text:
    555 A.2d 1314
    Teann J. SCOGGINS, Appellant, v. Jimmy D. SCOGGINS, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed March 13, 1989.

      Timothy E. Kane, York, for appellant.
    Jeffrey D. Lobach, York, for appellee.
    Before BECK, KELLY and HESTER, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether an assertion of “marital domicile” by itself alleges sufficient minimum contacts, pursuant to the Pennsylvania Long-Arm Statute, to withstand a preliminary objection asserting the absence of in personam jurisdiction over a nonresident, nondomiciliary defendant in an action brought by a resident spouse concerning economic claims arising out of the marital relationship.

We find that although “marital domicile” may provide sufficient minimum contacts with Pennsylvania to permit exercise of in personam jurisdiction, the bare assertion of the legal conclusion that marital domicile existed in Pennsylvania without pleading further facts is not a sufficient factual predicate for the disposition of preliminary objections alleging the absence of personal jurisdiction over a nonresident, nondomiciliary defendant. The assertion of marital domicile is a conclusion of law which must be supported by specific facts. Moreover, while the fact of former marital domicile within a forum is a highly relevant factor in determining whether long-arm jurisdiction is appropriate, it is not necessarily dispositive. For reasons which follow, we remand for further proceedings in the trial court upon the question of whether in personam jurisdiction could properly be exercised in this case.

FACTS AND PROCEDURAL HISTORY

Teann J. Scoggins (“appellant”) and Jimmy D. Scoggins (“appellee”) were married in York, Pennsylvania, on February 12, 1983. The parties separated, and appellee moved to Florida, where he has since established his domicile. Appellant continues to reside in York, Pennsylvania. The scant record before us does not reveal when the parties separated or whether they ever lived together outside of Pennsylvania. We take judicial notice of the fact that Florida requires a six month residency period before a petition in divorce may be filed. Therefore, we note that appellee must have resided in Florida by at least June 18,1986, as he filed a petition for divorce in Florida on November 18, 1986. Appellant was served with a copy of that action on December 1, 1986.

On January 9, 1987, appellant instituted her own divorce action against appellee in Pennsylvania. In her complaint for divorce, appellant asserted claims for equitable distribution, alimony, alimony pendente lite, counsel fees, expenses, and costs. Appellee was served with notice of appellant’s complaint.

Appellee obtained an ex parte divorce decree in Florida on January 14, 1987. On February 4, 1987, appellee filed preliminary objections to appellant’s divorce action alleging lack of subject matter jurisdiction, failure to state a cause of action upon which relief can be granted and lack of personal jurisdiction. The trial court refused to grant appellee’s first two preliminary objections, based on its conclusion that appellant’s complaint stated a cause of action for economic relief which could be resolved by a court in Pennsylvania. However, the trial court found that it could not exercise personal jurisdiction over appellee, a nonresident. The trial court explained that “the facts [of this case] may oblige the use of Pennsylvania law by a Court in deciding this case, but they are not sufficiently clear to allow this Court to fairly exercise personal due process jurisdiction over the ... [appellee].” (Trial Ct. Op. at 8). (Emphasis added). This timely appeal follows.

Appellant raised the following issues for our consideration:

Whether the lower court erred in dismissing the action for lack of personal jurisdiction:
A. Does the situs of the marital domicile alone assure sufficient minimum contacts to satisfy the due process tests; and,
B. Did the lower court fail to follow established procedures by deciding the case on controverted facts alone and without taking additional evidence?

(Appellant’s Brief at 3). Upon review of the parties’ briefs, the record, the applicable statutory and constitutional authority and the relevant case law, we vacate the trial court’s order and remand with instructions.

We shall address appellant’s issues in the following manner. First, we shall consider the standard of review, as well as the general rules, which are applicable to cases that have been dismissed on preliminary objections due to lack of personal jurisdiction. Secondly, we shall examine the Pennsylvania Long-Arm Statute to determine which provision applies to cases such as the one sub judice. Thirdly, we shall consider what must be pled to meet, at least preliminarily, the minimum requirements of the applicable provision of the Pennsylvania Long-Arm Statute. Finally, we shall apply the above considerations to the facts of the instant case and dispose of the issues raised on appeal.

I. STANDARD OF REVIEW

Our standard of review of an appeal from an order granting a preliminary objection which challenged the exercise of in personam jurisdiction has been summarized as follows:

[W]hen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt, (citation omitted). Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.

Delaware Valley Underwriting v. Williams & Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986) (citations omitted). See also Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600, 601 (1988).

When a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., 261 Pa.Super. 84, 87, 395 A.2d 954, 955 (1978). As the moving party, the defendant, has the burden of supporting its objections to the court’s jurisdiction. Schmitt v. Seaspray-Sharkline, Inc., 366 Pa.Super. 528, 531, 531 A.2d 801, 803 (1987) (emphasis in original); Delaware Valley Underwriting v. Williams & Sapp, supra, 518 A.2d at 1283 (emphasis added).

Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiffs evidence. Schmitt v. Seaspray-Sharkline, Inc., supra, 531 A.2d at 803; Alumbaugh v. Wallace Business Forms, 226 Pa.Super. 511, 516, 313 A.2d 281, 283 (1973). The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations. Schmitt v. Seaspray-Sharkline, Inc., supra; Alumbaugh v. Wallace Business Forms, supra. Only when the moving party has properly raised the jurisdictional issue does the burden of proving jurisdiction fall upon the party asserting it. Biel v. Herman Lowenstein, Inc., 411 Pa. 559, 563, 192 A.2d 391, 393 (1963); Schmitt v. Seaspray-Sharkline, Inc., supra, 531 A.2d at 803.

Where an essential factual issue arises from the pleadings as to the scope of a defendant’s activities within the Commonwealth, the plaintiff has the right to depose defendant as to his activities within the Commonwealth, and the court must permit the taking of the deposition before ruling on the preliminary objections. Schmitt v. Seaspray-Sharkline, Inc., supra; Manchel v. Weil, 272 Pa.Super. 591, 595, 416 A.2d 1054, 1056 (1979). Where neither party presents evidence by which the court can properly resolve the issue, it is appropriate to remand with directions that an order be entered allowing the parties a reasonable period of time in which to present evidence by deposition, interrogatories or otherwise. Schmitt v. Seaspray-Sharkline, Inc., supra; Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra, 395 A.2d at 956.

II. THE PENNSYLVANIA LONG-ARM STATUTE

The Pennsylvania Long-Arm Statute, 42 Pa.C.S.A. § 5822, is basically divided into two sections. Section (a) contains ten subsections, which specify particular types of contact with Pennsylvania which will be deemed sufficient to warrant the exercise of long-arm personal jurisdiction. Section (b) is a catchall provision which authorizes the exercise of personal jurisdiction over persons who do not come within one of the express provisions of the ten subsections of section (a) so long as the minimum requisites of federal constitutional law are met. In the instant case, appellant contends that § 5822(a)(4) or, alternatively, § 5322(b) provides the basis for the exercise of personal jurisdiction over appellee. Appellant contends that appellee’s non-payment of alimony and/or other forms of economic relief provided in the Divorce Code would fall under 42 Pa.C.S.A. § 5322(a)(4) and therefore permit the courts of this Commonwealth to exercise in personam jurisdiction over appellee. Alternatively, appellant contends that the site of the marital domicile alone is sufficient to satisfy the minimum contacts of 42 Pa.C.S.A. § 5322(b).

The separate provisions of 42 Pa.C.S.A. § 5322(a)(l-10) set forth various circumstances which the legislature presumed to meet the minimum requisites of due process. Section 5322(b) authorizes long-arm jurisdiction in any other situations where the minimum requisites of due process are met. As a practical matter, each of the ten subsections of § 5322(a) are wholly subsumed within the catchall provision of § 5322(b). Consequently, we find that it is unnecessary and perhaps unwise to enter into a subtle and potentially confusing analysis of the precise scope of any of the subsections of § 5322(a). Rather, the only appropriate focus in cases such as the one sub judice is whether the minimum requisites of due process have been met. If they have not been met, the various subsections of § 5322(a) cannot statutorily authorize an unconstitutional exercise of in person-am jurisdiction. If they have been met, then § 5322(b) authorizes the exercise of in personam jurisdiction, and any analysis of the potential applicability of the subsections of § 5322(a) would be superfluous.

Thus, we decline to consider whether § 5322(a)(4) applies to the instant case. “Because our long-arm statute permits the courts of this Commonwealth to exercise personal jurisdiction over nonresident defendants ‘to the fullest extent allowed under the Constitution of the United States,’ ..., we need only decide whether holding ... [the nonresident defendant] subject to a suit in Pennsylvania would be a violation of due process.” Temtex Products, Inc. v. Kramer, supra, 479 A.2d at 505, 506.

III. REQUISITES OF 42 Pa.C.S.A. § 5322(b)

In order to determine whether marital domicile provides the minimum contact necessary to satisfy the due process requirement of 42 Pa.C.S.A. § 5322(b), we shall first examine the constitutional principle of due process as set forth by the United States Supreme Court. Next, we shall turn for guidance to our sister states to see how they have decided the narrow issue presented in the instant case. And finally, we shall examine case law from this Commonwealth which has defined “domicile” to determine what facts must be pled to support the legal conclusion of marital domicile.

A.

