text:
    664 A.2d 168
    Debra K. KEUTHER and Norman Keuther, H/W, Appellants, v. Alan I. SNYDER, M.D. and Marvin Loev, M.D. and Chanchi Lee, M.D. and OB/GYN Associates, Inc. and St. Mary’s Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Aug. 30, 1995.

      Jay R. Levenberg, Philadelphia, for appellants.
    Christine M. Dryer, Plymouth Meeting, for OB/GYN Associates, appellees.
    David L. Grill, Philadelphia, for Chanchi Lee, M.D., appellee.
    Barbara Magen, Philadelphia, for St. Mary’s Hospital, appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

Debra and Norman Kuether appeal from an order entered in the Court of Common Pleas of Philadelphia County granting appellees’ petition for change of venue to the Court of Common Pleas of Bucks County. Appellants now claim that transfer based upon forum non conveniens was improper for two reasons:

1. The trial court erred in transferring venue from Philadelphia to Bucks County when no facts were established of record by the moving party pursuant to Pennsylvania Rule of Civil Procedure 209.
2. The trial court abused its discretion transferring this case from Philadelphia to Bucks County on the basis that Philadelphia County was inconvenient for the parties and witnesses pursuant to Pennsylvania Rule of Civil Procedure 1006(d).

After careful review, we reverse the trial court’s decision and remand for proceedings consistent with this opinion.

The relevant facts of this case are as follows: Appellee, Dr. Marvin Loev, performed a cesarean section on Debra Kuether on approximately December 24,1992, at St. Mary’s Hospital in Bucks County. As a result of the procedure, Mrs. Kuether sustained tears to her bladder and brought a negligence action against appellees in the Court of Common Pleas of Philadelphia County.

Appellees filed preliminary objections to the Kuether’s complaint alleging, among other things, that venue was improper due to lack of personal jurisdiction. The lower court, after considering these preliminary objections, found that venue in Philadelphia County was not improper but that appellees were not precluded from filing a petition to transfer venue based upon forum non conveniens. Subsequently, appellees filed a petition to transfer venue pursuant to Pennsylvania Rule of Civil Procedure 1006 which provides for transfer of venue based upon forum non conveniens. Appellees alleged that the action should be transferred to Bucks County due to the fact that the parties resided in Bucks County, all witnesses resided in Bucks County and the injuries occurred in Bucks County. The petition for transfer of venue also stressed that plaintiffs would not suffer hardship by a change of venue. Appellees’ petitions for transfer of venue were devoid of any allegations that litigation in Philadelphia County would be oppressive, vexatious or cause them hardship.

Judge Nigro granted appellees’ petition to transfer venue based upon appellees’ assertions that the parties, witnesses and negligent acts had occurred in Bucks County. Judge Nigro stated that the only connection the action had with Philadelphia County was appellee Chanchi Lee, M.D.’s courtesy privileges at Hahnemann University Hospital in Philadelphia. The court’s opinion also relied upon the fact that Philadelphia County courts had extremely crowded dockets and allowing the case to proceed in Philadelphia County would be inequitable to residents of Philadelphia County. The Kuether’s filed a timely appeal from the order granting appellees petition to transfer venue.

Appellants now claim that the trial court abused its discretion in transferring the action from Philadelphia County to Bucks County pursuant to Pennsylvania Rule of Civil Procedure 1006(d). We agree and remand for proceedings consistent with this opinion.

Pennsylvania Rule of Civil Procedure 1006(d)(1) addresses changes of venue based upon forum non conveniens: “For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” Pa.R.C.P. No. 1006(d)(1), 42 Pa.C.S.A.

Our standard of review in cases granting a change of venue on the basis oí forum non conveniens is as follows: A trial judge has considerable discretion in granting a change of venue under Pa.R.C.P. 1006(d) and his or her decision will not be disturbed absent an abuse of discretion. Wills v. Kaschak, 420 Pa.Super. 540, 617 A.2d 37 (1992) (citations omitted). An abuse of discretion occurs when there is misapplication of the law, the judgment exercised is manifestly unreasonable, or the result of bias prejudice or ill will. Id. (citation omitted).

The Wills court also stated:

When considering a motion for change of venue, a trial court should weigh the hardships and conveniences inherent in trying the action. Alter v. Pennsylvania Gas and Water Co., 110 Pa.Commw. 349, 355, 532 A.2d 913, 916 (1987), allocatur denied, 521 Pa. 623, 557 A.2d 726 (1989). Although the choice of forum by a plaintiff is entitled to weighty consideration, the right of a plaintiff to choose a forum is not absolute. The forum non conveniens provision inserted to Pa.R.C.P. 1006(d) was intended as a necessary counterbalance. Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985). The rule permits a court, in its sound discretion, to transfer venue “for the convenience of parties and witnesses.”

Wills, 617 A.2d at 38.

Our supreme court recently stated in Scola v. AC & S, Inc., 540 Pa. 353, 657 A.2d 1234 (1995), that a party seeking a change of venue must demonstrate, on the record, any hardships that will result from the plaintiffs choice of venue. Id. at 1241. The defendant must clearly adduce facts that establish oppressiveness and vexation that are out of proportion to the plaintiffs convenience. Id., citing Okkerse v. Howe, 521 Pa. 509, 517-18, 556 A.2d 827, 831-32 (1989).

Here, we find that appellees have not plead facts that satisfy the requirements of Scola. The main thrust of appellees’ argument is that all witnesses, parties and evidence are present in Bucks County. Therefore, appellees contend, Bucks county is a more convenient forum. The record is devoid of any allegations that litigation in Philadelphia County would be oppressive or vexatious to appellees. Thus, the lower court improperly granted appellees’ petition to change venue on the basis of forum non conveniens.

The Pennsylvania Supreme Court’s holding in Scola reinforces our conclusion that a venue change was improper in this case. In Scola a number of asbestos cases were transferred from Philadelphia County to various other counties. 540 Pa. 365, 657 A.2d at 1240. The court concluded, after reviewing the record, that the defendants failed to show that a trial in Philadelphia County would be vexatious or oppressive. Id. 366, 657 A.2d at 1241. The only factors considered by the trial court were the large backlog of asbestos cases in Philadelphia, the defendants’ residences and locations of asbestos exposure. Id. Our supreme court stated that “although these factors are relevant to a change of venue determination, Okkerse [v. Howe, 521 Pa. 509, 556 A.2d 827 (1989) ] clearly requires a showing by a defendant that he or she would be unduly burdened if the trial were to take place in the plaintiffs original choice of forum.” Id. Moreover, the court pronounced that even though there is a public interest in an uncongested judicial system, deference must be given to the plaintiffs choice of forum. Id. After conducting this analysis, the supreme court held that the transfer of venue had been improper and remanded the case to the trial court for further proceedings. Id. 368, 657 A.2d at 1242.

In the case at bar, we are presented with an almost identical situation. The lower court transferred the case from Philadelphia County to Bucks County basing its decision upon the location of the parties, the witnesses and the occurrence of the injury. Appellees’ and the lower court made no mention of oppressiveness or vexatiousness that would result if the trial were held in Philadelphia County. The trial court and the appellees also relied on the fact that Philadelphia County courts had a large backlog of cases. The opinion in support of the order granting appellees’ petition specifically stated:

In the present case, plaintiff is a resident of Bucks County, the incident occurred in Bucks County and Plaintiff received treatment in Bucks County medical facilities. Defendants, Marvin Loev, M.D. and OB/GYN Associates, Inc. maintain a principal place of business in Bucks County. The only treatment plaintiff received from Loev and OB/ GYN Associates related to this action was in Bucks County. Loev and OB/GYN never rendered any medical treatment to plaintiff in Philadelphia County.
... Due to the heavy case load in Philadelphia County, this court has a greater obligation to give Philadelphia plaintiffs an opportunity to have their cases heard in their own county in as timely a manner as possible.

(Trial Court Opinion at 3, 4, January 10, 1995). According to Scold, this is not the proper analysis to conduct in analyzing a petition to transfer venue on the basis of forum non conveniens. In light of the foregoing, we conclude that the lower court committed an error of law in granting appellees’ petition to transfer venue. Therefore, we remand the case to provide appellees with the opportunity to establish facts that litigation in Philadelphia County would be oppressive or vexatious.

Order reversed. Jurisdiction relinquished.

      . We need not address this allegation of error as we are reversing the lower court’s decision on the basis of the second question.


source: Caselaw Access Project

author: CAVANAUGH, Judge.

license: Public Domain

text:
    664 A.2d 171
    Donna RYAN, Executrix of the Estate of R. Bruce Ryan, Deceased, and Donna Ryan, in Her Own Right v. GAF CORPORATION, Raymark Industries, Inc., Celotex Corporation, Successor-in-Interest to Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Keene Building Products Corp., Eagle-Picher Industries, Inc., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Garlock, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., Nicolet Industries, Inc., Successor-in-Interest to Keasby & Mattison; Combustion Engineering, Inc., Fibreboard Corporation, Carey-Canada, Inc., Anchor Packing Company, Standard Asbestos Manufacturing and Insulating Company; Flexitallic Gasket Company, General Electric Company Wire and Cable Products Department, and Marmon Group, Inc., Successor-in-Interest to Cerro Wire & Cable Co., Division of Cerro Marmon Co., and the Rockbestos Company, Inc. v. CONTINENTAL WIRE & CABLE CO. and Anaconda Power & Cable. Appeal of OWENS-CORNING FIBERGLAS CORPORATION.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1995.
    Filed Aug. 17, 1995.
    Reargument Denied Oct. 20, 1995.

