author: TAMILIA, Judge:

text:
    538 A.2d 903
    COMMONWEALTH of Pennsylvania, Appellant, v. James Jay TATE.
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1988.
    Filed March 1, 1988.

      Vincent C. Mujrovich, Jr., Pittsburgh, for Com., appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for appellee.
    Before TAMILIA, WATKINS and HESTER, JJ.
   TAMILIA, Judge:

This is a timely appeal by the Commonwealth of Pennsylvania from an Order of the Court of Common Pleas of Allegheny County, dated July 22, 1987, which denied the Commonwealth’s petition for forfeiture of $1,950 cash belonging to appellee James J. Tate.

Tate was arrested on November 15, 1985, and charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., including the delivery of a controlled substance (cocaine), 35 P.S. § 780-113(a)(30), possession with intent to deliver a controlled substance (cocaine), 35 P.S. § 780-113(a)(30), and possession of a controlled substance (cocaine), 35 P.S. § 780-113(a)(16). However, these charges were nolle prossed on May 9,1986. In connection with the charges, the Commonwealth filed a petition to condemn and forfeit one 1978 Toyota Célica and $1,950 cash. After hearing, the trial judge signed an Order granting the petition as to the 1978 Toyota Célica, but reserved judgment concerning the $1,950 in cash. Subsequently, on July 22, 1987, the trial judge denied the forfeiture of the $1,950 and ordered the money be returned to Tate. This timely appeal followed on August 21, 1987.

At the hearing on the Commonwealth’s petition, the parties stipulated to the facts concerning the arrest and seizure in question (N.T. 8/14/86, p. 2). On November 8, 1985, Tate borrowed $3,000 from the Central Bank in Cleveland, Ohio, which was a cash advance disbursement draft charged against his Visa credit card. On that date, he then purchased a one-way airline ticket from Cleveland to Miami, Florida, where he met with drug dealers to obtain one kilo of cocaine for the purchase price of $35,500 (N.T. at p. 7). Tate raised the purchase price by using $20,000 of his own previous profits from a prior drug transaction and money obtained from a partner. The record does not disclose the exact amount of money his partner contributed to the Miami drug purchase, but does indicate they were equal partners. After buying the cocaine in Florida, Tate used a rented motor vehicle to transport the cocaine back to Cleveland and split the kilo. Tate then deposited three-quarters of a pound of cocaine in a bank safety deposit box and took another quarter pound in his 1978 Toyota Célica to Pittsburgh, Pennsylvania, to sell portions to Doug Blodgett, an undercover police officer, and three other men. On November 15, 1985, Tate met with Officer Blodgett and in exchange for a quantity of cocaine, he received $7,500 from the officer. After this sale he was placed under arrest.

At the time of his arrest Tate consented to a search of the trunk of his car and his brief case contained in the trunk. Inside the brief case the police found: a quarter pound of cocaine; the $1,950 cash which is the subject of this action and which was contained in a white envelope marked “Central Bank”; title to the Toyota; and receipts for Tate’s rental vehicle which he drove from Miami, his gasoline on that trip, and motel lodging from that trip. We agree with defense counsel (N.T. at p. 12) and the trial court that “in view of the [appellee] meeting a person to whom he was going to sell a large quantity of cocaine he stored all other personal property of value in the brief case which he locked in the trunk” (Slip Op., McFalls, J., 10/20/87, p. 3).

Based on statements Tate made to the police and the stipulation of facts presented, the trial court concluded Tate had not made any drug transactions from the time he arrived in Cleveland on November 10, 1985 until he met Officer Blodgett on November 15,1985; therefore, Tate had received no income from drug related activities prior to his meeting with Officer Blodgett and subsequent arrest. The fact that Tate had borrowed $3,000 from the Central Bank in Cleveland and that the $1,950 in question was found in an envelope marked “Central Bank” gives rise to a reasonable inference that the money contained in the envelope was the balance left from the $3,000 cash advancement.

The Commonwealth argues that under the stipulated facts it proved by a preponderance of the evidence that the cash found in the brief case was “used or intended to be used to facilitate any violation” of the Controlled Substance, Drug, Device and Cosmetic Act, supra, and was, therefore, subject to forfeiture under 35 P.S. § 780-128(a)(6)(i)(C). In support of its argument, the Commonwealth claims the rebuttable presumption set forth in 35 P.S. § 780-128(a)(6)(ii), that money found in close proximity to a controlled substance possessed in violation of the Act is presumed to be proceeds derived from the selling of such a controlled substance and, therefore, subject to forfeiture, applies to the $1,950.

Forfeiture proceedings under section 780-128 of the Act are civil in form, but quasi-criminal in character, and do not require the full panoply of rights due a criminal defendant in criminal proceedings. Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983); Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976). For this reason, in a forfeiture proceeding the Commonwealth is required to prove the material allegations by a preponderance of the evidence only. Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 492 A.2d 6 (1985); 1978 Toyota, supra; Landy, supra.

In 1984, section 780-128(a) of the Controlled Substance, Drug, Device and Cosmetic Act was amended to add the following subsection:

§ 780-128 Forfeiture

(a) The following shall be subject to forfeiture to the Commonwealth and no property shall exist in them:

(6)(i) Consideration as follows:

(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this act.

(B) Proceeds traceable to such an exchange.

(C) Money, negotiable instruments and securities used or intended to be used to facilitate any violation of this act.

(D) Real property, including things growing on, affixed to and found in the land.

(ii) No property shall be forfeited under this clause, to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner. Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of this act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of this act.

35 P.S. § 780-128(a)(6) (emphasis added).

In Commonwealth v. $15,856.85-Cash, 354 Pa.Super. 279, 281-83, 511 A.2d 871, 873 (1986), we held that section 780-128(a)(6) is not to be applied retroactively to seizures which occurred prior to the effective date of the amendment and stated that:

The 1984 amendment of the Drug Act altered the common law in one important aspect: it created a rebut-table presumption that money found in close proximity to illegal drugs is money derived from illegal drug sales. With or without the presumption, however, the Commonwealth must prove by a preponderance of the evidence that the money was derived from illegal drug transactions.

(Citations omitted.) As in $15,836.85-Cash, we must determine whether the record supports the trial court’s finding under this standard. This is the first appellate case to deal with the 1984 amendment on the merits of the case in which the presumption is a consideration.

Although the rebuttable presumption set forth in section 780-128(a)(6)(ii) certainly applies to the $1,950 in dispute, we find that under the factual circumstances of this case the presumption has been adequately rebutted, lending no support to the Commonwealth’s burden of proof. Our Supreme Court has adhered to the view that “virtually all so-called ‘criminal presumptions’ are really no more than permissible inferences.” Commonwealth v. Mason, 483 Pa. 409, 413, 397 A.2d 408, 411 (1979); Commonwealth v. DiFrancesco, 458 Pa. 188, 193, 329 A.2d 204, 208 (1974). As the Court explained in Commonwealth v. Shaffer, 447 Pa. 91, 104-06, 288 A.2d 727, 735 (1972), cert. den., 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972):

A rebuttable presumption is a means by which a rule of substantive law is invoked to force the trier of fact to reach a given conclusion, once the facts constituting its hypothesis are established, absent contrary evidence____ An inference is not more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier believes that the weight of the evidence and the experiential accuracy of the inference warrant so doing. A rebuttable presumption forces the defendant to come forth or suffer inevitable defeat on the issue in controversy-

(Citation omitted); see DiFrancesco, supra 458 Pa. at 193, n. 3, 329 A.2d at 207, n. 3.

Section 780-128(a)(6)(ii) provides that money found in close proximity to an illegal controlled substance, as here, “shall be rebuttably presumed to be proceeds derived from the selling of” an illegal controlled substance, and no more. We agree with the trial court that the facts of this case rebut the inference which section 780-128(a)(6)(ii) mandates. As stated earlier, by presenting the fact that a set sum of money was drawn by appellee from a particular bank, and that a lesser sum was later found in appellee’s possession in an envelope marked with the name of the same bank coupled with the fact that appellee had made no sale of drugs in the interim between the withdrawal and his arrest, we find it reasonable to conclude that the $1,950 found in the envelope was the remainder of the earlier draft and that the $1,950 could not be derived from an earlier sale of a controlled substance. This sufficiently rebuts the presumption raised by the discovery of the money in close proximity to the illegal controlled substance.

However, even without the support of the rebuttal presumption set forth in section 780-128(a)(6)(ii), we find merit to the Commonwealth’s main contention that it proved by a preponderance of the evidence that the $1,950 is subject to forfeiture under section 780-128(a)(6)(i)(C) because the money was “used or intended to be used to facilitate any violation” of the Act.

The trial court concluded that the money to finance the trip to Florida and living expenses until appellant made the first sale of cocaine was likely to have come from the partnership funds raised by appellant and his partner, rather than the $3,000 cash advancement appellant obtained from the Cleveland bank. The court based these conclusions on its reasoning that the equal partners raised “$40,-000,” an amount well in excess of the $35,500 needed to purchase the cocaine, and that as equal partners the partnership would share in the expenses, making it unnecessary for appellant to expend any of his own $3,000 in furtherance of his drug transactions (Slip Op. at 4-5).