The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). A valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). The United States Supreme Court in International Shoe Co. v. Washington, stated:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’

326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). This test of “minimum contacts” announced in International Shoe Co. v. Washington, supra, is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Court recognized in Kulko v. Superior Court of California, supra, that “this determination is one in which few answers will be written ‘in black and white. The greys are dominant and even among them the shades are innumerable.’” Kulko v. Superior Court of California, supra, 436 U.S. at 92, 98 S.Ct. at 1697, 56 L.Ed.2d at 141 quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561, 1566 (1948).

The nature of the required “minimum contacts” has generally been given broad interpretation and emphasis has been placed upon the aspect of fair play and substantial justice. However, the United States Supreme Court, in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), warned that “it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.” 357 U.S. at 251, 78 5. Ct. at 1238, 2 L.Ed.2d at 1296.

While the interest of the forum state and of the plaintiff in proceeding with the cause in the plaintiffs forum of choice are to be considered, “an essential criterion in all cases is whether the ‘quality and nature’ of the defendant’s activity is such that it is ‘reasonable’ and ‘fair’ to require him to conduct his defense in ... [the forum] state.” Kulko v. Superior Court of California, supra, 436 U.S. at 92, 98 S.Ct. at 1697, 56 L.Ed.2d at 141 quoting International Shoe Co. v. Washington, supra, 326 U.S. at 316-317, 66 S.Ct. at 159, 90 L.Ed. at 103. Thus, the existence of personal jurisdiction generally depends upon the presence of reasonable notice to the defendant that an action has been brought, and a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum state.

B.

In light of these general constitutional principles, we must consider whether the prior establishment of a marital domicile in the forum state, by itself, is a sufficient contact to permit the forum state to exercise in personam jurisdiction over a nonresident, nondomiciliary defendant with respect to claims arising from the marital relationship. Essentially, we must consider whether the nonresident, non-domiciliary defendant’s activity in the forum state, i.e. the prior establishment of a marital domicile, is such that it would be reasonable and fair to require him or her to conduct a defense in the forum state. Because the appellate courts in this Commonwealth have not previously addressed this narrow issue, we turn to our sister states for guidance.

Some of our sister states have enacted specific provisions in their long-arm statutes which provide that personal jurisdiction over the nonresident defendant may be exercised for actions seeking alimony, support or property settlement when the forum state was the site of the marital domicile of the parties and the plaintiff continues to be domiciled in that state. A majority of states now provide long-arm jurisdiction for the support, alimony and property divisions incidents of divorce actions when the defendant lived in the state just before the separation and the plaintiff has continued to live there.

Other states provide for long-arm jurisdiction in such actions under general “any constitutional basis” clauses similar to 42 Pa.C.S.A. § 5322(b). The exercise of long-arm jurisdiction has been upheld in states which have “any constitutional basis” provisions when the forum was not the last marital domicile, and even when it was never the marital domicile. However, attempts to exercise long-arm jurisdiction over a nonresident defendant who was never domiciled in the forum state regarding claims arising from the marital relationship have generally been denied as unreasonable. See Kulko v. Superior Court of California, supra, (mere fact that plaintiff and children of marriage are domiciled in forum state and parties were married in forum state does not support long-arm jurisdiction over defendant for award of support, alimony or property; defendant was never domiciled in forum state).

The fact of marital domicile within the forum has been considered an important factor to consider in determining whether a forum state may reasonably, exercise in person-am jurisdiction over a nonresident, nondomiciliary defendant. For example, in Hines v. Clendenning, 465 P.2d 460 (Okla.1970), the Supreme Court of Oklahoma held that in personam jurisdiction could be exercised over the nonresident husband in a divorce action which contained a prayer for the payment of alimony, costs and attorney fees because, inter alia, “the wife was effectively abandoned in Oklahoma and her right, if any, to alimony accrued at least in part in Oklahoma.” 465 P.2d at 463 (emphasis added).

On the other hand, the fact of prior marital domicile in the forum state alone does not necessarily trigger the exercise of long-arm jurisdiction in all cases. In Nickerson v. Nickerson, 25 Ariz.App. 251, 542 P.2d 1131 (1975), the Court of Appeals of Arizona held that where the parties had left Arizona and established a new site of matrimonial domicile in New York, the subsequent return of the plaintiff-wife to Arizona did not provide sufficient connection between Arizona and the absent spouse, defendant-husband, to authorize in personam jurisdiction over him under the Arizona long-arm statute. In reaching its decision the Court explained:

We hold that when a person has established a matrimonial domicile in the State of Arizona that person has caused an event to occur in this state which authorized in personam jurisdiction under Rule 4(e)(2), Arizona Rules of Civil Procedure. The establishment of a matrimonial domicile provides such a nexus with the state that traditional notions of fair play and substantial justice will not be offended by the exercise of in personam jurisdiction over an absent spouse in an action brought by a resident spouse concerning marital obligations. Denial of such in personam jurisdiction would only encourage migratory divorces by offering a shield to the spouse wishing to avoid financial responsibilities. However, in order to warrant Arizona in personam jurisdiction, Arizona must be the last state of matrimonial domicile.

542 P.2d at 1133. (Emphasis added).

Finally, in some cases the mere fact of prior residence without establishing domicile may provide minimum contacts sufficient to justify the exercise of long-arm jurisdiction. In Brislawn v. Brislawn, 443 So.2d 32 (Ala.1983), the Supreme Court of Alabama found that the courts of Alabama could exercise in personam jurisdiction over a nonresident defendant-husband who had spent only ten days in Alabama with his wife before they left for a tour of military duty in West Germany. The Supreme Court of Alabama held that in personam jurisdiction could be exercised over the non-resident husband without violating constitutional due process requirements because Alabama was the only place in the United States where the parties had lived together as husband and wife, except for their wedding night in Georgia. The Court concluded that under those facts, Alabama had a more significant connection with the marital relationship of the parties than any other jurisdiction in the United States. The Court distinguished the facts in Brislawn from those in Corcoran v. Corcoran, 353 So.2d 805 (Ala.Civ.App.1978). In Corcoran, supra, the parties were domiciled together as husband and wife in North Carolina, not Alabama, and had not lived in Alabama for over four years before the wife returned to Alabama to file for a divorce. In Corcoran, the Alabama Appeals Court held that the wife’s return to Alabama did not permit the courts of Alabama to exercise in personam jurisdiction over the husband. The court found that the husband had not lived in Alabama for over four years, and North Carolina, as the last state of marital domicile, had more significant connections with the marital relationship.

“Marital domicile” has been used by our sister states both as a sufficient basis to permit the exercise of in personam jurisdiction, and as a significant factor to consider in determining whether in personam jurisdiction should be exercised under a long-arm jurisdiction statute. We find these cases to be persuasive as to the type of factors necessary to determine whether long-arm jurisdiction may and ought to be exercised in a particular case.

C.

However, the determination of a person’s domicile cannot be made with mechanical ease. A declaration of domicile alone is self-serving and insufficient; it must be supported by acts which are in accordance with the declaration. Alburger v. Alburger, 138 Pa.Super. 339, 10 A.2d 888 (1940); McCarthy v. Philadelphia Civil Service Commission, 19 Pa.Cmwlth. 383, 339 A.2d 634 (1975) aff'd 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976). Domicile, itself, is a conclusion to be drawn from the facts in evidence. Commonwealth v. Petrosky, 168 Pa.Super. 232, 77 A.2d 647 (1951); See also DiMilia v. DiMilia, 204 Pa.Super. 188, 203 A.2d 382 (1964); Commonwealth ex rel. Harmon v. Harmon, 172 Pa.Super. 459, 94 A.2d 181 (1953).

The term “domicile” has been defined in this Commonwealth as:

... the place in which, both in fact and intent, the home of a person is established without any purpose to return to a former home; the place where he lives, in distinction from that where he transacts his business; the place where he chooses to abide, in distinction from that in which he may be for a temporary purpose____

Wallace v. Wallace, 371 Pa. 404, 410, 411, 89 A.2d 769, 771 (1952); see also Bell v. Bell, 326 Pa.Super. 237, 248, 473 A.2d 1069, 1075 (1984). Thus, “it seems that a person’s domicile is increasingly being determined by close scrutiny of his subjective intentions or state of mind as to whether or not he considers a particular place to be his home.” McKenna v. McKenna, 282 Pa.Super. 45, 50, 422 A.2d 668, 670 (1980); see also Bell v. Bell, supra, 473 A.2d at 1075. Therefore, “[i]ntent, being purely subjective, must to a large extent be determined by the acts which are manifestations of the intent.” Wallace v. Wallace, supra, 89 A.2d at 771; see also Bell v. Bell, supra, 473 A.2d at 1075. A determination of whether a person is domiciled or had been domiciled in a particular jurisdiction may not be made, then, on bare assertions in legal pleadings, unsupported by a pleading of additional facts establishing the basis for the assertion of domicile.

IV. APPLICATION

In the instant case, appellant has alleged that Pennsylvania was the site of the marital domicile of the parties. However, she has not pled the facts upon which this assertion is based. Moreover, the present record fails to disclose whether the parties ever established marital domicile or marital residence elsewhere in the United States, or whether other factors support or negate a conclusion that Pennsylvania may reasonably, and therefore constitutionally, exercise personal jurisdiction over appellee in this matter. Thus, while it appears that in personam jurisdiction may be appropriate in this case under the Pennsylvania Long-Arm Statute, we nonetheless find that the present record was inadequate to properly resolve the question of whether the exercise of long-arm jurisdiction is in fact constitutionally permissible in this case. Because neither party presented sufficient evidence from which the trial court could properly resolve that issue, we remand with directions that an order be entered allowing the parties a reasonable period of time in which to supplement the record on this issue with depositions, interrogatories, affidavits and other relevant evidence.

