author: POPOVICH, Judge:

text:
    487 A.2d 385
    UNITED NATIONAL INSURANCE CO. and Amherst Insurance Company and Northeastern Fire Insurance Co. v. M. LONDON, INC., Lewis Feldman and Jennie Feldman, His Wife and Paul London, Executor of the Estate of Louis London and Celia London v. Fred LOWENSCHUSS and Fred Lowenschuss Associates, Appellants v. COZEN, BEGIER & O’CONNOR.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1984.
    Filed Jan. 9, 1985.

      William D. Parry, Philadelphia, for appellants.
    Ronald B. Hamilton, Philadelphia, for United Nat., appel-lees.
    Gary A. Rochestie, Philadelphia, for London, appellees.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the orders of the Court of Common Pleas of Philadelphia County granting the preliminary objections of the plaintiffs (United National Insurance Co., Amherst Insurance Co. and Northeastern Fire Insurance Co.), the defendants (M. London, Inc., Lewis Feldman and Jennie Feldman, his wife, and Paul London, Executor of the Estate of Louis London and Celia London) and the defendant on the counterclaim (Cozen, Begier & O’Connor) and dismissing with prejudice the counterclaim of the additional defendant (Fred Lowenschuss) and Fred Lowenschuss Associates. We affirm and modify.

The facts, which are not without their legal and procedural complexities, are that the defendants’ business was damaged by fire and the plaintiffs paid for lk of the cost of the damage incurred. Consequently, the defendants retained additional defendant as counsel to sue the manufacturer of the appliance which allegedly caused the fire. The action proceeded to trial and a jury returned a verdict in favor of the manufacturer. Following this, the plaintiffs, represented by the defendant on the counterclaim, filed a complaint averring that the defendants’ institution of a lawsuit, without the plaintiffs’ knowledge or consent, against the manufacturer constituted a breach of the insurance contracts which worked an irrevocable prejudice to the rights and interests of the plaintiffs pursuant to their subrogation entitlement. (Paragraphs 19, 22 & 23) Thus, the plaintiffs sought to recoup the amount of insurance paid (plus interest) to the defendants under the policies.

Thereafter, the court extended, pursuant to a stipulation between counsel for the plaintiffs and defendants, the time within which the defendants could join Fred Lowenschuss as an additional defendant. What followed was the filing of a complaint accusing the additional defendant of being incompetent, grossly negligent and acting in total disregard of the defendants’ instructions in not advising them of and contesting the plaintiffs’ petition to intervene at trial. They sought in excess of $10,000 in damages and averred that the additional defendant was solely liable to the plaintiffs, jointly liable with or liable over to the defendants.

In February or March of 1980, the additional defendant filed preliminary objections to the defendants’ complaint, which were sustained by the court by order dated February 5, 1982. Additionally, in the same order, defendants were granted leave again to join Fred Lowenschuss as an additional defendant, with the further requirement that they allege with particularity their contract with the additional defendant and his negligent conduct in connection therewith.

It warrants mentioning that in the 2-year span between the filing of the additional defendant’s preliminary objections and the issuance of an order thereon, numerous documents appear of record which reveal a continuing dialogue solely among the plaintiffs, defendants and additional defendant, Fred Lowenschuss.

In compliance with the court’s February 5, 1982 order, the defendants filed an amended complaint joining additional defendant. It stated, in pertinent part, that the attorney-client relationship was the product of a contingent fee agreement which provided that:

b) [Fred] Lowenschuss would be responsible for all costs involved in instituting, maintaining, trying and, if necessary, appealing the Fedders [A]ction[ — the manufacturer against whom suit had been filed for the damages incurred at the defendants’ business], including but not limited to filing costs, costs of depositions, costs of lay and expert witnesses, and costs of reproducing the record on appeal.
c) in the event there was a recovery in the Fedders Action, Lowenschuss would be reimbursed for all sums expended by him for costs out of proceeds recovered, with the balance of the recovery being divided between Lowenschuss and London [-defendants] as set forth in the Contingent Fee Agreement; and
d) in the event that there was not a recovery in the Fedders Action, Lowenschuss would not be reimbursed for the costs expended by him or the services rendered by him pertaining to the Fedders Action.

In the remaining portion of the amended complaint, the defendants recited those factors which it believed pointed to the additional defendant’s reckless and negligent handling of their lawsuit, and their entitlement to both judgment (in excess of $20,000) and indemnification from suit by the plaintiffs.

However, prior to the presentment of the aforementioned complaint, the additional defendant filed the “Counterclaim of Fred Lowenschuss and Fred Lowenschuss Associates Against Plaintiffs and Defendants”. Therein it was alleged that the law firm of Fred Lowenschuss Associates, which employed the additional defendant and other attorneys and law clerks, “performed legal services on behalf of the plaintiffs and defendants ... at various times” with regard to the handling of the Fedders Action. (Paragraph 2) In particular, it was alleged that the plaintiffs agreed in writing to pursue “no longer ... their attempt to intervene in the lawsuit, and that all out-of-pocket expenses and costs of said suit would be shared equally between the plaintiffs and defendants____” (Paragraph 5) Further, the additional defendant itemized the cost incurred by both he and his law firm in prosecuting the Fedders Action and the appeal therefrom, as well as the legal fees generated by having to defend against the plaintiffs attempt to intervene. Conduct which, the additional defendant argued, violated the plaintiffs’ agreement not to do so. (Paragraph 6)

Moreover, recovery by the additional defendant and Fred Lowenschuss Associates in the assumpsit counts (I, II & III) of the counterclaim was premised upon theories of implied contract, express contract and quantum merit. In the trespass count (IV), however, it was only the additional defendant who alleged injury by the plaintiffs and defendants for malicious use of process in instituting suit in bad faith and for purposes of harassment, seeking in excess of $20,000 as compensatory damages and an equal sum as punitive or exemplary damages for the time expended by he and his law firm in defending against the suit.

Shortly thereafter, the plaintiffs and defendants each filed preliminary objections similar in form and content, i.e., 1) in the nature of a motion to strike off pleading because of lack of conformity to law or rule of court; 2) raising the defense of lack of capacity to sue; 3) in the nature of a more specific pleading; 4) in the nature of a demurrer; and 5) attacking the form of service. The singular most relevant statement made in each document related to the claim that Pa.R.Civ.P. 1031 only permitted the filing of a counterclaim by a party of record. Since Fred Lowenschuss Associates was brought into the suit by the additional defendant by way of the counterclaim, it was a non-party to the litigation and, therefore, lacked the capacity to sue the plaintiffs or the defendants. (Paragraphs 16 & 18, respectively)

What followed was the filing of the additional defendant’s preliminary objections to the defendants’ amended complaint and the counterclaimants’ (additional defendant’s and Fred Lowenschuss Associates’) answer to each of the preliminary objections submitted by the plaintiffs and defendants to the counterclaim, wherein it was denied that Fred Lowenschuss Associates lacked the capacity to sue and that joinder was “proper in order to bring all proper parties before the Court and to avoid a multiplicity of suits.”

Thereafter, because no answer had ever been filed to the defendants’ amended complaint, the court granted the plaintiffs’ preliminary objections bringing this to the court’s attention, and, as a consequence, the additional defendant’s and Fred Lowenschuss Associates’ counterclaim was “dismissed without prejudice to their right to assert the counterclaim upon filing a timely answer to the defendants’ amended complaint.” See Pa.R.Civ.P. 1031(a) (“The defendant may set forth in the answer under the heading “Counterclaim” any cause of action ... against the plaintiff at the time of filing the answer.”); see also Pa.R.Civ.P. 1017(a). On the same date, the court entered a second order denying the additional defendant’s preliminary objections to the defendants’ amended complaint and granted the defendants’ preliminary objections in the nature of a demurrer to the additional defendant’s preliminary objections. Also, the court granted the additional defendant 20 days within which “to file an answer to the [defendants’] amended complaint or otherwise plead.”

In compliance with the aforesaid, the additional defendant filed an answer denying, inter alia, that the contingent fee agreement “provided that Lowenschuss would be responsible for all costs involved in instituting, maintaining, trying and, if necessary, appealing the Fedders [A]ction, including but not limited to filing costs, costs of depositions, costs of lay and expert witnesses, and costs of reproducing the record on appeal. On the contrary, it [was] averred that, although Attorney Lowenschuss might advance or guarantee such costs and expenses, London [defendants] at all times remained ultimately liable for such expenses----” (Paragraph 9) Further, “[i]t [was] admitted that Lowen-schuss ha[d] demanded and [was] still demanding that London reimburse him for the costs expended by him in connection with the Fedders Action.” (Paragraph 41) It was additional defendant’s position that the defendants were legally responsible for the costs and expenses of the litigation, notwithstanding that there was no recovery by the defendants in the Fedders Action.

Under new matter, the additional defendant merely parroted the allegations initially set forth in his preliminary objections to the defendants’ amended complaint (at Paragraphs 17-24) regarding the plaintiffs’ intervention action and the propriety of contesting same. Also, the additional defendant and Fred Lowenschuss Associates included in the answer a counterclaim against the plaintiffs, the defendants and, for the first time, the law firm of Cozen, Begier and O’Connor, counsel for the plaintiffs.

