author: BECK, Judge:

text:
    475 A.2d 796
    Charles R. HESS v. Alverta A. HESS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 9, 1983.
    Filed April 13, 1984.

      John W. Purcell, Jr., Harrisburg, for appellant.
    John Stewart Davidson, Hershey, for appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   BECK, Judge:

In this appeal from the final decree filed December 7, 1981, denying appellant’s exceptions and approving the Special Master’s report in a divorce action, appellant Alverta A. Hess claims that she was erroneously denied alimony and counsel fees. Appellee Charles R. Hess initiated the complaint in divorce in July 1980. Alverta answered the complaint with a counterclaim for alimony, alimony pendente lite, counsel fees, and equitable distribution of marital property.

The final divorce decree was entered October 1980, with the court reserving jurisdiction over economic matters. At a Special Master’s hearing in June 1981 Alverta waived her claim to equitable distribution and proceeded on her claim for alimony, alimony pendente lite, and counsel fees. The Special Master’s report denied alimony, made no mention of alimony pendente lite, and recommended that fees and costs be divided between the parties. The Court of Common Pleas, Dauphin County, accepted the report and overruled the exceptions. Alverta claims on appeal that the Master erred in the statutory interpretation of 23 P.S. § 501(a), (b), (c) and that she is entitled to alimony by the weight of the evidence.

We agree that the lower court erred in its statutory-interpretation of 23 P.S. § 501(a), (b), (c) and accordingly vacate and remand.

Alverta and Charles were married in 1947 and separated after twenty-seven years of married life in 1974. Divorce proceedings began after six years of separation. Five children were born to the marriage, all of whom were adults at the times relevant to the hearings and decrees. Alverta, fifty-three at the time of divorce, had primary responsibility for raising the children and taking care of the marital household. In addition, she held jobs outside the home, usually as a laborer in a shoe factory. Charles was under a support order for $45 per week which ended November 1981. Alverta is currently employed at an hourly wage of $4.40, and is not guaranteed full-time work. Her assets consist of a 1966 Buick, $265 in savings, and $3,000 in Certificates of Deposit. She suffers from ulcers and partial blindness in one eye.

For most of the marriage Charles, age 56, has been employed by Bethlehem Steel, his current employer, where he is a maintenance man. He is under union contract for $20,000 per year. He remarried following the divorce. He has debts of approximately $13,400 accumulated during his first and second marriages. In addition, he recently undertook the financial expense of the funeral of the parties’ daughter, approximately $3,200, and has assumed responsibility for caring and providing for his grandson following the death of the child’s mother. He is in relatively good health. The record reveals that Charles was guilty of marital misconduct prior to the separation, including adultery, beating, improper treatment, and excessive drinking.

The Master, applying § 501 to the Hesses’ circumstances, determined that Charles should not be required to pay alimony:

It is obvious that Mrs. Hess does not have a substantial earning capacity and, were it not for her having an accumulation of savings, we would recommend that she be awarded alimony. She has however, managed to save $3,000.00 since the time of separation. It is onr opinion after reviewing the Divorce Code and the Legislative debates that the purpose of alimony in this Commonwealth is to provide economic rehabilitation and that the Court is not permitted to grant an award unless both factors enumerated in Section 501(a) are met. Since Mrs. Hess has accumulated considerable savings, we cannot find that she lacks sufficient property to provide for her reasonable needs nor that she is unable to support herself through her employment. We also have considered the substantial obligations that Mr. Hess has incurred, none of which appear to be unreasonable. Consequently, we recommend that the demand for alimony be denied. R. 85A.

A goal of the Divorce Code of 1980 was to bring economic justice and fairness to parties upon dissolution of a marriage. A provision for alimony was included to implement that goal. The alimony provision was in part a response to the prior law under which no party was entitled to alimony following the entry of a divorce decree. Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); Commonwealth ex rel. Bortin v. Bortin, 210 Pa.Super. 355, 234 A.2d 55 (1967). In the usual situation where the husband was the primary wage earner, ending the marriage terminated the wife’s right to support regardless of the length of the marriage, the wife’s role in raising the family, her efforts on behalf of the husband’s career, and the disparity in earning power and assets of the parties.

The Divorce Code was remedial and provided for economic fairness for both parties upon divorce through the vehicle of equitable distribution (Chapter 4) and alimony (Chapter 5). Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982) ; Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) ; Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). Alimony and equitable distribution must be viewed as part of the legislative intention: to do economic justice. This is apparent in § 501(a) which requires that the court in determining the entitlement to alimony consider the property distributed equitably pursuant to Chapter 4.

The provisions for alimony and equitable distribution provide the trial court with flexibility in resolving the economic fate of the parties upon divorce. The economic resolution for a marriage in which the parties have substantial assets but meager cash might be heavily weighted toward property distribution. On the other hand, the economic resolution for a marriage in which the parties have few assets but substantial cash might be weighted more heavily toward alimony provided the standards established under Chapter 4 and Chapter 5 are satisfied.

With this background in mind, we analyze the alimony provision of the Divorce Code of 1980 as it relates to the instant case. The pertinent sections of the statute read:

§ 501. Alimony
(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as a homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony,
(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.

Alverta contends that the Master reached his conclusion by an erroneous analysis of § 501(a) and (b) and ignoring (c). The thrust of her argument is that the Master did not take into consideration the fourteen enumerated factors of (b) except to the extent of paying them lip service, because of the finding that she had saved $3,000 since separation from her husband. The Master’s Report began by stating, “Under Section 501 of the Divorce Code, the Court may award Mrs. Hess alimony only if it finds that she lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment.” R. 82a. The Master also stated, “Although we can see no rational reason for making and discussing the findings under 501(b) when the requirements of 501(a) have not been met, we apparently have the responsibility to do so. . . .” R. 82-3a. Alverta also contends that the scope of review in these matters is broad, the same as in the review of divorce itself.

Charles argues that § 501(a) establishes a threshold which must be reached by a party seeking alimony. Only if that threshold is passed (and he contends that Alverta does not) are the factors in § 501(b) to be applied. Charles maintains that the scope of appellate review in questions of alimony is a narrow one, i.e. limited to a determination of whether the lower court abused its discretion.