CONCLUSION

The order of the trial court sustaining preliminary objections to personal jurisdiction is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . West’s F.S.A. § 61.021.

      . We note that neither party contests the validity of the Florida ex parte divorce. See Defendant’s Preliminary Objections to Plaintiffs Complaint and Plaintiffs Answer to Defendant’s Preliminary Objections. The Florida decree is accorded full faith and credit with regard to the marital status of the parties. See Cheng v. Cheng, 347 Pa.Super. 515, 524 n. 2, 500 A.2d 1175, 1180 n. 2 (1985). While holding that each party may retain possession over their personal property, the Florida decree is silent regarding any of the other economic aspects of the divorce. Hence, our consideration of this action is concerned only with the economic issues. See Cheng v. Cheng supra, 347 Pa.Superior Ct. 524 n. 2, 500 A.2d 1180 n. 2. Moreover, under the doctrine of divisible divorce, the Florida court had no jurisdiction over the economic issues in its ex parte proceeding. See J. Rounick, Pennsylvania Matrimonial Practice, at 608 (1988).

      . An order which dismisses a complaint for lack of personal jurisdiction is final and appealable. Bergere v. Bergere, 364 Pa.Super. 100, 527 A.2d 171 (1987); Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984).

      . The Pennsylvania Long-Arm Statute states:
      (a) General Rule.- — A tribunal of this Commonwealth may exercise personal jurisdiction over a person ... who acts directly or by an agent, as to a cause of action or other matter arising from such person:
      ******
      (3) Causing harm or tortious injury by an act or omission in this Commonwealth.
      (4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.
      ******
      (b) Exercise of full constitutional power over nonresidents. — In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.
      42 Pa.C.S.A. § 5322(a) and (b).

      . 23 Pa.C.S.A. § 101 et seq.

      . Abbott v. Abbott, 125 Misc.2d 837, 842, 480 N.Y.S.2d 185, 189 (1984) (“unless the balance is strongly in favor of defendant, the plaintiffs choice of forum should rarely be disturbed” quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947)).

      . Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 656-57, 94 L.Ed. 865, 872-73 (1950).

      . R. Casad, Jurisdictions in Civil Actions, at 9-19 (1983) (collecting cases); Lieb v. Lieb, 53 A.D.2d 67, 385 N.Y.S.2d 569 (1976) (collection of long-arm statutes with specific provisions relating to domestic . relations).

      . R. Casad, supra, at 9-20 (collecting cases); see Morgan v. Morgan, 95 A.D.2d 593, 467 N.Y.S.2d 593 (1983) (New York Supreme Court, Appellate Division, First Department considered, inter alia, the fact that New York was the site of the marital domicile of the parties prior to separation in finding that in personam jurisdiction could be exercised over nonresident, nondomiciliary defendant pursuant to state long-arm statute); Abbott v. Abbott, supra, (in personam jurisdiction exercised over defendant-wife, because she had sufficient minimum contacts with New York, i.e., lived in New York for one year and had a child while in New York).

      . See footnote 4, supra.

      . Williams v. Williams, 121 N.H. 728, 433 A.2d 1316 (1981) (the Supreme Court of New Hampshire held that in personam jurisdiction could be exercised over the nonresident defendant-wife in an action for divorce and distribution of marital property despite the fact that New Hampshire was not the marital domicile because the nonresident defendant-wife owned real estate jointly with the resident plaintiff-husband; jointly owned a bank account and certificate of deposit in New Hampshire; sent her children to school and to summer camp in New Hampshire; and spent several months of each year for eight" years with husband in New Hampshire, thereby having sufficient minimum contacts with New Hampshire so that exercise of in person-am jurisdiction would not offend traditional notions of fair play and substantial justice).

      . R. Casad, supra, at 9-21; Hann v. Hann, 175 N.J.Super. 608, 421 A.2d 607 (1980) {in personam jurisdiction upheld over nonresident, nondomiciliary defendant-husband in New Jersey in action for separate maintenance despite that fact that husband and wife had resided together in Pennsylvania during their forty year marriage prior to wife’s leaving the marital home because: (1) husband and wife jointly owned rental property in New Jersey; (2) husband had previous contacts in New Jersey to work on such properties; and (3) husband, after separation, had significant contacts in New Jersey while driving around wife's place of employment and up and down street where wife resided thereby having sufficient minimum contacts with New Jersey so that exercise of in personam jurisdiction did not offend traditional notions of fair play and substantial justice).

      . The Oklahoma Long-Arm Statute used in Hines v. Clendenning, supra, held that the following could be used as a basis for jurisdiction:

        maintaining any other relation to this state or to persons or property including support for minor children who are residents of this state which affords a basis for the exercise of personal jurisdiction by this state consistently with the Constitution of the United States.
      12 O.S.1967 Supp., Sec. 187(a). In Hines v. Clendenning, supra, the Oklahoma Supreme Court construed this portion of the long-arm statute as follows:
      Although this language presents some problem in statutory construction, it is clear from the concluding portion that it was the intention of our legislature to extend the jurisdiction of Oklahoma courts over nonresidents to the outer limits permitted by the due process requirement of the United States Constitution.
      465 P.2d at 462.

      . The pertinent part of the Arizona Long-Arm Statute used in Nickerson v. Nickerson, supra, provides;
      When the defendant is a resident of this state, or is a corporation doing business in this state, or is a person, partnership, corporation or unincorporated association subject to suit in a common name which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the state____
      Arizona’s Rules of Civil Procedure Rule 4(e)(2).

      . As Justice Cardozo stated: “Domicile suggests the home, with the peace, the freedom from contention, that is thought to reign about the fireside____ I know my own home, and am prepared, even after following the restatement [by the American Law Institute], to maintain its identity against the competition of localities less favored. I am not so ready as once I might have been, to make unqualified assertions about the moorings of my friends." Address by Justice Benjamin N. Cardozo, American Law Institute Third Annual Meeting (May 1, 1925), reprinted in Cardozo, Law and Literature, at 130 (1931).

      . Our disposition of appellant’s first issue renders appellant’s second issue moot. We note, however, that the facts were not in dispute, as appellant claims, rather they were insufficient to resolve the issue in dispute. Cf. Schmitt v. Seaspray-Sharkline, Inc., 366 Pa.Super. 528, 531 A.2d 801 (1987).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    555 A.2d 1324
    OBERG INDUSTRIES, INC., Appellee, v. David R. FINNEY and Penn United Technology, Inc., t/d/b/a American Carbide Tooling, Appellee. Appeal of PENN UNITED TECHNOLOGY, INC., t/d/b/a American Carbide Tooling, Appellant. OBERG INDUSTRIES, INC., Appellee, v. David R. FINNEY and Penn United Technology, Inc., t/d/b/a American Carbide Tooling, Appellee. Appeal of David R. FINNEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed March 15, 1989.
    Reargument Denied May 23, 1989.

      Margaret F. Houston, Pittsburgh, for Penn United, appellant (at 863) and for Penn United, appellee (at 924).
    Richard S. Ombres, Pittsburgh, for Finney, appellee (at 863) and for Finney, appellant (at 924).
    Ronald W. Crouch, Pittsburgh, for Oberg, appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order which granted Appellee, Oberg Industries, Inc.’s, request for a preliminary injunction against its former employee, Appellant, David R. Finney. Mr. Finney and his new employer, Penn United Technology, Inc., assert that the court erred in finding, absent a restrictive covenant, that it was necessary to issue an injunction to prevent Mr. Finney from “inevitably” disclosing certain trade secrets as a salesman for a competitor. In the alternative, Appellants also allege that the injunction is impermissibly vague and overly broad. Because we find support for Appellants’ first claim and reverse the trial court’s order, we will not address the second argument advanced by Appellants.

Certain findings were made by the trial court regarding Mr. Finney’s position with his former employer and the knowledge he obtained during the period of his employment. Oberg, which produces carbide stamping dies and related items hired Finney, who had no significant prior experience in the industry, in 1966. He began work as a grinder but ultimately was promoted to the position of General Sales Manager. The court found that Finney learned virtually all of the information relating to the development, design, cost, profitability and production of Oberg’s products as well as information pertaining to the company’s sales and marketing goals and strategies. It further noted that he had access to the status and details of all current negotiations, understandings, requests for quotations, purchase orders, customer’s special needs, manufacturing costs, and internal yields on products. He was also able to access Oberg’s methods of engineering, pricing, estimating and scheduling, and other details of Oberg’s financial standing. As a key employee, Finney and a small number of other Oberg employees received three reports, which the court found constituted trade secrets. The court reached this conclusion based upon its findings that the reports were compiled by Oberg at great expense and effort, the reports were, to Oberg’s knowledge, the only reports of this information in the world and Oberg had the right to expect that they would be kept confidential.

The reports at issue consist of three separate items. The first is a customer sales activity report. Prepared quarterly, it lists the name of every customer in each of Oberg’s divisions along with the amount of the product which has been shipped to that customer for the four preceding calendar years as well as for the year to date. The second item is a quotation recap report. The report includes every quotation made to a customer or potential customer, the number of hours estimated to manufacture the requested product, and the projected yield per hour. It was prepared weekly. The final report is a business directory, a master customer address and telephone reference. It lists not only customer names, but contact persons. Approximately 4,000 names appear on this list.

