J., 7/11/88, p. 1.

On appeal wife first argues the court abused its discretion when it used the value of the marital property as of the date of separation because this valuation gives to husband a substantial windfall especially with regard to the marital residence.

Appellant urges the parties stipulated the property was worth $92,000 at the time of the hearing before the special master (March 18, 1985), and was encumbered by a mortgage in the amount of $26,000, so that the court should have accepted the figure of $66,000 as the net equity in the home, rather than accepting an appraisal of $85,500 for the time period of the separation (October 20, 1982) and subtracting the $36,362.95 principal amount of the mortgage as of December 31, 1984 to arrive at $49,000. In basing its calculations upon the latter formula, she argues the court provided husband with a windfall of approximately $15,000 by finding the net equity in the marital home to be $49,000 rather than $66,000.

We noted in Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988), that our scope of review in equitable distribution is limited, and we must apply the Divorce Code to the record to determine whether the hearing court abused its discretion. We added, “We will find an abuse of discretion only if the hearing court misapplied the law or failed to follow proper legal procedure.” Id., 375 Pa.Superior Ct. at 390, 544 A.2d at 976 (citations omitted).

In its recent decision in Sutliff v. Sutliff, 518 Pa. 378, 383, 543 A.2d 534, 537 (1988), our Supreme Court advised, “it would be impossible to construct a distribution scheme that would be fully responsive to [the present] needs and circumstances [of the parties] if the court were to act without taking cognizance of the current values of the assets being distributed.” The Court reflected that given the factors to be considered under 23 P.S. § 401(d) upon equitable distribution, it is inconceivable that the legislature intended marital property to be valued at any other time than the time when the marital property is to be distributed. Id., 518 Pa. at 381, 543 A.2d at 536. In view of this, we find the trial court erred in not basing the equitable distribution upon the market value of the marital home at the time of distribution (H.T. 3/18/85, pp. 13-14, 114). There is no question as to the value of the property available for distribution at that time as there is a stipulation of that value as being $92,000 (H.T. at 13-14, 114). Upon reargument, a majority of this panel construes the record to be in error on the determination of the amount of encumbrance to be subtracted upon distribution. We cannot ascertain the true amount of the encumbrance without remand as the court established the value of the encumbrance as of December 31, 1984, without considering a possible pay down until the date of hearing on March 18, 1985. Additionally, the court was in error in setting the value of the property as of October 20, 1982 rather than March 18, 1985, the nominal date of distribution, as required by Sutliff, supra.

Further, wife contests the valuation dates of two rental properties purchased by husband prior to the marriage and held in his name alone. The parties stipulated that at the time of the master’s hearing, the total present market value of both properties amounted to $66,000 (H.T. at 27, 114). In this instance appellant would prefer the date of separation be used as the valuation date since the value was greater at that time. However, this valuation is meaningless without determination of the value at time of marriage since only the increase in value is marital property under section 401(e). Appellee’s testimony indicates that at the time of marriage the appraised value of the properties was $60,000, although during the marriage, an offer was made to purchase this property at $70,000 which purchase failed because of an impediment in the title (H.T. at 115). We have no present value for the property other than the $66,000 stipulated to at the time of the hearing before the master. The $6,000 increase is marital property but the master determined the distribution of this property (including the $2,000 outstanding loan) should be entirely to the husband due to his disability. (Master’s report at 22.) The trial court approved this finding. (Slip Op. at 4-5.) We find no error in these findings and distribution.

Wife also contends the court erred in failing to consider husband’s disability and retirement pensions in its calculation of marital property. The master in his findings of fact found that husband receives a taxable disability pension of $15,444 per year and which he will continue to receive until he is 55; at that time he will receive a pension of approximately $11,000 per year. Additionally, he receives workmen’s compensation benefits in the amount of $10,224 per year, which is also taxable income to him. It is clear that husband’s disability pension is not marital property under the decision in Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988). That case also involved a disabled police officer and settled the question of whether police disability payments are marital property subject to equitable distribution between spouses. We said in Ciliberti:

We decline to hold that true disability payments are marital property subject to equitable distribution. Such benefits are intended to compensate the employee spouse for lost earning capacity. They are paid in lieu of the earnings which would have been paid to the employee if he or she had been able to work. They replace the future salary or wages which the employee, because of physical or mental disability, will not be able to earn. They are comparable to Workmen’s Compensation disability payments. Post-divorce payments intended to compensate for an inability to work are not marital property.
Where it can be shown, however, that a portion of the employee spouse’s disability pension is representative of retirement benefits, the amount received by the disabled employee in lieu of retirement benefits remains marital property subject to distribution.

Id., 374 Pa.Superior Ct. at 233, 542 A.2d at 582.

Moreover, in Ciliberti we said, “it is now firmly established that retirement pension benefits, vested and non-vested, military and civilian, are deemed marital property subject to equitable distribution.” Id., 374 Pa.Superior Ct. at 231, 542 A.2d at 581. The master recognized husband’s retirement pension to be marital property but determined it should be solely distributed to husband. As noted by the trial court, plaintiff’s share of the pension would amount to a very small percentage thereof because she was married to appellee for only 11 months of the 13 years he served on the police force. Slip Op. at 4. Additionally, both the master and trial court noted appellant’s future financial outlook as being significantly better than appellee’s. Slip Op. at 3-4, master’s report at 15, 16, 19. Under the facts, we do not perceive total distribution of the retirement fund to husband to be error, nor was it error for the court to refuse to find the disability payments to be marital property in view of the holding in Ciliberti.