We begin by noting that our Court en banc recently ruled that the scope of appellate review in questions of alimony is limited to a determination of whether the lower court abused its discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). The Remick Court explained that this Court’s concern with property rights and monetary judgments is not as paramount as with decisions ruling on the status of marriage or the custody of children. We therefore will not disturb the lower court’s acceptance of the Master’s report absent a showing of abuse of discretion.

The precise question for our review is whether § 501(a) establishes a threshold for entitlement to alimony. If so, and the threshold is not met, the trial court makes no further inquiry and simply denies alimony.

This question has already been addressed and decided by this Court. In a well reasoned opinion in Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982), we rejected an argument that § 501(a) established a threshold for entitlement to alimony:

Appellant contends that in order to be eligible for alimony, a dependent spouse must meet the threshold requirements of § 501(a)(l)-(2), see citation supra, after which the court could look at the provisions of § 501(b). However, he himself is inconsistent in his argument, for he urges the ‘standard of living of the parties during the marriage’, § 501(b)(8) as a measure to determine appellee’s ability to support herself under the ‘appropriate employment’ standard of § 501(a)(2).
Upon review of the problem, we conclude that it is not possible to determine what is a ‘reasonable need’ under § 501(a)(2) without reference to specific facts of the case as they fit the relevant factors listed in § 501(b)(l)-(14). The wording of § 501(b) itself acknowledges this interrelationship in stating that the fourteen listed factors are to be used ‘in determining whether alimony is necessary’, which is identical to the ‘threshold questions’ of § 501(a)(1) and (2). [Emphasis supplied]
We hold, therefore, that the provisions of § 501 are to be read in conjunction with each other and with the intent and purposes of the act as a whole, so that economic justice results, and harm to the spouses and children is mitigated.

Id., 301 Pa.Superior Ct. at 406, 447 A.2d at 1030-31.

We find the argument advanced by appellee Charles indistinguishable from the position taken by the appellant in Bickley. We therefore affirm in this case our holding that § 501(a) does not establish a threshold for entitlement to alimony, but that § 501(b) must be applied to test the standard of § 501(a). Only in this way will the goal of economic justice to the parties be achieved, and all words of the section be given full consideration. Our holding implements the purpose of the Code and is compatible with the principles of statutory construction.

The argument of Charles would have the effect of making § 501(a) determine eligibility for alimony and § 501(b) determine amount, once eligibility has been established. This approach is not compatible with the statutory language and the principles of construction. The language of a statute must be construed according to common and appropriate usage, so as to give effect to each and every provision of the act. 1 Pa.C.S. § 1903; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). A statute should be construed as a whole, giving effect to all its provisions. 1 Pa.C.S. §§ 1921, 1922; In the Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981); Commonwealth Insurance Department v. Adrid, 24 Pa.Commw. 270, 355 A.2d 597 (1976); In re Turner, 44 Pa.Commw. 326, 403 A.2d 1346 (1979). The Legislature is presumed not to have intended provisions as surplusage, so courts must construe a statute so as to give effect to every word, sentence and provision. Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983); Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980).

Section 501(b) states, “In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors . . . .” (emphasis supplied). These words are clear, and cannot be disregarded in our reading of the section.

In construing a law, the specific provision prevails over the more general provision. 1 Pa.C.S. § 1933; Bowers v. State Employees’ Retirement Board, 29 Pa.Commw. 561, 371 A.2d 1040 (1977); Heck v. Zoning Hearing Board for Harveys Lake Borough, 39 Pa.Commw. 570, 397 A.2d 15 (1979); Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 404 A.2d 410 (1979). § 501(b) is more specific than § 501(a) and must therefore be considered in the initial determination of whether alimony is to be awarded.

Therefore, Alverta is correct in the claim that the criteria of § 501(b) are to be applied to the determination of whether she is entitled to alimony and Charles errs in his contention that § 501(b) comes into play only after the determination has been made by the sole operation of § 501(a) to establish a threshold. Our conclusion is consistent with Geyer, supra, in which criteria of § 501(b) were considered in deciding whether a spouse could provide for “reasonable needs.”

Some of the criteria of § 501(b) are to be used to decide whether the spouse seeking alimony is able to “provide for his or her reasonable needs” and is “unable to support himself or herself through appropriate employment,” as required by § 501(a). The subsections which will help to decide this issue are the economic criteria, e.g. (1), (3), (4), (6), (8), (10), (11), (12), and (13). The non-economic criteria, e.g. (2), (5), (7), (9) and (14), as well as the economic criteria, are used to decide the “nature, amount, duration and manner of payment of alimony.”

With these standards before us, we review the lower court’s acceptance of the Special Master’s report which recommended denial of alimony to Alverta Hess, in order to decide whether there has been an abuse of discretion. Remick, supra.

We begin by noting that the Master’s report contained an error of law in its assertion that “we can see no rational reason for making and discussing the findings required under Section § 501(b) when the requirements of § 501(a) have not been met.” R. 82a. Although the Master’s report did make a partial § 501(b) review, we agree with Alverta’s contention that the § 501(b) review was less than adequate. First, the Master failed to recognize that Alverta’s $3,000 in Certificates of Deposit was accumulated during a period of support payments of $45 per week from Charles, and that she is unable to maintain savings absent some contribution from him. The $3,000 is intended for her retirement. Alverta’s employment, unlike his, does not provide a vested right to a pension. Second, the Master’s report indicated that Alverta’s income averages $130 “when she works a full week” R. 83a. The report omitted the fact that Alverta, as a part-time worker on an hourly wage, usually works less than a full week R. 36-38a. Third, the Master’s report made no mention of alimony pendente lite, which was part of Alverta’s claim.

We cannot agree with the lower court’s statement that “the master gave careful consideration to the list of factors enunciated under sections 501(b) and (c) of the alimony chapter of the code.” Opinion, at 3. We find that the lower court has not correctly considered the findings of facts in light of Sections 501(a) and (b) of the Divorce Code.

§ 501(c) contains provisions for two classes of individuals: those who are able to be gainfully employed (for whom alimony may be provided on a temporary basis) and those individuals unable to be gainfully employed by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment. For such individuals, whose capacity for self-support is substantially diminished, alimony may be awarded on a continuing basis. In a determination of the duration of alimony, the factors of § 501(b) are brought to bear. See the discussion of § 501(c) in Paul W. v. Margaret W. et al., 130 P.L.J. 6 (1982).