      Patrick R. Riley, Pittsburgh, for appellant.
    David P. Chervenick, Pittsburgh, for Donna Ryan, appellee.
    Before CAVANAUGH, CIRILLO and SAYLOR, JJ.
   CAVANAUGH, Judge.

Owens-Corning Fiberglas Corporation (“OCF”) appeals from an order which denied its motion for post-trial relief. For the reasons which follow, we quash the appeal.

The procedural history of this case can be summarized as follows. Following a jury trial, a verdict was returned in favor of plaintiffs and against OCF and Owens-Illinois, Inc. Post-verdict motions were filed, but the trial court entered judgment in favor of plaintiffs and against OCF and Owens-Illinois, without first disposing of these motions. Both OCF and Owens-Illinois appealed. On appeal, this Court vacated the trial court’s entry of judgment and remanded for consideration of defendants’ post-verdict motions. Following remand, the trial court denied defendants’ motions, and both OCF and Owens-Illinois appealed. Neither party entered judgment on the jury’s verdict. Following oral argument of OCF’s appeal, we remanded the case to the lower court and directed OCF to “enter judgment on the appropriate docket of the lower court within thirty (30) days ... and to forthwith return the record to this Court including certification that judgment has been entered.” See Ryan v. GAF Corp., 658 A.2d 827 (Pa.Super.1995).

Our remand directive was in accordance with this Court’s recent en banc decision in Johnston the Florist, Inc. v. Tedco Construction Co., 441 Pa.Super. 281, 657 A.2d 511 (Pa.Super.1995). In Johnston, we held that where our procedural rules require the entry of judgment, such action is a prerequisite to the exercise of judicial review, and that, in the absence of an entry of judgment, there is no authority for this Court to review the merits of an appeal. Id. 288, 657 A.2d at 514. We further stated that where the rules require the entry of judgment, and such action has not been taken prior to the filing of an appeal, this Court may take such action as it deems appropriate, including: quashal of the appeal, dismissal of the appeal, or remand of the matter to the lower court so that judgment may be entered. Id. 289, 657 A.2d at 515 n. 2; Pa.R.A.P. 902 and comment.

Pursuant to our remand order, the lower court returned the certified record to this Court. Our review of the docket entries reveals that judgment has not been entered as we directed. Neither has OCF filed certification that judgment has been entered. In fact, OCF has failed to file any notification with this Court as to why our directive has been ignored and judgment has not been entered. In view of our inability to address the merits of this appeal in the absence of the entry of judgment, and OCF’s failure to enter judgment as directed by this Court, we will quash the appeal. See Johnston, supra; Bonavitacola v. Cluver, 422 Pa.Super. 556, 619 A.2d 1363 (1993) (Cavanaugh, J., dissenting) (quashal of the appeal is the appropriate course as “there is no authority which would establish the right of an appellate court to entertain an interlocutory appeal in the face of the refusal ... of either party to enter a judgment”). Finally, we note that in our previous remand order, we found that OCF was aware that the entry of judgment was required prior to the filing of an appeal in this case. We, nonetheless, afforded it the opportunity to remedy this omission by remanding the case with instructions to enter judgment. Thus, OCF has failed to enter judgment despite having been aware on two occasions of the requirement, and having had two opportunities to praecipe for the entry of judgment. In these circumstances, quashal of the appeal is the appropriate course of action.

Appeal quashed.

      . All of the original defendants, except OCF, Owens-Illinois and Keene Building Products Corp., either settled and/or were dismissed from the case prior to trial. The jury returned a verdict in favor of Keene Building Products Corp. and against plaintiffs.

      . Owens-Illinois is no longer an active litigant in this case, as it subsequently withdrew its appeal.


author: DEL SOLE, Judge:

text:
    664 A.2d 172
    Anthony C. PETRONE, Appellee, v. WHIRLWIND, INCORPORATED, a Corporation, Appellee, Saw Sales & Machinery Co., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1995.
    Filed Sept. 1, 1995.

      David M. Neuhart, Pittsburgh, for appellant.
    Bernard J. McAuley, Pittsburgh, for Whirlwind, appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

This appeal is from an Order refusing to remove the court’s entry of Judgment Non Pros by denying Appellant’s Petitions for Reconsideration and for Relief from a Judgment of Non Pros.

The case stems from an accident in which Appellee, Petrone sought to recover damages suffered while operating a saw allegedly manufactured by Appellee Whirlwind, Inc. and sold by Appellant Saw Sales Machinery Company. The day preceding a scheduled jury trial, Appellant entered into a settlement agreement with Appellee, Petrone. Appellant subsequently filed a Motion for Continuance in order to pursue an indemnification claim against Whirlwind, Inc. and the case was relisted for trial in November of 1994. Pursuant to Pa. R.Civ.P. Rule 212, a court-supervised pre-trial settlement conference was scheduled. Notice of the conference was published in the Pittsburgh Legal Journal, which Appellant’s counsel admitted he had observed. Appellant’s counsel failed to appear at the scheduled time for the pre-trial conference. The court initiated two phone calls in an attempt to locate counsel. When the court was unable to locate him, the judge called the Appellant’s law firm and spoke with another attorney. Following that conversation, the non pros was entered and the court’s reasoning was as follows:

... after initiating at least two phone calls to try to locate him and then making a third request to speak to any attorney from his law firm, and after learning of no reason why he could not be found, the Court at 8:45 p.m. informed counsel for Whirlwind, Inc. that the cross-claim of Saw Sales & Machinery Co. would have to be dismissed for failure to prosecute. Only after that ruling had been made did an attorney from Mr. Neuhart’s firm return the Court’s calls. Unfortunately, while she advocated strongly against the dismissal, there was no information available to her to explain either counsel’s non-appearance or his settlement posture.
The Court requested that Whirlwind’s counsel keep its settlement offer open in case the dismissal and potential appeals therefrom might elicit a demand from missing counsel which Whirlwind could accede to. This was an attempt to ameliorate the obviously harsh effect of the Court’s Order. It was also more consideration than was merited given the still unjustified absence of counsel from an important Court proceeding.

Trial Court Opinion of November 9, 1994 filed in response to the Reconsideration request. In response to this request, the court further concluded that because there was no reason set forth in this motion for counsel’s absence, the case would be dismissed for failure to prosecute “with prejudice.”

Following this denial, counsel timely filed a Petition to Open Judgment of Non Pros averring facts surrounding his failure to appear. This is in contrast to the averments in the Reconsideration request which only focused on the lack of prejudice and the fact that the Statute of Limitations had not yet run on the indemnification claim. In response to the Petition to Open, the Court entered an Order on November 29,1994, denying the request and reaffirming its prior disposition.

We reaffirmed in Anderson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659 (1994) that attorneys are under the same duty to appear at conciliation or pre-trial conferences as they are to appear for trial. The consequences for failure to appear at trial are set forth in Pa.R.Civ.P. 218, which provides as follows:

Rule 218. Party Not Ready When Case is Called for Trial;
(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion...
(c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.
Note: The mere failure to appear for trial is a ground for entry of a nonsuit or a judgment of non pros or the reinstatement of a compulsory arbitration award.
... a judgment of non pros is subject to the filing of a petition under Rule 3051 for relief from a judgment of non pros.

Although Rule 218(c) has the effect of making a hearing unnecessary at the time of the failure to appear, Explanatory Comments of 1993 to the Rule provide that “if the court enters a nonsuit or a judgment of non pros or dismisses an appeal and there exists a sufficient excuse, the aggrieved party may present the excuse through a motion to remove the nonsuit or a petition to open the judgment or reinstate the appeal. The petition or post-trial procedure will result in a record which will enable an appellate court to review the trial court’s action to determine if there has been an abuse of discretion.”

In addition, Rule 3051 of the Pennsylvania Rules of Civil Procedure envisions another “safety valve” or method of relief from a judgment of non pros. When a plaintiff petitions the court after a judgment of non pros has been entered, Rule 3051 provides the court with an opportunity to review its decision.

The Comment to Rule 3051 states that “since the rule adopts the practice of seeking relief from a judgment of non pros in the trial court prior to taking an appeal, the rule also adopts traditional requirements for the opening of the judgment as set forth in the Valley case.” In Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193, 196 (1990), three factors must be present in order to open a non pros judgment. These are (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action. We note that factors (1) and (3) are undisputedly satisfied.

Here the trial court filed a memorandum in Support of the Order denying the Petition for Reconsideration on November 9, 1994. Without a hearing and before the filing of an answer, the Court adopted the November 9, 1994 memorandum in denying Appellant’s Petition to Open Judgment of Non Pros. The court failed to comment on the reasons counsel for Appellant set forth in the petition. No hearing was held at which counsel for Appellant would have had an opportunity to attempt to justify his omission. We find that a more thorough inquiry is required by Rule 3051.

The 1993 Amendment to Rule 218 adding subsection (c) was to eliminate a procedural step before entry of the judgment following non appearance. We had held in Stock v. Arnott, 415 Pa.Super. 113, 608 A.2d 552 (1992) that the imposition of the drastic penalty of a dismissal with prejudice without affording the defendant the opportunity to explain his absence, was unreasonable and unjust. We also had held in Christopher’s Auto Parts v. Gilmore, 410 Pa.Super. 541, 600 A.2d 585 (1991) that where appellant failed to appear at de novo trial, fact-finding was required to determine whether appellant was without satisfactory excuse, before the trial court could reinstate the original arbitration award. The effect of this change is not only to permit the entry of the dismissal but to permit a post sanction review of the reason for non-appearance.