It is significant to note that the trial court did not find that Finney took these reports with him when he left Oberg’s employ in 1988. Nor did it find that Finney revealed the contents of these reports. Nevertheless the court concluded that Finney “would utilize his knowledge of the plaintiff’s trade secrets either knowingly or subconsciously for the benefit of defendant employer, and to the detriment of plaintiff”. Trial Court Opinion at 6. To prevent such disclosure, the court issued an order enjoining and restraining Finney from employment with Penn United which competes with Oberg, from disclosing any trade secrets, from contacting or soliciting orders from present and former customers of Oberg, and from contacting present customers of Penn United who “have in the past, presently, or in the future may purchase products ... offered for sale or under development by Oberg.” Order dated May 17, 1988.

An injunction may be issued by a court of equity to protect an employer from the unlicensed use of its trade secrets by an exemployee provided the employee entered into a restrictive covenant, or was bound to secrecy by virtue of a confidential relationship existing between the employer and the employee. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273, 276 (1976). These secrets must be particular secrets of the employer, not general secrets of the trade in which the employer is engaged. Trilog Associates, Inc. v. Famularo, 455 Pa. 243, 314 A.2d 287 (1974). However, an employee’s aptitude, skill, dexterity, manual and mental ability and such other subjective knowledge obtained during the course of employment are not the property of the employer, and cannot be a legally protected trade secret. Felmlee v. Lockett, supra.

Although the materials involved in this case were nontechnical and there was no restrictive covenant or actual disclosure found, the trial court concluded that trade secrets would inevitably be disclosed, and on that basis issued an injunction. Appellee submits that the trial court’s action is fully supported by Air Products & Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982), a case which it claims is controlling. In Air Products a former employer brought an action seeking to enjoin an employee from accepting employment with another employer for a two year period. As in this case, no restrictive covenant agreement was entered and the employee did not take any documents or property belonging to his former employer to his new job. Further, the confidential information was also of a non-technical nature. The court found that an injunction was necessary to enjoin the employee from accepting the new position because it would be impossible for him to perform his duties without drawing on his knowledge of this confidential information.

Appellants seek to distinguish Air Products from the instant case based upon their facts. They submit that the decision in Air Products is not controlling because the nature of the business, the nature of the employee’s particular job and the nature of the information sought to be protected differs from that found in this case. Appellants point to the fact that the employer in Air Products was involved in a highly technical enterprise and the employee was a trained engineer who was involved with the research, design and manufacture of the product produced by his employer. They submit that these facts are markedly different from those found in this case where the employee was hired with only a high school degree and his functions were sales oriented.

The employer in Air Products was a large manufacturer and distributor of industrial gases. It’s employee possessed a degree in petroleum engineering and worked in the area of on-site gas sales. The new employer had not yet developed information related to on-site activities and it was feared that the employee would transfer information including technical data on the methods of delivery of on-site gas, the status of negotiations with customers, and the analysis of market opportunities to his new employer. Supra, 296 Pa.Superior Ct. at 410, 442 A.2d at 1117. The trial court found that because the employee knew the results of the research and field-testing in this area his knowledge would be extremely valuable to a competitor since it would cut the developmental risk involved in a similar project. Id. On appeal the Superior Court affirmed the issuance of an injunction and the determination that it would be inevitable that trade secrets would be disclosed if the employee accepted his new position. In reaching its decision, the court focused on the employee’s knowledge of the technical problems and safety precautions associated with the technology of nitrogen injection, the specifics of field testing the recovery of heavy oil, which was not generally known, and the material to be used as the adsorbent in the production of nitrogen, which was not known outside of the company. Id., 296 Pa.Superior Ct. at 414-415, 442 A.2d at 1119.

The appellant in Air Products sought to argue that the trial court erred in its ruling because the cases upon which it relied differed from the facts of its ease. They argued that a decision of the Federal District Court for the Southern District of Ohio, (Emery Industries, Inc. v. Cottier, 202 U.S.P.Q. 829 (1978)), was inapplicable because the danger of disclosure was different and because the case involved an employee providing technical services while the employee in Air Products was involved in sales. Although it was true that the employee in Air Products did work in the field of sales, the court was not persuaded by the appellant’s arguments. It stated: “The circumstances herein indicate a likelihood of disclosure similar to that found in Emery, supra, and the secret about which Johnson had knowledge could be appreciated by him both as an engineer and as a manager.” Air Products and Chemicals, Inc. v. Johnson, supra 296 Pa.Super. at 423, 442 A.2d at 1123.

The Air Products court also rejected the argument that its case was more similar to Continental Group, Inc. v. Amoco Chem. Corp., 614 F.2d 351 (3rd Cir.1980), where it was held that the risk of an inadvertent disclosure was insufficient to justify the granting of a preliminary injunction. In dismissing this claim the court remarked:

Continental, supra, involved an employee whose training was as a businessman. He had no education in engineering. His tasks were exclusively managerial. Johnson, on the other hand, is a trained engineer. While his vocational responsibilities are substantially managerial in nature, Ms efficiency and effectiveness is certainly enhanced by his background in engineering. We hold that the instant case is more similar to Emery, supra, where a chemical engineer was involved in research, design, manufacture, and marketing of the product. Johnson is an engineer who, though in a supervisory/managerial capacity was involved in the research, design and manufacture of industrial gases for Air Products. He was clearly involved also in the manufacture and marketing of the products produced by Air Products. Accordingly, we do not find Johnson’s and Liquid Air’s argument convincing.

Id. 296 Pa.Super. at 424 n. 10, 442 A.2d at 1124 n. 10.

We find this rationale in Air Products instructive. The decision therein was based upon the particular knowledge possessed by the employee as it related to the nature of his job. Although the employee in Air Products was involved in sales, as is Finney in this case, it is clear that the court centered on his engineering background and the special knowledge he possessed relating to a method of oil recovery not yet developed by the competitor company.

In this case, Finney possessed no such educational background. He started with the company as a grinder and through the years worked his way into sales. It can not be disputed that Finney became acquainted with his employer’s business decisions and philosophies. And, although it is true that at the time of his departure Finney was a valuable employee and privy to information of a confidential nature, this information is not of the type found in Air Products.

It must be recalled that this case does not involve a situation where an enforceable restrictive covenant was entered between the employer and its employee. Further, the record does not indicate that the confidential reports which Finney received in his position were taken by him to be utilized in his new position and some of these reports, such as the list of customers and their contact persons, were so voluminous that they could not have been committed to memory. Finally, Finney’s position in the company and the knowledge he obtained while in that position do not demonstrate an inevitability of disclosure as that found in Air Products which would require the issuance of an injunction in this case.

For the foregoing reasons we reverse the order of the trial court and vacate the preliminary injunction issued in this case.

Order reversed. Jurisdiction relinquished.


text:
    555 A.2d 1328
    GWIN ENGINEERS, INC., Appellee, v. CRICKET CLUB ESTATES DEVELOPMENT GROUP, a Limited Partnership; Team Development 3, a General Partnership; John W. Kerns, Richard Truesdale and Joseph L. Haller, Partners, Appellees. Appeal of Joseph L. HALLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed March 15, 1989.

      C. Wayne Hippo, Hollidaysburg, for appellant.
    John W. Heslop, Jr., Altoona, for appellees.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment entered following a trial court order confirming an arbitration award. We affirm.

Appellee entered an agreement with Cricket Club Estates Development Group to provide survey and engineering design services. The general partner of Cricket Club was Team Development 3, a general partnership equally owned and operated by Appellant and two other individuals. The agreement contained a clause requiring that any disputes or claims arising under the contract were to be decided by arbitration in accordance with the rules of the American Arbitration Association. Approximately ten months after the contract was executed, a corporate entity known as Team Development 3, Inc. came into existence and was substituted for the prior general partner in Cricket Club. This substitution was carried out without the written consent of Appellee, as required in the contract. Nearly two years after the substitution, Appellant resigned as an officer and director of the newly formed corporation and transferred all of his stock to another individual.

Several months later Appellee filed a demand for arbitration against Cricket Club, Team Development 3, and it’s three partners, one of whom was Appellant. Appellant received notification of this demand and contacted Appellee’s attorney to inform him that Appellant believed he was no longer liable for claims against Team Development 3. Appellant was not mailed notification of the time or place of the hearing but notification was sent to and received by one of Appellant’s partners. This individual’s name and address was listed as that belonging to Team Development 3. The principal place of business of Cricket Club was also listed in the contract at the same address under the care of the same individual. The arbitrator found in favor of Appellee in an amount totaling $21,725.79. A petition to confirm this award was granted and judgment was entered.

Appellant claims that he can not be bound by the terms of the contract since, individually, he was not a party to the agreement entered into between Appellee and Cricket Club. He also asserts that his liability was extinguished when a new corporation was formed and substituted as a general partner and because he transferred his corporate stock to another. It would be improper to reach the merits of these claims in view of our narrow standard of review in this matter.