The dual approach embodied in § 501(c) gives the lower court leeway in awarding alimony, and is consistent with our view of alimony as essentially an economic component of the divorce settlement. We agree with the Supreme Court of New Jersey in Lepis {supra note 2, 416 A.2d at 54): “The law must be concerned with the economic realities of modern life, not a model of domestic relations that provided women with security in exchange for economic dependence and discrimination. “Alverta Hess has been able to work on a part-time basis in the past. Her health is poor, and her economic security, both now and for the future, is minimal.

The order of the lower court overruling Alverta’s exceptions to the Special Master’s report of September 1, 1981 is vacated. We remand for proceedings not inconsistent with this opinion. In so remanding, we note that the Special Master’s hearing was conducted nearly three years ago. In accordance with the goal of the Divorce Code to provide for economic justice and fairness to the parties, we direct the court to take additional testimony so that its final decree will not be based on a stale record. Jurisdiction is relinquished.

      . Appellant has not pursued this issue on appeal. See infra note 3.

      . The Supreme Court of New Jersey discussed the interrelationship of equitable distribution and alimony in Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980).

      . However, Alverta has waived any claims of error arising out of the Master’s failure to mention alimony pendente lite. Alimony pendente lite was not mentioned in her exceptions to the Master’s report or in her statement of questions presented in her brief to this Court. See Shuda v. Shuda, 283 Pa.Super. 253, 423 A.2d 1242 (1980); Pa.R.C.P. 1920.55(a); and Pa.R.A.P. 2116(a).


source: Caselaw Access Project

author: ROBERTS, Judge:

license: Public Domain

text:
    475 A.2d 803
    Stephen OVERSTREET and Dennis Crowson, Appellants, v. The BOROUGH OF YEADON, James J. Freeman, Pres., William Cumby, Member, Joseph Sindoni, Member, Rose Vaccone, Member, Frances Jackson, Member, Harry Connolly, Member, Scott Casper, Member, Gaeton Termini, Member, Nicholas D’Alessandro, Mayor, Dolores Danes, Secty & Active Borough Manager, & Frank Urso and the Delaware Co. Daily Times Central State Publishing, Inc.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1984.
    Filed April 13, 1984.
    Reargument Denied June 18, 1984.
    Petition for Allowance of Appeal Denied Nov. 8, 1984.

      Edward C. Harkin, Collingdale, for appellants.
    Kyle Burch, Chester, for appellees.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

This is an action to recover compensatory and punitive damages for malicious prosecution, brought by appellants Steven Overstreet and Dennis Crowson against appellees Borough of Yeadon, the president of borough council, its members, the mayor of the Borough, and its secretary and acting manager. Appellants’ complaint alleged that appellees unjustly and maliciously sought to prosecute appellants on criminal charges of theft by deception and conspiracy in connection with repairs performed by appellants on a borough police vehicle. The criminal charges were dismissed after a preliminary hearing on the ground that a prima facie case had not been established, and a petition for rearrest was rejected by the Deputy Administrator for District Justices, the District Attorney of Delaware County, and the President Judge of Delaware County.

The court of common pleas sustained preliminary objections filed by appellee borough, which averred that the borough was immune from suit under the Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, § 101 et seq., formerly 53 P.S. § 5311.101 et seq. (now 42 Pa.C.S. § 8541 et seq.), as well as preliminary objections filed by the individual appellees, who also averred immunity from suit under the Act. In so ruling, the court found it

“particularly noteworthy that Section 202(a)(2) of The Act [now 42 Pa.C.S. § 8542(a)(2) ] excluded governmental liability for intentional torts. This section provides in effect that the political subdivision is not liable for conduct that constitutes a crime, actual fraud, actual malice, or willful misconduct. Plaintiffs’ cause of action for malicious prosecution would therefore appear to be precluded.”

The present appeal followed.

Although we agree that the Act requires the dismissal of appellants’ action against appellee borough, we disagree that the individual appellees are entitled to the same relief. Overlooked by the court of common pleas was section 307 of the Act (now 42 Pa.C.S. § 8550), which provides:

“In any action against a political subdivision or employee thereof for damages on account of an injury caused by the act or omission of the employee in which it is judicially determined that the act or omission of the employee caused the injury and that such act or omission constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of section 302 (relating to defense of official immunity), 304 (relating to indemnity) and 306 (relating to limitation on damages) shall not apply.”

As the facts alleged clearly would support a determination of willful misconduct on the part of the individual appellees, the preliminary objections of the individual appellees should not have been sustained on the ground that the Political Subdivision Tort Claims Act grants the individual appellees immunity, and appellants’ complaint against the individual appellees must be reinstated.

The order of the court of common pleas is reversed insofar as it sustains the preliminary objections of the individual appellees, and appellants’ complaint against the individual appellees is reinstated. In all other respects, the order is affirmed.

       Although the present appeal might have been taken to the Commonwealth Court pursuant to 42 Pa.C.S. § 762(a)(4), appellees have not lodged objection, see 42 Pa.C.S. § 704(a), and we are satisfied that our consideration of the appeal will advance judicial economy. See Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981). For similar reasons we shall treat the appeal as having been properly taken from a final order. See Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983).


author: PER CURIAM:

text:
      475 A.2d 804
    COMMONWEALTH of Pennsylvania v. Robert GORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1983.
    Filed April 13, 1984.
    Reargument Denied June 18, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   PER CURIAM:

In a nonjury trial, defendant was convicted of robbery and criminal conspiracy. Post-verdict motions were denied, and judgment of sentence was imposed. Defendant filed this appeal, in which he claims: (1) he is entitled to discharge under Rule 1100; and (2) he is entitled to a new trial because the court below erred in denying the motion to suppress.