As in the original counterclaim, mention was made of the defendants retaining the additional defendant and Fred Lowenschuss Associates to represent them in the Fedders Action, the execution of a contingent fee arrangement with both and the additional defendant’s agreement to protect the plaintiffs’ subrogation interests in the matter. In a similar vein, the counterclaimants alleged that the law firm representing the plaintiffs agreed to discontinue their attempts to intervene in the Fedders Action, and that all costs of said suit would be borne equally by the plaintiffs and defendants. These agreements were not honored, according to the counterclaimants, and instances were cited to substantiate the alleged breaches. Likewise, the costs incurred as a result of the Fedders Action were being sought under 3 assumpsit counts based upon implied and express contracts and the equitable principle of quantum merit, with the trespass portion of the counterclaim reserved by the additional defendant for his malicious use of process charge against the plaintiffs, defendants and defendant on the counterclaim.

Each of the movants and the defendant on the counterclaim filed preliminary objections (5 counts) questioning, in essence, the capacity of Fred Lowenschuss Associates to sue, having never been made a party to the original action or joined by the defendants as an additional defendant, nor was there any evidence that it attempted to intervene in the litigation. See Pa.R.Civ.P. 2328; 8 Goodrich-Amram 2d, §§ 2328-2330. Also, the joinder of Cozen, Begier and O’Connor was assailed as violative of Pa.R.Civ.P. 1031.

Following the filing of answers by the counterclaimants, the court, by orders dated June 2, 1983, upheld the preliminary objections and, consequently, “dismissed with prejudice” the counterclaim. This appeal ensued and is properly before us for review. Broido v. Kinneman, 375 Pa. 568, 101 A.2d 647 (1954); 2 Goodrich-Amram 2d, § 1031(a):4 at 321 (“An order sustaining preliminary objections to a counterclaim is appealable. It puts the defendant out of court as far as the counterclaim is concerned, even though the validity of the plaintiffs claim is still undetermined.”).

We find, after sifting through the voluminous record, the central issue to be one of whether the efforts of the additional defendant in joining various parties to the lawsuit proved to be consonant with the Pennsylvania Rules of Civil Procedure. If not, the court’s orders granting the preliminary objections of the respective parties attacking the join-der were proper.

On this point, the court below took the position, in its opinion filed with us, that:

Although additional defendant and Fred Lowenschuss Associates argue that Fred Lowenschuss Associates and Cozer, [sic] Begier and O’Connor were properly a party to this action, after sedulous research, this Court has been unable to locate any legal basis for such a conclusion. Pa.Rules of Civil Procedure 1031, 2255 and 2256 deal with the procedure for an additional defendant to file a counterclaim. Pa.Rules [sic] of Civil Procedure 2328 deals with the method by which a party may intervene. However, there is no authority in statute or law for an additional defendant to join a non-party (Cozer, [sic] Begier and O’Connor) to an action by filing a counterclaim. Furthermore, there is no basis by which a non-party (Fred Lowenschuss Associates) may file a counterclaim.
By filing a counterclaim on behalf of Fred Lowen-schuss Associates and against Cozer, [sic] Begier and O’Connor the additional defendant has not evidenced any intention of complying with this Court’s Order, rather, they seem intent on pursuing the claim as originally filed. Therefore, this Court granted plaintiffs’], defendants’] and Cozer [sic], Begier and O’Connor’s preliminary objections.

Our review of the law is supportive of that portion of the court’s ruling dismissing the additional defendant’s joinder efforts and the succeeding Pennsylvania Rules of Civil Procedure are applicable to the determination made; e.g., Rules 2252 and 2253, which read:

Rule 2252. Right to Join Additional Defendants
(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.
(b) If the person sought to be joined is not a party to the action the joining party may file as of course a praecipe for a writ or a complaint. If the joinder is by writ the joining party shall file his complaint within twenty (20) days from the filing of the praecipe for the writ. The complaint, in the manner and form required of the initial pleading of the plaintiff in the action, shall set forth the facts relied upon to establish the liability of the joined party and the relief demanded.
* * * * *
(d) If the person sought to be joined is a party, the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint, assert in his answer as new matter that such party is alone liable to the plaintiff or liable over to the joining party or jointly or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor. The case shall proceed thereafter as if such party had been joined by a writ or a complaint.
Rule 2253. Time for Filing Praecipe or Complaint
Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

It is fairly deducible from the language of the rules just cited that, albeit Rule 2252 condones the “joining of any party” provided certain criteria are met, Rule 2253 specifically regulates the time-frame within which joinder must take place. Instantly, this translates into a finding that Fred Lowenschuss’ annexing of Cozen, Begier and O’Con-nor to the suit must fail, since the law firm representing the plaintiffs, not being an original party to the action, could only have been joined via a writ or complaint within 60 days of the service of plaintiffs’ complaint on the original defendants or any amendment thereof, or with the approval of the court “upon cause shown.”

In the case at bar, the plaintiffs’ complaint was filed on August 10, 1979. Although the court granted a stipulation between counsel for the plaintiffs and defendants to join Fred Lowenschuss as an additional defendant pursuant to Rule 2253, no similar action was implemented by Fred Lowenschuss on his own behalf, nor did he seek joinder of Cozen, Begier and O’Connor within 60 days of the defendants’ amended complaint by writ or complaint.

It is true that on February 22, 1983, the court dismissed without prejudice the additional defendant’s and Fred Low-enschuss Associates’ counterclaim to afford them the opportunity to file an answer to defendants’ amended complaint, but, even if we were to concede for the sake of argument this point in time as appropriate for a joinder petition, there are no pleadings of record (either in the nature of a writ or complaint) reflecting adherence to the requirements of Rule 2253 by the additional defendant.

Thus, because the procedures called for by the rules were not followed by the additional defendant, and, particularly, since no request was made to the court below for an extension to join Cozen, Begier and O’Connor as an additional defendant, we have no reluctance in holding that the joinder of this party was procedurally defective and cannot stand. See Snyder v. Leinhardt, 54 Pa.D. & C.2d 137 (1971). We see no reason to hold otherwise as to the additional defendant’s joinder of Fred Lowenschuss Associates, for, as in the previous instance, there was no compliance with Rule 2253.

Further, and more importantly, the right of joinder is not without limit. For example, joinder is not proper where the sole or joint liability averred is divorced from the liability alleged in the plaintiff’s complaint. See Harker v. Farmers Trust Co., 248 Pa.Super. 427, 375 A.2d 171 (1977); American Metal Fabricators Co. v. Goldman, 227 Pa.Super. 284, 323 A.2d 891 (1974). In the case sub judice, not only is this concept lacking, but the additional defendant joined a party (Fred Lowenschuss Associates) against whom he has no cause of action, which is totally foreign to the principles underlying the right of joinder, i.e., to insulate the joining party from, or minimizing his exposure to, liability, or the seeking of recoupment from the added party by the joining party for injuries sustained. See Pa.R.Civ.P. 2252.

Additional defendant’s protestation that his sole shareholder status in the corporate law firm of Fred Lowenschuss Associates should dispense with the procedural deviation is left wanting. “A corporation is a distinct and separate entity, irrespective of the ownership of the stock, and the fact that one person owns all its stock does not make him and the corporation one and the same.” Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 625, 422 A.2d 642, 644 (1980), citing Barium Steel Corp. v. Wiley, 379 Pa. 38, 108 A.2d 336 (1954); see also McConnell & Breiden v. Lee Templeton Motors, 68 Montg.Co.L.R. 215 (1952). Thus, dispensation of Rule 2253 is not called for here, which, in turn, renders the additional defendant’s position untenable and the actions of the court below proper. Fred Lowenschuss Associates had the opportunity to intervene below, see Pa.R.Civ.P. 2327; Professional Office Buildings, Inc. v. Cott, 105 Montg.Co.L.R. 84 (1978), and failed to do so. Accordingly, it will not now be heard to complain when its own inaction impeded the course it should have pursued.

However, when it dismissed the counterclaim “with prejudice”, the court below implied a final determination of the additional defendant’s cause of action against the plaintiffs and defendants. This was not warranted by the pleadings. See generally Township of Upper Makefield v. Benjamin Franklin Federal Savings & Loan Association, 271 Pa.Super. 399, 413 A.2d 726 (1979). In support of this conclusion, we look, as before, to the applicable Rules of Civil Procedure; in particular, Rules 2255, 2256 and 1031. Each provides as follows:

Rule 2255. Procedure
(a) The procedure, including pleadings, between the party joining an additional defendant and the additional defendant shall be the same as though the party joining the additional defendant were a plaintiff and the additional defendant were a defendant.
(b) No pleadings shall be filed between the additional defendant and any party other than the one joining him except that the additional defendant may file a counterclaim against the plaintiff.
Rule 2256. Counterclaims
(a) ...
(b) An additional defendant may not assert a counterclaim which is not founded upon the transaction, occurrence or series of transactions or occurrences out of which the original cause of action arose.
Rule 1031. Counterclaim
(a) The defendant may set forth in the answer under the heading “Counterclaim” any cause of action or setoff which he has against the plaintiff at the time of filing the answer (1) which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose, or (2) which arises from contract or is quasi-contractual.
(b) A counterclaim need not diminish or defeat the relief demanded by the plaintiff. It may demand relief exceeding in amount or different in kind from that demanded by the plaintiff.