We are presented with a cold record in the sense that no testimony was given at the hearing and, therefore, no determinations of credibility were necessary by the hearing judge. Based on our review of the stipulated facts as presented by the attorneys during the hearing, we find no firm evidence that the partnership pooled a full $40,000 to finance the November, 1985 drug deal, which led to appellant’s arrest. Instead, the only evidence presented was that appellant had used part of his $20,000 profit from an earlier drug transaction in September, 1985, from which he and his partner had split the profits equally — inferring that his partner had made a $20,000 profit also (N.T. 8/14/86, p. 4, 7). There is no evidence that each partner still possessed their full respective $20,000 profit more than two months later when appellant made the December, 1985 purchase. Therefore, the record does not disclose whether appellant had access to a sum from the prior drug deal larger than the $35,500 needed to purchase the kilo of cocaine in Miami.

There is, however, substantial evidence making it more likely than not that appellant used the $3,000 cash advance draft to finance his travel expenses to and from Florida and, in effect, facilitating the purchase and distribution of the cocaine in violation of the Act. On the same day appellant obtained the cash advance, he bought a one-way airline ticket to Miami, Florida. Upon reaching Florida, he rented a room under an alias as well as a four-door sedan which he used to transport the cocaine back to Cleveland. After reaching Cleveland, he prepared the cocaine for sale and proceeded to Pittsburgh, where he made his first sale to Officer Blodgett. This entire transaction from the day he received the $3,000 until his arrest took approximately seven days. The fact that the $1,950 was found in close proximity to the receipts of the traveling expenses to Florida, as well as a large amount of cocaine, gives rise to a reasonable inference that the cash was the balance of the expense money appellant took on his trip. Appellant could not have known exactly how much money would be needed to make the trip and to deal with unforeseen circumstances, so he obtained an amount which would guarantee a financial cushion for the trip. For this reason we find the unspent amount equally facilitating a violation of the Act as did the money spent on actual expenses and subject to forfeiture under section 780-128(a)(6)(i)(C).

We have interpreted similar language in 35 P.S. § 780-128(a)(4), dealing with forfeitures of conveyances or vehicles used or intended for use “to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of” drug paraphernalia or controlled substances in violation of the Act (emphasis added). In Commonwealth v. One 1979 Lincoln, Four Door Sedan, 344 Pa.Super. 171, 496 A.2d 397 (1985), allocatur denied, 513 Pa. 634, 520 A.2d 1384 (1987), we granted forfeiture of a motor vehicle used to deliver food and drink to co-conspirators at a clandestine laboratory, used for the manufacture of controlled substance, on the grounds that such use of the vehicle “facilitated” a violation of the Act. The same broad view applies to section 780-128(a)(6)(i)(C) and is consistent with the policy of our criminal law to deprive criminals of the fruits of illegal acts. Landy, supra.

Accordingly, Order reversed and remanded for further proceedings consistent with this Opinion.

Order reversed.

      . This was as a result of appellant pleading guilty to federal charges of delivery of cocaine.

      . Act of April 14, 1972, P.L. 233, No. 64, § 28, 35 P.S. § 780-128, amended by Act of December 14, 1984, P.L. 988, No. 200, § 2, effective in 60 days.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    538 A.2d 908
    COMMONWEALTH of Pennsylvania v. Kendall MAGWOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 4, 1988.
    Filed March 2, 1988.
    Petition for Allowance of Appeal Denied July 8,1988.

      Claudia Davidson, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for carrying a firearm without a license, 18 Pa.C.S.A. § 6106. Appellant contends that prior counsel was ineffective for failing to request appropriate jury instructions and raise the proper objection to the court’s erroneous jury instructions. For the reasons that follow, we find that appellant’s claim is meritless and, accordingly, affirm the judgment of sentence.

The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra at 686, 104 S.Ct. at 2064.

Appellant maintains that, during the charge to the jury, the trial court erroneously defined the term “possession”. Appellant contends that trial counsel was ineffective for failing to raise the proper objection to the court’s charge and for failing to request an appropriate definition. Under the analysis set forth above, we first must determine whether appellant’s underlying contention — that the jury charge was erroneous — possesses arguable merit. We conclude that it does not.

Our standard of review in determining whether a jury instruction is proper is well-settled. “A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Person, 345 Pa.Superior Ct. 341, 345, 498 A.2d 432, 434 (1985) (citations omitted). See also Commonwealth v. Bey, 249 Pa.Superior Ct. 185, 196, 375 A.2d 1304, 1310 (1977). In reviewing the court’s charge for error, we must read the charge as a whole; “error will not be predicated upon an isolated excerpt.” Commonwealth v. Wallace, 347 Pa.Superior Ct. 248, 256, 500 A.2d 816, 820 (1985) (citations omitted). See also Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983) (appellate examination of jury charge must be based on examination of it as whole to determine whether it was fair or prejudicial) (citation omitted). “It is the general effect of the charge that controls.” Commonwealth v. Wallace, supra (citations omitted). Moreover, “[a] trial court has broad discretion in phrasing its points for charge, and is not bound to give instructions in the form requested, particularly where that form does not reflect a correct interpretation of the law.” Commonwealth v. Ohle, supra (citation omitted). See also Commonwealth v. Melendez, 326 Pa.Superior Ct. 531, 538-39, 474 A.2d 617, 620-21 (1984) (trial court not required to accept points submitted by defendant verbatim; court is free to use its own form of expression) (citation omitted).

Here, the Commonwealth based its case on a joint constructive possession theory. See Brief for Appellant at 12. The trial court, in defining the term “carrying” as used in 18 Pa.C.S.A. § 6106, correctly noted that, “In order to carry a weapon, essentially, the defendant must be found to have been in possession of that weapon.” N.T. July 30, 1985 at 46. The court then defined possession as follows:

Mere presence in an automobile in which a weapon is found does not establish possession of that weapon. Rather, the Commonwealth must establish both the defendant’s power of control over the weapon and his intention to exercise that control, which intention presupposes knowledge of the weapon’s presence.

Id.

This definition adequately and accurately reflects the law regarding the definition of joint constructive possession. See, e.g., Commonwealth v. Boatwright, 308 Pa.Superior Ct. 41, 43, 453 A.2d 1058, 1059 (1982) (per curiam) (to prove joint constructive possession, Commonwealth must present evidence to show that defendant had both power to control firearm and intent to exercise that control; mere presence at scene where firearm was found is insufficient) (citing Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968) (regarding mere presence); Commonwealth v. Luddy, 291 Pa.Superior Ct. 541, 422 A.2d 601 (1980) (regarding power to control and intent to exercise control)).

Despite the apparent adequacy of this charge, appellant maintains that it is erroneous because it is not in conformance with Pennsylvania Standard Jury Instruction § 16.02(b)(A) (governing charges of drug possession). This argument is no more than a challenge to the court’s phrasing of its charge. As we have noted above, a trial court has broad discretion in phrasing its points for charge. Commonwealth v. Ohle, supra; Commonwealth v. Melendez, supra. Accordingly, because the court’s charge adequately conveyed to the jury the proper legal principles governing joint constructive possession, appellant’s claim that counsel was ineffective for failing to object to the charge and failing to request an appropriate charge lacks arguable merit.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment affirmed.

      . New appellate counsel currently represents appellant. Accordingly, "the issue of trial counsel's effectiveness may now be raised in this direct appeal.” Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978).
      Appellant also contends that the trial court's instruction regarding circumstantial evidence was erroneous. Trial counsel preserved this issue. See Motion in Arrest of Judgment and for a New Trial at 3. Upon reviewing the record and the parties’ briefs, we conclude that the trial court properly rejected this claim. See Trial Court Opinion at 9-10. See also Commonwealth v. Suggs, 289 Pa.Superior Ct. 44, 60, 432 A.2d 1042, 1050 (1981) (trial court properly denied defendant's request to charge jury that, “if two or more equal inferences arose from circumstantial evidence, they could not select or guess at inferences of guilt.”).

      . Appellant also contends that (1) the evidence was insufficient to sustain the conviction; and (2) the trial court erred in allowing the Commonwealth to introduce indirect hearsay evidence. After careful-. ly reviewing the record and the briefs submitted by the parties, we conclude that the trial court has adequately disposed of these contentions. See Trial Court Opinion at 4-9.
      With regard to appellant's sufficiency claim, see also Commonwealth v. Rutherford, 252 Pa. Superior Ct. 348, 355, 381 A.2d 952, 956 (1977) (circumstantial evidence sufficient to convict defendant of carrying firearm without license where "pistol was not discovered in a place of concealment, but was rather observed in plain view in extremely close proximity to appellant and in a position clearly within appellant’s field of vision [and] [t]he broken grips, which had been part of the weapon were actually found on appellant’s person.”).


author: MONTEMURO, Judge:

text:
    538 A.2d 910
    James S. NIGRO, Jr., Appellee, v. Mary Lou Rago NIGRO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1987.
    Filed March 10, 1988.