In his opinion under Pennsylvania Rule of Appellate Procedure 1925(a), the trial judge concluded that he had erroneously denied defendant’s motion in arrest of judgment based on Rule 1100, because at the time he decided the issue, he lacked the necessary notes of testimony to decide it properly. Because this appeal was pending when the trial judge’s opinion was filed, defendant filed in this court a petition to remand the record. The court en banc referred the petition to this panel. We have concluded that the most expeditious manner in which to dispose of this case would be to grant the petition, vacate both the judgment of sentence and the order denying post-verdict motions, and remand for reconsideration of the post-verdict motions. MNC Corporation v. Mt. Lebanon Medical Center, Inc., 294 Pa.Super.Ct. 405, 406, 440 A.2d 528, 529 (1982); cf. Cohen v. Jenkintown Cab Company, 300 Pa.Super.Ct. 528, 538 n. 8, 446 A.2d 1284, 1289-90 n. 8 (1982).

Petition granted, judgment of sentence and order denying post-verdict motions vacated, and case remanded for further proceedings. Jurisdiction relinquished.

      . Because we remand on a discretionary basis, we need not consider defendant’s argument that he is entitled to remand under the circumstances of this case as a matter of right.


author: WICKERSHAM, Judge:

text:
    475 A.2d 805
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank WINN.
    Superior Court of Pennsylvania.
    Argued May 13, 1983.
    Filed April 19, 1984.

      Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

On April 14, 1981, Judge Richard B. Klein, Philadelphia Court of Common Pleas, presided over a Rule 1100 hearing, and denied the Commonwealth’s “Petition for Extension under Rule 1100,” as being untimely filed and granted appellee’s “Motion to Dismiss under Rule 1100.” The Commonwealth has appealed. We reverse.

A review of the entries in the Quarter Session file reflects the following chronology:

9/18/80: criminal complaint filed.
12/15/80: appellee arrested. Preliminary hearing scheduled for 12/24/80. .
12/24/80: complainant failed to appear. Preliminary hearing continued to 1/7/81.
1/7/81: complainant failed to appear. Must be tried Commonwealth. Preliminary hearing continued to 1/22/81.
1/22/81: complainant failed to appear. Must be tried. Preliminary hearing continued to 2/5/81.
2/5/81: line-up ordered.
2/26/81: preliminary hearing held. Appellee held for court.
3/17/81: arraignment 13/17/81: Rule 1100 Run Date ]
3/31/81: Commonwealth’s Petition to Extend under Rule 1100 filed.
4/1/81: Pre-trial conference. Rule 1100 hearing scheduled for 4/14/81.
4/14/81: Appellee’s answer and Motion to Dismiss under Rule 1100 filed.
Motion to Dismiss under Rule 1100: Granted.

A Rule 1100 evidentiary hearing was held on April 14, 1981. As the Rule ran on March 17, 1981 and the Commonwealth’s Extension Petition was not filed until March 31, Rule 1100(c) and (e) required dismissal of charges unless the Commonwealth could establish that at least two weeks were “excludable” under Rule 1100(d) Pa.R.Crim.P. The position advanced by the Commonwealth, and the evidence produced at the Rule 1100 hearing, involved the Commonwealth’s contention that the delay between the filing of the complaint (September 18, 1980) and the arrest of appellee (December 15, 1980) was excludable time. After hearing the testimony of the assigned detective, Judge Klein found that his efforts were “so minimal” as to demand a finding that due diligence was lacking, and that the detective had ignored several possibilities which offered some hope of success in arresting appellee.

As a result of this Pa.R.Crim.P. 1100 discharge, defendant, Frank Winn, has been discharged from all criminal liability for twice allegedly raping a seventy-two year old widow, Mrs. Frances Taylor. It is charged here that on the night of September 7, 1980, defendant broke into Mrs. Taylor’s apartment, while she lay resting on her bed. He first demanded money; when Mrs. Taylor protested that she had none, he struck her in the eye with his clenched fist, shoved her onto her bed, pinned her down with a choke hold over her neck and face, and raped her. Warning that “I will be back,” defendant left the apartment for a few minutes. Upon his return he threatened the terrorized and elderly widow that: “They are going to find you dead right up here in this room.” He then grabbed her bra and tore it off, pulled off his victim’s slip, again threw her on the bed, and raped her a second time. Five or ten minutes later defendant, sated, left his traumatized victim lying in pain.

On April 14, 1981, the Honorable Richard A. Klein discharged defendant under Rule 1100 because he felt the police did not exercise due diligence in apprehending defendant who evaded police for eighty-eight (88) days after the issuance of a warrant for his arrest. Although Judge Klein clearly credited the assigned detective’s uncontradicted testimony, presented by the Commonwealth at the Rule 1100 hearing, he held that the police efforts to locate defendant were, as a matter of law, insufficient to sustain a finding of pre-arrest due diligence. The Commonwealth’s credited evidence established that on September 7, 1980, Philadelphia Police Detective Finnegan took Mrs. Taylor’s complaint and learned from her that Mrs. Taylor’s landlady’s nephew, Frank Winn, was the rapist. However, defendant’s aunt, who was told that defendant was wanted by the police, gave Detective Finnegan an incorrect address for defendant and a misspelling of his last name. Detective Finnegan went to the given address, discovered that no one by defendant’s name lived there, and on September 18, 1980, returned to defendant’s aunt’s residence. At that time, the aunt’s common law husband provided him with the correct information. On that day, Finnegan obtained an arrest warrant for defendant at the correct address and, at 10:00 p.m., went to defendant’s home, but received no answer. Also on that day, the detective entered defendant’s name into the PCIC (Philadelphia Crime Information Center) computer, which circulates throughout the state and city that defendant is wanted in Pennsylvania. Early in October of 1980 Detective Finnegan went to defendant’s home, but again received no answer. He also re-contacted defendant’s aunt, who said she had not seen him since the rape incident. Finally, on November 11, 1980, defendant’s mother answered the door and told the detective that although defendant did live there, he was not home at that moment. The detective gave the mother his name and telephone number, and she told him that when defendant came in he would telephone the detective. Defendant did not do so. The detective continued his efforts to apprehend defendant by entering his name into the NCIC (National Crime Information Center) computer on November 11, 1980. He also circulated photographs of defendant among the police officers in defendant’s police district, and learned from an Officer Thompson that defendant “hung out” at a poolroom at 10th and Tioga Streets. Detective Finnegan checked the poolroom without success, as did Officer Thompson on a later date. Next, on November 13, 1980, Detective Finnegan was contacted by defendant’s probation officer and the detective informed him that there was a warrant outstanding for defendant’s arrest. The probation officer told the detective that defendant would turn himself in to South Detectives Division but defendant failed to do so. Finally, on December 15, 1980, Detective Finnegan and Officer Thompson arrested defendant at his home. The first Common Pleas Court listing of defendant’s case was on April 14, 1981, hearing on the Commonwealth's Rule 1100 extension petition, which had been filed on March 31, 1981, thirteen (13) days after the Rule 1100 “mechanical rúndate”. After hearing the Commonwealth’s uncontradicted evidence, Judge Klein concluded that the police were not duly diligent in trying to find defendant during the eighty-eight (88) days between the lodging of the complaint and defendant’s arrest. He therefore discharged defendant on the ground that, since the pre-arrest delay was not excludable time under Pa.R.Crim.P. 1100, the Commonwealth’s petition was not timely filed.