As a general canon of interpretation, the Rules of Civil Procedure are to “be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.Civ.P. 126. This practice is just as relevant to rules governing counterclaims, especially where the primary intent is to avoid “circuity of action”, see Dickerson v. Dickersons Overseas Co., 369 Pa. 244, 85 A.2d 102 (1952), and prompt disposition of all rights and liabilities of those present and concerned in a single suit. See Eckrich v. DiNardo, 283 Pa.Super. 84, 92, 423 A.2d 727, 731 (1980) (dealing with Pa.R.Civ.P. 2252).

To date, the courts have interpreted a counterclaim as “the generic term including all claims and all forms of relief which can be asserted or demanded by defendant [or additional defendant,]” Fischer v. Solomon, 78 Pa.D. & C. 562, 566 (1951), “limited only by the qualification that it ar[i]se from the same factual background as that from which plaintiffs cause of action arose.” Lenker v. Boyer, 85 Pa.D. & C. 531, 534 (1952). In other words,

The ... counterclaim must be such a demand that the defendant [or the additional defendant], in his own name, or in the names of the defendants [or the additional defendants] sued, without bringing in the name of a stranger to the suit, may maintain an action of debt or indebitatus assumpsit on it, against the party, or all the parties suing, as the case may be. * * * The general rule is based on the well-known principle that a cause of action pleaded as on a right in favor of two or more persons jointly is not sustained by proof of a right in one of them.

Dickerson v. Dickersons Overseas Co., supra, 369 Pa. at 250, 85 A.2d at 105. From this definition of “counterclaim” an additional defendant may set forth any number of counterclaims which he has against either the original defendant or the plaintiff, see Pa.R.Civ.P. 2255(a) & (b), provided the requirements of subdivision (b) of Pa.R.Civ.P. 2256 or subdivision (a) of Pa.R.Civ.P. 2252 are satisfied, to-wit, that the matter arise from the same transaction or occurrence, or series of transactions or occurrences from which the plaintiffs cause of action arose. See Township of Upper Makefield v. Benjamin Franklin Federal Savings & Loan Association, supra; Fischer v. Solomon, supra. It may well be argued that the additional defendant’s counterclaim meets the “same transaction or occurrence, or series of transactions or occurrences” test.

In determining whether the respective claims asserted by the parties arise out of the same contract or transaction, within the limitation on counterclaims imposed by statutes ..., the court is not confined to the facts stated by plaintiff, but may take into account the facts set up by defendant, and will from them all determine whether the claims arise out of the same transaction. The question must be determined as each case is presented with a view to promoting justice and dispatching litigated business. A rule which arbitrarily uses the element of time to determine whether various causes of action arise out of the same contract or transaction is improper. There must be some legal or equitable relationship between the ground of recovery alleged in the counterclaim and the matters alleged as the cause of action by plaintiff. It is not enough that the parties are the same or that the transactions were made on the same day. The counterclaim must be such that it could reasonably have been anticipated when the transaction set up as the foundation of plaintiff’s claim culminated. A counterclaim is allowable where the whole matter arises out of one connected series of transactions.
“Transaction” defined. A “transaction” within the statutes as to counterclaims is defined as the act of transacting or conducting any business, negotiation, management, or proceeding. The word, as used in counterclaim statutes, is broad and comprehensive, and is construed liberally and according to its natural and ordinary signification. In other words, the term is not a technical one and must be construed according to the context and to approved usage. It is broader in meaning than “contract” or “tort,” and it may include either or both. It means any act as affecting legal rights or obligations, and properly embraces an entire occurrence out of which a legal right springs or on which a legal obligation is predicated, although it has been held that the term is not synonymous with “accident” or “occurrence.”
The term “transaction” as used in the counterclaim statutes has been said to mean that combination of acts and events, circumstances and defaults, which viewed in one aspect results in plaintiffs right of action, and viewed in another aspect results in defendant’s right of action; and it applies to any dealings of the parties resulting in wrong, without regard to whether the wrong was done by violence, neglect, or breach of contract. It cannot be restricted to the simple statement of the wrong complained of by plaintiff, but it must be held to include all the facts and circumstances out of which arose the injury complained of. Where the facts alleged in a counterclaim arise out of the same transaction as alleged in the complaint, such facts may cover a wider scope than where plaintiff’s action is based on a specific contract.

80 C.J.S., Set-Off and Counterclaim, § 36b at 48-50 (Footnotes omitted). Accord Lenker v. Boyer, supra; Fischer v. Solomon, supra.

In the case at bar, the plaintiffs’ complaint alleged, in relevant part, that on November 24, 1974, a “fire caused damage and destruction to the property and interest of the defendants, which property and interest were insured by the plaintiffs____” (Paragraph 8) During January through May of 1975, the plaintiffs made payments to the defendants amounting to $55,034.62, in consideration of which the defendants, for example in the case of Union National Insurance Co., “agree[d] to cooperate fully with the said Company to commence, enter into and prosecute suit against ... [those] through whose negligence or other fault the aforesaid loss was caused____” Further, the defendants “appointed] ... said ‘ Company’[,] ... with irrevocable power, ... to begin, prosecute, compromise or withdraw in [defendants’] name ... any and all legal proceedings that the said ‘Company’ m[ight] deem necessary to enforce such claim or claims____ [And, a]ny legal proceedings [we]re to be under the exclusive direction and control of said ‘Company.’ ” (See Exhibit A-2, page 2) Similar language appeared in the releases signed in favor of Amherst Insurance Co. and Northeastern Fire Insurance Co. by the defendants. (See Exhibits A-2, pages 3 & 4)

The plaintiffs went on to aver that the defendants instituted the Fedders Action without their consent, the result of which, given the jury’s verdict against the defendants, constituted “an irrevocable prejudice to the rights and interest of the plaintiffs, pursuant to their subrogation entitlement.” (Paragraph 19)

In count 2 of the complaint, the plaintiffs alleged that the “activities of the defendants ... represented] breaches of the contracts of insurance ... [and] of the Subrogation Receipts executed by the defendants subsequent to the loss.” (Paragraph 22) In conclusion, the plaintiffs demanded judgment equal to the monies already paid to the defendants, plus interest and the costs of the action sued upon.

In response, the defendants filed an answer which admitted receipt of the monies, the institution of the Fedders Action and that the “plaintiffs knew and acknowledged that the defendants intended to institute suit.” (Paragraph 13) The defendants also pleaded new matter and a counterclaim, the substance of which is not herein relevant. However, we would like to make reference to the plaintiffs’ petition to intervene, which was denied, in that they asserted that the defendants and their (defendants’) counsel were aware of the plaintiffs’ position, and, thus, had “no right to represent the interest of [the plaintiffs].” The plaintiffs also claimed “an absolute right to have their subrogation interests in connection with th[e] case represented ... by counsel of their choice”, since, as they put it, “petitioners’ interests ... [were] not being adequately nor properly represented by [defendants] nor their counsel.” (Plaintiffs’ Memorandum of Law in Support of Petition to Intervene at 4)

The plaintiffs’ reply to the defendants’ answer repeated its belief that the defendants had breached the conditions of the policies of insurance.

Thereafter, the defendants joined their trial counsel as an additional defendant, claiming that he failed to represent them in a competent manner by never advising them of plaintiffs’ attempt to intervene in the Fedders Action until its completion. Also, that trial counsel’s contesting of said intervention, without their knowledge, was “grossly negligent and in total disregard of [their] instructions ____” (Paragraph 24) Furthermore, the defendants complained that trial counsel breached his agreement with them by “fail[ing] to provide legal competent representation for those reasons set forth in” the preceding portion of the complaint.

After the filing of preliminary objections by trial counsel-additional defendant, which were granted, the defendants were afforded the opportunity to file an amended complaint. Therein, the defendants cited with specificity the circumstances constituting trial counsel’s incompetence. In particular, trial counsel’s impairing the plaintiffs’ opportunity to intervene in the prosecution of the Fedders Action, all of which contravened defendants’ contracts of insurance with the plaintiffs. Also, that a contingent fee agreement executed between the defendants and trial counsel required that trial counsel look to a recovery in the Fedders Action for reimbursement for costs incurred and services rendered by him.

Lastly, as is apposite here, the defendants demanded judgment against trial counsel for his alleged incompetence and indemnification from suit by the plaintiffs.