The agreement at issue provided for arbitration according to the rules of the American Arbitration Association and did not provide for arbitration according to the rules of statutory arbitration. In such an instance the arbitration is one which falls under Subchapter B or Common Law Arbitration. Runewicz v. Keystone Ins. Co., 476 Pa. 456, 383 A.2d 189, 191 (1978). In arbitration governed by common-law principles, the arbitrators are the final judges of both law and fact and the award is not subject to judicial review for mistakes of either unless it is clearly shown that the party was denied a hearing or that fraud, misconduct, corruption, or other irregularity caused the rendition of an unjust, inequitable or unconscionable award. Greenspan v. United Services Auto. Assoc., 324 Pa.Super. 315, 471 A.2d 856 (1984). To prevail on these grounds, actual fraud must be shown, involving collusion with one of the parties, or misconduct intended to create a fraudulent result. Mellon v. Travelers Ins. Co., 267 Pa.Super. 191, 406 A.2d 759, 761 (1979). “An argument that the arbitrators were prejudiced or partial, or that they reached an award so unjust that it constitutes constructive fraud, will not be heeded. Similarly, an ‘irregularity’ will not be found simply upon a showing that an incorrect result was reached.” Id. An irregularity which requires reversal of a common-law arbitration award refers to the process employed in reaching the result of the arbitration, not to the result itself. Chervenak, Keane & Co., Inc. v. Hotel Rittenhouse Assoc., Inc., 328 Pa.Super. 357, 477 A.2d 482 (1984).

Appellant’s claims that he was not a proper party to this action due to his disassociation with the partnership and the fact that he, personally, was not a party to the agreement which called for arbitration, do not fall within any of the above cited grounds for vacating or modifying the award. This is a matter which should have been brought to the attention of the arbitrator. It is a claim which would be appropriate for the arbitrator’s resolution but it is not a claim upon which we can grant review.

Appellant however, does make a related claim upon which relief could be granted. Appellant asserts that he was denied a hearing since he did not receive notice of the time and place the hearing was to be held.

It is appropriate for us to grant relief in a case where a party is denied a hearing. Further, the right to a fair hearing comprises the right to notice and an opportunity to be heard. Paugh v. Nationwide Ins. Co., 278 Pa.Super. 108, 420 A.2d 452 (1980). However, in this case, Appellant was granted notice and an opportunity to be heard. He admits he received actual notice of Appellee’s intention to arbitrate by certified mail. He also admits that he acted on this notice by contacting Appellee’s counsel. Appellant’s partner in Team Development 3 did receive notice as to the time, place and date of the hearing at the address listed as belonging to the partnership.

The Rules of Civil Procedure provide the following regarding the service of process upon a partnership:

Service of original process upon a partnership and all partners named in the action or upon an unincorporated association shall be made upon any of the following persons provided the person served is not a plaintiff in the action:
(1) any partner, officer or registered agent to the partnership or association.

Pa.R.Civ.P., Rule 423, 42 Pa.C.S.A. Furthermore, the Uniform Partnership Act provides:

Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonable could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.

59 Pa.C.S.A. § 324.

Appellant does not allege that any of the parties acted fraudulently and notice to the one partner was clearly established. Since notice to any partner of partnership affairs operates as notice to the partnership, (Estate of Kerchner v. The Pennsylvania Liquor Control Board, 4 Pa.Cmwlth. 247, 285 A.2d 891, 892 (1971)), Appellant must be denied relief.

Order and judgment affirmed.


author: CERCONE, Judge:

text:
    555 A.2d 1330
    Bonnie L. GIOIA, Appellant v. Bernard J. GIOIA.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1988.
    Filed March 15, 1989.

      Jan Ira Medoff, Pittsburgh, for appellant.
    Ernest P. DeHaas, III, Uniontown, for appellee.
    Before MELINSON, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final order entered July 8, 1988 in the Court of Common Pleas of Fayette County, Civil Division. The order provided for the equitable distribution of the parties’ marital property pursuant to a special master’s recommendations. For the following reasons we affirm in part and reverse in part the court’s order, and remand for further proceedings consistent with this opinion.

The parties to the instant appeal were married in 1971. There are two children of the marriage who reside with wife/appellant. On February 26, 1980, appellant filed an action in divorce alleging both fault and no-fault grounds. The Fayette County Court of Common Pleas bifurcated the divorce from the economic issues, and entered a decree of divorce on August 29, 1985. Eventually a special master was appointed, who conducted hearings regarding the economic issues on August 17, August 31, and November 9 of 1987. The master filed his report on January 6, 1988 and appellant timely filed exceptions. The lower court issued its opinion and order granting certain exceptions and denying others on July 8, 1988. This timely appeal followed.

Appellant asks us to consider the following issues: (1) whether the lower court erred in its selection of a valuation date for husband/appellee’s business interest; (2) whether the lower court erred in reducing the net value of appellee’s assets by the amount of a judgment levied against a predecessor entity to the closely held corporation in which appellee currently owns 50% of the stock; (3) whether the lower court erred in failing to assign a monetary value to a mineral lease held as an asset by the business entity in which appellee owned a 50% interest on the relevant date; (4) whether the lower court inappropriately apportioned the marital assets pursuant to the relevant factors in the Pennsylvania Divorce Code; (5) whether the lower court improperly refused to grant counsel fees in the amount requested by wife/appellant; (6) whether appellant was improperly denied discovery; and finally, (7) whether the special master erred in refusing to admit into evidence the valuation report prepared by appellant’s expert regarding appellee’s business interest. We will consider these issues seriatim.

Initially, we note that the trial court has “full equity power” to resolve issues concerned with equitable distribution of marital property pursuant to section 401(c) of the Divorce Code, supra Our appellate role is not to nullify the fact-finding function of either the special master or the lower court. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984) . We review judgments and orders pertaining to equitable distribution of marital property under an abuse of discretion standard. Cunningham v. Cunningham, 378 Pa.Super. 280, 548 A.2d 611 (1988). We will not disturb the decision of the trial court absent abuse of discretion. Vajda v. Vajda, 337 Pa.Super. 573, 579-560, 487 A.2d 409, 412 (1985) . We will, however, find an abuse of discretion where the trial court has misapplied the law. Buckl v. Buckl, 373 Pa.Super. 521, 526, 542 A.2d 65, 67 (1988) (en banc).

We begin our analysis with a consideration of appellant’s allegation that the selection of December 31, 1986 as the valuation date for appellee’s business interest was an abuse of discretion under the circumstances of the instant case. Appellant argues that the date of separation, November 29, 1981, is the most appropriate valuation date. We cannot agree. Our Supreme Court has recently stated that marital property must be distributed with reference to its value as close as is practicable to the date of distribution. Sutliff v. Sutliff, 518 Pa. 378, 383, 543 A.2d 534, 537 (1988). As the court explained,

[T]here may be situations where marital assets have, been consumed or disposed of by one of the parties, thus rendering a current valuation impossible and making it necessary to rely on data that would otherwise be considered stale____ In the usual case, however, given that the parties’ present needs and circumstances are to be a major factor in distributing marital assets, it would be impossible to construct a distribution scheme that would be fully responsive to those needs and circumstances if the court were to act without taking cognizance of the current values of the assets being distributed.
If, as has been suggested, marital property values were to be fixed as of the date of the parties’ separation, or as of the date of filing a complaint in divorce, severe injustices would at times be inflicted upon the parties concerned.

Id., 518 Pa. at 383-85, 543 A.2d 536-537 (citations omitted).

Our inspection of the record has disclosed no indication that the valuation date was selected in order to unfairly favor one party over the other. The special master conducted the first two fact-finding hearings in August of 1987. December 31, 1986 was the most recent date for which complete financial data, including year-end statements, were available for appellee’s business interests. In light of this fact, we cannot conclude that it was unreasonable for the master to choose December 31, 1986 as the valuation date. Nor can we find that the lower court abused its discretion in following the master’s recommendation on the selection of a valuation date. We therefore uphold the action of the trial court in this regard.

The next two issues for our review concern the effect of a judgment against Gioia Coal Company on the value of appellee’s interest in G & B Coal, Inc. and whether the lower court erred in failing to assign a monetary value to a leasehold interest held as an asset by the partnership. As an en banc panel of this court recently noted, “[wjhile the general principle that an interest in a partnership is marital property presents no particular difficulty, the valuation of such interest is fraught with problems.” Buckl v. Buckl, supra 373 Pa.Super. at 527, 542 A.2d at 67. Our inspection of the record indicates that in 1981, appellee and his brother founded the Gioia Coal Company (hereinafter “the partnership”) as an equal partnership to which appellee contributed $40,000 in marital property. Appellee thus owned a 50% interest in the partnership which was at least partially purchased with marital assets.

At the beginning of January, 1987, the assets of this partnership were transferred to G & B Coal, Inc. (hereinafter “the corporation”). Appellee owns 50% of the capital stock in this corporate successor to the original partnership. The trial court properly held that appellee’s interest in both the partnership and in its corporate successor was marital property subject to equitable distribution. See Buckl v. Buckl, supra; and McCabe v. McCabe, 374 Pa.Super. 451, 543 A.2d 558 (1988) (holding value of partnership interest was marital property subject to equitable distribution in a divorce proceeding). See also Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144 (1987) (permitting tracing of marital assets), rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988).