This case is controlled by Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982), in which a panel of our court also considered an appeal by the Commonwealth from an order discharging appellee under Rule 1100(f). The lower court had held that the police had not exercised due diligence in looking for appellee, and that the period between the offense and appellee’s arrest should therefore not be excluded from the period within which appellee had to be tried. We reversed and speaking through Judge (now President Judge) Spaeth we said:

Without question, the police might have done more by way of trying to find appellee, and they might have done some of what they did do, in particular, circulating a photograph of appellee, sooner. One may have some confidence that if the crime had been of a different, and more spectacular, sort, it would not have taken the police so long to find appellee. Having said this much, however, we recognize that the police cannot investigate every crime with the promptness and thoroughness that would be desirable. Too many crimes are committed. The police must therefore make choices, devoting more attention to some crimes than to others, and forgoing some lines of inquiry that they would pursue if they had more resources.
Thus, when asked to decide whether the police have acted with due diligence, a court must engage in a balancing process, which may become quite awkward. On the one hand, the court should approach its decision with sympathy for the police. For as the Supreme Court has said in Commonwealth v. Mitchell, supra, 472 Pa. at 561, 372 A.2d at 830: “The police can be expected to act with due diligence in locating and apprehending an accused in all situations because it is their duty to do so as public officials.” The court should therefore take into account the limited resources available to the police, and should be wary of saying that the police should have done something that they did not do. On the other hand, the police, like other public officials, do not always do their duty. Furthermore, the interest of an accused in receiving a prompt trial is a precious interest, which it is the court’s responsibility to protect. See Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); see also Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). If it is not the function of the courts to “second-guess” the police, neither is it their function to suspend their critical faculties. If the courts were always to make excuses for the police, the requirement of “due diligence” would have no force at all.
Here, striking this balance as best we can, we have concluded that the police acted with due diligence. The police went to appellee’s house five times over a period of about six months. After the third time, they entered appellee’s name in the Pennsylvania Crime Center Computer, and after the fifth time, distributed appellee’s photograph. Thus, while perhaps they were slow, nevertheless, the police persisted in their efforts to find appellee by repeatedly checking at the place where she was likely to be. Their efforts were, in a rough way, equivalent to efforts that we have found in other cases constituted due diligence. Commonwealth v. McDermott, 280 Pa.Super. 535, 421 A.2d 851 (1980) (police checked with defendant’s employer, at his home, and in areas known to be frequented by defendant, over nine month period; circulated photographs; and entered defendant’s name on National Crime Information Center computer); Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978) (defendant wanted for participation in narcotics ring; undercover officer conducted surveillance, on six or eight occasions, of known drug areas in defendant’s community, and examined photographs supplied by local police). In Commonwealth v. Collins, 266 Pa.Super. 340, 404 A.2d 1320 (1979), we found a lack of due diligence in apprehending the defendant. There, however, the police made “[a] single unsuccessful visit to the homes of two relatives, followed a month and a half later by [the officer leaving his] card at the accused’s mother’s residence with a request to be contacted should the accused come calling . . . .” Id., 266 Pa.Superior Ct. at 346, 404 A.2d at 1323.

Id., 294 Pa.Superior Ct. at 589-591, 440 A.2d at 622-623.

As in Dorsey, and striking the balance as best we can, we have concluded that the police in the case sub judice acted with due diligence. We agree with Judge Spaeth who, in Dorsey, referring to the efforts of the police said, “Their efforts were, in a rough way, equivalent to efforts that we have found in other cases constituted due diligence.”

Having carefully reviewed the record in this case along with the briefs submitted by counsel and having made our own independent review and analysis of applicable law and having had the benefit of oral argument and having con-eluded that the police acted with due diligence under all the circumstances, we reverse.

In Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), our supreme court, speaking through Justice Kauffman said, inter alia:

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial right, and (2) the protection of society,” Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
* * * * * *
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Id., 493 Pa. at 69-70, 72, 425 A.2d at 369-371.

We reverse and remand for trial. Jurisdiction is relinquished.

      . In this appeal appellant raises the following issue:
      Was defendant entitled to an absolute discharge from criminal liability under Pa.R.Crim.P. 1100, as a result of pre-arrest delay, although police made repeated efforts to arrest him at his home and at the pool hall he frequented, entered his name as wanted in the Philadelphia Crime Information Center, and distributed his police photograph to street policemen in his district?
      Brief for Appellant at 2.


author: HOFFMAN, Judge:

text:
    475 A.2d 810
    COMMONWEALTH of Pennsylvania, Appellant, v. John FERGUSON.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1984.
    Filed April 19, 1984.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Elaine G. DeMasse, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

The Commonwealth appeals from a lower court order suppressing all identification evidence. Because we find two of the Commonwealth’s three claims to have merit, we reverse in part and affirm in part.