Trial counsel retorted in the form of a counterclaim contending that, as to the plaintiffs’ “right of subrogation”,

On March 1, 1978, additional defendant and counsel for the plaintiffs ... entered into an agreement with regard to the handling of the ... lawsuit against Fedders Corporation ... which agreement is memoralized in letters dated March 1, 1978 and March 2, 1978 true and correct copies of which are attached ... as Exhibits A and B____ Said agreement provided, inter alia, that the plaintiffs ... would no longer pursue their attempt to intervene in the lawsuit ... and that all out-of-pocket expenses and costs of said law suit [sic] would be shared equally between the plaintiffs and defendants____ (Paragraph 5)

The plaintiffs breached the March 1-2, 1978 agreement, and this, the additional defendant averred, “resulted in the expenditure of great amounts of time and money”. The additional defendant itemized these expenditures and sought reimbursement of same from the plaintiffs and defendants. This position was adhered to consistently by the additional defendant throughout the remaining pleadings filed.

We conclude, therefore, that the additional defendant’s counterclaim is well within the category as provided in Rules 1031 and 2256 (see also 80 C.J.S., Set-Off and Counterclaim, § 36a at 48), and the procedural basis for the court’s ruling below, although valid as to the joinder issue, has no validity as to the additional defendant’s cause of action, for:

In Townsend v. Universal Ins. Co., 129 Pa.Super. 188, at page 191, 195 A. 167, at page 168, we stated: “It is the consistent policy of the courts to give full opportunity to parties to plead their cause of action, if they have one, and not turn them out of court for technical errors. That is especially true if the objections refer more to the manner of the pleading than to a complete lack of a cause of action. If the pleading is vague or insufficient and it appears that a clear and adequate statement of facts can be averred, permission should be given to amend. It is always desirable to dispose of litigation on the merits, if possible.” Where a defect in a pleading may be cured by amendment, a final judgment should not be entered without affording an opportunity to amend. Holladay v. Fidler, 158 Pa.Super. 100, 43 A.2d 919.

Roth v. Golden Slipper Restaurant & Catering, Inc., 167 Pa.Super. 558, 562, 76 A.2d 475, 477 (1950).

It is our conclusion that it would further this “consistent policy of the courts” to grant leave to the additional defendant to amend his counterclaim to reflect the proper parties to the suit (since the court’s dismissal was more of a procedural ruling than a substantive decision on the merits of the claims raised) so that his claims for relief can be heard at the same time as those of the plaintiffs’ and defendants’. See generally Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Riker v. DiGiacomo, 315 Pa.Super. 424, 462 A.2d 267 (1983); Harker v. Farmers Trust Co., supra, and compare with Stokes v. Loyal Order of Moose Lodge #696, 502 Pa. 460, 466 A.2d 1341 (1983); Schladensky v. Ellis, 442 Pa. 471, 275 A.2d 663 (1971). However, the same result does not obtain with regard to the additional defendant’s trespass claim (count IV) for malicious use of process directed at the plaintiffs, defendants and defendant on the counterclaim. Given the contractual nature of the plaintiffs’ complaint alleging breach by the defendants, and, in turn, the defendants’ position in their complaint joining the additional defendant on competency (malpractice) grounds, “[t]he requisite proofs to establish the claim of each party are markedly distinct. As such, judicial economy would not be served by trying [all] claims together.” (Citations omitted) Zivitz v. Centennial Road Properties, Inc., 328 Pa.Super. 79, 82, 476 A.2d 462, 464 (1984); see also Fyreside Shoppe, Inc. v. Ruikin, 79 Lack.Jur. 23 (1977); O’Connor v. Brown & Park, t/a Cook Beverage Co., 60 Pa.D. & C.2d 372 (1971), citing Norristown Ford Co. v. Metropolitan Auto Dealer, Inc., 88 Pa.D. & C. 546, 549-550 (1954). Thus, as to the malicious use of process claim, the ruling on its merits should be determined in a separate proceeding.

Accordingly, we enter the following: Orders affirmed as to the court’s dismissal of additional defendant’s joinder of Cozen, Begier and O’Connor and Fred Lowenschuss as parties to the suit. However, final adjudication of the cause of action asserted by the additional defendant against the plaintiffs and defendants, except as otherwise limited herein, should proceed through the judicial process, rendering that portion of the lower court’s orders dismissing same stricken.

Orders affirmed in part and case remanded for proceedings not inconsistent with the opinion herein. Jurisdiction is relinquished.

      . To the extent that any additional pleadings were filed, we find it unnecessary to recount their content for a proper disposition of the case.

      . In response to the reference in Cozen, Begier and O’Connor’s brief to the additional defendant's and Fred Lowenschuss Associates’ institution of a separate cause of action against the present litigants as a ground to dismiss the present appeal, we merely note that additional defendant’s participation in the instant suit, by the filing of a counterclaim, requires that he carry through on his claim, see Dissinger v. Rosen, 14 Pa.D. & C. 339 (1930), until its completion, and not curtail his involvement by the commencement of a second suit. If such be the case, it is probable that the actions would be joined for trial under Pa.RXiv.P. 213.
      The same does not hold true for Fred Lowenschuss Associates since it was not a party to the initial action it would not be precluded from instituting a separate cause of action against any of the party-plaintiffs and defendants. See Myers v. Yost, 84 Pa.D. & C. 30 (1952).


source: Caselaw Access Project

author: CAVANAUGH, Judge: WIEAND, Judge,

license: Public Domain

text:
    487 A.2d 396
    COMMONWEALTH of Pennsylvania, Appellee v. Darrell Larue BLACK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1984.
    Filed Jan. 11, 1985.

      David H. Acker, Public Defender, New Castle, for appellant.
    William A. Behe, Deputy Attorney Gen., Harrisburg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, CHULLO, MONTEMURO, POPOVICH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant, 48-year-old Darrell L. Black, was charged with statutory rape, corruption of minors, incest, and attempted involuntary deviate sexual intercourse with respect to his thirteen-year-old daughter, Cynthia. After a jury trial, he was found guilty of all counts and sentenced to a term of imprisonment of two and one-half to five years. This appeal followed. Appellant challenges the lower court’s application of Pennsylvania’s Rape Shield Law, 18 Pa.C.S. § 3104, which prevented him from introducing evidence of prosecutrix’ prior sexual conduct with one of her brothers. We agree with appellant and remand for a new trial.

Black was accused of committing the present offenses during the 1979 Christmas holiday season. The trial testimony revealed that during this time appellant resided with his family, including prosecutrix, in a four- or five-bedroom, single family dwelling. On the night in question, the house was filled beyond capacity by out-of-town guests, bringing the total number of occupants to twelve or thirteen persons. The minor prosecutrix testified as follows. After everyone had retired for the evening, her father asked her to come into his bedroom to massage his legs, a treatment required by his diabetic condition and routinely performed by members of his family in his bedroom. She agreed to do this and after she finished, he motioned her to lie down on the bed with her back toward him. He then pulled her underwear down and had sexual intercourse with her. The victim maintained that the entire sexual episode occurred without a word being spoken.

Appellant’s version of the events that evening was that although his daughter was present in his room, no sexual contact occurred. As is common in sexual offense cases, the prosecutrix and appellant provided the only direct evidence for their respective versions and the case thus turned on their comparative credibility.

While the sexual incident was found to have occurred during Christmas, 1979, testimony indicated that Cynthia’s complaints began to surface almost three months later, near the end of March, 1980. These complaints coincided with violent arguments between appellant and prosecutrix’ fifteen-year-old brother, which culminated in the brother leaving home and separating from the family, including prosecutrix. Cynthia admitted wanting her brother back in the home, and other testimony indicated that as soon as appellant was arrested and removed, the fifteen-year-old brother contacted the family and sought to return home. In his defense, appellant offered to show through cross-examination that Cynthia had maintained an ongoing, consensual sexual relationship with this brother, which ended when the brother left home. Appellant contends that the true extent of prosecutrix’ bias against him could only be revealed by showing the abnormal, sexual relationship which she had with her brother and which had been terminated by appellant’s dispute with her brother. Specifically, appellant urges that Cynthia’s testimony can only be weighed fairly when measured against her desire, first, to punish appellant for his interference with her sexual relationship with her brother, and, second, to remove appellant from the home so that her brother might return and resume the relationship. As noted above, the lower court excluded this evidence of prosecutrix’ prior sexual conduct with her brother, relying on the Rape Shield Law.

We begin by noting the modern rule that prior sexual conduct with third persons is ordinarily inadmissible to attack the character of the prosecutrix in sex offense cases. 1A Wigmore, Evidence § 62 (Tillers rev. 1988). However, in this case the evidence of prior sexual conduct was not offered merely to show any general moral turpitude or defect of the prosecutrix, but rather to reveal a specific bias against and hostility toward appellant and a motive to seek retribution by, perhaps, false accusation. Particularly, appellant contends, if a parent and child were simply quarrell-ing, one would not normally expect a sibling to harbor a strong bias against the parent and in favor of the child. However, as appellant suggests, an ongoing, consensual sexual relationship between Cynthia and her brother would be a telling factor in understanding where her allegiance lay. In this regard, it is well settled that a party has the right to show by cross-examination that an adverse witness has a bias against him, or otherwise has an interest in the outcome of the trial. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978); 3A Wigmore, Evidence § 948 (Chadbourn rev. 1970).