      Joseph S. Britton, Langhorne, for appellant.
    Edward J. Weiss, Assistant District Attorney, Media, for appellee.

      Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

In this divorce action, appellant Mary Lou Rago Nigro appeals from a January 22, 1987 order of the Bucks County Court of Common Pleas declaring valid a 1976 property settlement agreement entered into by and between appellant and her husband, appellee James S. Nigro, Jr. The court found in favor of appellee and decreed that the agreement barred all claims raised by appellant in her counterclaim to appellee’s complaint in divorce.

On March 21, 1985, appellee filed a complaint against appellant seeking a divorce on the grounds that the parties’ marriage was irretrievably broken. Appellant answered, admitting all of appellee’s allegations. Appellant also counterclaimed, asserting additional claims for divorce, child support, custody, equitable distribution, alimony, alimony pendente lite, spousal support, counsel fees and costs, and continued maintenance of beneficiary designations on appellee’s existing life and health insurance policies. Appellee raised as a defense to the counterclaim a property settlement agreement executed by the parties on July 15, 1976. The comprehensive agreement contained provisions concerning custody of the parties’ minor daughter, child support, personal property distribution, and various other economic issues. Further, the parties agreed to release their rights to seek alimony, counsel fees or expenses in any divorce action.

Appellant served upon appellee interrogatories which sought information on the claims ancillary to the divorce. Appellee then filed a motion for a protective order pursuant to Pa.R.C.P. 4012 and averred that it was unnecessary to answer the interrogatories because all matters ancillary to the divorce had been resolved by the 1976 property settlement agreement. Appellant responded that the agreement was invalid and thereafter filed a petition to set it aside. On October 31, 1985, the trial court held a consolidated hearing on the petitions. The hearing was not completed and was continued to a later date. On November 25, 1985, appellee filed a nunc pro tunc petition for declaratory relief and requested the court to make a judgment that the property settlement agreement was “valid and binding upon the parties and constitute[d] a bar to all claims raised by [appellant] in her Counterclaim.” Appellant responded to the petition for declaratory relief, again claiming that the agreement was invalid. In new matter appellant averred that she was not advised by counsel when she signed the agreement, that the agreement did not make a “fair and reasonable provision” for appellant or the parties’ child, that appellee did not fully disclose his assets to appellant at the time the parties executed the agreement and that he had in fact misrepresented his financial situation to induce appellant to sign the agreement, that appellant signed the agreement under duress, and that appellee had failed to abide by the terms of the agreement.

On March 6, 1986, the court resumed the October 1985 hearing and also considered appellee’s petition for declaratory relief. On July 21, 1986, the court issued an opinion with findings of fact, a discussion of the law, and conclusions of law. Attached to the opinion was an order stating that “declaratory judgment is hereby entered against [appellant], and it is hereby Ordered and Decreed that the July 15, 1976 Property Settlement Agreement entered into by and between them is valid and continues in full effect, and is a bar to all claims raised by [appellant] in her counterclaim in this divorce action.”

In accordance with Pa.R.C.P. 227.1, appellant filed a motion for post-trial relief from the July 21st opinion and order. On December 8,1986, the court heard argument on the motion, and on January 22, 1987, issued its final opinion and order on the matter. The order dismissed and denied appellant’s exceptions and affirmed the prior order of July 21, 1986, wherein judgment was declared in favor of appellee. Appellant now brings a timely challenge to the January 22, 1987 order and raises the following issues on appeal:

(1) Whether the property settlement agreement should be set aside on the basis that the trial court improperly concluded that a reasonable provision was made for appellant.

(2) Whether the property settlement agreement should be set aside on the basis that appellee did not make a full and fair disclosure of his worth.

(3) Whether the trial court erred by failing to allow appellant to pursue discovery through interrogatories pri- or to ruling on the validity of the property settlement agreement.

(4) Whether the property settlement agreement should be voidable on the basis that appellee’s counsel had a conflict of interest in drafting the agreement.

(5) Whether the property settlement agreement should be set aside on the basis of general contractual principles.

(6) Whether the trial court erred in concluding that appellee had substantially complied with the terms and conditions of the property settlement agreement.

Before reaching the merits of this case, we raise sua sponte the question of whether the January 22, 1987 order, issued prior to the entry of a final decree in divorce, is final. A final order has been defined variously as one that (1) ends the litigation or disposes of the entire case; (2) effectively puts the litigant “out of court”; or (3) precludes a party from presenting the merits of his or her claim to the trial court. Fried v. Fried, 509 Pa. 89, 93-94, 501 A.2d 211, 213 (1985). To determine the finality of an order which does not-on its face appear final, a court should look beyond the technical effect of the adjudication to its practical ramifications. Id., 509 Pa. at 94, 501 A.2d at 214. In the instant case, the January 1987 order is final even though it does not dispose of the entire divorce action. The court’s determination that the property settlement agreement is valid precludes consideration of economic issues in the divorce action, prevents appellant from presenting her claim to the court and, thereby, places her “out of court” on her counterclaim. Our disposition of the appeal in Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986), a case similar to the one now before us, supports our conclusion that the January 1987 order is final and appealable. There, we entertained appellant’s appeal from a decree finding valid two ante-nuptial agreements executed by the parties. The trial court had not yet issued a divorce decree but had found the parties’ ante-nuptial agreements to be a bar to appellant’s claims for equitable distribution, alimony, support and counsel fees. The order in the case before us is analogous to the order in Laub.

Having found that we have jurisdiction to entertain appellant’s appeal, we now address the merits of the case and affirm the trial court’s January 22, 1987 order. Appellant had a burden in this case to “demonstrate by clear and convincing evidence that the agreement did not make reasonable provision for her, and that it was entered into without full and fair disclosure” by appellee, In re Estate of Geyer, 516 Pa. 492, 502, 533 A.2d 423, 427 (1987) (plurality).

Appellant first argues that the trial court erred in concluding, that the property settlement agreement made reasonable provision for her. Reasonableness is determined “as of the time of the Agreement ” and depends upon the totality of the facts and circumstances at the time of the agreement’s execution. In re Hillegass Estate, 431 Pa. 144, 150-51, 244 A.2d 672, 675-76 (1968). Some factors that a court takes into account when it examines the reasonableness of an agreement are (1) the financial status and standard of living of the parties, (2) the age of the parties, and (3) the intelligence of the parties. Cf id. (antenuptial agreement). We agree with the trial court that appellant has failed to demonstrate by clear and convincing evidence that the agreement did not make a reasonable provision for her. See Trial Court Opinion at 2.

The agreement required appellee (1) to pay to appellant $10,000 upon the entry of a final divorce decree; (2) to pay to appellant $100 per week for a year following the commencement by husband of a divorce action; (3) to pay appellant’s medical expenses for the year following the commencement of a divorce action; (4) to pay $900.00 towards appellant’s dental bills; (5) to pay the $700.00 balance of a loan in appellant’s name; (6) to pay $60.00 per week in child support; (7) to pay the expenses for the parties’ daughter’s private education; and (8) to maintain health insurance for the parties’ daughter. The agreement also provided that appellant would retain all of her own personal property and all of the furniture from the parties’ home, with the exception of a pool table and appellee’s personal effects. Appellee testified, and the trial court accepted as true, see trial court opinion at 3, that at the time the agreement was executed he was facing serious financial difficulties. Under the totality of these facts and circumstances, appellant has not supported her contention that the agreement did not reasonably provide for her and the parties’ daughter.

Appellant next argues that the property settlement agreement should be set aside because there was no full and fair disclosure of appellee's worth. Disclosure between the parties need not be exact, but it must be “full and fair.” Geyer, supra, 516 Pa. at 502, 533 A.2d at 427 (citing Kaufmann Estate, 404 Pa. 131, 136, n. 8, 171 A.2d 48, 51 n. 8 (1961)). Full and fair disclosure need not disclose the exact amount of property but must be precise enough so as not to “obscure the general financial resources of the parties,” Geyer, supra, 516 Pa. at 502, 533 A.2d at 427. The Pennsylvania Supreme Court noted in Geyer that “whether adequate disclosure has been made will depend upon the facts and circumstances of the particular situation.” Id., 516 Pa. at 502, 533 A.2d at 428. Under the facts and circumstances in the case before us, appellant has failed to prove that she was deprived of full and fair disclosure of appellee’s worth at the time the agreement was executed. At the time the parties executed the 1976 agreement, appellee had an interest in three pizza stores, all of them suffering financially. Appellant provided extensive testimony concerning appellee’s pizza business. She worked in all of the stores on a regular basis (N.T., October 31, 1985, at 16, 77); she managed one of his stores {id. at 16); she knew appellee’s weekly salary {id. at 17-18); and she knew the approximate gross daily receipts from the store she managed {id. at 45-46). Appellant also testified that she was not, at the time of the 1985 hearing, aware of any of appellee’s assets of which she had been unaware in 1976. Id. at 77-78. Appellant is an intelligent woman who had sufficient knowledge of her husband’s business for there to have been full and fair disclosure at the time the parties executed the 1976 agreement.