Next, wife urges the court abused its discretion in awarding 60 percent of the marital assets to husband, and in not properly weighing under 23 P.S. § 401(d)(7) the support, care and comfort which she rendered to husband while he was temporarily disabled during the marriage, and the fact she had worked as a homemaker for a substantial amount of time at the behest of appellee who wished for her to remain at home in order that she could stay home, keep house, take care of him and conceive children. (Appellant’s brief at 4.)

Husband counters that the 60-40 distribution in his favor is supported by substantial evidence of record including the fact he is permanently disabled by a back injury and is unable to work, leaving him with limited future economic prospects.

In the recent decision in Verdile v. Verdile, 370 Pa.Super. 475, 536 A.2d 1364 (1988), we stated:

An order determining equitable distribution will be reversed on appeal only for an abuse of discretion. An abuse of discretion is found only if there is insufficient evidence to support the trial court’s determination. In determining whether a court has abused its discretion, we do not usurp the trial court’s duty as fact finder.

Id., 370 Pa.Superior Ct. at 482, 536 A.2d at 1368 (citations omitted).

An examination of the master’s report shows the factors to be considered by the court upon equitable distribution were in fact reviewed. (See 23 P.S. § 401(d).) In his findings of fact, the master placed great weight on the employability and opportunity of each party to acquire future income, and found wife’s economic prospects to be much more promising than those of her disabled husband.

He acknowledged wife had first left her job in 1978 to assist husband at home who was injured and to act as a full-time homemaker; she later left a different job in 1980 to remain as a full-time homemaker. As to 23 P.S. § 401(d)(7), the master implicitly found husband’s contributions to the acquisition, preservation, and appreciation of the marital property to outweigh the wife’s contributions as a homemaker. The master found the parties purchased the marital residence at Edith Lane for $72,000, giving a mortgage for $40,000; approximately $36,000 which was put into the property was derived from the sale of husband’s property at Annabelle Lane. Husband realized net proceeds of $49,000 from the sale of his Annabelle Lane property and used the difference between that figure and monies put into the Edith Lane property to pay joint bills. Further, the master found since the parties’ separation husband has been paying all of the expenses associated with the home at Edith Lane including mortgage principal, interest, insurance, taxes, maintenance and the like. Master’s report at 10. In light of the record, we find no error in the weight accorded by the court to wife’s homemaking activities. As we stated in Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928, 934 (1986), “[sjince the record fails to reflect an abuse of discretion on the part of the trial court, its decision must stand with respect to the weight accorded the factors of § 401(d).” See also Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987).

In a related argument wife urges the court abused its discretion when it failed to consider her contributions to the maintenance of the home, including her payments toward household expenses and the mortgage, and the fact husband has had exclusive rent-free possession of the premises since separation of the parties. Husband argues equity, under the circumstances, requires wife receive only the economic benefits from the home which accrued prior to the time at which she left because the entire down payment for the home was derived from his separate funds, the home was placed in both names only to avoid harassment by his first wife, and from the time of separation on, wife took no responsibility for the home, financial or otherwise. The master found husband paid all of the expenses associated with the marital home since separation, including mortgage, insurance, taxes and maintenance. We find no error on the part of the trial court in refusing to award wife a greater portion of the marital residence or to take into account husband’s exclusive possession of the residence in consideration of its conclusions the contributions of husband which went into the marital residence outweighed those of wife, and wife has better economic prospects than her husband.

In the main, the equitable distribution schedule is fair under the circumstances in this case and we perceive no abuse of discretion. We, therefore, affirm the Order of distribution except as to the time at which the determination of value of the marital home was made and as to the amount of the encumbrance on that home. As to that value, pursuant to Sutliff, supra, the court will be required to take additional testimony as to the encumbrance on the marital home at the date of distribution (March 18, 1985), thereby establishing the amount available for distribution, by fixing the home’s market value ($92,000, as stipulated) less the encumbrance existing as of that date. Once that amount is determined, the distribution rate of 60 percent to husband and 40 percent to the wife shall be applied in its distribution.

The case is remanded for further hearing and order in conformity with this Opinion.

Jurisdiction relinquished.

BECK, J., concurs in the result.

      . Although the trial court Opinion appears to confuse the marital residence with the duplexes, and does not actually discuss the distribution of the marital home except in the Order, the court’s conclusions would be likewise applicable to the marital residence. See Slip Op. at 4.

      . In Mansell v. Mansell, — U.S. -, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the United States Supreme Court held that military disability pensions, even those elicited in lieu of standard military retirement pensions, are not marital property subject to equitable distribution. Thus to that extent Ciliberti, supra, is modified.

      . That subsection provides the court should evaluate as a factor in equitably distributing the property:
      (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.