In contrast to the broad, common law rule permitting cross-examination to show bias, we are confronted with Pennsylvania’s Rape Shield Law, which provides, in pertinent part, that “[e]vidence of specific instances of the alleged victim’s past sexual conduct, ... shall not be admissible in prosecutions under [Chapter 31] ...”, relating to sexual offenses. 18 Pa.C.S. § 3104(a). The lower court relied on this plain statutory language, as well as our recent opinion in Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980), in holding the evidence inadmissible.

Appellant, however, contends that the Rape Shield Law, as applied below, improperly infringed upon his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. Although the United States Supreme Court has not ruled directly on any of the numerous, recently enacted rape shield laws, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), it considered a criminal defendant’s Sixth Amendment right of confrontation with respect to a juvenile law which shielded a prosecution witness from cross-examination based on his juvenile record.

In Davis, the prosecution witness testified that he had found abandoned and recently stolen property near his home and reported this to police. The witness also identified the defendant as a man he had seen in the vicinity the night before he discovered the stolen property. The defendant sought to impeach the witness by introducing evidence of the witness’ juvenile record for burglary and his current probationary status. The defendant argued that since the stolen property turned up suspiciously close to the witness’ home, the witness himself could easily have been a prime suspect. The fact and nature of the witness’ juvenile record and probationary status would tend to cast more suspicion on the witness and thus augment his motive to falsely identify defendant in order to shift official attention away from himself. The lower court in Davis excluded evidence of the witness’ juvenile history relying on a state statute flatly prohibiting admission of such evidence against the juvenile in subsequent proceedings.

In holding that the lower court’s application of the state statute had violated the defendant’s Sixth Amendment right of confrontation, the Davis court stated:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v. Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 (1965)....
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, ... the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. ... [One] attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore Evidence § 940, p 775 (Chad-bourn rev 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v McElroy, 360 US 474, 496, 3 L Ed 2d 1377, 79 S Ct 1400 (1959).

Davis v. Alaska, 415 U.S. at 315-17, 94 S.Ct. at 1109-1111 (footnote omitted). See also Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Mines, 321 Pa.Super. 529, 468 A.2d 1115 (1983).

Although Alaska’s legitimate interest in promoting rehabilitation by preserving a juvenile’s anonymity was recognized, the Court held that where a criminal defendant sought to introduce significant evidence of bias, the defendant’s right of confrontation was paramount to the state’s policy of protecting and rehabilitating juveniles. The Court stated that

[wjhatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record— if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.

Davis v. Alaska, 415 U.S. at 319, 94 S.Ct. at 1112.

We find the juvenile statutes in Davis and the Rape Shield Law in this case strikingly similar. Both laws are designed to protect designated classes of persons by shielding them from the public humiliation and opprobrium which would naturally flow from the disclosure of the suppressed evidence; both laws seek to afford the designated classes an opportunity to start anew. Compare In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) with Commonwealth v. Strube, 274 Pa.Super. 199, 418 A.2d 365 (1979), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980). We can not distinguish the present case from Davis v. Alaska, supra, and therefore are constrained to reverse and remand for a new trial. In so holding, we note that other jurisdictions which have considered like challenges to their rape shield laws are in accord. See State v. LaClair, 121 N.H. 743, 433 A.2d 1326 (1981); Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976); Maryland v. Delawder, 28 Md.App. 212, 344 A.2d 446 (1975); Annot., 1 A.L.R. 4th 283 (1980). See also Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544 (1980).

While we hold that Pennsylvania’s Rape Shield Law may not be used to exclude relevant evidence showing witness’ bias or attacking credibility, we do not hold that all material evidence is necessarily admissible. Although logically relevant, evidence tending to show the victim’s prejudice or lack of credibility may be excluded if “it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice.” Commonwealth v. Stewart, 304 Pa.Super. 382, 387, 450 A.2d 732, 734 (1982) (quoting Commonwealth v. Strube, 274 Pa.Super. 199, 216, 418 A.2d 365, 374 (1979) (citations omitted), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980)). Cf. Fed.R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... ”). This balancing determination between probative value and unfair prejudice should be made by the trial court at an in camera hearing similar to that outlined in 18 Pa.C.S. § 3104(b). At this hearing, the trial court should determine the following as a matter of record to be preserved for appellate review: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.

We emphasize that our holding today is not meant to limit the importance of the general principles embodied in the Rape Shield Law, particularly, that evidence of sexual conduct with third persons is irrelevant to prove either general moral defect or consent of the victim. We also reaffirm the trial court’s responsibility to limit repetitive and unnecessarily harrassing cross-examination in all cases, but especially these most sensitive situations. But, in spite of the trial court’s appropriately broad discretion in controlling the examination of witnesses, we cannot approve the complete elimination of a relevant and crucial line of cross-examination. We therefore hold that insofar as the Rape Shield Law purports to prohibit the admission of evidence which may logically demonstrate a witness’ bias, interest or prejudice or which properly attacks the witness’ credibility, it unconstitutionally infringes upon an accused’s right of confrontation under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.

Reversed and remanded to the lower court for a hearing in accordance with this Opinion. If, as a result of that hearing, the court decides that the evidence offered in support of defendant’s claim of bias or challenging the witness’ credibility should be admitted, a new trial shall proceed. If the court decides that such evidence should not be admitted, a new appeal may be taken. Jurisdiction relinquished.

POPOVICH, J., concurs in the result of the opinion.

WIEAND, J., files concurring and dissenting opinion.

CIRILLO and MONTEMURO, JJ., join concurring and dissenting opinion by WIEAND, J.

WIEAND, Judge,

concurring and dissenting:

Darrell LaRue Black was tried by jury and was found guilty of statutory rape and related offenses arising from an alleged act of sexual intercourse with his thirteen year old daughter. In an effort to expose bias and a motive for testifying falsely, the defense offered to show that Black had been responsible for interrupting an illicit and ongoing, incestuous relationship between the witness and her brother. From this the defense intended to argue that the witness was motivated by revenge and by a desire to be rid of her father so that her brother, who had left the home, could return. The trial court excluded evidence of the sexual relationship between the witness and her brother for two reasons. The first reason given by the court was the Rape Shield Law, which renders inadmissible instances of an alleged victim’s prior sexual conduct. The second reason given by the court was that the probative value of the witness’ prior sexual conduct with her brother was “outweighed by the potential for prejudice and collateral distraction which this sort of inflammatory material would inject into the trial.” Trial court opinion at p. 3. The majority holds that the Rape Shield Law cannot validly be used to prevent introduction of the alleged victim’s past sexual history to show bias. It remands, however, for an in camera hearing to determine whether the relevancy of this evidence is outweighed by the prejudice it will cause to the witness. I am of the opinion that a remand for an in camera hearing is unnecessary — the trial court has already determined that the probative value of the evidence is outweighed by its prejudice — and that this Court should review the evidentiary ruling of the trial court on the basis of the existing record. Therefore, I dissent. Having reviewed the record, I would find that exclusion of this evidence was an abuse of discretion and would remand for a new trial.

I agree fully with the majority that there will be occasions when an accused’s right to confront his accuser will require that he be permitted to show the sexual history of the accuser in order to expose bias or a motive to testify falsely. In such cases, the Pennsylvania Rape Shield Law cannot validly be asserted to deny the accused’s right to a fair trial. See: Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). See also: State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976). Thus, rape shield laws in other states expressly permit evidence of past sexual conduct in order to show bias or motive to fabricate on the part of the complaining witness. See: Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); State v. Clarke, 343 N.W.2d 158 (Iowa 1984); Commonwealth v. Frey, 390 Mass. 245, 454 N.E.2d 478 (1983); State v. Hill, 309 Minn. 206, 244 N.W.2d 728 (1976).

It is an accepted method of attacking the credibility of an accuser to expose bias or a motive to testify falsely. Commonwealth v. Cheatham, 429 Pa. 198, 203, 239 A.2d 293, 296 (1968). “The law recognizes that a witness’s self-interest or feelings toward the defendant can slant testimony.” Tanford and Bocchino, Rape Victim Shield Laws And The Sixth Amendment, 128 U.Pa.L.Rev. 544, 582 (1980). In the instant case, the evidence of the sexual relationship between the Commonwealth’s witness and her brother, as the majority has aptly observed, was clearly relevant to show the animosity borne by the witness for her father who arguably had been responsible for terminating that incestuous relationship.

If the accusing witness’ relationship with her brother was probative óf a bias against the accused or of a motive to falsify, however, I am unable to fathom by what legerdemain the accused could properly be denied the right to introduce evidence of it. How can evidence of bias and motive to testify falsely be so prejudicial to the accusing witness that it cannot be introduced by the accused? Can the possible adverse effect upon a witness be grounds for excluding highly probative evidence which tends to prove that the accusation is false?