In the instant case, it is claimed that a mistake was inadvertently made in an office where this type of mistake is not a pattern and that counsel’s attendance at a CLE course prevented him from being informed of the need for his presence at the pre-trial. Based on the allegations in the Petition, Appellant’s counsel may have a sufficient excuse for failing to appear, or at the least to avoid a non pros. The Court is required to conduct a hearing to determine whether the excuse of counsel is satisfactory and whether the conduct warrants dismissal. Counsel set forth reasons for his failure to appear in the Petition to open judgment of Non Pros. Because we can find no indication in the record that the trial court considered the reasons provided and balanced them against the sanction order, we conclude that the trial court misapplied the law and abused its discretion in dismissing Appellant’s petition without first determining whether a satisfactory excuse for failing to appear at the pre-trial conference has been presented. The equitable requirements set forth in Stock, Christopher’s Auto Parts, supra still must be satisfied. We, therefore, reverse the trial court order and remand to the trial court for proceedings consistent with this opinion. We do so knowing that the trial court will consider the reasons for counsel’s failure to appear, the circumstances that prevented him from being notified of the court’s call, the drastic sanction imposed and the need to do justice between the parties as balanced with the court’s desire to control its schedule and arrive at a just result.

Order refusing to remove the non pros reversed and case remanded to the trial court for further proceedings. Jurisdiction relinquished.


text:
    664 A.2d 175
    James R. McKUHN, Washington Trust Garage and Pennsylvania National Mutual Casualty Insurance Company, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Elizabeth J. Cowden, Robert A. Cowden and Rohrich Cadillac, Appellee.
    Superior Court of Pennsylvania.
    Argued April 26, 1995.
    Filed Aug. 28, 1995.

      Louis C. Long, Pittsburgh, for appellants.
    Jeffrey Suher, Pittsburgh, for Aetna Casualty & Surety Company, appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order granting preliminary objections in the nature of a demurrer in a declaratory judgment action. The court ruled that Appellee, The Aetna Casualty and Surety Company, (Aetna) owes neither a defense nor indemnity to Appellants. Appellants argue that the trial court has “misapprehended the facts and ignored controlling law” in issuing its ruling. Because we find no such fault with the trial court’s action in this matter, we affirm the court’s order.

The factual circumstances giving rise to the underlying action as recounted by the trial court from the pleadings are not disputed by Appellants.

On the date of the accident, Cowden, who was a regular customer of the Washington Trust Garage [Garage], had dropped her vehicle off at the Garage for parking. When Cowden returned to the Garage in the afternoon, her vehicle was retrieved from its parking place within the Garage by James R. McKuhn [McKuhn], who was a parking attendant employed by the Garage. After retrieving Cowden’s vehicle, McKuhn parked the vehicle at the top of a ramp located within the Garage, applied the emergency brake, and left the engine running so that Cowden could drive the vehicle from the Garage.
When Cowden experienced difficulty in releasing the emergency brake of her vehicle, McKuhn assisted her in attempting to disengage the brake. While McKuhn was attempting to disengage the emergency brake, the brake suddenly and unexpectedly released, causing the vehicle to lurch forward and strike Cowden, resulting in various personal injuries.

At the time of the accident Cowden’s vehicle was insured under a policy issued by Aetna. The policy described a “covered person” as “any person using [the] covered auto.” However a question arose as to whether McKuhn and the Garage could be considered covered persons since the policy also contained the following exclusion:

For any person while employed or otherwise engaged in the business or occupation of selling, repairing, servicing storing or parking of vehicles designed for use mainly on public highways, including road testing and delivery, ...

The trial court concluded that the facts of the case are clear, the policy language is unambiguous and that the circumstances of the accident fall squarely within the policy exclusion.

Appellants, McKuhn, the Garage and their insurer, Pennsylvania National Mutual Casualty Company, argue that the exclusion does not apply because “[t]he underlying complaint does not arise from any act or omission on the part of McKuhn or the Garage with respect to the parking of Mrs. Cowden’s automobile.” They claim that the underlying lawsuit stemmed from a “single altruistic act” of attempting to repair the vehicle by helping to release the parking brake, and that neither McKuhn or the Garage were employed or engaged in the servicing of automobiles. Thus, they claim that the conduct at issue does not fall within the exclusionary provision. Finally, they assert that the specific language at issue is ambiguous and was held to be so in the case of Pecorara v. Erie Insurance Exchange, 408 Pa.Super. 153, 596 A.2d 237 (1991).

Appellants arguments fail for a number of reasons. First, we note that the Pecorara decision in fact supports the trial court’s ruling in this matter. In Pecorara at issue was an exclusion which precluded coverage “to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business.” The facts indicated that the insured lent the truck to Pecorara in order that his employee could use it to haul shale to Pecorara’s business site to resurface the parking lot. While hauling the shale the vehicle collided with another. Pecorara’s business happened to be, Aliquippa Auto Recycling Company, an automobile repair business. The appellants argued that since the employee who was using the truck was employed in the “automobile business” his actions fell within the policy exclusion. The court rejected this argument. The court found that the exclusion was intended to encompass a specific risk, a risk which did not exist under the circumstances. Because the language was found to encompass situations clearly beyond the scope of its applicability, it was found to be ambiguous. The court ruled that the mere fact that the driver was employed in the automobile business at the time he was hauling shale in the truck was insufficient to trigger the operation of the clause. His employment in the automobile business had nothing to do with the accident. It was, according to the court “a mere fortuity.” Id. at 158, 596 A.2d at 240. Because his actions in hauling shale had nothing to do with the driver’s employment in the automobile business, the court found the exclusion to be inapplicable. It reasoned that had the truck been used in the course of the automobile business, such as being test driven by a mechanic for repair purposes, then the clause would apply. Because such was not the case, the exclusion was held to be inapplicable.

While the language in the policy before us is not identical to that found in Pecorara, what Pecorara teaches is that we are to examine the conduct at issue to see if it is contemplated by the exclusion. We must ask whether the exclusion was meant to protect against the risk occasioned by the conduct. In this case that answer is clear. McKuhn was engaged in the business of parking vehicles at the time of the accident. It occurred during McKuhn’s working day during his employment as a parking attendant. Further, McKuhn was attempting to aid the customer in the release of an emergency brake at the time of the accident. McKuhn had set the brake when temporarily parking the vehicle so that the customer could get into her car and drive away. To enable the car to move from its parked position it was necessary to release the brake. Such action was clearly that type contemplated by the exclusion.

In Zizza v. Mitchell, 275 Pa.Super. 358, 418 A.2d 761 (1980) an accident occurred while the employee of J.S. Motor Company was driving a customer’s car to deliver it to the employer’s business for repairs. The court considered the applicability of an exclusion which provided that the insurance would not apply “to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof ...” Id. at 360, 418 A.2d at 762. The court found that the accident arose out of operation of a repair shop since the employee was providing a service to the car’s owner in furtherance of the interest of the employer when he drove the customer’s car to the shop for repairs.

We likewise find that the employee in this case, McKuhn, was furthering the business of his employer in the parking of vehicles when he attempted to come to the aid of a customer and disengage an emergency brake, which he had set when temporarily parking the car, and which would enable the customer to go on with her travels. We conclude that the trial court rightly held that the exclusion at issue was clearly intended to apply to the circumstances presented in this case.

Order affirmed.

      . The trial court has, pursuant to Pa.R.A.P. 341(c), 42 Pa.C.S.A., certified that this is a final order, an appeal from which will facilitate resolution of the entire case.


author: HOFFMAN, Judge:

text:
    664 A.2d 178
    COMMONWEALTH of Pennsylvania v. Anthony JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1995.
    Filed Sept. 8, 1995.

      Kalvin Kahn, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the March 21, 1994 judgment of sentence for possession and possession with intent to deliver. Appellant, Anthony Johnson, now argues that the police lacked probable cause when they arrested him. See Appellant’s Brief at 3.

On January 12, 1993, appellant was arrested and charged with possession and possession with intent to deliver a controlled substance. On November 18, 1993, appellant filed a pre-trial motion to suppress evidence of crack cocaine seized from his person at the time of arrest, which was subsequently denied. Following a bench trial, appellant was convicted of both charges and thereafter sentenced on each count to three and one-half (3$) to seven (7) years imprisonment, each count to run concurrently. This timely appeal followed.

Appellant now argues that the trial court erred in failing to suppress the evidence of crack cocaine. For the following reasons, we affirm.

We have previously opined:

In reviewing an order denying a motion to suppress evidence we must determine whether the factual findings of the lower court are supported by the evidence of record. In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant as, fairly read in the context of the record as a whole, remains uncontradicted. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Frank, 407 Pa.Super. 500, 502, 595 A.2d 1258, 1259 (1991). In determining whether probable cause exists, we must consider all the factors and their total effect. Commonwealth v. Dennis, 417 Pa.Super. 425, 429, 612 A.2d 1014, 1016 (1992), appeal denied, 535 Pa. 654, 634 A.2d 218 (1993). In addition, we must focus on the circumstances as seen through the eyes of a trained police officer, and remember that in dealing with questions of probable cause, we are not dealing with certainties, but the practical and factual considerations of every day life on which reasonable and prudent men act. Id. at 429-30, 612 A.2d at 1016.