The business of both the partnership and the corporation was the same: the mining of coal. To that end, in 1981 the partnership entered into an agreement with Mt. Thor Minerals, Inc. (hereinafter “Mt. Thor”). Following a dispute with the partnership, Mt. Thor filed suit in the Court of Common Pleas of Westmoreland County and obtained a judgment in the amount of $163,304.05 against Bernard J. Gioia and Gary A. Gioia, trading and doing business as Gioia Coal Company. This judgment was entered in Westmoreland County in mid-December, 1986 but was not entered in Fayette County until January 16, 1987. On January 1, 1987, after the initial entry of judgment in its favor, but before Mt. Thor had levied against Gioia Coal Company, all the partnership assets were transferred into the new corporate entity, G & B Coal, Inc.

In his report and recommendation, the special master found that the fair market value of the partnership was $21,913.95 and that appellee’s one-half share of this was $10,956.98. The special master arrived at this figure by adopting a net asset value of $185,218.00 for the business as of December 31, 1986 and reducing this amount by the $163,304.05 judgment in favor of Mt. Thor. The lower court adopted the master’s findings and recommendations as to valuation of appellee’s business interest in the partnership, and by implication, in the corporation.

Appellant argues that the special master has improperly valued husband’s business interest in the corporate successor to the partnership. Appellant contends that it was abuse of discretion to reduce the net value of the corporation by the amount of a liability pertinent to the partnership, particularly where the liability was not carried on the partnership’s books or reflected in the pertinent year-end statement. Further, appellant asks us to consider the fact that the judgment entered against the partnership may well be uncollectible because the partnership assets were transferred to the corporation before Mt. Thor could levy. We find appellant’s arguments to be unpersuasive.

As the lower court correctly stated, the task before it was to set a value on husband’s business interests as of a particular date so that equitable distribution of the marital property could be effectuated. Our inspection of the record indicates that on the date chosen for valuation, December 31,1986, no assets which could be characterized as “marital property” had been transferred from the partnership to the corporation. Therefore, our only relevant inquiry concerns the value of appellee’s interest in the partnership.

We agree with the reasoning of the lower court that a judgment entered against a partnership before the dissolution of that partnership is a liability which must be considered when establishing a fair market value for the business entity. This is so whether or not the judgment was ever carried on the partnership books or financial statements. See Buckl v. Buckl, supra 373 Pa.Super. at 532, 542 A.2d at 70 (liabilities not reflected on partnership books are nevertheless to be considered in valuation). The judgment was entered before the valuation date selected by the trial court. We cannot say it was abuse of discretion for the lower court to consider this fact when calculating the fair market value of appellee’s interest in the partnership. Whether or not Mt. Thor can successfully collect its judgment from the corporate successor to the partnership is not a question properly before us.

Appellant next argues that the lower court erred in failing to assign a monetary value to a leasehold interest held as an asset by the partnership. The lower court declined to establish any value for the lease in question because it contained a nonassignment clause and therefore could not be transferred without the prior consent of the lessor. We are cognizant of the difficulties faced by the lower court when confronted with the problem of assigning a monetary value to property for which fair market value is not readily ascertainable. However, while a nonassignment clause may complicate the process of establishing the market value for a lease, the mere inclusion of such a clause does not render a mineral lease worthless.

It is well established that a grant of the exclusive right to mine coal is a sale of the coal in place which creates a fee interest in favor of the lessee. Lichtenfels v. Bridgeview Coal Co., 344 Pa.Super. 257, 262-263, 496 A.2d 782, 785 (1985). A non-exclusive right to mine coal, while not rising to the level of a fee interest, has property value nonetheless. Skawville Coal Co. v. Menard, 280 Pa.Super. 610, 618, 421 A.2d 1099, 1103 (1980). The value of a lease may be fixed by expert testimony regarding the income to be derived from the particular use to which the leased property will be put. See Boteler v. Philadelphia & R.T.R. Co., 164 Pa. 397, 30 A. 303 (1894) (expert may testify regarding value of benefit to be derived from use of leased property). A court may consider both the replacement value of the subject of a lease and the income derived from the use of leased property to establish the market value for a lease. See Bellevue-Stratford Co. v. City of Philadelphia, 366 Pa. 278, 77 A.2d 604 (1951) (replacement value & value of income from property are both relevant in determining value of property not for sale on open market); see Schenley Land Co. v. Allegheny Co. Board of Property Assessment, 205 Pa.Super. 577, 211 A.2d 79 (1965) (evidence of income derived from property is relevant to establishing value for use of property).

As we have already stated, the task before the lower court was to set a value on appellee's business interests as of a particular date. The record clearly indicates that the lease in question was an exclusive lease which granted the partnership a fee interest in the mineral estate and provided a source of income to the partnership. It was thus an asset in the hands of the partnership for which a value could have been established as of the valuation date chosen by the lower court. It was abuse of discretion for the lower court not to make such a determination. We therefore reverse the lower court’s order insofar as it excludes from the marital estate the value of husband’s business interest in the mineral lease in question, and remand for the narrow purpose of establishing the value of the lease in the hands of the partnership as of the valuation date.

The fourth issue presented for our review is whether the lower court inappropriately apportioned the marital assets pursuant to the Pennsylvania Divorce Code, supra. In this Commonwealth “[m]arital property is not property that is thrown into the pot to be divided equally as in community property states, but property impressed with equitable consideration which must be evaluated before apportionment is considered.” Fratangelo v. Fratangelo, 360 Pa.Super. 487, 498, 520 A.2d 1195, 1200 (1987). The proper guidelines to be used by a trial court in making equitable distribution of marital property are set forth in section 401(d) of the Divorce Code, supra. The clear directive of recent caselaw requires a trial court to take a nonpresumptive approach in applying these guidelines to achieve economic justice between the parties to the divorce as mandated by the Divorce Code, supra. Fratangelo, supra, 360 Pa.Superior Ct. at 499-500, 520 A.2d at 1201-1202 (citing Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (1986)).

The record in the case sub judice discloses that the lower court properly weighed the relevant factors when apportioning the marital assets. The lower court correctly conducted a complete and independent review of the evidence in response to appellant’s exceptions to the special master’s report. See Cunningham v. Cunningham, supra 378 Pa.Super. at 284, 548 A.2d at 614 (trial court is obliged to conduct independent review of evidence when ruling on exceptions). The only respect in which the lower court erred was in failing to establish a value for the mineral lease held as an asset by the partnership. We find no other abuse of discretion or error of law in the rationale behind the trial court’s apportionment of the marital property as set forth in the record in compliance with section 403 of the Divorce Code, supra. We therefore direct the lower court to add the value of appellant’s interest in the mineral lease, once it has been determined, to her proportional share of the marital property as already established.

We next address the question of whether the lower court improperly refused to grant counsel fees in the amount requested by appellant pursuant to the Divorce Code, supra. Such fees are not awarded automatically. Rather, it is appropriate to award counsel fees “when necessary to put the parties ‘on a par’ in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce.” Johnson v. Johnson, 365 Pa.Super. 409, 415, 529 A.2d 1123, 1126 (1987) alloc. den. 517 Pa. 623, 538 A.2d 877 (1988). Whether or not to award counsel fees and expenses in a divorce case, and the amount to be awarded, is a matter within the sound discretion of the trial court. Liebendorfer v. Liebendorfer, 289 Pa.Super. 339, 433 A.2d 480 (1981). Any such award is not intended to be full reimbursement, although it should be sufficient in amount to prevent the denial of justice. Wolfe v. Wolfe, 202 Pa.Super. 70, 72, 195 A.2d 272, 273 (1963). We will not reverse the action of the lower court with regard to its award of counsel fees absent abuse of discretion. Fitzpatrick v. Fitzpatrick, 377 Pa.Super. 268, 282, 547 A.2d 362, 369 (1988).

The record in the instant case discloses that the special master considered, inter alia, both appellant’s need and appellee’s ability to pay. The lower court noted that appellant’s testimony was unconvincing on the subject of the amount necessary to satisfy counsel fees she had incurred in the course of litigation. Further, the trial court found discrepancies in counsel’s statement of account. Under these circumstances we find no abuse of discretion in the lower court’s award of counsel fees. Consequently we affirm with regard to this issue.

The penultimate problem for our consideration is whether the lower court improperly limited appellant’s use of discovery. Discovery in conjunction with an action brought under the Divorce Code, supra, is governed by Pa.R.C.P. No. 1920.22, 42 Pa.C.S.A. The plain language of Rule 1920.22, as well as the explanatory note, indicates that the trial court may limit discovery to avoid delay in the proceedings. We apply an abuse of discretion standard to the action of the lower court in this regard. Rohrer v. Rohrer, 345 Pa.Super. 469, 498 A.2d 919 (1985).

The trial court found that the special master had twice granted continuances in order to accommodate appellant’s need for additional discovery. The lower court also determined that appellant failed to move the case along for nearly eighteen (18) months. Finally, the special master allowed appellant a time interval of almost three full months between the second and third hearings in order to obtain and process additional information regarding appellee’s business interests. In light of these circumstances, we cannot disagree with the trial court’s determination that it was proper to limit discovery. Finding no abuse of discretion on the part of the trial court, we affirm on this question.

The final matter before us is whether the special master erred in refusing to admit into evidence the valuation report prepared by appellant’s expert regarding appellee’s interest in the partnership. This question is moot. The lower court’s opinion and order dated July 8, 1988 admits into evidence the valuation report in question. We will not rule on a moot issue. In re Gross, 476 Pa. 203, 382 A.2d 116 (1978).

Order affirmed in part and reversed in part; case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . 23 Pa.S.A. §§ 101-801.