To speak in terms of prejudice to the witness is, in fact, to miss the point. When we speak of the prejudicial effect of evidence, we concede its relevance but ask, “is its value worth what it costs?” McCormick, Handbook of the Law of Evidence, § 185 (2d ed. 1972). Thus, a court may exclude relevant evidence because of the danger that it will unduly arouse the jury’s prejudice, hostility, or sympathy and thereby encourage a verdict based on emotion rather than calm reflection. See: Commonwealth v. Majorana, 503 Pa. 602, 610, 470 A.2d 80, 84 (1983); Commonwealth v. Green, 290 Pa.Super. 76, 84-85, 434 A.2d 137, 141 (1981); Commonwealth v. Reynolds, 256 Pa.Super. 259, 273-274, 389 A.2d 1113, 1120 (1978); Commonwealth v. Honeycutt, 227 Pa.Super. 265, 270, 323 A.2d 775, 778 (1974). A court may also exclude relevant evidence because it will create a collateral issue likely to distract the jury unduly. See: McCaffrey v. Schwartz, 285 Pa. 561, 572-573, 132 A. 810, 814 (1926); Commonwealth v. Lee, 262 Pa.Super. 280, 293, 396 A.2d 755, 761 (1978), overruled on other grounds, Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983). A trial judge may also exclude evidence because of the danger of unfair surprise to an opponent. McCormick, supra at § 185. Finally, a court may exclude evidence which is cumulative or which will, together with counter proof, consume an inordinate amount of time. See: Commonwealth v. Nesbitt, 276 Pa.Super. 1, 7, 419 A.2d 64, 67 (1980). This balancing test is equally applicable to determine the admissibility of otherwise relevant evidence of a witness’ prior sexual history. Whether the evidence should be admitted or excluded must rest in the exercise of a sound discretion by the trial court. Commonwealth v. Lee, supra; Commonwealth v. Reynolds, supra 256 Pa.Super. at 273, 389 A.2d at 1120; Commonwealth v. Honey-cutt, supra.

The defense in the instant case was able to show, both by cross-examination of the prosecuting witness and by independent defense evidence, that the witness’ brother, DeRel, had left home following an argument with appellant in March, 1980 and that thereafter the police had been told of possible child abuse by appellant on or about March 24, 1980. Appellant was arrested early in April, 1980; and thereafter, the witness’ brother called his mother to request permission to return home. The defense was also permitted to show that on an earlier occasion the witness had falsely accused her brother of having sexual relations with her following an argument. Finally, the defense showed that the witness had made prior inconsistent statements accusing appellant of engaging in sex with her on other occasions. Nevertheless, the court refused to allow evidence that the thirteen year old daughter had a sexually oriented motive for making false accusations against her father. Appellant was not allowed to show that the alleged victim of his sexual advances had a personal interest in forcing him from the home so that her brother could return to resume an incestuous relationship. This, in my best judgment, was a manifest abuse of discretion which requires a new trial. See: Commonwealth v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979); Commonwealth v. Cheatham, supra. See also: Commonwealth v. Hayward, 437 Pa. 215, 263 A.2d 330 (1970).

It must be conceded, of course, that evidence of this nature possesses an inherent danger that a jury will be distracted from the issue of the accused’s guilt or innocence and decide the case on the basis of the accusing witness’ prior sexual acts. The danger is no greater, however, than the danger that a jury, having heard evidence of an accused’s prior convictions, will convict merely because the accused is a criminal. Evidence of prior convictions of offenses which are crimen falsi is universally admitted to attack the credibility of a witness even though the witness may also be a defendant. It is inconceivable that a court would grant an alleged rape victim greater protection against prejudicial testimony than one who is accused of serious crime. See: Tanford and Bocchino, supra at 574-575.

The evidence in the instant case was neither remote nor insignificant. The offense charged was a heinous one which, by its very nature, is repulsive to most persons in contemporary society. It constituted child abuse, an offense against which community feelings run high. However, it was also an offense that would not have been committed in public or in front of witnesses. If the offense occurred, it would have occurred in the privacy of a bedroom. Thus, it was not susceptible of proof by disinterested witnesses. The only direct evidence of that which actually transpired in the bedroom had to come from interested parties, viz, the accuser and the accused. To exclude evidence that the accuser may have been motivated by animosity toward her accused father because he had interrupted an incestuous relationship which she had been carrying on with her brother and that she may also have been motivated by a desire to compel her father’s removal from the home so that the brother could return and the incestuous relationship be resumed is, indeed, to deprive the accused of a fair trial by denying him the right to confront his accuser.

The majority and I are agreed that the Pennsylvania Rape Shield Law cannot validly be asserted to exclude this relevant evidence. However, I am unable to comprehend how such evidence can then be excluded on grounds that it may be “prejudicial.” To remand for an in camera hearing to determine prejudice, in view of the determination already made by the trial court, is a useless act. I would hold that the trial court’s determination that the evidence was excludable because it was prejudicial constituted an abuse of discretion. I would remand for a new trial.

CIRILLO and MONTEMURO, JJ., join concurring and dissenting opinion by WIEAND, J.

      . 18 Pa.C.S. § 3122.

      . 18 Pa.C.S. § 6301.

      . 18 Pa.C.S. § 4302.

      . 18 Pa.C.S. §§ 901 and 3123(5).

      . Appellant also received three separate, but concurrent sentences of one and one-half to three years imprisonment each.

      . 18 Pa.C.S. § 3104 provides:
      § 3104. Evidence of victim’s sexual conduct.
      (a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
      (b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

      . The only express exception to this broad prohibition is where consent is an issue and the sexual conduct is with defendant. This case, however, involves statutory rape where consent is not at issue, and, further, the conduct here involves a third person, not defendant-appellant. Consequently, this exception does not come into play.

      . The Sixth Amendment to the United States Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him." The same right is protected by Article 1, Section 9 of the Pennsylvania Constitution.

      . We also note that in contrast to Commonwealth v. Duncan, supra, this constitutional question has been properly preserved for our review. Contrary to the contention of the Attorney General, the question was raised generally in post-verdict motions and fully briefed before the lower court. See Commonwealth v. Quartman, 312 Pa.Super. 349, 458 A.2d 994 (1983); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Cf. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982).

      . Appellant also offered the evidence of prosecutrix’ sexual relations with her brother to show her source of sexual knowledge. The prosecutrix’ description of the sexual act in question was such that it demonstrated a knowledge of adult male physiology which was likely only acquired through actual experience. Appellant argued that if the source of prosecutrix’ sexual knowledge were left unexplained, the jury would infer that a child of such tender years had obtained it from what appeared to be the only available source: the appellant. We agree with appellant that under these circumstances, the evidence may be relevant to show the witness’ source of knowledge. See, e.g., State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981). We emphasize, however, that evidence of prior sexual conduct to show source of knowledge should be admitted in only limited circumstances. On the record before us, we decline to decide whether such evidence will be admissible in this matter. That determination is properly left to the court below which must also weigh the potentially unfair prejudice to the prosecutrix against the probative value of the testimony. See Commonwealth v. Stewart, 304 Pa.Super. 382, 450 A.2d 732 (1982). See also 1A Wigmore, Evidence § 62, at 1311 (Tillers rev. 1983).

      . The use of in camera hearing procedures to determine whether the proffered evidence is admissible has been adopted in other states. See, e.g., Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979) (Arkansas rape shield statute provides for an in camera hearing and probative value — unfair prejudice assessment); State v. Clarke, Iowa, 343 N.W.2d 158 (1984) (Iowa rape shield law provides for written motion and offer of proof, in camera hearing, and probative value-unfair prejudice assessment); Commonwealth v. Frey, 390 Mass. 245, 454 N.E.2d 478 (1983) (Massachusetts rape shield act provides for an in camera hearing and a relevance-prejudice assessment).

      . See note 10 supra.

      . We find that other issues raised by appellant were either correctly decided by the court below, or unnecessary to reach in light of our holding.

      . 18 Pa.C.S. § 3104.


author: CERCONE, Judge:

text:
    487 A.2d 404
    COMMONWEALTH of Pennsylvania v. Marvin TURNER, Appellant.
    Superior Court of Pennsylvania.
    Argued July 24, 1984.
    Filed Jan. 11, 1985.

      Michael A. Teir, Philadelphia, for appellant.
    Donald A. Browns, Media, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

Appellant, Marvin Turner, upon summary conviction under the Vehicle Code for operating an overweight vehicle upon a bridge, was sentenced on February 28, 1980, to pay $6685.00 by a district justice. Following a hearing de novo before the Court of Common Pleas of Delaware County, appellant was again found guilty. His first appeal to this court resulted in a remand for the filing of post-verdict motions. 308 Pa.Super. 32, 453 A.2d 1053. These were filed and argued before the trial court, which rendered its opinion and order on March 3, 1983, by which it affirmed appellant’s conviction, reinstating the fine and costs which were imposed by the district justice. This appeal is taken from the judgment of sentence.

The facts of this case show that on February 11, 1980, appellant drove a tractor and trailer combination bearing five or six new cars over a bridge that had been posted with a two and one-half ton weight limitation. A borough police officer stopped appellant and bade him to follow the officer to a scale which was approximately 1.8 miles away. After the officer set the scale, appellant drove the truck onto the platform. The officer determined the total weight to be fifty-two thousand four hundred and seventy pounds (52,-470). The district justice found that this total exceeded the maximum limitation of the bridge by 44,470 pounds.