Next, appellant contends that the trial court erred by making a ruling on the validity of the agreement without first allowing appellant to pursue discovery through interrogatories. In its opinion, the trial court states that it can recall “no request that this case be delayed in order to accomplish discovery; rather, both sides showed an anxiety to promptly move forward with evidence and the taking of testimony.” Trial Court Opinion, January 22, 1987, at 7. Moreover, the trial court did not need in-depth property valuation information to make a decision on the reasonableness of the agreement. On its face, the agreement could be judged for whether it made reasonable provision for appellant. Further, by her testimony, appellant demonstrated that in 1976 she was knowledgeable about her husband’s business and assets. The trial court had before it all the information it needed to make a determination concerning the validity of the 1976 agreement.

Appellant next seeks to set aside the agreement on the basis that appellee’s counsel had a conflict of interest in drafting the property settlement agreement. The trial court found as a fact that appellant “knowingly and voluntarily” waived her right to independent counsel. Trial Court Opinion, July 21, 1986, at 3 (Factual Finding 8). We will not set aside a trial court’s factual finding unless there is no competent evidence in the record to support such a finding. Jenks v. Avco Corp., 340 Pa.Super. 542, 490 A.2d 912 (1985). We find ample support in the record for the trial court’s conclusion. Specifically, appellant, both prior to and after the drafting of the agreement, had the benefit of counsel for other legal matters. She was therefore aware that she could protect her rights by obtaining legal counsel. Moreover, she actively participated in formulating the provisions of the agreement. We also note that appellant did sign each page of the agreement. Paragraph 17 of the document states that “[b]oth Husband and Wife have been advised of their right to separate legal counsel of their own free choice but have indicated their desire to simply reduce the agreement reached between themselves to writing.” Because there is no evidence that appellant was coerced into signing this agreement, we find this paragraph presumptively persuasive of the fact that appellant voluntarily waived her right to independent counsel. See Erie County v. American States Ins. Co., 573 F.Supp. 479, 486 (W.D.Pa.1983), affd, 745 F.2d 45 (3d Cir.1983) (person who signs an agreement is conclusively presumed to know its contents and to assent to them).

Appellant further contends that the agreement should be set aside on the basis of “general contractual principles.” Appellant appears to argue that (1) appellee’s attorney, who drew up the agreement and who had represented appellant in other matters, abused his confidential relationship with appellant by allowing her to sign the agreement, (2) both appellee and his attorney used undue influence to obtain appellant’s signature on the agreement, and (3) that appellant, due to her emotional state at the time of the parties’ separation, lacked the mental capacity to contract. We find absolutely no merit to any of appellant’s arguments. There is no evidence in the record to support any of these allegations.

Finally, appellant argues that the trial court erred in finding that appellee had substantially complied with the terms of the agreement. We cannot agree. The trial court made a finding of fact that appellee had substantially complied with the terms of the agreement, “which admittedly ha[d] been modified by mutual understanding and course of conduct, not evidenced by the parties’ consents in writing, from time to time since its execution.” Trial Court Opinion, July 21, 1986, at 4-5. Moreover, the court found appellee and his witnesses to be credible. Id. Because we will not disturb the trial court’s findings concerning credibility as long as they are not manifestly erroneous, Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983), we accept the court’s findings on credibility. The two major issues regarding appellee’s compliance with the agreement were whether appellee had paid to appellant $10,000.00 and whether appellee had made payments to appellant of $100.00 per week for one year after the commencement of the divorce action in accordance with the agreement. The trial court found specifically, and there is ample support in the record for such findings, that instead of paying appellant the $10,000.00 when the divorce was final as the agreement provided,

upon [appellant’s] request in ... 1979 the parties entered into an agreement whereby [appellee] arranged for that sum of money to be furnished to [appellant], conditioned upon her executing a mortgage on his behalf which would be recorded against her newly purchased property, subject to the further agreement that a satisfaction piece would then be held in escrow until either a divorce decree was entered or the death of either party, in which event the satisfaction piece would be recorded.

Trial Court Opinion, July 21,1986, at 4 (Factual Finding 13). The trial court also found that [appellee] has actually paid [appellant] $100.00 per week from the date of the execution of the Agreement to the time of the hearing of this case. Taking into account [appellee’s] obligation to pay $60.00 per week as child support during that period of time, [appellee] has paid to [appellant] for her benefit the weekly sum of $40.00 for a period of time well in excess of eight years, constituting a substantial overpayment of his obligation under ... the Agreement.

Id.

In accordance with the foregoing discussion, we affirm the trial court’s January 22, 1987 Order.

Order affirmed.

      . The court also heard argument on appellant’s petition for special relief seeking to strike a purported mortgage held by appellee on appellant's home.

      . Pursuant to Pa.R.C.P. 1602, “[i]n any action at law ..., a party may include in the claim for relief a prayer for declaratory relief and the practice and procedure shall follow, as nearly as may be, the rules governing that action.” Pennsylvania Rules of Civil Procedure 1920.1 to 1920.92 govern divorce actions. Rule 1920.52(a) provides in pertinent part that ”[i]n claims involving ... the enforcement of marital agreements ... the trial judge shall enter a decision which shall state the reasons therefor. The practice and procedure thereafter ... shall be in accordance with the Rules of Civil Procedure 227.1 to 227.4 inclusive.”


author: WIEAND, Judge:

text:
    538 A.2d 915
    Harry O’BOYLE and Joyce O’Boyle, Appellants, v. J.C.A. CORPORATION, Anastasi Brick Corporation, Bernard Schwartz & Associates, Amquip Corporation, J. Hagerty, a/k/a James Hagerty, Winslow Mechanical Contractors, Inc. and P. D’Andrea, Inc., and Leonard J. Rusciani Associations, Leonard J. Rusciani, P.E., and L.F. Driscoll Company. Harry O’BOYLE and Joyce O’Boyle, Appellants, v. L.F. DRISCOLL COMPANY, Anastasi Brothers Corporation, Malcolm E. Eisenberg, Individually and T/A River’s Edge Limited Partnership, Alesker and Reiff, Architects, P.C., Irving Shapiro, William A. Alesker and Donald A. Reiff, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1987.
    Filed March 10, 1988.

      David S. Shrager, Philadelphia, for appellants.
    Charles W. Craven, Philadelphia, for L.F. Driscoll, appellee.
    Before WIEAND, KELLY and HESTER, JJ.
   WIEAND, Judge:

Harry O’Boyle was employed as foreman by Robert G. Hoffer Company, the structural concrete subcontractor on the River’s Edge project in Philadelphia. He was injured when a masonry wall, which had been built by another subcontractor, collapsed and caused him to fall. O’Boyle filed common-law tort actions against various parties involved in the project, and these actions were consolidated for trial. Prior to trial, however, one of the defendants, L.F. Driscoll Company (Driscoll), moved for the entry of summary judgment on grounds that it was a statutory employer and, therefore, immune from common-law tort liability by virtue of Section 203 of the Workmen’s Compensation Law of June 2, 1915, as amended, 77 P.S. § 52. The trial court agreed and dismissed Driscoll from the action. O’Boyle appealed.

On review of an order granting summary judgment, an appellate court needs to determine only whether there is a genuine issue of triable fact. Bowman v. Sears, Roebuck and Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). The granting of the summary judgment can be sustained only if the pleadings, depositions, answers to interrogatories and admissions plus any affidavits show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976).

Doverspike v. Chambers, 357 Pa.Super. 539, 542-543, 516 A.2d 392, 394 (1986).

A statutory employer’s immunity from tort liability was explained by this Court in Cranshaw Construction, Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981), as follows:

‘[I]n negligence cases, the general contractor has the full immunity from suit by the employee of a subcontractor which an immediate employer would have. He is the statutory employer and is the injured employe’s employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor ... is insured and responds fully on the injured employe’s claim. The reason for this difference cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although only in a reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence suits in all events.’

Id., 290 Pa.Superior Ct. at 291, 434 A.2d at 758, quoting Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease, Vol. 1, § 4.09(3) (1975).

Section 203 of the Workmen’s Compensation Act sets forth the requirements for statutory employer status as follows:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

Act of June 2, 1915, P.L. 736, art. II, § 203, as amended by the Act of June 21, 1939, P.L. 520, § 1 et seq., 77 P.S. § 52. The Supreme Court has construed this section as imposing five elements which must be established before statutory employer immunity exists. These elements are as follows:

(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer., (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930). See also: Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987); Zizza v. Dresher Mechanical Contractors, Inc., 358 Pa.Super. 600, 518 A.2d 302 (1986); Bartley v. Concrete Masonry Corp., 322 Pa.Super. 207, 469 A.2d 256 (1983); Cranshaw Construction, Inc. v. Ghrist, supra; Pape v. Smith, 227 Pa.Super. 80, 323 A.2d 856 (1974).