      . Section 401(c) of Title 23 provides in pertinent part that the lower court has "full equity power and jurisdiction" to issue injunctions or other orders necessary to protect the interests of the parties and to facilitate the purposes of the Divorce Code. The lower court is empowered to grant any relief or remedy required by the interests of equity and justice in all matrimonial causes. See Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985) (explicating court's powers to effectuate "economic justice" between the parties in a divorce proceeding).

      . We note that the trial court, in its opinion dated July 8, 1988, has inadvertently confused the names of the two business entities in which appellee holds or has held an interest. This does not affect our ability to render a decision regarding the instant appeal, however. It is settled law that we may conduct an independent review of the record before us, and where appropriate, may affirm the decision of the trial court on grounds other than those relied upon by the court itself. Damiano v. Damiano, 378 Pa.Super. 106, 109-110, 548 A.2d 298, 300 (1988).

      . Pennsylvania recognizes three discrete estates in land: the surface estate, the mineral estate, and the right to subjacent (surface) support. Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32 A.2d 227, 234-235 (1943). These estates are severable. Different owners may thus hold title to separate and distinct estates in the same land. Id.

        . In Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856 (1959) our Supreme Court set forth a three-part test for determining whether a mineral lease constitutes a sale of coal in place thus qualifying as a grant of the mineral estate. The lessee must receive (1) an exclusive right to (2) mine all the coal; and (3) the lessee must have paid either a stipulated consideration, be compelled to mine, or be compelled to pay for coal not mined. Id., 395 Pa. at 551-552, 150 A.2d at 860. Our review of the lease in question discloses that it is exclusive in the lessee, permits lessee to remove all the coal, and requires lessee to mine and remove coal during the term of the lease. The lease therefore conveys a fee interest in the mineral estate to the partnership. See also Smith v. Glen Alien Coal, supra (construing lease terms which convey fee interest in mineral estate).

      . The trial court has noted that appellant's testimony regarding the value of the coal reserves is inapposite to establishing the value of the lease. Because the lease conveyed a fee interest in the coal reserves to the partnership, the trial court’s characterization of appellant’s testimony is incorrect. See Lichtenfels v. Bridgeview Coal Co., supra and cases cited therein (discussing implications of mineral lease conveying fee interest).

      . 23 Pa.S.A. § 403 (Statement of reasons for distribution) requires the trial court to set forth in any order for the distribution of property entered pursuant to the Divorce Code the reason or reasons for the distribution ordered.

      . Id. § 502 (Alimony pendente lite, counsel fees and expenses) provides in pertinent part that the trial court "may ... in proper cases, allow a spouse ... reasonable counsel fees and expenses.”


author: DEL SOLE, Judge: OLSZEWSKI, Judge,

text:
    555 A.2d 1337
    Elaine NIKA, Appellee, v. Pandeli NIKA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1988.
    Filed March 22, 1989.

      Neil E. Jokelson, Philadelphia, for appellant.
    Gerald Schorr, Philadelphia, for appellee.

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

This is an appeal from an order entered in the Court of Common Pleas of Montgomery County in a divorce action.

On June 20, 1984, appellee Elaine Nika filed a complaint requesting, inter alia, a divorce from appellant Pandeli Nika, equitable distribution of their property, alimony, alimony pendente lite, and child support. Following protracted litigation, which involved among other proceedings a number of contempt hearings concerning Mr. Nika’s noncompliance with court orders, the Honorable Samuel Salus entered a comprehensive order in equitable distribution on April 10, 1987. This order provided, in part, that Elaine Nika was to receive the following: sixty-five percent of the net proceeds remaining from the sale of the parties’ residence after specified deductions were made for liabilities accumulated by the parties; permanent alimony in the amount of one hundred and twenty-five dollars per week; the parties’ Lincoln Continental Town Car; and certain personal property, including china, crystal, and a fur coat. In addition, the order provided for Pandeli Nika to receive all the personal property currently in his possession, the fifteen hundred dollars remaining in the Fidelity account, his personal papers and Omega watch in Mrs. Nika’s possession, the parties’ Toyota Cressida, as well as thirty-five percent of the net proceeds from the sale of the parties’ residence after the deductions noted above had been made.

Mr. Nika subsequently filed a motion for post-trial relief and exceptions to the equitable distribution order. Mrs. Nika responded to this motion and the exceptions by noting that Pa.R.C.P. 1920.55 precludes the filing of post-trial motions to a final decree in divorce actions. Argument was then heard on Mr. Nika’s motion. On June 18, 1987, Judge Salus filed a final order and decree granting the parties’ divorce and dismissing Mr. Nika’s exceptions as being without merit and premature because no divorce decree had yet been entered. In this June 18 order, Judge Salus also stated that his April 10, 1987, order in equitable distribution was reconfirmed in its entirety with the exception of certain paragraphs contained in the conclusions-of-law section for which he included amendments. Regarding the thirty-five percent of the proceeds from the sale of the parties’ marital residence which the court had originally concluded Mr. Nika should receive, the court made the following amendment:

Paragraph 13. From the net proceeds left after deducting all of the foregoing from the joint account containing house proceeds and others, Elaine Nika is to receive 65% and Pandeli credited with 35%, to be held by his attorney to pay off the massive arrearages in support, medical and orthodenture bills, alimony, fees and fines and costs incurred during the pendency of this action, his attorneys’ fees and all debts up to this point____ The 35% held by counsel in escrow and not turned over to a receiver is never to be disbursed directly to defendant because of his continued contempt of this Court and his failure to pay any arrearages or current obligations in accordance with Court order even though promising personally to do so. This Court strongly recognizes that defendant is an unreformed gambler who would squander away any proceeds from the house and it is using this fund as security and a source for the payment of defendant’s obligations hereunder for the reason aforestated and others. Further, the Court "reocgnizes [sic] that defendant has purposely made himself appear to be impecunious and caused his businesses to fail in order to defeat the divorce and equitable distribution and to discourage any claim from plaintiff, their children or counsel, and the Court is fully aware that defendant has marketable skills in the restaurant business that his earning capacity well dictates what is ordered for alimony, bills, support, counsel fees and expense obligations plus arrearages and the capacity and ability to pay is so found despite the surface appearance of inability to do so promoted by defendant.

Thereafter, the parties and their attorneys apparently met in conference with Judge Salus to clarify certain aspects of the distribution order. This conference, however, was not recorded. After the hearing, on November 24, 1987, Judge Salus filed the order from which Mr. Nika appeals. The provisions of this order to which Mr. Nika objects are the following:

2. All future payments of alimony and any other obligations ordered to be paid by defendant, if an enforcement petition is needed to collect same, from this day forward shall require the defendant to pay the attorney’s fees and costs. This specifically is ordered to insure that the defendant shall comply with the Court’s alimony orders and others in light of his prior intransigence as to these obligations over a four year period prior to this final resolution and as a warning and notice to him that complete disregard of the Court’s order will not be tolerated.
5. Any monies due to defendant after payment of the aforesaid obligations set forth in previous Orders of the Court, which might have been paid to him as a balance after distribution shall be paid to the Domestic Relations Office to create a credit in his former wife’s alimony to insure its payment insofar as that balance is able.

Mr. Nika raises the following issues concerning these provisions for our review: (1) whether the trial court abused its discretion in ordering that he would be required to pay the attorney’s fees and costs for any enforcement petition needed to collect future payments of alimony or other monetary obligation which he was ordered to pay; and (2) whether the trial court abused its discretion in ordering that monies equitably distributed to him be held by the domestic relation’s office as a credit against future alimony payments due his wife.

Mr. Nika first argues that the trial court had no authority to enter an order allowing the collection of attorney’s fees regardless of circumstances should an arrearage enforcement petition be filed in the future. We agree.

While a trial court has the authority to direct a person held in civil contempt for non-payment of alimony to pay the court costs and the attorney’s fees accumulated by his or her spouse in relation to the contempt action, Commonwealth v. Novack, 310 Pa.Super. 112, 456 A.2d 208 (1983), a trial court does not have the authority to order that such costs will be paid by a person if an action is brought in the future for non-payment of alimony. A person cannot be held in contempt for non-payment of support unless a hearing is held to determine whether he or she has willfully failed to comply with a court order. Crislip v. Harshman, 243 Pa.Super. 349, 365 A.2d 1260 (1976). In other words, if for some reason a person falls into a desperate situation and cannot pay the amount of support a court order requires, that person cannot be held in contempt for failing to make the payments. Although it is clear from the record that Mr. Nika has willfully failed to comply with many monetary obligations that the court has bestowed on him throughout the time leading up to his divorce and that he has tried to hide his financial situation from the court, we cannot assume that every future instance of nonpayment will be willful. Rather, if Mr. Nika fails to pay the alimony which the trial court ordered that he pay, a hearing must be held to determine whether his non-payment was willful. Only at that point can the trial court enter an order requiring him to pay his wife’s attorney’s fees and the court costs. We, therefore, must vacate paragraph two of the trial court’s order pertaining to recovery of attorney’s fees and costs.

Mr. Nika also objects to that portion of the trial court’s order directing that any money due him as a result of the court’s equitable distribution order be paid to the domestic relations office to create a credit in Mrs. Nika’s alimony to insure its payment.

He argues that § 503 of the Divorce Code controls. Section 503 states:

If at any time a party is in arrears in alimony or alimony pendite lite as provided for in sections 501 and 502 after hearing, the court may, in order to effect payment of the arrearages:
(5) Require security to insure future payments.