Appellant argues that the evidence did not support his conviction in that the Commonwealth did not prove that the specific scale used to weigh his truck was within its control in the wording of the statute, did not explain the condition of the bridge, nor establish whether the issuing officer was in uniform at the time he issued the citation.

Appellant argues that because the scale utilized in this case was owned by a private concern and no evidence was introduced of a contract between the Commonwealth and that private concern, that somehow the scale cannot be said to be within the Commonwealth’s control, 75 Pa.C.S.A. § 4981(b). We do not interpret the sentence, “the department may also contract with persons or local authorities to use their scales” as requiring that a specific contract be introduced at trial in order that the Commonwealth’s proof be complete. This is so especially in light of the fact that a certificate of accuracy issued by the Bureau of Standard Weights and Measures for the Commonwealth of Pennsylvania, Department of Agriculture on July 24, 1979, was introduced into evidence at trial. It describes the scale as a Fairbanks Vehicle Scale, Model No. 6517 C, Serial No. 1879 M, with a 100,000 pound capacity. It is this court’s opinion that the scale in question was adequately qualified and within the control and supervision of the Commonwealth, despite its private owner.

Appellant argues that the Commonwealth had the burden of establishing the condition of the bridge which made a weight restriction necessary. See Commonwealth v. Geise, 314 Pa.Superior Ct. 24, 460 A.2d 354 (1983). This contention did not appear in appellant’s post-verdict motions. Pa.R.Crim.P. 1123. In fact, the last post-verdict motion submitted by appellant stated the opposite, that is, that the court improperly admitted evidence as to the condition of the bridge. Therefore, the contention is waived.

Finally, appellant requests that we discharge him for failure of the Commonwealth to present evidence as to whether the officer issuing the citation was in uniform, as required by Pa.R.Crim.P. 51 A(l)(a).

The record is devoid of any evidence on this issue. The issuing officer merely identified himself at trial as a police officer of the Borough of Folcroft. Appellant never raised this issue either before the District Justice or at the de novo hearing. Appellant, in reliance upon Commonwealth v. Shelton, 260 Pa.Superior Ct. 82, 393 A.2d 1022 (1978), now urges us to discharge him for this omission by the Commonwealth. However, we are averse to the granting of this remedy and note that there are certain distinctions to be drawn between the Commonwealth’s failure to institute criminal proceedings in accordance with Rule 51 and its failure to present testimony at trial as to whether the issuing officer was wearing a uniform.

Shelton, supra explains the procedure under Rule 51 by which an offender of the Vehicle Code may be cited. There is no question that the issuing authority in Shelton sent the defendant a copy of the citation rather than the required summons. And, as this court stated, in distinguishing Shelton, supra, and Jonnet, supra, by finding that a form labeled “Citation/Summons” was in substantial compliance with Rule 51:

Jonnet and Shelton are distinguishable in that in those cases the document was not entitled a summons and in Shelton the form did not contain the notice of the four options provided to the defendant in response to the charge. While these cases do require “strict” rather than “substantial” compliance with the rules, we do not read them as requiring absolute compliance to the degree asserted herein.
Commonwealth v. Gerard, 313 Pa.Superior Ct. 70, 75, 459 A.2d 414, 417 (1983).

Thus, while there is case law on certain deviations from Rule 51 involving the proper forms to be utilized in instituting summary proceedings, this court is not aware of any case in this Court or in the Supreme Court concerning the requirement in Rule 51 that the police officer be in uniform. As it is cast in this case, the uniform requirement is an element of proof which the Commonwealth failed to introduce at trial. Yet, it is nevertheless a procedural requirement for the institution of summary proceedings, albeit different from the citation practice mandated by Rule 51, the very substance of the initiation of criminal proceedings. Faced with this hybrid substantive/procedural approach to the uniform requirement, the issue becomes what duties, if any, should devolve on a defendant who is aware that the requirement was not followed and what benefit, if any, should be enjoyed by him for the Commonwealth’s failure to establish the necessary uniform requirement at trial.

We cannot say that the fact that an officer wore a uniform is strictly one of the elements to be proven by the Commonwealth in order to establish guilty beyond a reasonable doubt, as the necessity, for example, of proving the age of a victim would be in a prosecution for statutory rape. 18 Pa.C.S.A. § 3122. The overweight truck statute is silent as to the uniform requirement; it enters only because of the summary nature of the proceedings and the language of the applicable criminal rule. The uniform requirement, therefore, is important when the nature of the violation supporting the issuance of the summons is at issue, as it relates to the propriety of an arrest.

In Commonwealth v. Grassmyer, 237 Pa.Superior Ct. 473, 352 A.2d 182 (1975), a case of a motor vehicle cited for being overweight under the former sections of the Vehicle Code which controlled this violation, 75 P.S. §§ 903, 904, this court liberally interpreted the statute’s requirement that the issuing trooper be “in uniform and shall exhibit his badge or other sign of authority.” Appellant contended that he should be acquitted despite the fact that the trooper who stopped him wore the full uniform of the State Police, including official hat, insignia, name plate, and shoulder patches but did not display his badge. This court disagreed with appellant and interpreted the statute as requiring such indicia in order “to enable the motorist to be as certain as possible that the person who stops him is, in fact, a police officer.” Id., 237 Pa.Superior Ct. at 476, 352 A.2d at 183. A motorist is apprised of the veracity of the person who stops him by all of the indicia of the State police uniform even without the badge, said this court; thus the goals of the statute and the intent of the legislature were satisfied.

Applying this meaning to the uniform requirement as it is now mandated by Rule 51, may a defendant wait until he or she files post-verdict motions to raise a violation of the requirement, as in this case, or is the defendant under a duty, to bring it to the attention of the court at some earlier time under pain of waiver.

In this case, the lack of a uniform could have been raised at the hearing before the district justice, prior to the de novo hearing, or at the demurrer stage. However, only after remand by this court for the filing of post-verdict motions, two years after the initial conviction, was this issue brought to the attention of the trial court in the form of an insufficiency of evidence argument. It would more properly have been characterized as a challenge to the issuance of the citation, and, as such, should have been raised earlier.

It is instructive to refer to Pa.R.Crim.P. 70. However, since this case was tried two years before the rule’s effective date, Rule 70 does not control.

Rule 70. Defects in Form, Content, or Procedure-Summary Cases

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.

That rule recognizes the inequity of a defendant’s discharge occasioned only by a tardy realization of the deviation of the police or Commonwealth from the requirement of a rule. Although Pa.R.Crim.P. 70 does not control this case, it points out that it was incumbent on appellant at least to have raised the uniform requirement at some point earlier than he did.

The reason for this rests on the ordinary notions of fairness and judicial economy. If indeed the police officer did not wear a uniform when he cited appellant, that fact should have been brought to the attention of the district justice who may have dismissed the citation. If appellant had filed a motion to dismiss at the beginning or sometime during the de novo hearing, the court may have disposed of it at that time; thus, avoiding all subsequent proceedings.

We emphasize that our reasoning here lies in the fact that the uniform requirement is named in Pa.R.Crim.P. 51, and not in the overweight truck statute. Thus, it is not an element of the Commonwealth’s proof, per se. Rather it is a necessary element of a valid citation’s issuance. Just as any procedural violations must be raised at a time prior to trial in order that one or both parties may be able to present explanatory evidence if any, it is inequitable for an appellant to raise any deviation from this rule at a time when the only remedy is discharge. The uniform requirement is not an element that of necessity must await until the Commonwealth puts in its case. And if the reason the appellant had not raised the issue earlier is that the officer was in uniform, but neglected to say so at trial, then indeed, the Commonwealth’s omission has not prejudiced appellant and he cannot expect to be discharged for that fact.

For the above reasons, judgment of sentence is affirmed.

      . Pursuant to 75 Pa.C.S.A. § 4902(e).

      . 75 Pa.C.S.A. § 4981(b) Scales on freeways. — The Department of Transportation, in cooperation with the Pennsylvania State Police, shall operate freeways at points which it deems necessary, scales and other equipment for detecting violations of the size and weight limitations prescribed by this chapter. The department may also contract with persons or local authorities to use their scales.

      . 75 Pa.C.S.A. § 4902(a) reads:

        "The department and local authorities with respect to highways and bridges under their jurisdictions may prohibit the operation of vehicles and may impose restrictions as to the weight or size of vehicles operated upon a highway or bridge whenever the highway or bridge, by reason of deterioration or rain, snow or other climatic conditions, may be damaged or destroyed unless the use of vehicles is prohibited or the permissible weights reduced.