In the instant case, the only element in dispute is whether the structural concrete work was a part of Driscoll’s regular business which it entrusted to Hoffer, the subcontractor who was O’Boyle’s employer. This element, as a general rule, is satisfied “wherever the subcontracted work [is] an obligation assumed by a principal contractor under his contract with the owner.” Jamison v. Westinghouse Electric Corp., 375 F.2d 465, 468 (3d Cir.1967); Werner v. Big Sky Shop, 630 F.Supp. 444, 447 (E.D.Pa. 1985). See also: Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920); Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 231 A.2d 894 (1967). Thus, Driscoll was a statutory employer if it had contracted with the owner to do work which included the structural concrete work and thereafter subcontracted that work to the subcontractor who was O’Boyle’s employer.

O’Boyle argues that by the terms of the contract between the owner and Driscoll, the latter was not denominated a general contractor but merely a construction manager. However, the Supreme Court, in Capozzoli v. Stone & Webster Engineering Corp., 352 Pa. 183, 42 A.2d 524 (1945), declared that the nomenclature used by the parties is not controlling. Instead, to determine whether a statutory employer relationship existed, it is necessary to examine and construe the agreement between the parties. Id., 352 Pa. at 186-187, 42 A.2d at 525. In the instant case, therefore, it is essential that we examine the written contract between Driscoll and the owner to determine whether it obligated Driscoll to construct the project.

An examination of the contract between the owner and Driscoll makes it clear that Driscoll’s obligation was to complete construction of the entire project. The work which is the subject of the contract is defined as “the completed construction performed by the Construction Manager with his own forces or required by a Trade Contractor’s contract and includes all labor necessary to produce such construction required of the Construction Manager or a Trade Contractor, and all the materials and equipment incorporated or to be incorporated in such construction.” General Conditions for Owner-Construction Manager

Agreement, Article 1, Section 1.1.3. The trial court observed further as follows:

The contract between Driscoll and River’s Edge is essentially a form document entitled “Standard Form of Agreement Between Owner and Construction Manager” drafted by The Associated General Contractors of America. Article 1 of the contract between River’s Edge and Driscoll defines the “Construction Team” as consisting of “the Construction Manager, the Owner and the Architect/Engineer.” It goes on to say that “the Construction Manager shall provide leadership to the Construction Team on all matters relating to construction.” Later in Article 2, Section 2.1.7 (Construction Manager Services), the contract details that in relation to project control the construction manager is to monitor the work of the trade contractors (subcontractors) and coordinate the construction team to complete the project in accordance with the owner’s objectives of cost, time and quality.
[I]n Article 4, Section 4.1 of the contract ... the language indicates that the parties contemplated Driscoll’s use of its own work force in whole or in part. Section 4.1 provides that “all portions of the work that the Construction Manager does not perform with his own forces shall be performed under Trade Contracts.”
Additionally, the Amendments to the Contract dated August 14, 1980, fix a Guaranteed Maximum Price for the Project. A bonus is offered to the Construction Manager, Driscoll, if the cost of construction is less than estimated. In providing this incentive, the developer anticipates Driscoll was responsible for completing the project.

Moreover, Article 6, Section 6.2 of the contract provides that the trade contracts are to be entered directly with the construction manager, or, if not entered directly with the construction manager, they shall contain provisions necessary to allow the construction manager to control the performance of the work.

From an independent review of the contract, we are led inevitably to the conclusion that Driscoll assumed responsibility for construction of the River’s Edge project. Additional support for this conclusion appears in deposition testimony given by Thomas J. Tobin, Driscoll’s president, and James J. Donnelly, Driscoll’s senior vice president. Both Tobin and Donnelly testified that Driscoll had been hired to build the River’s Edge project and was responsible for its construction. They also testified that Driscoll had entered into contracts with the various subcontractors who had performed the actual construction, and that in essence there was no difference between a construction manager and a general contractor. Finally, in the subcontract between Driscoll and Hoffer, Driscoll was referred to as the contractor and Hoffer as the subcontractor. Hoffer agreed to “faithfully comply with [the] Principal Contract insofar as the same relates to the Subcontract work and hereby does assume in regard thereto all the obligations and responsibilities, which the Contractor, by the Principal Contract, has undertaken toward the Owner.”

After having carefully reviewed the pleadings, documentary evidence, and deposition testimony in the instant case, we conclude that there is no genuine issue of material fact as to Driscoll’s status. Driscoll was a statutory employer. Therefore, it was entitled to judgment as a matter of law.

O’Boyle argues in his brief that extending statutory employer status to Driscoll will defeat the real purpose of the rule, which is to protect the injured worker’s remedy under the Workmen’s Compensation Act. Inasmuch as appellant’s employer (Hoffer) had the necessary compensation coverage and in fact its insurance carrier is paying benefits to appellant, O’Boyle contends, Driscoll should not be allowed to benefit from statutory employer status when it is not obligated to pay benefits. The same argument, however, has been twice rejected by this Court. See: Bartley v. Concrete Masonry Corp., supra; Cranshaw Con struction, Inc. v. Ghrist, supra. See also: Werner v. Big Sky Shop, supra. It is an argument which more properly should be directed to the legislature.

The order entering summary judgment is affirmed.

      . O’Boyle has been receiving workmen’s compensation benefits from the carrier for Robert G. Hoffer Company.

      . The task of interpreting a contract is generally a question of law to be decided by a court rather than a jury. See: Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983); Kardibin v. Associated Hardware, 284 Pa.Super. 586, 595, 426 A.2d 649, 654 (1981); National Products Co., Inc. v. Atlas Financial Corp., 238 Pa.Super. 152, 158, 364 A.2d 730, 733 (1976). The parties in the instant case are agreed that it was the trial court’s function to determine the legal effect of the contract.


author: POPOVICH, Judge:

text:
    538 A.2d 919
    COMMONWEALTH of Pennsylvania, Appellant v. Robert W. BRAUER.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1988.
    Filed March 11, 1988.

      Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellant.
    Vincent Iannello, Jr., Media, for appellee.
    Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Delaware County by the Commonwealth/appellant placing Robert Brauer/appellee on probation without a verdict for violating 75 Pa.C.S. § 3731 (Driving Under the Influence of Alcohol or a Controlled Substance). We reverse.

The facts are not in dispute and reveal that on July 30, 1986, the appellee was travelling on East 10th Street in Marcus Hook, Pennsylvania. He was stopped by the police and asked to produce a driver’s license and owner’s card. A computer check of the appellee’s license indicated that it was suspended.

After speaking with the appellee and detecting an odor of alcohol on his breath, the police officer placed him under arrest for driving under the influence of alcohol or controlled substance and driving with a suspended license. A charge of possession of a controlled substance was added pursuant to an inventory search of the vehicle which disclosed one $20.00 bag of POP (Phencyclidine). A complaint listing the aforementioned charges, save for the charge of driving with a suspended license which was later withdrawn, was filed on July 1, 1986.

Approximately one week later, the appellee was arrested for selling drugs to an undercover state trooper. Thereafter, on May 20, 1987, a pre-trial hearing for a consolidated disposition of both cases under Section 17 of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-117) took place. At that time, the appellee presented the testimony of Barbara Van Lenten, an addiction counselor and psychiatric social worker. Her evaluation of the appellee lead her to conclude that he was a “poly-substance abuser”. As a result thereof, she recommended that the court place the appellee in a drug treatment program for sixty (60) days of in-patient treatment with intensive out-patient follow-up.

The Commonwealth objected to this disposition of the drunken driving charge, pointing out to the court that the penalty for driving under the influence was not discretionary, but, rather, it was mandated by statute, i.e., it required imprisonment and not probation. Nonetheless, the court granted the appellee’s motion for probation without verdict and entered the order from which this appeal is taken.

The sole issue raised for our consideration is whether the court below erred in placing the appellee on probation without verdict for the offense of driving while under the influence of alcohol or controlled substance.

In Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986) our Supreme Court addressed the question of whether the penalty phase of § 3731 was mandatory or discretionary, and, in that context, whether the legislature had the authority to remove from the court the right to suspend sentence and impose probation. In concluding that the Municipal Court was correct in vacating its original sentence of one year’s probation and imposing in its stead a sentence of 48 hours’ to IIV2 months’ imprisonment and a $300.00 fine upon first offenders under § 3731, the rationale for the course pursued was stated as follows:

Having closely examined the penalty provisions of section 3731, we are satisfied that the aforementioned provisions are clear and free from ambiguity. Section 3731(e)(l)(i) explicitly provides that “... the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment____” (Emphasis added.) 75 Pa.C.S. § 3731(e)(l)(i). The word “shall” as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 417 Pa. 299, 208 A.2d 271 (1965); National Transit Co. v. Boardman, 328 Pa. 450, 197 A. 239 (1938). We find no basis for a contrary interpretation of the word “shall” in the context of section 3731.
Moreover, subsection (e)(3) of section 3731 provides: (3) The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supercede the mandatory penalties of this section.