In the early morning hours of December 25, 1980, in Philadelphia, two men robbed taxicab driver William Pereau at gunpoint. Immediately after the robbery, Pereau contacted police who showed him approximately 100 slides of persons matching Pereau’s description of his assailants. However, appellee’s picture was not among these slides and Pereau made no identification. Nine days later, Pereau notified police after discovering appellee’s picture on the front page of a local newspaper in connection with a story about appellee’s arrest for the robbery-homicide of another cabdriver. On January 12, 1981, Detective Frank Russell of the Philadelphia Police Department visited Pereau and showed him a photographic array which included a picture of appellee. Without hesitation, Pereau unequivocally identified appellee’s picture as one of the men who had robbed him. Accordingly, appellee was arrested on January 14, 1981, and charged with a variety of offenses stemming from the Pereau robbery. On March 4, 1981, an in-person lineup was held at the Philadelphia Detention Center. At this lineup, Pereau did not recognize appellee as one of his assailants and, consequently, made no identification. Nevertheless, at a preliminary hearing the next day, Pereau positively identified appellee, and appellee was bound over for arraignment. Following appellee’s two waivers of his rights under Pa.R.Crim.P. 1100, defense counsel filed a motion to suppress all identification evidence on the ground that, inter alia, the March 5, 1981 preliminary hearing identification procedure was unnecessarily suggestive. However, before a hearing could be held on this motion, defense counsel received the following letter from Assistant District Attorney Elliot Present:

Dear Ms. Chiarello: Pursuant to the Rules of Discovery, this letter is to advise you that on March 25, 1982, in the course of my preparation of the victim in the above-captioned case, he was told he would again be shown the photos at the Suppression hearing. The same photos which were shown by Detective Russell were handed to the witness. He then looked through the photos and picked out the defendant. There was no suggestion made to him as to which photo to select.
Very truly yours,
Elliot Present

(N.T. May 18, 1982 at 95). Consequently, defense counsel filed an amended suppression motion alleging, inter alia, that appellee’s right to counsel had been violated on March 25, 1982 when, in the absence of defense counsel, Present showed Pereau the array of photographs, and Pereau identified appellee’s picture. A suppression hearing was held on May 18, 1982, at which time Pereau again identified appellee as one of his assailants. However, at the conclusion of the hearing, the lower court found that appellee’s right to counsel had been violated at the March 25, 1982 private meeting between Pereau and Assistant District Attorney Present. Therefore, the lower court felt justified in suppressing Pereau’s four identifications of appellee, including: (1) the uncounselled photographic identification on March 25, 1982; (2) the pre-arrest photographic identification on January 12, 1981; (8) the preliminary hearing identification on March 5, 1981; and (4) the suppression hearing identification on May 18, 1982. We shall deal with the lower court’s suppression of each identification seriatim.

I. The March 25, 1982 Identification

The Commonwealth contends that the lower court erred in suppressing Pereau’s identification of appellee’s picture which occurred during the private meeting between Pereau and Assistant District Attorney Present. Specifically, the Commonwealth argues that the suppression court’s reliance on Commonwealth v. Whiting, 439 Pa. 198, 266 A.2d 651 (1970) was misplaced because Whiting is factually inapplicable to the instant case. We disagree. In Whiting, our Supreme Court held that, following arrest, an accused has a right to have counsel present when. his picture is presented to a potential witness for the purpose of obtaining an identification. Here, the private meeting between. Pereau and Present on March 25, 1982, marked the first time in more than a year that Pereau had an opportunity to view appellee’s picture. Thus, we must conclude that, in displaying the array of photographs to Pereau, the prosecutor’s purpose was to obtain an identification and thereby ascertain Pereau’s ability to identify appellee in court. Therefore, both Whiting and the instant case involve postarrést photographic displays where the victim was asked to make an identification and where counsel for the accused was not present. Accordingly, we hold that Whiting is factually applicable to the instant case.

However, the Commonwealth also asserts that Whiting should not be followed in light of the United States Supreme Court’s decision in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). In Ash the Court held that the Sixth Amendment does not guarantee an accused the right to have counsel present at a post-indictment photographic display which contains a picture of the accused, and which is presented to the witness for identification purposes. While, “Our delineation of the state right is not necessarily circumscribed by the interpretations given by the Supreme Court of the United States to the corresponding federal right,” Commonwealth v. Ray, 455 Pa. 43, 50 n. 4, 315 A.2d 634, 636 n. 4 (1974), there can be no question that, in light of Ash, Whiting may “ ‘no longer be considered to be an accurate statement of federal constitutional law.’ ... This is so because when the United States Supreme Court states a rule based upon the Constitution of the United States, the statement is binding on us under the Supremacy Clause.... ” Commonwealth v. Jackson, 227 Pa.Superior Ct. 1, 14, 323 A.2d 799, 806 (1974) (SPAETH, J. concurring) (citations omitted), quoting Commonwealth v. Claitt, 454 Pa. 313, 319, 311 A.2d 922, 925 (1973) (POMEROY, J. concurring). The Court’s decision in Whiting was bottomed on its interpretation of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and the Sixth Amendment right to counsel. Nonetheless, we believe that the rule expressed in Whiting remains the law of Pennsylvania by virtue of Article I, § 9 of the Pennsylvania Constitution which provides, in relevant part, that “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel.” See Commonwealth v. Jackson, supra 227 Pa. at 13, 323 A.2d at 805 (SPAETH, J. concurring). Furthermore, our view that an accused has the right to counsel at a pretrial photographic lineup under the Pennsylvania Constitution is supported by the fact that neither of Pennsylvania’s appellate courts has chosen to overrule Whiting despite having had opportunities to do so. See, e.g., Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974) (reaffirming the holding in Whiting that counsel is required at pre-indictment lineups despite a contrary holding by the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)); Commonwealth v. Riley, 284 Pa.Superior Ct. 280, 425 A.2d 813 (1981) (under Whiting appellant had a right to be represented by counsel at the post-arrest photographic display); accord, Commonwealth v. Brown, 302 Pa.Superior Ct. 80, 448 A.2d 535 (1982); see also Commonwealth v. Tate, 229 Pa.Superior Ct. 202, 207 n. 1, 323 A.2d 188, 191 n. 1 (1974) (HOFFMAN, J. dissenting) (given the Court’s holding in Commonwealth v. Richman, supra, “it appears that our Supreme Court has taken a far more expansive view of the requirement of counsel at pretrial identification procedures” than has the Supreme Court of the United States). Thus, we decline the Commonwealth’s invitation to “adopt the United States Supreme Court’s holding in Ash until our Supreme Court chooses to declare it to be the law of the Commonwealth.” Id. Accordingly, we find that the lower court properly suppressed Pereau’s identification of appellee’s picture at the private interview session on March 25, 1982.