Here, the suppression court made the following factual findings:

On January 12, 1993, at approximately 8:50 pm, Officers Kevin Beckett and Joseph Muzyka, of the Narcotic Unit’s Special Investigation Division of the Philadelphia police force, were in the area of the 1200 block of Perth Street, in the City of Philadelphia, to conduct a surveillance of alleged drug activity. Both officers were in plain clothes, in an unmarked vehicle. The officers were travelling westbound at a rate of five to ten miles an hour on Masters Street, approximately a half a block before Perth Street, when they observed [appellant] standing on the corner of Perth and Master Streets.
An unidentified black male handed United States currency to the [appellant] and the [appellant] removed several items from his right coat pocket and handed them to the unidentified male. From his view point (about a quarter of a block away) Officer Beckett testified that he believed these items to be vials of cocaine. This belief was based on his unobstructed view of the transaction and his eight years of experience on the police force (including five years as a narcotics officer and over one thousand drug related arrests). Additionally, Officer Beckett testified that he had made numerous drug related arrests in this part of the city.
The officers then stopped their vehicle and Officer Beckett got out to investigate. When [appellant] and the other male saw Officer Beckett exit the vehicle, both immediately fled in different directions. Officer Beckett chased [appellant] westbound on Masters Street, around the corner onto Eighth Street and into a vacant lot where he was captured. At this point Officer Beckett searched [appellant] for safety purposes. [Appellant] was then arrested and twenty seven vials containing crack cocaine and thirteen dollars in United States currency were confiscated....

Trial Court Opinion 3/8/95 at 1-2.

This court was recently faced with a similar situation in Commonwealth v. Albino, 438 Pa.Super. 562, 652 A.2d 953 (1995). In that case, a police officer, with five years experience on the force and over forty narcotics arrests, observed a defendant reach beneath the waistband of his pants, pull out a purse, remove some “objects,” from the purse and hand those objects to an unknown female in exchange for United States currency. Albino, 438 Pa.Super. at 563, 652 A.2d at 954. The Albino court found that, when viewing this scene through the eyes of a trained police officer, there was sufficient probable cause to arrest because of the following factors: (1) the officer observed the exchange of objects; (2) the officer positively identified currency changing hands during the transaction; (3) the officer was experienced in observing the sales of controlled substances; and (4) the transaction took place in an area of high drug activity. Albino, 438 Pa.Super. at 568, 652 A.2d at 956.

Here, the facts provide a stronger basis for finding probable cause. First and foremost, Officer Beckett observed appellant exchange United States currency for what he believed to be crack cocaine. We note that Officer Beckett was located less than half a block from the transaction which took place under street lights at night. In addition, Officer Beckett was more experienced than the officer in Albino in observing the sales of controlled substances as well as more knowledgeable in the packaging of such substances. Furthermore, here, as in Albino, the transaction took place in a high drug area. Finally, unlike the defendant in Albino, appellant fled when he observed police in the area. Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970) (evidence that defendant fled when approached by police officer, who sought to arrest him, was properly admitted to show consciousness of guilt); Frank, 407 Pa.Super. at 510, 595 A.2d at 1262 (flight, along with additional factors which point to suspect’s guilt, may establish probable cause to arrest). Viewing all these facts in their totality, the trial court did not err in denying appellant’s motion to suppress. See Albino, supra, at 562, 652 A.2d 953; Dennis, 417 Pa.Super. at 430, 612 A.2d at 1016 (police had probable cause to arrest when they corroborated neighbor’s complaint of drug dealing at specific address by observing defendant accept money for small item and defendant fled when he saw police approaching); Frank, 407 Pa.Super. at 506-07, 595 A.2d at 1261-62 (observations of defendant entering area known for drug dealing and allowing known drug dealer to enter his car for short period of time, along with fact that defendant later fled when police approached car, were sufficient to establish probable cause to arrest). Accordingly, judgment of sentence is affirmed.

Affirmed.

      . 35 Pa.S. § 780-113(a)(16).

      . 35 Pa.S. § 780-113(a)(30).

      . We note that the Albino majority found probable cause to arrest even though there was controversy as to whether the officer could actually identify the objects exchanged from his vantage point. Albino, 438 Pa.Super. at 565, 652 A.2d at 954 n. 1.

      . This case is distinguishable from the recent Pennsylvania Supreme Court decision in Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995). In that case, our Supreme Court held that the observation of a single, isolated exchange of currency for some unidentified item taking place on a public street corner at midday, along with appellant’s flight when the police approached, by themselves, did not give rise to probable cause to arrest. Id. However, the Banks court recognized that these factors, along with additional factors, would provide probable cause. Id.

        In the instant case, Officer Beckett was an experienced officer who believed that the items appellant handed to the unidentified male were vials of crack cocaine because of its packaging. Moreover, unlike the officer in Banks, Officer Beckett knew that there was a continuous amount of drug dealing which occurred in this area as he had made more than fifty arrests in the neighborhood within the previous year. Consequently, as we find the present case riddled with these additional factors, we find that there was probable cause to arrest.


author: POPOVICH, Judge:

text:
    664 A.2d 545
    Michael HAHALYAK, Trustee of the Clark Building, Appellant, v. A. FROST, INC., U.S. Gold & Diamond Centers, Inc., and Donald Duffy, Appellees. A. FROST, INC., and U.S. Gold & Diamond Centers, Inc. v. Michael HAHALYAK, Trustee of the Clark Building, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed July 21, 1995.
    Reargument Denied Sept. 29, 1995.

      Michael Hahalyak, Pittsburgh, in pro. per.
    Gregory B. Jordan, Pittsburgh, for A. Frost, Inc.
    Neal Brendel, Pittsburgh, for Duffy.
    Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County denying appellant’s motion for post-trial relief following the trial court’s entry of a Final Adjudication and Decree Nisi. After careful review, we affirm.

Examination of the record reveals the following: This case involves a breach of contract action arising over appellees, A. Frost, Inc. and U.S. Gold & Diamond Center, Inc.’s (collectively “U.S. Gold”) attempt to exercise a right of first refusal for a retail space in the Clark Building in Pittsburgh.

U.S. Gold is a retail jeweler conducting its business in the Clark Building. In January of 1992, U.S. Gold entered into a lease for Room 215 of the Clark Building with Michael Hahalyak (“Clark”), trustee of the same building for Room 215. Simultaneous with the execution of the lease, these parties entered into a separate agreement whereby U.S. Gold agreed to pay Clark an inducement payment of $61,000 upon execution of the lease that would be paid in addition to the monthly rental payments. The agreement provided U.S. Gold a right of first refusal to lease Room 214 or Room 216 if either became vacant and expressly stated:

Clark shall give Frost or Assignee right of first refusal to lease one or both of said rooms upon the same terms and conditions as Clark would lease either of said rooms to a bona fide third party. Clark shall give Frost or Assignee written notice of (i) the terms and conditions of any proposed lease to such bona fide third party, and (ii) notice of the amount, if any, such bona fide third party would pay as an inducement to Clark to lease either of the said premises to it. Clark shall include in said notice copies of any proposed written lease or written agreement for any additional payment to Clark. Frost or Assignee shall have thirty (30) days after receipt of such notice to accept in writing the terms and conditions of the lease and the inducement payment.

(Emphasis added).

Two months later, apparently forgetting about U.S. Gold’s right of first refusal, Clark entered into a written agreement with Donald Duffy, a U.S. Gold competitor and fellow tenant of the Clark Building, to lease Room 216 to Duffy, in the event it became vacant (“Duffy Agreement”). At that time, Duffy was a tenant of Room 206 of the Clark Building. The Duffy Agreement provided that Duffy would pay Clark an inducement payment of $25,000.00 for making Room 216 available under a ten-year lease and that Duffy would vacate Room 206. Duffy and Clark also agreed to the written terms of a proposed lease for Room 216 which lease did not state that Duffy vacate Room 206.

Clark notified U.S. Gold of the Duffy Agreement and the proposed lease approximately one year later, in March of 1993. On March 10, 1993, Clark provided U.S. Gold with a copy of the Duffy Agreement for Room 216 and on March 12, 1993, provided U.S. Gold with a copy of Duffy’s proposed lease for Room 216. Shortly thereafter, on April 2, 1993, U.S. Gold informed Clark that it was exercising its right of first refusal by accepting the terms and conditions of the proposed lease for Room 216 and agreeing to pay the $25,000 inducement payment that Duffy had agreed to pay for Room 216.

Clark rejected U.S. Gold’s attempt to exercise its right of first refusal, claiming that the right did not apply in this case. In addition, Clark contended that U.S. Gold could not meet the same terms and conditions offered by Duffy in the Duffy Agreement because, in addition to paying a $25,000 inducement payment, Duffy was also going to leave its store cases behind and vacate Room 206. Clark also intimated that it was going provide Room 206 to one Amitabh Mehta for $85,000. On March 10, 1993, Clark provided U.S. Gold with a proposed agreement to lease Room 206 to Mehta. This proposed agreement was never signed by Mehta, and Mehta never indicated that he was going to proceed with the proposed agreement.

U.S. Gold, in an April 7, 1993, letter, disagreed with Clark’s position, stating that, consistent with paragraph four of the Agreement, U.S. Gold was accepting the “terms and conditions of the proposed [Duffy] lease” for Room 216 and agreeing to pay “the amount, if any, such bona fide third party would pay as an inducement to Clark to lease” Room 216. Clark apparently continued to disagree with U.S. Gold and executed a lease agreement for Room 216 with Duffy on April 26, 1993. However, the lease executed on that date was different from the proposed Duffy lease previously accepted by U.S. Gold in that the proposed lease had stated on page 4 that the lease was the entire agreement between the parties, the new lease contained an exception to this clause, purportedly incorporating the Duffy Agreement:

except the Agreement dated April 10, 1992 and the letter agreement, of even date herewith, where as consideration hereto, Lessee agrees to surrender Room 206.