      . "Except as provided by subparagraphs A(l)(b) and (c), a citation shall be issued to the defendant by a police officer, who shall be in uniform, when the offense charged is a violation of a traffic ordinance or when it is a summary offense under the Vehicle Code;"

      . Shelton, supra, and Commonwealth v. Jonnet, 265 Pa.Superior Ct. 315, 401 A.2d 1228 (1979) held that Pa.R.Crim.P. 51 must be strictly complied with, mandating discharge for non-compliance.
      “It has been held that summary proceedings, being in derogation of the common law, will require strict adherence to the law creating them. Graver v. Fehr, 89 Pa. 460 (1879). It has been stated that procedural rules "are not to be exalted to the status of substantive objectives.” McKay v. Beatty, 348 Pa. 286-87, 35 A.2d 264 (1944). Viewing Rule 51, we believe that it provides for the very substance of the manner in which one who has offended the “Vehicle Code" may be cited, and a summary proceeding begun. Thus we hold that the Rule must be strictly construed. Rule 51, even when read together with the rules following it in "Chapter 50-Summary Cases," does not allow the sending of a copy of the citation in the situation where it has been filed by the police officer with the issuing authority. The proper-and only-procedure to follow after the initial institution of the summary proceeding is that the issuing authority shall issue a summons. We will not look for less than strict compliance with Rule 51. See the “Comment" to Rule 51 which reiterates and details the procedures commensurate with the rule and the purpose of it.

        Shelton, supra, 260 Pa.Superior Ct. at 85, 393 A.2d at 1024.

      . In Commonwealth v. Baldo, 21 D. & C.3d 273, 275 (1981), the court listed as one of the elements which the Commonwealth must show in a prosecution for an overweight violation, "[t]hat the arresting officer was in full uniform at the time of the arrest.” See also Commonwealth v. Buehler, 8 D. & C.3d 796 (1979).


author: CIRILLO, Judge:

text:
    487 A.2d 409
    Thomas A. VAJDA v. Hye Kyong VAJDA a/k/a Margaret Vajda, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed Jan. 16, 1985.

      Thomas M. Marsilio, Hazleton, for appellant.
    Richard J. Marusak, Hazleton, for appellee.
    Before. CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from the final decree of divorce and equitable distribution of marital property entered by the Court of Common Pleas of Luzerne County. We affirm.

In November, 1981, appellee instituted this action requesting a divorce on the ground of indignities as well as equitable distribution of marital property and custody of the parties’ children. A master was appointed to decide the issues of divorce and equitable distribution. Hearings were held, and the master submitted a report recommending that a divorce be granted to appellee, and containing certain recommendations regarding equitable distribution. Both parties filed exceptions to the report. The trial court remanded the case to the master for a determination of counsel fees. Exceptions were filed with respect to the second master’s report. Following consideration of the parties’ exceptions, the trial court entered a decree of divorce in favor of appellee and ordered certain equitable distribution of the marital property. This appeal followed.

The first issues we must address are whether the trial court abused its discretion in upholding the master’s recommendation characterizing appellee as an injured and innocent spouse, and in granting a final decree of divorce. Our scope of review is both broad and restrictive.

[I]t is our duty, on appeal to make an independent study of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa.Super. 415, 281 A.2d 694 (1971). Moreover, while the master’s findings of fact and recommendation that a divorce be granted are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witness, his findings should be given the fullest consideration. Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974).

Schrock v. Schrock, 241 Pa.Super. 53, 57-58, 359 A.2d 435, 437-38 (1976). Accord Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984); Mott v. Mott, 308 Pa.Super. 1, 453 A.2d 1038 (1982); Rorabaugh v. Rorabaugh, 302 Pa.Super. 1, 448 A.2d 64 (1982); Rollman v. Rollman, 280 Pa.Super. 344, 421 A.2d 755 (1980).

The Pennsylvania Divorce Code, 23 P.S. § 201(a)(6) provides:

(а) It shall be lawful for the court to grant a divorce to the innocent and injured spouse whenever it shall be judged that the other spouse shall have:
(б) Offered such indignities to the innocent and injured spouse as to render his or her condition intolerable and life burdensome.

Section 201 does not make a serious departure from our prior law regarding indignities. Therefore, in interpreting this section, we are guided by our earlier decisions involving indignities.

In Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980) (allocatur denied), this Court aptly summarized the law of indignities in Pennsylvania.

To make out a charge of indignities, three elements must be proved: (1) a course of conduct that, although varying according to the circumstances of each case, must in every case (2) be inconsistent with the marital relationship, and (3) render the condition of the innocent party intolerable and his or her life burdensome---Although no general rule can be formulated as to what constitutes indignities in a particular case, the matter being one that depends upon all the circumstances of the particular case and the position in life, character, and disposition of the parties ... our cases hold that proof of “vulgarities, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule” may be sufficient to make out a case for divorce based on indigni-ties____ Moreover, several of these factors “may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient.” ... Finally, it should be noted that in the present case, the burden of proving indignities was on the husband as the party seeking the divorce ... and that the husband was required to prove that he was an innocent and injured spouse....

Id., 275 Pa.Super. 573, at 576-77, 419 A.2d at 51 (citations omitted). See also McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Beaver v. Beaver, 313 Pa.Super. 512, 460 A.2d 305 (1983); Rorabaugh v. Rorabaugh, supra; Barton v. Barton, 248 Pa.Super. 278, 375 A.2d 96 (1977); Schrock v. Schrock, supra. As to the characterization of a party as an “innocent and injured spouse,” we have repeatedly stated that for purposes of divorce, one need not be totally free from fault; if, however, there is nearly equal contribution by the parties to the marital discord, a divorce will not be granted to either spouse. See e.g., Liebendorfer v. Liebendorfer, 289 Pa.Super. 339, 433 A.2d 480 (1981); Rollman v. Rollman, supra; Dukmen v. Dukmen, 278 Pa.Super. 530, 420 A.2d 667 (1980); Moorhead v. Moorhead, 278 Pa.Super. 275, 420 A.2d 537 (1980); Keller v. Keller, supra.

Turning to the case at bar, the master’s findings of fact, adopted by the trial court, may be briefly summarized: throughout the entire marriage, appellant constantly complained about appellee’s earnings, despite the fact that appellee maintained a good job; appellant, who controlled the family finances, was unable to account for some of their funds; it was discovered that appellant was secreting funds from the family finances in a bank account in her own name, located in New York; on occasion, appellant would leave the marital home for various amounts of time ranging from a few hours to as long as a week, without ever informing appellee of her whereabouts; appellee’s family was prohibited by appellant from visiting the marital home; appellant often indicated to appellee that she had no love or affection for him and held him in hatred and contempt. In sum, the trial court stated:

... the master concluded that [appellant] worked at making life miserable for [appellee] rather than developing a flourishing relationship. With respect to credibility, the master adjudged [appellee] sincere and truthful but felt that [appellant’s] contempt for [appellee] showed through her testimony. She also observed that [appellant’s] testimony was in many respects contradictory.

The trial court also found that appellee was an innocent and injured spouse. Even though appellant alleged she was the victim of physical abuse resulting from appellee’s temper, the court was convinced that appellee’s misconduct was the result of appellant's “unceasing provocation over a period of nearly fifteen years.” In fact the evidence offered on this issue was vague and unspecific.

Our independent review of the record leads us to the conclusion that the trial court was correct in (1) characterizing appellee as an innocent and injured spouse, and (2) granting the divorce.

The next issue we must address is whether the trial court abused its discretion by; (1) with respect to equitable distribution, ordering the marital residence sold, and the proceeds divided — 60% to appellant and 40% to appellee — rather than awarding the home as the sole property of appellant; and (2) awarding appellant only $500.00 in counsel fees.

Following hearings on the issues of equitable distribution and counsel fees, the master recommended that appellant be awarded the marital residence subject to a judgment note in favor of appellee, and $3,192.06 in counsel fees and expenses. The trial court rejected these recommendations and ordered the residence sold and awarded appellant $500.00 in counsel fees, requiring appellee to pay expenses.

“The equitable distribution of marital property is within the sound discretion and judgment of the lower court and its discretion shall not be disturbed absent an abuse of that discretion.” Gee v. Gee, 314 Pa.Super. 31, 35, 460 A.2d 358, 360 (1983). Accord Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984); Pangallo v. Pangallo, 329 Pa.Super. 22, 477 A.2d 885 (1984); Estep v. Estep, supra; Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). Section 401(c) of the Divorce Code grants a trial court “full equity power.” In the case at bar, the court found no compelling reason for preserving the marital residence, especially when neither party was living there. Sale of the home was within the trial court’s equity powers under Section 401(c). We find no abuse of discretion in this decision.

In determining the propriety of an award of counsel fees, we likewise utilize the abuse of discretion standard of review. See Semasek v. Semasek, supra; Pangallo v. Pangallo, supra; Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984); Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984); Ruth v. Ruth, supra; Gee v. Gee, supra; Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) (en banc).

The trial court determined that the master’s recommendations concerning counsel fees should be rejected given the disposition of the equitable distribution. Appellant would have substantial assets available after the sale of the marital residence, and therefore, her attorney’s fees could be satisfied therefrom. We find no abuse of discretion in the award of counsel fees.

Order affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26, § 201(d), 23 P.S. § 201(d).

      . Id. § 401(d).

      . 23 P.S. § 201 replaced the Act of May 2, 1929, P.L. No. 1237, § 10, as amended, which provided:
      § 10. Grounds for divorce from bond of matrimony
      1. When a marriage has been heretofore or shall hereafter be contracted and celebrated between two persons, it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, in the manner hereinafter provided, that the other spouse:
      (f) Shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome; or

      . Appellant does not contest the percentage of distribution.

      . Appellant resides in New York.