The Commonwealth further claims that it was error for the lower court to suppress Pereau’s identifications of appellee which both preceded and followed the uncounselled, post-arrest, photographic identification of March 25, 1982. However, before turning to these prior and subsequent identifications, we note that:

When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights, ... and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. . . . On review, [we] must “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In doing so, we will consider “only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.”

Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980), quoting Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977) (citations omitted); accord, Commonwealth v. Brown, 302 Pa.Superior Ct. 80, 82, 448 A.2d 535, 536 (1982). Moreover, when considering the admissibility of all pretrial identifications, the essential criterion is their “reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though [one of the confrontation procedures at issue] may have been suggestive.” Commonwealth v. Thompkins, 311 Pa. Superior Ct. 357, 363, 457 A.2d 925, 928 (1983) (footnote omitted) (emphasis in original). See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). In other words, we employ a totality of the circumstances test when determining the reliability of a challenged identification; and, specifically, we consider the following factors:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Commonwealth v. Ransome, 485 Pa. 490, 496, 402 A.2d 1379, 1382 (1979), quoting Manson v. Brathwaite, supra, 432 U.S. at 98, 97 S.Ct. at 2243. See Commonwealth v. Johnson, 305 Pa.Superior Ct. 103, 106, 451 A.2d 263, 265 (1982); Commonwealth v. Townsend, 280 Pa.Superior Ct. 155, 159, 421 A.2d 452, 454 (1980); and Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972).

II. The January 12, 1981 Identification

At the suppression hearing the lower court itself concluded “that the photographic display shown by Detective Russell [to Pereau on January 12, 1981 prior to appellee’s arrest] was not suggestive.” (N.T. May 18, 1982 at 104) (emphasis added). Although the lower court has since decided that Pereau’s January 12, 1981 identification was “problematic and of questionable accuracy and reliability,” the record is devoid of any evidence which would tend to support this finding. (Lower Court Op. at 18). In fact the circumstances surrounding the Pereau robbery indicate that Pereau was well-qualified to identify at least one of his assailants. Pereau testified that at approximately 1:00 а. m. on December 25, 1980, while he was stopped at a traffic signal at the intersection of 18th and Cumberland Streets in Philadelphia, his cab was approached by two men. Pereau stated that after he refused to accept the men as passengers, appellee pointed a gun at his face and demanded money. Pereau explained that although he complied with the demand, he was forced to exit his cab and lie on the ground while the two men searched him before they fled. According to Pereau, the entire episode lasted approximately four or five minutes. Significantly, Pereau testified that, at the time of the robbery, the intersection of 18th and Cumberland Streets was well-lit and that he was able to observe one of his assailants (allegedly appellee) clearly and at very close range. Additionally, Pereau stated, “I looked at his [the gunman’s] face, and when the man pointed the gun at me ... I stared at him because I wanted to see what he looked like, because as far as I knew ... it was my last breath. So I looked right smack in his face, so I can remember his face.” (N.T. May 18, 1982 at 14). See, e.g., Commonwealth v. Woods, 275 Pa.Superior Ct. 392, 399, 418 A.2d 1346,1350 (1980) (en banc), appeal dismissed, 498 Pa. 140, 445 A.2d 106 (1982) (victim’s identification of her assailant reliable because brief view of attacker under adequate lighting would have seemed like an eternity); Commonwealth v. Rose, 265 Pa.Superior Ct. 159, 171, 401 A.2d 1148, 1155 (1979) (victim’s identification reliable because victim had an opportunity to view his assailant for a period of ten seconds under a street light under circumstances when the “most fleeting and most minute passage of time would seem like an eternity.”); Commonwealth v. Bradford, 305 Pa.Superior Ct. 593, 597, 451 A.2d 1035, 1037 (1982) (in holding victim’s in-court identification admissible where victim saw defendant’s facial features at close range for three to four seconds while chasing him immediately after the robbery, this Court observed that, “Whenever the victim of a crime has an opportunity to observe the criminal, the impression of the face of an assailant is etched upon the prey by the terror of the occasion.”).

Unquestionably, the robbery and the face of the gunman were still fresh in Pereau’s mind when, on January 12, 1981, prior to appellee’s arrest, he positively and unhesitatingly identified appellee’s picture from a non-suggestive array of photographs. Furthermore, we find it significant that Pereau made no identification in the hours immediately following the robbery when the police failed to present him with a picture of appellee, but did show him more than 100 slides of individuals matching Pereau’s description of the robbers. Therefore, we hold that it was error for the lower court to suppress Pereau’s January 12 identification of appellee.

III. The March 5, 1981 Identification

The lower court found that Pereau’s identification of appellee at the preliminary hearing was unduly suggestive because appellee “had already been marked as the suspect by his courtroom position and the police officers who accompanied him.” (Lower Court Op. at 18). Furthermore, in holding this in-court identification unreliable, the lower court noted Pereau “failed to identify [appellee] at the March 4, 1981 [physical] line-up [sic],” and that this fact was of “crucial importance.” (Id.) The issue of suggestiveness of an in-court confrontation was addressed by our Supreme Court in Commonwealth v. Sexton, 485 Pa. 17, 21-22, 400 A.2d 1289, 1291, (1979), wherein the Court commented that:

The suggestive quality arising from a courtroom confrontation is created by the fact that the accused is clearly designated by his role in the proceeding as the suspected perpetrator prior to the identification. The type of inherent suggestiveness present in all one-to-one confrontations is present, and to some extent magnified, where the identification is made in open court. . . . Nevertheless, the key in determining the admissibility of such evidence is not simply the suggestiveness of the circumstances surrounding the identification but rather the likelihood of misidentification. . . .