23 Pa.C.S.A. § 503(5) (Supp.1988). The conditions which must be met, then, before a court may take such actions are that a party be in arrears in the payment of alimony or alimony pendite lite and that the court hold a hearing. The effect of resolving this issue by applying § 503 is that a defendant could become current in support obligations in order to secure the entitled share of the equitably distributed monies then, having dissipated those funds, fall back into arrears. This result can be avoided if the order in question, in so far as it pertains to the creation of a security fund, is permitted to stand as an exercise of the full equity power granted by § 401(c) of the Divorce Code.

Section 503 is entitled “Enforcement of arrearages.” The order here is not an order issued to enforce arrearages; it is an equitable distribution order. As such, it is not subject to the conditions precedent inherent in § 503. Rather, it is an embodiment of the policy expressed in § 401(c) of the Divorce Code. That section states:

In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity or justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause, (emphasis added).

One of the express purposes of the Divorce Code is to mitigate the harm to spouses which may be caused by the legal dissolution of the marriage. See § 102(a)(4). Among the findings of fact in the case at hand, is that the Wife/Appellee has a history of mental problems which have required several hospitalizations; her condition has been diagnosed as a permanent one affecting her economic viability and job opportunities. Given this set of circumstances and her ex-husband’s woefully inadequate record of meeting his support obligations, the order entered here is one which is entirely justified and fully sanctioned by the controlling statute. As our supreme court has stated under similar circumstances, “Once there has been a demonstrated lack of intention of making future payments, we see no reason to force an individual who needs support to obtain a new judgment and commence enforcement proceedings for each missed payment.” Young v. Young, 507 Pa. 40, 488 A.2d 264, 268 fn. 11 (1985). In Young, the issue involved attachment of a pension in order to satisfy an obligation created by an equitable distribution order. The rationale employed in Young was later followed by this court in Baier v. Baier, 343 Pa.Super. 287, 494 A.2d 470 (1985). In Baier, the issue involved the use of a pension fund to secure an obligation to pay alimony. This court and the state’s highest court, then, have permitted the attachment of a pension fund in order to protect the public from having to assume the responsibility of supporting family members when individuals refuse to comply with court orders to provide support. Young, 488 A.2d at 269. The facts presented in the instant case require application of that same rationale.

Accordingly, we vacate in part and affirm in part. Jurisdiction relinquished.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I am satisfied that the record demonstrates a long history of nonpayment and, therefore, agree that the trial court, in the case at bar, did not abuse its discretion in directing that any monies due appellant as a result of the equitable distribution order be paid to the domestic relations office to create a credit in appellee's alimony to insure its payment. I, however, believe that the better practice is to have the trial court conduct a hearing before it directs that equitable distribution proceeds be used as security for future payments.

      . Because this conference was unrecorded, we are unable to accept Mrs. Nika’s claim that Mr. Nika consented to the provisions to which he objects in this appeal.


author: OLSZEWSKI, Judge:

text:
    555 A.2d 1341
    COMMONWEALTH of Pennsylvania v. David Herman BULL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1988.
    Filed March 20, 1989.
    Samuel K. Gates, York, for appellant.

      Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence after conviction for a first offense of driving under the influence. Appellant presents one issue for review: whether the trial court erred in allowing into evidence the results of a blood alcohol test after appellant had taken a pre-arrest breathalyzer.

On September 4, 1987, appellant was stopped by a Penn Township police officer after the automobile in which he was driving was observed crossing the center line of the highway. Suspecting that appellant was under the influence of alcohol, the police officer requested that appellant perform several field sobriety tests. One of these tests involved blowing into a breathalyzer. The result of the breathalyzer indicated that appellant had a blood alcohol content of .15 percent. Upon conclusion of the tests, appellant was placed under arrest and taken to a hospital where a blood test was performed. The results of the blood test indicated that appellant had a blood alcohol content of .15 percent.

Appellant was charged with driving under the influence, under section 3731(a) of the Motor Vehicle Code. Prior to trial, appellant filed a motion to suppress the results of the blood test which was refused. After a non-jury trial, appellant was convicted of operating a vehicle while his blood alcohol level was in excess of .10 percent, a violation of section 3731(a)(4). An oral post-trial motion reinstating appellant’s motion to suppress was argued and denied, and appellant was sentenced to a term of imprisonment totaling 48 hours to one year plus fines totaling $510. Appellant then filed the instant appeal.

Appellant presents one issue for our review: whether the trial court erred in allowing into evidence the results of a blood alcohol test after appellant had taken a pre-arrest breathalyzer. Stated somewhat differently, appellant alleges as error the denial of his motion to suppress.

As a panel of this Court has recently announced:

In an appeal from an order granting or denying a motion to suppress, the role of the appellate court is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, the Court may 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. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Vinson, 361 Pa.Super. 526, 529, 522 A.2d 1155, 1157 (1987); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1043 (1986).

Commonwealth v. DeBooth, 379 Pa.Super. 522, 550 A.2d 570 (1988). In the present case, both parties are in agreement as to the facts; therefore, the question which remains is whether the court committed an error in its legal conclusions drawn from those facts.

In support of his argument, appellant cites the case of Commonwealth, Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). In McFarren, our Supreme Court held that police may not request a defendant to take a second post-arrest chemical test merely to substantiate the accuracy of the first post-arrest chemical test. Such a procedure, according to the Court, is an unreasonable search under Article 1, Section 8 of the Pennsylvania Constitution. Appellant argues that the mandate of McFarren is equally applicable to the case at bar; therefore, the trial court erred in allowing the results of the second blood test to be admitted into evidence.

The Commonwealth counters that McFarren is inapplicable to the case at bar. According to the Commonwealth, McFarren involved two post-arrest tests where the result of one test was used to buttress the other. In the present case, however, the Commonwealth argues that the breathalyzer test was a pre-arrest test which was used only to establish probable cause to justify the post-arrest blood test. Accordingly, the Commonwealth urges that the trial court committed no error when it allowed the results of the blood test to be introduced as evidence. In its opinion, the trial court agreed with and supported the Commonwealth’s position. We also agree.

In McFarren, our Supreme Court was presented with a factual situation quite different from the one in the instant case. There, the defendant, after failing various field sobriety tests, was placed under arrest. At the police station the defendant consented to perform a breathalyzer test. When asked to submit to a second breathalyzer test, however, the defendant asked to see an attorney or, in the alternative, to see the statute which required him to do so. After repeated warnings by police that his response was considered a refusal and would result in an automatic suspension of his driving privileges, the defendant refused to take the second test. As a result of his actions, the Department of Transportation suspended the defendant’s driving privileges under § 1547(a) of the Motor Vehicle Code.

Thus, the specific issue before the Supreme Court was whether pursuant to § 1547(a), a defendant was required to submit to a second post-arrest blood test. Of specific interest to the Court was the interpretation of that portion of § 1547(a) which states that a police officer may take “... one or more chemical tests of breath, blood or urine____” Initially, the Court determined that the purpose behind § 1547 is to provide the police with evidence to prosecute an intoxicated driver. Recognizing, however, that a breathalyzer test is a search so as to fall within the provisions of Article 1, § 8 of the Pennsylvania Constitution, the Court held that a second post-arrest chemical test can be taken only where the police officer offers sufficient evidence to establish the reasonableness of such a request. Because the stated purpose of the second test was merely to substantiate the results of the first test, the Court found it to be unreasonable.

We do not feel the need to apply the mandate of McFarren to the facts of the case at bar. In the present case, we are not faced with a situation where the Commonwealth was attempting to bolster or substantiate its evidence. Here, unlike McFarren, the initial breath test taken by appellant was merely part of a series of field tests used to establish probable cause to request appellant to take a post-arrest blood test. Appellant was informed by the police officer, prior to taking the test, that he had a right to refuse this test as the specific device used was not approved for use in court. Appellant was not under arrest, nor were the implied consent provisions of § 1547 applicable to him at this time. Moreover, after trial both parties stipulated that the results of this test were used only to help establish probable cause to request the blood test, not as substantive evidence of appellant’s guilt. Under these facts, we are unable to agree with appellant that the trial court erred by allowing into evidence the results of his post-arrest blood test.

This result is especially warranted where, as here, suppressing the post-arrest blood test would be tantamount to dismissing the Commonwealth’s entire case. As the testimony of the police officer indicates, appellant had already failed three of the other four field tests administered to him; thus, probable cause had already been established to require appellant to submit to a blood test. Therefore, finding no error in the legal conclusions reached by the trial court, we have no alternative but to agree with its decision to allow the results of appellant’s blood test into evidence.

Judgment of sentence affirmed.

      . Appellant was charged under subsections (1) and (4) of section 3731(a). The pertinent parts of that section provide as follows:
      § 3731. Driving under the influence of alcohol or controlled substance
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
      * * * * * *
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
      75 Pa.C.S.A. § 3731(a). Pursuant to an agreement of the parties, the Commonwealth agreed to nol pros the charge under 3731(a)(1), leaving only the charge under 3731(a)(4) to be tried.

      . Section 1547(a) states as follows:
      Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle ... (emphasis added)
      75 Pa.C.S.A. § 1547(a). The actual section which prescribes punishment is found in § 1547(b); the Court, however, in McFarren first had to interpret subsection (a) to determine if the police were allowed to make multiple tests, thus making the defendant’s actions tantamount to a refusal which would allow for punishment.

      . See Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978).