(Emphasis added.) 75 Pa.C.S. § 3731(e)(3). Thus, the statute itself explicitly states that the sentences specified are “mandatory.” In addition, the legislature not only has established specific penalties for violators of section 3731, but has provided also a mechanism under section 3731(e)(4) whereby “[t]he Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section.” In view of the long-standing judicial policy of limiting review of the sentencing discretion in this Commonwealth, the express provision for a direct appeal for the sole purpose of challenging a sentence is a clear expression of this legislative intent to make these minimum provisions mandatory. See Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974); Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973); Commonwealth v. Brown, 443 Pa. 274, 278 A.2d 170 (1971); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Marks, 442 Pa. 208, 275 A.2d 81 (1971).

Finally, the argument that “shall” be construed as merely directory is inconsistent with the meticulous scheme provided for directing the sentencing decision in these cases. Such an interpretation would render this language totally unnecessary if the legislature had intended the traditional judicial exercise of discretion to prevail in these cases. Moreover, the express purpose of providing more stringent penalties for violating these provisions would be rendered virtually illusory.

513 Pa. at 43, 518 A.2d at 1148 (Footnotes omitted; emphasis in original). More particularly, as is relevant to the case at bar, we find the ruling of Commonwealth v. Waters 361 Pa.Super. 154, 522 A.2d 60 (1987) to be most instructive.

In Waters, the appellee was charged with violating § 3731. A plea of nolo contendere and an adjudication of guilty followed. Even though the appellee had been placed on the Accelerated Rehabilitative Disposition (ARD) program on a previous occasion for violating § 3731, the trial court sentenced him to six (6) months probation under the provisions of 35 P.S. § 780-118(f), instead of a mandatory minimum prison term of 30 days as is required by § 3731(e)(1)(h) for repeat offenders.

The Commonwealth appealed to Superior Court, which, after citing Sojourner and language therein similar to that quoted at bar previously from that ruling, held that Section 18 did not preempt the mandatory sentencing provisions of § 3731; in particular:

Section 18 applies to all “non-violent,” drug or alcohol dependent offenders. On the other hand, section 3731 applies specifically to “drunk drivers” — it defines the crime defendant committed and -the penalty, a mandatory minimum sentence of imprisonment. The drunk driving Law is hardly a general sentencing provision as appellee contends. A specific, newly enacted statute such as section 3731, applying only to drunk drivers and providing for a mandatory minimum sentence for the specific offense of drunk driving, must be construed to take precedence over Section 18, a more general statute enacted over ten years before section 3731, permitting suspension of sentence and imposition of probation for drug or alcohol dependent offenders, convicted of any non-violent crime. See 1 Pa.C.S.A. §§ 1933, 1936.
Finally, construing Section 18 to be wholly inapplicable to persons convicted of drunk driving pursuant to section 3731 does not result in the repeal of Section 18 by implication, as appellee contends. On the contrary, under such a construction of the two statutes, Section 18 continues to apply in full force and effect to all drug or alcohol dependent, non-violent offenders. It simply does not, and should not, apply to drunk drivers.

361 Pa.Super. at 159, 522 A.2d at 63.

Instantly, the appellee sought to avoid incarceration for his drug and motor vehicle violations by proceeding under 35 P.S. § 780-117, which provides:

A person may be entitled to probation without verdict under the following circumstances:
(1) A person who has not previously been convicted of an offense under this act or under a similar act of the United States, or any other state, is eligible for probation without verdict if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act. The court may, without entering a judgment, and with the consent of such person, defer further proceedings and place him on probation for a specific time period not to exceed the maximum for the offense upon such reasonable terms and conditions as it may require.
Probation without verdict shall not be available to any person who is charged with violating clause (30) of subsection (a) of section 13 of this act and who is not himself a drug abuser and who does not prove the fact of such drug abuse to the satisfaction of the court.
(2) Upon violation of a term or condition of probation, the court may enter a judgment and proceed as in any criminal case, or may continue the probation without verdict.
(3) Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever, including the penalties imposed for second or subsequent convictions: Provided, That probation without verdict shall be available to any person only once: And further provided, That notwithstanding any other provision of this act, the prosecuting attorney or the court, and the council, shall keep a list of those persons placed on probation without verdict, which list may only be used to determine the eligibility of persons for probation without verdict and the names on such lists may be used for no other purpose whatsoever.

The Act of April 14, 1972, as amended, October 26, 1972, P.L. 1048, No. 263, § 1 (1977).

Section 17, as is the case with Section 18, applies to “non-violent” offenses committed under The Controlled Substance, Drug, Device and Cosmetic Act. Both sections afford an accused the opportunity to avoid imprisonment and being stigmatized with a criminal record upon successful completion of the terms of probation in the former and an institutionalized drug program in the latter. However, under subsection (f) of Section 18, an accused, even after conviction, can avoid punishment by requesting probation with treatment of his/her drug addiction.

Given the similarity in objectives and non-confinement options available to a court in imposing punishment in lieu of a prison term under Sections 17 and 18, we can fathom no reason not to adhere to the precedential effects of Waters, supra.

Moreover, Sojourner makes it quite clear that the sentencing provisions of § 3731 are not to be imposed at the whim of the court; they are mandatory. No less is such a requirement to be carried out because it is juxtaposed with the availability of, e.g., a probation without verdict under The Controlled Substance, Drug, Device and Cosmetic Act.

Thus, we now extend the Waters rationale, holding that Section 18 did not take priority over or subsume § 3731’s penalty provisions, to Section 17 so as to require that the penalty aspect of § 3731 be complied with and not be side-stepped under the guise of the probationary provisions of Section 17.

To do as the appellee would advise, i.e., uphold the court action below, would constitute an unequal treatment of those individuals merely charged with a motor vehicle violation of driving while intoxicated vis-a-vis those charged with multiple offenses of The Motor Vehicle Code and The Controlled Substance, Drug, Device and Cosmetic Act. In the latter circumstance, one could conceivably have all of the offenses resolved without the imposition of a prison term, as occurred here, by seeking relief under Section 17. Whereas an individual charged with violating the Vehicle Code, e.g., driving while intoxicated, and who does not secure admission to an ARD program is subject to a potential jail term, the length of which depends upon his status as a recidivist.

We do not believe that the legislature intended such a disparate result under the law, and the decision in Waters, supra, bears this out. Furthermore, the statute in question (§ 3731) is unequivocal in mandating that a jail term be imposed, absent, of course, the district attorney allowing an accused to be admitted to an ARD program.

Accordingly, based on the preceding, we reverse the actions of the court below as to the probationary term issued for violation of § 3731 and remand for entry of a sentence complying with the dictates of § 3731(e).

Judgment reversed and case remanded for proceedings not inconsistent with the opinion herein written. Jurisdiction is relinquished.

ROWLEY, J., concurs in the result.

      . This appeal by the Commonwealth is authorized under 75 Pa.C.S. § 3731(e)(4) (Supp.1987).

      . § 780-118(f) reads:
      (f) If, after conviction, the defendant requests probation with treatment or civil commitment for treatment in lieu of criminal punishment the court may appoint a qualified physician to advise the court in writing whether it would be preferable for the purposes of treatment and rehabilitation for him to receive a suspended sentence and probation on the condition that he undergo education and treatment for drug abuse and drug dependence, or to be committed pursuant to the Mental Health and Mental Retardation Act of 1966 for treatment in lieu of criminal punishment, or to receive criminal incarceration. A copy of the physician’s report shall be furnished the court, the defendant and the government attorney. The court shall exercise its discretion whether to accept the physician’s advice.
      The Act of April 14, 1972, as amended, October 26, 1972, P.L. 1048, No. 263, § 1, 35 P.S. § 780-118(f) (1977).


author: CERCONE, Judge:

text:
    538 A.2d 923
    ESTATE OF David A. BRUCE, Deceased. Appeal of Betty BRUCE.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed March 11, 1988.

      James G. Nealon, III, Harrisburg, for appellant.
    Jan M. Wiley, Dillsburg, for appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the Orphans Court of Cumberland County which, pursuant to the Probate Estates and Fiduciaries Code, 20 Pa.C.S.A. § 2211(a), denied appellant, Betty Bruce, wife of the decedent, her election against two tracts of land owned by the decedent and his paramour.

The facts as stipulated to by the parties discern that Betty and David Bruce were husband and wife who separated in 1972 but never divorced. In 1977 David Bruce entered into a marriage ceremony with Ruth Bruce who had no knowledge at that time that David was already married. During the course of their relationship David and Ruth purchased two tracts of land in Cumberland County, the deeds to which describe the grantees as “David A. Bruce and Ruth E. Bruce, his wife”. In 1983, David Bruce died testate leaving his entire estate to Ruth. Upon David’s death, Betty Bruce, the lawful widow, filed a petition to elect to take against David’s will and a petition to determine her elective share of his estate. The primary issue is the right of David’s lawful wife Betty in the two tracts of land in Cumberland County purportedly held as entireties property by David and Ruth Bruce. The lower court determined that since the two tracts of land purchased by David and Ruth Bruce during the term of their relationship could not be entireties property they were joint tenancies with right of survivorship and therefore passed to Ruth Bruce. Betty Bruce filed exceptions to the court’s findings which were denied. This timely appeal followed.