On August 4, 1993, Clark filed an Action for Declaratory Judgment against U.S. Gold and Donald Duffy, seeking relief in the form of a judgment declaring the lease executed by Duffy and Clark to be unencumbered by any claims asserted by U.S. Gold and denying U.S. Gold the right to exercise its right of first refusal.

On August 31,1993, Room 216 became vacant and U.S. Gold informed Clark that it was prepared to occupy Room 216 pursuant to its right of first refusal. Clark refused to honor U.S. Gold’s request and began altering the condition of Room 216 to prepare the space for Duffy. Consequently, on September 7, 1993, U.S. Gold filed a Complaint in Equity alleging breach of contract and a Motion for Special Relief and/or Preliminary Injunction seeking to compel Clark to honor U.S. Gold’s right of first refusal and to prevent Clark from leasing the property to another party.

Clark’s case and U.S. Gold’s case were consolidated, and, after hearing and argument on both, the trial court entered an order granting U.S. Gold a preliminary injunction that barred Clark from leasing, tendering possession of, altering, or allowing the alteration of room 216. The injunction required Clark to honor U.S. Gold’s right of first refusal.

A trial was scheduled for April 13-15, 1994, by an order dated January 10, 1994. Appellant requested a continuance on two occasions because he had a trial before Judge Wettick that was scheduled to begin on April 11, 1994, pursuant to an order entered on February 16, 1994. Judge Friedman denied appellant’s request because she had no other hearing dates available. Also, when Judge Friedman entered the order she had requested a response from all counsel by January 18 as to whether the April 13 date was satisfactory. Judge Friedman made it clear that if the parties did not respond she would assume that the hearing date was satisfactory. Appellant did not respond to Judge Friedman’s letter.

Neither appellant nor his other counsel of record appeared at the trial even though trial before Judge Wettick concluded on April 13. Judge Friedman conducted the hearing, and issued her adjudication per Pa.R.C.P. 1517 in which she held that U.S. Gold was entitled to recover as damages its lost profits caused by Clark’s breach of contract. She also ordered, by a decree nisi, (1) that judgment be entered against Clark, and in favor of U.S. Gold; (2) that Clark execute a lease for the subject premises with U.S. Gold; and (3) that, until the judgments for monetary damages are paid in full, U.S. Gold maintained a right of set-off as to money now owed or owing in the future to Clark. Set-off damages and lost profits damages were also awarded to appellee Duffy. Clark filed a post-trial motion for relief and two addenda. The second addendum was stricken as untimely by order dated June 27, 1994. Ultimately, by order dated July 6, 1994, Clark’s post-trial motions were denied, and this appeal followed.

Herein, appellant raises the following questions for review:

I. Did Judge Friedman commit an abuse of discretion in finding that U.S. Gold met “the same terms and conditions” to lease room 216 as offered by Duffy because the option is ambiguous and it was prepared by U.S. Gold?
II. Did Judge Friedman commit an error of law (a) in applying as the controlling law the multi-asset/multi-property transaction cases cited by counsel for U.S. Gold in his proposed findings which Judge Friedman adopted, and (b) in refusing to discuss the cases cited by the trustee pertaining to the law of options and their interpretations?
III. Did Judge Friedman commit a gross abuse of discretion in finding that Duffy’s surrender value of room 206 to Clark constituted an irrelevant and worthless transaction without any value to Clark and that room 216 had an “admitted surrender” value of $25,000?
IV. Did Judge Friedman err in not permitting the trustee the opportunity to testify on his own behalf to answer the many prejudicial, injudicial and unfounded statements without evidentiary basis made by Judge Friedman in her memorandum, and in her suppressing every request by the trustee for an opportunity to be heard, even to the point of refusing to continue the hearing before her when the trustee was compelled to be present in a jury trial, and deny the trustee due process in violation of the 14th Amendment of the U.S. Constitution?

Our standard of review is as follows: When reviewing the decision of an equity court, the chancellor’s findings of fact will stand unless there has been an abuse of discretion, a capricious disbelief of the evidence, or a lack of evidentiary support on the record for the findings or there has been an error of law. Masloff v. Port Auth. of Allegheny Cty., 531 Pa. 416, 421, 613 A.2d 1186, 1188 (1992).

We first address appellant’s contention that Judge Friedman abused her discretion in finding that U.S. Gold met the terms and conditions necessary to exercise its right of first refusal because the option was ambiguous and it was prepared by U.S. Gold.

We find no merit to this assertion in light of our Rules of Appellate Procedure that require an appellant to buttress his or her argument with legal authority. Pa.R.A.P. 2119(a); Nimick v. Shuty, 440 Pa.Super. 87, 655 A.2d 132 (1995); Burrell Construction & Supply Co. v. Straub, 440 Pa.Super. 596, 656 A.2d 529 (1995). Arguments not properly developed are waived. Nimick, 655 A.2d at 138; Burrell Construction, 656 A.2d at 533. Here, appellant simply presents us with a rambling discourse as to why appellee U.S. Gold did not meet the terms and conditions of its right of first refusal. He cites no authority for his argument. In fact, review of the record reveals that appellant has failed to cite legal authority to support this position throughout these proceedings. Therefore, we find this issue waived.

Arguendo, if this issue were not waived, appellant would still not be entitled to relief. A contract that contains clear and unambiguous language must interpreted in accordance with its plainly expressed intent. Atlantic Refining Co. v. Wyoming Nat. Bank, 356 Pa. 226, 233, 51 A.2d 719, 723 (1947) (citations omitted); Dept. of Transportation v. Manor Mines, Inc., 523 Pa. 112, 565 A.2d 428 (1989). The right of first refusal agreed upon by U.S. Gold and appellant is clear and unambiguous. Appellant was required to give notice to U.S. Gold of the terms and conditions of a proposed lease to a third party and the amount the third party would pay as an inducement. U.S. Gold properly notified Clark within thirty days of receiving the proposed Duffy lease of its intention to accept the terms and conditions and the inducement payment in the proposed lease. Thus, appellant’s first allegation of error fails on this basis also.

Next, appellant claims that the lower court erred in its application of the law and by refusing to discuss cases cited by him pertaining to the law of options. We disagree.

“[A] right of first refusal as to the conveyance of a property cannot be defeated by including that property in a multi-property or multi-asset transaction. Boyd & Mahoney v. Chevron, U.S.A, 419 Pa.Super. 24, 29, 614 A.2d 1191, 1194 (1992).

Here, appellant erroneously argues that U.S. Gold did not meet the requirements of its right of first refusal because Duffy agreed to give up room 206 and Mehta would pay $85,000 for room 206. Appellant’s argument fails for two reasons. Boyd, supra, clearly states that a right of first refusal cannot be circumvented by the use of such a tactic. In Boyd, we specifically stated:

The right of first refusal is a valuable property right. The importance of the right to its holder is that the holder may assert ownership of the property provided the owner meets the conditions of the right. The appellants’ argument that the right can be nullified simply by packaging the property for sale with another asset not so encumbered has no merit. Appellants’ logic would deprive the holder of the right the benefit of his or her bargain.

Id. 30, 614 A.2d at 1194.

Clearly, the language of Boyd applies to the instant case. Appellant cannot claim that U.S. Gold did not meet the terms of their agreement simply by adding room 206 and the Mehta “inducement payment” to the transaction. Also, evidence established that U.S. Gold desired room 214 or 216 so that it could establish a larger retail space.

The second reason that this claim must fail is that the agreement with Duffy did not state that the total inducement payment would be $110,000 for room 216. The agreement only states that Duffy would provide appellant with a $25,000 inducement payment. Appellant, in his deposition, stressed the importance of the location of room 216 and the importance of the inducement payments. If an inducement payment were so important, then the total amount of the payment would be included in any proposed agreement between Clark and a third party. Moreover, even if we were to assume that the $110,000 figure was correct, there is no evidence that Mehta was willing to rent Duffy’s vacated room for $85,000. The only evidence of this is appellant’s unfounded assertions. In fact, appellant admits that Mehta never signed a lease. Thus, we must dismiss this allegation of error.

Appellant also contends that the court erred in refusing to consider option cases that he submitted to the court. After scouring the record, we do not find appellant provided the lower court with any cases dealing with options. However, appellant does provide us with some citation to authority and legal argument on this issue. He argues that West Penn Realty Company v. Acme Markets, Inc., 224 Pa.Super. 202, 303 A.2d 836 (1973), is controlling on this issue. West Penn involved an ambiguous option clause in a lease. Id. 205, 303 A.2d at 837. The lessee had an option to renew his lease, and this option had to be exercised at a particular time. Id. The parties renegotiated the original lease, creating an ambiguity as to the proper time for the lessee to exercise the option. Id. We held that the lower court erred in granting the lessee’s motion for judgment on the pleadings. Id. An ambiguity existed in the option clause, and we stated that it must be determined which party drafted the lease so that the option clause could be properly interpreted. Id. Appellant’s reliance on West Penn is misplaced. There is no ambiguity in the right of first refusal involved in this case. This case also does not involve an option to extend a lease term. Accordingly, we find that West Penn does not provide appellant a basis for relief.