We are to determine whether or not the lower court erred in construing the deeds to the two tracts of land in the name of “David A. and Ruth E. Bruce, his wife” as creating joint tenancies with right of survivorship rather than tenancies in common.

In this context we refer to the legal principle which holds that one can be married to only one person at a given time and any attempted remarriage to another while the marriage is valid is void. See Watt Estate, 409 Pa. 44, 185 A.2d 781 (1962). Accordingly, in conveyances of land, a tenancy by entirety can only be created when a valid marriage exists between two parties since the basis of this conveyance is the common law concept of the unity of husband and wife. Consequently, two grantees or devisees not husband and wife, regardless of whether they are so designated in the deed, cannot take as tenants by the entireties. See Ladner on Conveyancing in Pennsylvania, § 1.08 (Clark et al. 4th ed. 1979).

It is also well established that an estate in two or more grantees, not husband and wife, creates a joint tenancy. At common law such a tenancy was favored and the doctrine of survivorship was a recognized incident to this estate.

Under the Act of 1812, Act of March 31, 1812, P.L. 259 (1972), the incident of survivorship in joint tenancies was removed unless the instrument creating the estate expressly provided that it should apply. The Act of 1812 does not forbid creation of a joint tenancy with right of surroundings if the language creating it clearly expresses that intent. See Ladner, supra; Zomisky v. Zamiska, 449 Pa. 239, 296 A.2d 722 (1972).

David Bruce’s marriage to Betty was never legally dissolved, and, consequently, his subsequent marriage to Ruth was void. Therefore, the deeds to the property in Cumberland County which conveyed land to David and Ruth, his wife could not convey an entireties estate. It was incumbent on the court to determine exactly what estate existed. In its opinion in support of finding that the deeds conveyed a joint tenancy with right of survivorship the court below stated:

In the matter sub judice, Ruth Bruce and David Bruce entered into a marriage although the marriage was void. Specifically, Ruth Bruce had no knowledge at the time of her marriage to David Bruce that her husband was still validly married to another. In fact, she did not learn of the existing marriage to Betty Bruce until the filing of the instant action. Therefore, there is proof in the record of this case, that, at least insofar as Ruth Bruce was concerned, there was no pretense to the marital relationship described in the deed’s grantee designation ... she took title assuming and intending all the incidents of marriage, including survivorship ... Common sense, therefore, dictates that he [David Bruce] intended to take title in the same way. The intention of the grantees, being therefore clear, we find that the subject property was owned by the decedent and Ruth Bruce as joint tenants with the right of survivorship.

The lower court assumed a survivorship right where none was provided in the deed. In support of its conclusion the lower court relied on the seminal case of Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948). In Maxwell, Emma Saylor and Raymond Maxwell lived together as husband and wife although they were not married. Emma owned a boarding home which she sold and with the proceeds purchased a smaller residence in which she and Maxwell lived. When the smaller residence was purchased, title was taken in the name of Raymond Maxwell and Emma Maxwell, “his wife”, and the grant was to them “their heirs and assigns, as tenants by the entireties”. The purchase price was $3250.00 of which Emma paid $200.00 in cash. She and Raymond also gave a note for $800.00 and signed a bond and mortgage for the remaining $2250.00. Subsequently, Emma paid the $800.00 monthly installments as well as all the interest on the mortgage. Raymond made no contribution whatever to the purchase price. When he died, his wife and daughter brought a bill in equity for partition on the theory that, as his heirs, they were the owners of an undivided one-half interest in the property. In light of these facts the Maxwell court opined:

The question here is: What is such appropriate form of tenancy? This depends entirely upon the intention of the parties, which is the ultimate guide by which all deeds must be interpreted: Hindman v. Farren, 353 Pa. 33, 44 A.2d 241 [1945]. Their declared intention was to own the property as tenants by the entireties, which is an estate “per tont et non per my”. This was equivalent to stating in so many words that they desired to establish a right of survivorship: Michael v. Lucas, 152 Md. 512, 137 A. 287 [1927]; Mitchell v. Frederick, 166 Md. 42, 170 A. 733 [1934]. Therefore joint tenancy with the right of survivorship, an estate “per my et per tont” — best effectuates their intention to the extent legally permissible, that being the form of tenancy for unmarried persons most nearly resembling the tenancy by the entireties enjoyed by husband and wife, since in both instances the survivor takes the whole.

Maxwell v. Saylor, 359 Pa. at 96-97, 58 A.2d at 356.

We believe that the lower court’s reliance on Maxwell is misplaced as there the court interpreted a grant to Raymond Maxwell and Emma Maxwell, “his wife” “their heirs and assigns, as tenants by the entireties.” In our instant case the deed was to David A. and Ruth E. Bruce, “his wife” and no words of limitation followed the grant. Thus, the facts herein are akin to those in Teacher v. Kijurina, 365 Pa. 480, 76 A.2d 197 (1950). In that case Nick Kijurina and Sarah Jaic lived together as man and wife for about 18 years. She was known by the name of Sarah Kijurina. They were in fact not married. They lived together on a farm in Westmoreland County, title to which they had acquired in 1935, by conveyance to them in the names “Nick Kijurina and Sarah his wife”. Thereafter, they acquired certain other real estate in a like manner. Sarah predeceased Nick leaving a will by which she specifically devised the real estate in question to her sister, brother-in-law, nephew and niece. The executrix of her estate filed a bill in equity against Nick alleging that she was denied access to the farm in which she claimed her decedent has a half interest in common. The principal question in Kijurina was whether the real estate acquired by a deed in which the granting clause merely named the grantees as “Nick Kijurina and Sarah Kijurina, his wife” operated to convey an estate of tenancy in common or vested an estate with incident of survivorship in the nature of a joint tenancy. The lower court, in light of the testimony produced as to who paid the purchase price, ruled the estate was one of survivorship and thereupon dismissed appellants’ bill. The Supreme Court reversed, stating:

[Although a deed under such circumstances (where made to a man and woman not husband and wife) is ineffective to create a tenancy by the entireties, it is not wholly invalid, there being no reason why the grantees like any other two persons cannot take title in some form of dual ownership appropriate under the circumstances. The question then resolves itself to the narrow question, What is appropriate under the circumstances? As in cases of this kind, whether parties honestly believe they are husband and wife or merely live in a meretricious relationship and hold themselves out as husband and wife as a concession to public opinion or decency, must be decided solely on the language of the deed.
If we regard the addition of the words “his wife” as mere description or surplusage because of the settled rule that that word cannot operate to create a tenancy by entireties unless the pretended relationship is one of truth and fact, then at common law such a conveyance would have been construed as a joint tenancy. But the common law rule was changed by the Act of 1812, 5 Sm.L. 395, 20 P.S. 121. This Act has been consistently construed as abolishing the incident of survivorship but not as forbidding the creation of an estate with the same attribute of survivor-ship as a joint tenancy at common law: Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 A. 487 (1903). And the Act applies to both personal as well as real property: Yard’s Appeal, 86 Pa. 125 (1878).
It is perhaps a confusion of terms and an inaccuracy to say that a joint tenancy in real estate may still be created; it is more accurate to say that the right of survivorship may be engrafted on a dual estate which might otherwise be a tenancy in common. But to do so that intent must clearly appear in order to overcome the presumption arising from the statute that survivorship is not intended. In the Redemptorist Fathers case (supra) that intent was found from the words conveying to the grantees “as joint tenants and not as tenants in common.”
[So] in Maxwell v. Saylor, supra, there was added to the names of the parties who were not husband and wife, the words “their heirs and assigns, as tenants by the entire-ties.” “This”, said Mr. Justice Horace Stern, “was equivalent to stating in so many words that they desired to establish a right of survivorship.” To which we now add and therefore sufficient to satisfy the requirements of the Act of 1812 ...
In the case before us there is no such indication of intent. Of course it is arguable that the mere use of the words “his wife” of itself would imply an intent to create an entireties estate. And it is true that if such language without more were used to convey to grantees who were in fact husband and wife, an estate by entireties would be created. But we cannot carry the implication of intent that far in a case where the parties are not married for they may have been motivated solely by a desire to make a public record conform to the pretended relationship. We cannot safely infer therefore that an estate by entire-ties was intended by these parties. Hence the clear expression of intent necessary to satisfy the Act of 1812 is lacking. In Maxwell v. Saylor we went as far as we could go and that case must not be extended beyond its facts, (emphasis in the original)

Id., 365 Pa. at 487-89, 76 A.2d at 201-02. See also, First Federal Savings and Loan Association of Greene County v. Porter, 408 Pa. 236, 183 A.2d 318 (1962). Accordingly, under language in a deed, identical in effect, to that in the instant case, to wit to “David A. Bruce and Ruth E. Bruce, his wife,” the court in Kijurina determined that the estate was a tenancy in common.

The deeds in this case were grants to “David A. Bruce and Ruth E. Bruce, his wife” and attempted to convey a title which cannot be conveyed since the grantees were not married to each other. There are no words in the deeds to which meaning can be given that would enable us to conclude that the parties intended a joint tenancy with right of survivorship. See Maxwell, supra. Therefore, we find this case is on point with Kijurina, supra. The deeds here lack the specificity necessary to create a survivorship right and the facts present on the record do not disclose that the intent of David Bruce was to do so. In construing a deed, it is not what the parties may have intended by the language used but what is the plain meaning of the words. Kijurina, supra. Thus, we hold that the deeds to the properties in Cumberland County conveyed to David and Ruth Bruce a tenancy in common, the attribute of which is that each tenant holds an undivided interest in the property and that interest does not terminate upon the death of one of the tenants.

Hence, we remand this case to the court below for a finding as to the interests of David and Ruth Bruce in the properties and their monetary value. The interest belonging to David shall then pass through his estate and be subject to the elective share of Betty Bruce.

The order of the court below is reversed and this case is remanded for findings consistent with this opinion. Jurisdiction relinquished.


author: OLSZEWSKI, Judge:

text:
    538 A.2d 927
    Laverne LAUGHLIN, Appellee, v. John J. LAUGHLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1988.
    Filed March 7, 1988.

      John E. Nickoloff, Pittsburgh, for appellant.
    Daniel P. McDyer, Pittsburgh, for appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   OLSZEWSKI, Judge:

Appellant (husband) appeals from the trial court’s order holding him in contempt of court. In this appeal, appellant presents three issues for our review: (1) whether the trial court erred by holding appellant in contempt of court for failing to comply with a trial court order; (2) whether the trial court erred by attaching appellant’s wages to enforce a court order solely for the payment of equitable distribution; and (3) whether the trial court erred by directing appellant to pay counsel fees. For the reasons stated below, the order of the trial court is affirmed in part and reversed in part.

The parties were married in April of 1960. In August of 1984, the trial court entered a bifurcated decree divorcing the parties and referring the economic issues to a master. After conducting a hearing, the master filed his recommendation and report. Appellee (wife) subsequently filed exceptions to the master’s report. On January 12, 1987, the trial court adopted the master’s findings and recommendations and entered a final decree disposing of the economic issues. Neither party appealed from this order.

On March 10, 1987, appellee filed a petition for the attachment of wages and a rule to show cause why appellant should not be held in contempt for his failure to pay appellee the monies owed to her pursuant to the trial court’s order of January 12, 1987. A rule was issued which was returnable on April 21, 1987, at which time the trial court conducted a hearing and ordered the attachment of appellant’s wages and the execution of a beneficiary designation form for a life insurance policy issued on the life of appellant (the requirement of a life insurance policy was directed by the trial court in paragraph 2 of its January 12, 1987 order). Appellant appeals from the trial court’s order of April 21, 1987.

Appellant first contends that the trial court erred by holding appellant in contempt of court for failing to comply with the trial court’s order of January 12, 1987. The general rule regarding civil contempt cases is that the complaining party has the burden of proving noncompliance with the court order by a preponderance of the evidence, and that present inability to comply is an affirmative defense to be proved by the contemnor. See In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Super. 43, 379 A.2d 323 (1977). In considering an appeal from a contempt order, this Court must place great reliance on the sound discretion of the trial judge. See Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Super. 400, 469 A.2d 682 (1983). Instantly, appellant argues that the trial court erred in holding him in contempt for his failure to comply with the January 12, 1987 order since that order did not impose a time constraint on appellant regarding compliance. We disagree. Paragraph 2 of the trial court’s order provided as follows:

The Wife is awarded the sum of NINETEEN THOUSAND ($19,000.00) DOLLARS, which sum represents one-half (V2) of the stipulated value of the Husband’s pension. In the event that the Husband is unable to pay said sum in its entirety, then the Husband shall issue to the Wife a Judgment Note in the sum of NINETEEN THOUSAND ($19,000.00) DOLLARS at an interest rate of one point above the prime rate established by Mellon Bank, N.A., as of the date of the execution of said Note. Equal monthly payments shall be made for sixty (60) consecutive months with the balance due with the last payment. Upon the death of the Husband, any and all sums are due and payable. Husband shall secure said Note with a policy of life insurance or other such securities acceptable to the Wife.

Trial court order of January 12, 1987. Appellant did not appeal from this order and it became a final order. Nearly two months later, appellee initiated contempt proceedings against appellant for noncompliance with the order. As the trial court aptly stated in its opinion:

The mere fact that no date was entered in this Order does not relieve the Husband of his responsibility to comply with this Order. The Husband has accepted the Order as final and he cannot choose to ignore responsibilities imposed upon him. The Husband was given the opportunity to choose the method by which he could discharge his obligation to the Wife; however, he chose to do nothing and wishes this Court to condone that decision. Certainly the period of time from the date of the entry of that Order until the contempt hearing was more than suffident for the Husband to dedde whether or not to make a lump sum payment to the Wife or to issue a judgment note to her. In failing to do either, the Husband demonstrated a blatant disregard for this Court’s Order thus subjecting him to the sanctions which were imposed upon him.

Trial court opinion of July 17, 1987 at 4. Accordingly, we find that the trial court did not abuse its discretion by finding appellant in contempt for failing to comply with the trial court’s order.

Appellant’s next contention is that the trial court erred by attaching appellant's wages to enforce a court order solely for the payment of equitable distribution. Specifically, appellant maintains that monetary judgments only for child or spousal support, and not for equitable distribution, may be enforced through wage attachment. We agree. Section 8127 of the Judicial Code explicitly states that:

§ 8127. Personal earnings exempt from process
The wages, salaries and commissions of individuals shall while in the hands of the employer be exempt from any attachment, execution or other process except upon an action or proceeding:
(1) For support.
(2) For board for four weeks or less.
(3) Under the act of August 7, 1963 (P.L. 549, No. 290), referred to as the Pennsylvania Higher Education Assistance Agency Act.

42 Pa.C.S.A. § 8127 (footnote omitted). Equitable distribution is not a form of support. Support, child or spousal, assures a reasonable living allowance to the party requiring support. See Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987). The essence of the concept of equitable distribution, on the other hand, is not one of sustenance, but rather, is the division by the trial court of the parties’ marital property “in such proportions as the court deems just.” See Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982); 23 Pa.S.A. § 401(d). We, consequently, find that the trial court erred when it attached appellant's wages in order to fulfill appellant’s obligation under the trial court’s order of equitable distribution of January 12, 1987.

Appellant’s final contention is that the trial court erred by directing appellant to pay counsel fees incurred by appellee in enforcing the trial court’s January 12, 1987 order. It is well-settled that attorneys’ fees necessitated by another party’s civil contempt are recoverable as special damages in a proceeding for civil contempt. See Commonwealth ex rel. Novack v. Novack, 310 Pa.Super. 112, 456 A.2d 208 (1983). Accordingly, appellant’s contention must fail.

Order affirmed as to the finding of appellant in contempt of court and directing appellant to pay counsel fees; order reversed as to the attachment of wages. Jurisdiction is relinquished.

      . We note that both the trial court and appellee rely on §§ 401(b) and 401(c) to support the position that a trial court has the power to attach wages in order to enforce an order of equitable distribution. These subsections provide as follows:
      (b) Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment. The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own cost, or may order that cost be divided equitably as it shall appear just and reasonable.
      23 Pa.S.A. § 401(b).
      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 and 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.
      23 Pa.S.A. § 401(c).
      While a literal reading of these subsections suggests that the trial court does possess the power to attach wages in order to enforce an order of equitable distribution, we find that such an interpretation was not intended by our legislature. Rather, in Section 8127 of the Judicial Code, our legislature specifically addressed the limited circumstances under which a trial court would be allowed to attach one’s personal earnings. See 42 Pa.C.S.A. § 8127. In reconciling 23 Pa.S.A. § 401(b), (c) with 42 Pa.C.S.A. § 8127, we are guided by the Statutory Construction Act which provides in pertinent part as follows:
      § 1933. Particular controls general
      Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
      1 Pa.C.S.A. § 1933. While 23 Pa.S.A. § 401(b) and (c) generally discuss a trial court’s powers in matrimonial matters, 42 Pa.C.S.A. § 8127 specifically delineates the circumstances under which a trial court may properly attach one’s wages. Section 401(b) and (c) of the Divorce Code was enacted in 1980 while Section 8127 of the Judicial Code was amended in 1982. We, consequently, conclude that 42 Pa.C.S.A. § 8127 controls in determining whether one’s wages may be attached by a trial court.