Next, appellant contends that Judge Friedman committed a gross abuse of discretion in finding that Duffy’s surrender value of room 206 to Clark constituted an irrelevant and worthless transaction without any value to Clark and that room 216 had an “admitted surrender” value of $25,000.

Material that does not appear in the official record record cannot be considered on appeal. Pittsburgh’s Airport Motel, Inc. v. Airport Asphalt & Excavating Company, 322 Pa.Super. 149, 469 A.2d 226 (1983).

Here, Judge Friedman correctly found that room 216 had a surrender value of $25,000. The only evidence that room 206 had a surrender value of $85,000 is appellant’s assertion that Mehta offered this amount for the room. There is absolutely no additional proof that supports appellant’s valuation. Appellant’s contention is further undermined due to the fact that, in his deposition, he concedes that there was never a contract for room 206 between him and Mehta. In fact, appellant was uncertain as to the entire “Mehta” situation as evidenced by the fact that he was unsure which member of the Mehta family was going to be renting room 206. Because the record does not support, and in fact contradicts, appellant’s assertions, we find this argument meritless. See, Dudash v. Du- dash, 313 Pa.Super. 547, 460 A.2d 323 (1983) (holding that chancellor’s findings of fact will not be disturbed on review if there is support for these findings in the record).

Finally, appellant erroneously claims that he was denied due process of law pursuant to the 14th Amendment to U.S. Constitution because Judge Friedman denied his requests for a continuance.

Due process requirements are satisfied when a person is given notice and opportunity to be heard and defend in an orderly proceeding. Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978) (citation omitted).

Instantly, appellant suffered no due process violations as a result of Judge Friedman’s denial of his requests for a continuance. Judge Friedman entered an order on January 10, 1994, setting an April 13-15, 1994, trial date. Appellant was also required to appear at a trial before Judge Wettick on April 11, 1994, pursuant to an order entered February 16, 1994. Obviously appellant knew of the trial for the case at bar before he knew of the trial before Judge Wettick. Appellant did not request a continuance from Judge Wettick. Moreover, appellant’s trial before Judge Wettick was completed by April 13, 1994. Thus, he could have appeared at his trial before Judge Friedman. Finally, appellant’s argument also fails because he had other counsel who could have represented his interests at the proceedings. M.A Mullock and John Hahalyak both appeared as appellant’s counsel during these proceedings and could have appeared at the trial to present appellant’s arguments that were contained in his deposition testimony. Obviously, appellant was in no way deprived of his due process rights and this argument must fail. See generally, Goetz v. Dept. of Environmental Resources, 149 Pa. Commwlth. 230, 613 A.2d 65 (1992) (due process requirements do not mandate an absolute right to be heard, only an opportunity to be heard).

Order affirmed.

      . Inducement payments were given for different room locations and varied according to the desirability of the room location, that is, rooms that were in higher consumer traffic areas appeared to carry higher inducement payments.

      . U.S. Gold intended to expand its business to include at least one room in addition to room 215.

      . Appellant requested a continuance, by letter, on March 16, 1994, and made a second request for a continuance, by motion, on April 8, 1994.

      . Appellant was represented by himself and one M.A. Mullock in this case.

      . Appellant asserts that the right of first refusal must be construed in his favor because it was prepared by U.S. Gold. Review of the record provides no basis to support this bald assertion by appellant.

      . We also note that Judge Friedman requested a response when she set the hearing date and appellant’s failure to respond to this letter led Judge Friedman to believe this date was appropriate. Thus, appellant’s due process claim is meritless for this reason as well.


author:
BECK, Judge:
      KELLY, Judge,

text:
    664 A.2d 551
    Maryann MATLOCK a/k/a Maryann E. Stranko Matlock, Appellee, v. Joseph MATLOCK a/k/a Joseph D. Matlock, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1995.
    Filed July 21, 1995.
    Reargument Denied Sept. 26, 1995.

      Thomas H. Tropp, Philadelphia, for appellants.
    Howard M. Goldsmith, Philadelphia, for appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   BECK, Judge:

In this appeal, we are asked to determine whether the trial court erred in its interpretation and enforcement of the Property Settlement Agreement (“PSA”) entered into by appellant, Colonel (retired) Joseph D. Matlock (“husband”) and his former spouse, appellee, Maryann E. Stranko Matlock (“wife”). Specifically, we must interpret the division of pension benefits under the PSA. We affirm the trial court.

The factual history and procedural posture of this case are as follows. The parties were married on December 21, 1963. The following year, in August 1964, husband entered the United States Air Force (“USAF”). After serving in Vietnam, husband entered law school. Husband completed law school in 1973 while still on active duty in the USAF. When he completed law school, husband attained the rank of senior captain.

By decree and order dated May 5, 1987, the parties were divorced. This decree and order fully incorporated the PSA which the parties had executed on February 8, 1987. But the decree and order did not merge with the PSA and the PSA survived the decree and order. The court also issued a Qualified Domestic Relations Order (“QDRO”) that attempted to effectuate the portions of the PSA regarding distribution of the pension. The QDRO was in the form agreed to by the parties and attached as an exhibit to the PSA.

Prior to the parties’ May 5, 1987 divorce, on October 1, 1985, husband was promoted from lieutenant colonel to colonel. Husband’s rank was colonel when the parties divorced. However, to receive a colonel’s pension upon his retirement, husband had to retire on or after October 1, 1988. Consequently, if husband had retired from the USAF on the date that the parties were divorced, husband would have only been eligible to receive the pension of a lieutenant colonel. Husband evidenced no intent to retire on May 5, 1987.

Husband eventually retired from the USAF on September 1,1992. He was still a colonel and he had qualified to receive a colonel’s pension benefits. At the time husband’s pension benefits were initially distributed to him and wife pursuant to the QDRO, wife received one-half of husband’s pension benefits based on a lieutenant colonel’s salary, i.e., the amount she was entitled to on the day of divorce. The remainder of husband’s pension benefits were paid to husband.

On June 25, 1993, wife petitioned the trial court to enforce the PSA, claiming that she and husband had agreed that she was entitled to receive one-half of a colonel’s pension benefits because husband had accrued a colonel’s pension benefits when he retired. Husband answered wife’s petition claiming that he and wife had agreed that she was only entitled to receive one-half of the lieutenant colonel’s pension benefits which husband had accrued at the time of the parties’ divorce.

Wife filed a motion in limine in which she sought to exclude any and all parol evidence with regard to the interpretation of the PSA. After husband responded to wife’s motion in limine, the trial court granted wife’s request.

At the evidentiary hearing in the case in chief both parties testified. Wife also presented the testimony of Stephen Glass-man, an expert in the field of military pension law. The trial court expressly stated that Glassman’s testimony only informed it of the intricacies of the Uniformed Services Former Spouses Protection Act and did not aid the trial court in its interpretation of the PSA. Trial Court Supplemental Opinion at 1-2.

The trial court issued its memorandum and order which granted wife’s motion to enforce the PSA. The court in interpreting the PSA found the QDRO was not part of the contract. At that time, the trial court also issued a new Qualified Military Retirement Order (“QMRO”) for the purposes of effectuating its interpretation of the PSA because it deemed the original QDRO inadequate. Husband appealed.

Husband raises the following issues for our review:

1. Did the lower court err in holding that the property settlement agreement executed by the parties on February 8, 1987 (“PSA”) and the military order (qualified domestic relations order) (hereinafter referred to as the “the [sic] QDRO”) provide for appellee’s receiving one-half of the retired pay which appellant began receiving when he retired on September 1,1992 rather than one-half of the retired pay which he was entitled to as of the date of divorce, May 5, 1987?
2. Did the lower court err when it determined that the QDRO, which is referred to in paragraph thirteenth of the PSA and a copy of which is attached to the PSA as exhibit B, is not part of the parties [sic] agreement?
3. Did the lower court err by not finding that the terms of the PSA and QDRO supported appellant’s contention regarding the division of his retired pay?
4A. Did the lower court err by not finding that the pertinent terms of the PSA and QDRO were ambiguous?
4B. Did the lower court err by not construing the PSA and QDRO against appellee since her representatives drafted both?
5. Did the lower court err by granting appellee’s motion in limine?
6. Did the lower court err by allowing Stephen Glassman, Esquire to testify and offer his opinion regarding the meaning of the terms of the PSA and the QDRO?

Appellant’s Brief at 4.

We first address wife’s contention that husband’s appeal is interlocutory. Wife claims that husband’s appeal is not properly before this court because the trial court retained jurisdiction over the QMRO to supervise and enforce the payment of husband’s pension benefits and failed to enter a final monetary judgment in this case. We disagree.

Appeals can be taken only from final orders, unless a statute or rule of court provides otherwise. Foflygen v. R. Zemel, M.D. (PC), 420 Pa.Super. 18, 28, 615 A.2d 1345, 1350 (1992), allocatur denied, 535 Pa. 619, 629 A.2d 1380 (1993) (citing Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-45 (1978)); Pa.R.App.P. 341(a). A final order is one which “serves to put the litigant out of court either by litigation or disposing of the case entirely.” Foflygen, 420 Pa.Super. at 28, 615 A.2d at 1350 (citing Bender’s Floor Covering v. Gardner, 387 Pa.Super. 531, 564 A.2d 518 (1989)). The QMRO which effectuates the trial court’s interpretation of the PSA pertinently orders the following:

K. Judgement [sic] in the amount of ($ ) (Exact amount to be determined by the appropriate authority (Plan Administrator) with notification to be sent to this Court, Petitioner and Respondent, when such sum is calculated. Counsel for the respective parties are directed to record such judgment in the jurisdiction deemed appropriate) is hereby entered in favor of MARYANN MATLOCK and against JOSEPH MATLOCK, said sum being the difference between the pension payments actually paid to the Petition[er] [sic] and the amount owed by the Respondent to the Petitioner pursuant to this Court’s Decree and Order of Divorce dated May 5, 1987.

QMRO at 9. This provision awards appellee an ascertainable sum which is to be ministerially determined by the plan administrator. No additional hearings will be required in this case to determine the amount of the judgment entered by the trial court. Thus, the QMRO is a final order as it puts the appellant out of court. Moreover, the fact that the trial court expressly retained the ability to supervise and enforce the payment of husband’s pension benefits is irrelevant; a trial court can enforce all of its orders, even when an appeal is pending. Pa.R.App.P. 1701(b)(2). See Tanglwood Lakes Community Ass’n v. Laskowski, 420 Pa.Super. 175, 616 A.2d 37 (1992) (absent stay or supersedeas, trial court possessed the ability to enforce order which was being appealed by imposing sanctions against appellant for lack of compliance). Therefore, wife’s claims regarding the appealability of the QMRO are meritless.

Although husband raises six separate issues, he is basically challenging the court’s conclusion that wife is entitled to one-half of the full colonel’s pension instead of one-half of the lieutenant colonel’s pension.

Husband contends that the trial court erred in finding that the QDRO was not part of the PSA, thereby considering the QDRO to be parol evidence which he did not consider in interpreting the PSA. Specifically, husband avers that the PSA and the QDRO are both parts of the entire agreement of the parties. We agree with husband.

Property settlement agreements are governed by the general rules of contract interpretation. Krizovensky v. Krizovensky, 425 Pa.Super. 204, 211, 624 A.2d 638, 642 (1993), allocatur denied, 536 Pa. 626, 637 A.2d 287 (1993) (citing D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990)). “(Wjhen a contract refers to a separate document, a court may examine the language of the other document to ascertain the intent of the parties.” West Development Group, Ltd. v. Horizon Financial, F.A., 405 Pa.Super. 190, 592 A.2d 72, 75 (1991).

Instantly, the QDRO was attached to the PSA as an exhibit and the PSA specifically refers to the QDRO as an exhibit. The parties’ execution of the PSA and consent to the QDRO were contemporaneous. Most importantly, the PSA and the QDRO are substantively intertwined because both address the distribution of husband’s pension benefits between the parties. Therefore, we conclude that the PSA cannot be correctly interpreted without reference to the QDRO because the two documents combine to form the parties’ agreement as to the pension.

The following are the only portions of the PSA in which the pension is addressed:

IS. (a) The parties acknowledge that Husband has acquired during the marriage a military pension. It is the intention of the parties to equally divide the benefits from the pension when said pension is in pay status. Moreover, the Husband agrees to elect to provide an annuity to Wife under the Survivor Benefit Plan Option. The Parties specifically agree that Wife shall receive benefits from the pension and under the Survivor Benefit Plan regardless of whether or not either party remarries.
(b) It is recognized by and between the parties that in order to effectuate this pension transfer, a “Qualified Domestic Relations Order” shall be necessary. The parties agree to sign whatever documents are necessary to effectuate the Qualified Domestic Relations Order. A copy of said Order is attached hereto as Exhibit “B”.
The relevant portions of the QDRO provide:
1. The parties hereto are husband and wife, and a divorce action is presently pending/has been completed/in this Court at the above number;
2. The parties have been married ten or more years during which Defendant husband was in military service.
3. Colonel Joseph Matlock ... hereinafter referred to as “Defendant” or “Participant”, is on active duty in the Armed Forces and is a participant in the Armed Forces Retirement System (“Plan”).
4. Maryann Matlock ... hereinafter referred to as “Plaintiff’ or “Alternate Payee”, has raised claims for, inter alia, equitable distribution of marital property....
IT IS ORDERED, ADJUDGED AND DECREED as follows:
1. A portion of the Plan is marital property subject to distribution by this Court.
2. The marital property component of the Plan is one-half (fifty percent) of the projected pay status gross monthly pension income. The portion to be segregated for the Alternate Payee is fifty percent (50%) of the Participant’s full retirement benefit.
3. The benefits shall be payable to the Alternate Payee on the date on which the Participant attains retirement age, as if the Participant had retired on that date even if the Participant has not actually retired or separated from service.
4. (a) The parties acknowledge that Husband has acquired during the marriage a military pension. It is the intention of the parties to equally divide the benefits from the pension when said pension is in pay status. Moreover, the Husband agrees to elect to provide an annuity to Wife under the Survivor Benefit Plan Option. The parties specifically agree that Wife shall receive benefits from the pension and under the Survivor Benefit Plan regardless of whether or not either party remarries.
(b) It is recognized by and between the parties that in order to effectuate this pension transfer, a “Military Order” (“Qualified Domestic Relations Order”) shall be necessary. The parties agree to sign whatever documents are necessary to effectuate the Order.
5. The term of said payments is for the life of the Alternate Payee.
6. The Plan to which this Order applies is the Armed Forces Retirement System or any successor plan thereto.
7. The Alternate Payee shall have the same rights with regard to her portion of the Plan as are available to the Participant with regard to his remaining portion of the Plan. In no event shall the Alternate Payee have greater rights than those which are available to the Participant. The Alternate Payee is not entitled to any benefit not otherwise provided under the Plan.

In interpreting the terms of the PSA and the QDRO set forth above, our only task is to ascertain the contracting parties’ intent. We underscore the fact that property settlement agreements are governed by the same principles of contract interpretation that apply to any other contract. D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) (en banc). Under those principles, the court’s role is not to remake the parties’ agreement, but rather simply to interpret and enforce it.

The core facts to which the above-quoted contractual terms must be applied in this case can be distilled into the following:

1. As of the date the Agreement was executed and as of the date the parties divorced and the QDRO was entered (all of which occurred in 1987), appellant was entitled to retire and receive a lieutenant colonel’s pension.
2. As of the same time, appellant had already been promoted to the rank of full colonel and had served as such for one and one-half years. However, appellant did not yet qualify for a colonel’s pension, which yields retirement benefits that are substantially higher than those paid under a lieutenant colonel’s pension. To receive the colonel’s pension, appellant had to continue to serve for an additional one and one-half years after the divorce.
3. Appellant did not retire and accept a lieutenant colonel’s pension as of the date of divorce and there is no evidence that he intended to do so when the parties executed their Agreement.
4. Appellant continued to serve in the military as a full colonel for over five more years after the divorce. He retired in late 1992 and began receiving a full colonel’s pension.
5. Appellee has received an amount equal to approximately one-half of the pension benefits appellant would have received if he had retired as of the date of divorce and had accepted a lieutenant colonel’s pension.

Husband argues that when the terms of the PSA and QDRO are applied to the foregoing facts, it is clear that wife is only entitled to fifty percent of a lieutenant colonel’s pension. The trial court disagreed, awarding wife fifty percent of the full colonel’s pension which husband was actually receiving.

Paragraph 13 of the PSA sets forth wife’s rights regarding a distribution of the pension. The PSA expressly states that the wife will receive fifty percent of whatever husband receives when the pension is actually paid out, i.e. “when said pension is in pay status.”

The QDRO also supports this interpretation. The parties agreed that one-half of the “projected” pay status is to go to wife and that the “portion to be segregated” for wife is fifty percent. The language referring to pay status, when read in the context of the whole PSA and the whole QDRO, indicates that wife was to receive the portion of the “projected” and presently unknown amount appellant would actually receive when he did retire and the pension entered pay status. This is what the PSA and the QDRO refer to throughout: the amount wife is to receive is one-half of what husband receives when he retires and the pension enters pay status.

Husband disagrees and argues in his brief that the following language found in paragraph 3 of the QDRO shows that wife’s intent was that she receive less than fifty percent of a full colonel’s benefits.

The benefits shall be payable to ... [wife] on the date on which ... [husband] attains retirement age, as if ... [husband] had retired on that date even if ... [husband] had not actually retired or separated from service.

Husband’s argument that paragraph 3 demonstrates that wife never expected to receive fifty percent of the pension husband is now receiving is not persuasive. The foregoing language refers specifically to time of payment, not to amount. The amount of payment is covered both in paragraph 13 of the PSA and in paragraph 4(a) of the QDRO, both of which state in identical language that wife is to receive fifty percent of the amount of the pension when it is in pay status. In addition, paragraph 2 of the QDRO states that the amount wife is to receive is fifty percent of husband’s “full retirement benefit.” The parties’ intent on this subject is clearly and expressly set forth in these paragraphs of the PSA and the QDRO.

Lastly, we address the remaining questions presented by husband, the admission of Glassman’s expert testimony on military pensions. The trial court admitted Glassman’s expert testimony solely for the limited purpose of informing it about the intricacies of military pension law. The trial court acted within its discretion. We, therefore, conclude the trial court did not err.

Order affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I dissent. Although I join the portions of the majority opinion holding that this appeal is not interlocutory and that the PSA and the QDRO combine to form one contract, I believe that the majority’s interpretation of this contract is incorrect. I interpret this contract to divide only the marital portion of appellant’s military pension. Further, I would employ coverture fractions to determine what the marital portion of that pension actually is. Accordingly, I would reverse the trial court’s order and remand with instructions.

When interpreting contracts, the paramount concern of a court is to determine the intent of the parties. Walton v. Philadelphia Nat. Bank, 376 Pa.Super. 329, 338, 545 A.2d 1383, 1388 (1988). In determining the intent of the parties to a contract, all provisions of a contract must, if possible, be given effect. Krizovensky v. Krizovensky, 425 Pa.Super. 204, 211, 624 A.2d 638, 642 (1993). When a contract’s provisions are clear and unambiguous, the parties’ intent must be ascertained from the contract itself. Steuart v. McChesney, 498 Pa. 45, 48-49, 444 A.2d 659, 661 (1982); Krizovensky v. Krizovensky, supra at 211, 624 A.2d at 642; Walton v. Philadelphia Nat. Bank, supra at 339, 545 A.2d at 1388. To determine if contractual terms are ambiguous, which is a question of law, the following factors must be considered: the words of the agreement; alternate meanings proposed by counsel; and extrinsic evidence offered in support of the proposed meanings. Id. (quoting Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96, 101 (3rd Cir.1986)). Additionally, provisions of a contract which appear to conflict “will be construed, if possible, as consistent with one another.” In re Trust of Binenstock, 410 Pa. 425, 434, 190 A.2d 288, 293 (1963) (citing 3 Corbin, Contracts § 547 (3 ed. 1960)).

It is [a] well settled doctrine that a contract must be construed as a whole, and the intention of the parties is to be collected from the entire instrument and not from detached portions, it being necessary to consider all of its parts in order to determine the meaning of any particular part as well as of the whole. Individual clauses and particular words must be construed in connection with the rest of the agreement, and all parts of the writing, and every word of it, if possible, will be given effect. 13 C.J. § 486, p. 525, 17 C.J.S., Contracts, § 297; Stewart’s Administrators v. Lang, 37 Pa. 201, 78 Am.Dec. 414; Berridge v. Glassey, 112 Pa. 442, 3 A. 583, 56 Am.Rep. 322; McMillin v. Titus, 222 Pa. 500, 72 A. 240; Knickerbocker Trust Co. v. Ryan, 227 Pa. 245, 75 A. 1073.

Mowry v. McWherter, 365 Pa. 232, 239-40, 74 A.2d 154, 158 (1950) (emphasis added).

Instantly, after reading the words of the PSA together with the words of the QDRO, considering the alternate meanings for those words proposed by appellant and appellee, and analyzing any extrinsic evidence which can be gleaned from the record, I conclude that the intent of appellant and appellee can be determined from the unambiguous language of the contractual provisions which the PSA and the QDRO combine to create. Appellant and appellee formed this contract to split their marital property in a manner that each of them deemed to be equitable. In both the PSA and the QDRO, appellant and appellee acknowledge that only the portion of appellant’s pension benefits accumulated during their marriage constitutes marital property subject to division. Specifically, the PSA states that “[t]he parties acknowledge that [appellant] has acquired during the marriage a military pension.” PSA at 14 (emphasis added). The QDRO states that “[a] portion of the Plan is marital property subject to distribution----” QDRO at 2 (emphasis added). Thus, the majority’s conclusion that appellant and appellee contracted for the equal division of appellant’s entire pension benefit is incorrect; the marital property distribution contract does not provide for such a division of the benefits.

Appellant and appellee, in their February 8, 1987 marital property distribution contract, clearly intended to equally divide only the marital portion of appellant’s pension benefits when the pension entered pay status. The QDRO defines the marital portion of appellant’s pension benefits to be “one-half (fifty percent) of the projected pay status gross monthly pension income. The portion to be segregated for [appellee] is fifty percent (50%) of [appellant’s] full retirement benefits.” QDRO at 2 (emphasis added). The word “projected” evidences appellant’s and appellee’s intent to divide only that portion of appellant’s pension benefits which accumulated as of the date of the marital property distribution contract because that exact amount was unknown and had to be “projected” when the contract was executed. Moreover, the “portion to be segregated for appellee” is, in my opinion, the marital portion.

In light of the foregoing, I conclude that, after reading the provisions of the PSA and the QDRO together, the intent of appellant and appellee with regard to the division of appellant’s pension was to equally divide only that portion of appellant’s pension which had accrued as of February 8, 1987, the date of appellant’s and appellee’s contract to divide their marital property. Simply stated, that portion of appellant’s pension which accrued after February 8, 1987 is not considered to be marital property in the contract and its division was not intended. Both the PSA and the QDRO impliedly or expressly recognize this fact. Appellant and appellee agreed to split the projected marital portion of appellant’s full pension benefits equally, no matter what the date of appellant’s retirement actually was. In the context of the entire property distribution agreement entered into by appellant and appellee and the consistent interpretation of all of its provisions, I would hold that appellee is entitled to an equal division of appellant’s pension benefits accumulated as of February 8, 1987.

My interpretation of the contractual provisions contained in the PSA and the QDRO does not, however, automatically lead to appellant’s conclusion that appellee is only entitled to one-half of a lieutenant colonel’s pension benefits, ie., the pension benefits that appellant was entitled to receive if he had retired on the date of his and appellee’s divorce. To aid me in my determination of the exact amount of appellant’s pension benefits which constitutes marital property, I consider how the courts of this Commonwealth equitably distribute pension benefits between former spouses when a property settlement contract does not exist to be instructive. When a court orders the equitable distribution of pension benefits between former spouses, the increases in the value of the pension benefits attributable to the continued employment of the person actually accumulating the pension benefits is allocated to his or her former spouse. Holland v. Holland, 403 Pa.Super. 116, 118-19, 588 A.2d 58, 59-60 (1991), allocatur denied, 528 Pa. 611, 596 A.2d 158 (1991). This is justified by the fact that “the non-employed spouse [must] wait until some indefinite time in the future to receive the marital share.” Id. at 118, 588 A.2d at 60. To determine the portion of a pension that constitutes marital property, a coverture fraction is calculated. Lowry v. Lowry, 375 Pa.Super. 382, 404, 544 A.2d 972, 983 (1988).

The numerator of the fraction is the period of the employee-spouse’s participation in the pension plan during marriage. The denominator is the total period of time the employee spouse was accruing benefits.

Id.

Instantly, appellant and appellee intended, via the PSA and the QDRO, to equally divide the marital portion of appellant’s pension benefits. Hence, the marital portion of those benefits are calculated in the same manner that the equitable distribution of marital pension benefits is effectuated because I consider the aforementioned equitable distribution cases to control and best illustrate appellant’s and appellee’s expressed contractual intent. Consequently, the portion of appellant’s pension benefits which is attributable to both his marriage to appellee and his service in the USAF must be calculated. Appellant began his service in the USAF in August 1964, less than a year after he and appellee were married. Appellant and appellee effectively ended their marriage when they agreed to separate and divide their marital property on February 8, 1987. Appellant then retired from the USAF on September 1, 1992, approximately sixty-seven months after the execution of the February 8, 1987 contract. Thus, appellant and appellee lived as husband and wife for two hundred, sixty-nine of the three hundred, thirty-six months that appellant served in the USAF.

Appellee is entitled to the increase in the value of appellant’s pension benefits resulting from his continued service in the USAF because appellant and appellee agreed to equally divide the marital portion of the pension benefits in the PSA and the QDRO. Moreover, to determine the marital portion of appellant’s pension benefits, a coverture fraction must be calculated. The numerator of the coverture fraction is two hundred, sixty-nine (the number of months appellant and appellee were married while appellant served in the USAF); its denominator is three hundred, thirty-six (the total number of months appellant served in the USAF). Thus, pursuant to the parties’ marital distribution contract, the portion of the military pension subject to distribution between the parties is the entire colonel’s pension benefit multiplied by the coverture fraction of 269/336 or .80, the product of which shall then be divided by one-half.

Based upon the foregoing, I would reverse the determinations of the trial court and remand for the issuance of a revised qualified military retirement order which would comply with the directives contained herein.

      . 10 U.S.C. § 1408 et seq.

      . Both the trial court and wife state that the QDRO cannot be part of the PSA because it is a court order which has the purpose of effectuating the pension provisions of the PSA. We acknowledge that the QDRO is required by the Plan Administrator to effectuate the distribution of husband’s pension. But we do not understand why it cannot also be considered to be part of the PSA, especially when the PSA specifically refers to the QDRO and the QDRO is attached to the PSA as an exhibit. Moreover, the QDRO became part of the PSA on February 8, 1987, approximately three months before it was issued as a court order.

      . Expert testimony taken by the trial court indicated that “pay status” is a defined term in the area of military pensions. In that context, the phrase “pay status” means "when the pension is actually being paid.” This fact is not disputed. See Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624 A.2d 638 (1993) (where property settlement agreement regarding division of pension uses terms that are clearly defined within context of retirement system at issue, contract is not ambiguous as to meaning of those terms, and accepted definition is that given to those terms within context of that retirement system).

      . By ignoring the language of the PSA and the QDRO pertaining to the marital portion of appellant’s military pension, the majority fails to construe the entire contract as a whole, does not give effect to each of the provisions of the contract, and fails to consider these provisions in a manner consistent with one another.

      . By dividing appellant’s entire military pension, including that portion of it which accrued after February 8, 1987, the majority not only contravenes the express intent of the parties as evidenced by the PSA and the QDRO, but it also inequitably allocates appellee’s pension benefits that he earned after he and appellee effectively terminated their marital relationship. The majority has failed to cite any case law which would persuade me that this inequitable interpretation of the PSA and the QDRO is correct.