In Sexton, the defendant, a young, black male, was convicted of robbery and related offenses. On appeal, this Court found that a one-on-one confrontation at a pre-trial certification hearing, at which the victim identified the defendant for the first time, was unduly suggestive. See Commonwealth v. Sexton, 246 Pa.Superior Ct. 30, 369 A.2d 794 (1977). But our Supreme Court disagreed, stating that, under the totality of the circumstances test, the identification at the certification hearing was not “so unreliable as to offend due process.” Commonwealth v. Sexton, supra, 485 Pa, at 22, 400 A.2d at 1291 (footnote omitted). This was so even though at the certification hearing “[the defendant] was the only young and black male in the courtroom where [the] case was announced by his name and the complaintant, while never having viewed [the defendant] in a non-suggestive setting, had been given [the defendant’s] name by the police.” Id., 485 Pa. at 22 n. 4, 400 A.2d at 1292 n. 4. Thus, the Court concluded that the “identification at the certification hearing was [not] unduly suggestive, although it certainly was highly suggestive.” Id. See also Commonwealth v. Johnson, supra (finding an in-court confrontation procedure not unduly suggestive where, immediately prior to a preliminary hearing, the victim noticed that the defendant was handcuffed and that he was the only black in the hearing room; this holding despite the fact that the victim’s assailant had also been black and that the victim had not made an in-person identification prior to the preliminary hearing). Thus, as was true in Commonwealth v. Johnson, supra, 305 Pa.Super. at 106, 451 A.2d at 265, we find that “any suggestiveness that may have been present at [the preliminary hearing] is inherent in the criminal justice system and is sufficiently outweighed” by the reliability of Pereau’s testimony as demonstrated by the facts of this case. In addition, while Pereau’s failure to identify appellee at the March 4, 1981 in-person lineup is a factor to be considered in assessing the reliability of the victim’s identification testimony, it is not determinative of whether such testimony is admissible. See, e.g., Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982) (victim’s first-time, in-court trial identification of defendant admissible despite victim’s prior failures to identify defendant at an in-person lineup and at a preliminary hearing); Commonwealth v. Bradford, supra (victim’s trial identification of defendant admissible despite her earlier failure to make a positive photographic and in-person identification). Hence, the ability of a witness to positively identify an accused will affect that witness’s credibility; and, therefore, the failure or uncertainty of a witness in making an identification at a given confrontation procedure goes to the weight to be accorded that witness’s identification testimony rather than its admissibility. Commonwealth v. Silver, supra, 499 Pa. at 236, 452 A.2d at 1332; Commonwealth v. Floyd, 494 Pa. 537, 544, 431 A.2d 984, 988 (1981).

In conclusion, we can find no logical basis for the lower court’s decision to suppress the identifications which took place on January 12, and March 5, 1981, that is, prior to the uncounselled photographic display. Plainly, there could be no danger that the events of March 25, 1982, tainted the identifications which occurred before that date. Indeed, the lower court flatly stated that but for the uncounselled photographic display on March 25, appellee’s suppression motion would undoubtedly have been denied. (N.T. May 18, 1982 at 104). Accordingly, we hold that the lower court erred in suppressing Pereau’s identification of appellee at the March 5, 1981 preliminary hearing.

IV. The May 18, 1982 Identification

113] Applying the totality of the circumstances test to Pereau’s in-court identification of appellee at the May 18, 1982 suppression hearing, we believe that the instant facts clearly indicate that this identification testimony was reliable and independently based and, thus, not tainted by the events of the March 25 uncounselled photographic identification. Accordingly, we find that the lower court erred in suppressing Pereau’s in-court identification testimony which occurred subsequent to March 25, 1982.

For the aforementioned reasons, the order of the court below is affirmed in part, reversed in part, and the case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The Commonwealth may appeal from a pretrial order suppressing evidence when, as here, the Commonwealth will be substantially handicapped in the prosecution of its case because it is unable to present all of its available evidence. Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969); Commonwealth v. Johnson, 305 Pa.Superior Ct. 103, 451 A.2d 263 (1982).

      . At the time of his arrest for the Pereau robbery, appellee was already in custody for the robbery-homicide of the other cabdriver.

      . We wish to emphasize that in finding that the lower court properly suppressed the March 25, 1982 identification, our decision is based solely on our view that appellee had a right to be represented by counsel when Assistant District Attorney Present privately showed Pereau the stack of photographs for identification purposes. However, we will assume arguendo that the March 25 identification was the product of some improper suggestion by Assistant District Attorney Present so as to address the merits of the lower court’s suppression of the identifications which occurred before and after March 25, 1982. .

      . Clearly, appellee had no right to counsel at the photographic lineup held on January 12, 1981, as this occurred prior to appellee’s arrest, that is, it "preceded the ‘initiation of adversary criminal proceedings’ as defined in Pennsylvania.” Commonwealth v. Richman, 458 Pa. 167, 171, 320 A.2d 351, 358 (1974); see Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).

      . The lower court asserts that the photographic display which was presented to Pereau by police on January 12, 1981, contained the identical photograph of appellee which the victim had recognized in the newspaper nine days earlier. This claim, however, is unsupported by the record and is adamantly denied by the Commonwealth. But, even if the lower court were correct, it would not affect our ultimate disposition of this case.

      . Pereau’s ability to identify his other assailant was apparently hindered by the fact that the other man stayed "more or less in the background.” (N.T. May 18, 1982 at 11).


text:
    475 A.2d 817
    In re GUARDIANSHIP OF Persons and Estates of Paula Rose Christine ZOREK, Timothy Charles Christine and Jacob Francis Christine, Minor Children of Ester V. Christine, Deceased, Late of Derry Township, Dauphin County, Pennsylvania. Appeal of Charles A. CHRISTINE In re GUARDIANSHIP OF Persons and Estates of Paula Rose Christine ZOREK, Timothy Charles Christine and Jacob Francis Christine, Minor Children of Ester V. Christine, Deceased, Late of Derry Township, Dauphin County, Pennsylvania. Appeal of Paula Rose Christine ZOREK, Timothy Charles Christine and Jacob Francis Christine.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed April 27, 1984.

      Joseph J. Dixon, Harrisburg, for appellant (at No. 263) and for participating party (at No. 264).
    John R. Fenstermacher, Harrisburg, for appellants (at No. 264) and for appellees (at No. 263).
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

Appellants, Paula, Timothy, and Jacob Christine were minors when their mother died on March 26, 1974. In view of the fact that their father had predeceased their mother, one of their older brothers, Charles, appellee herein, was appointed guardian of the estates and persons of the minors in June of 1974. The initial amount of guardianship funds Charles received was $9,801.12. At the time of the appointment, the only additional assets expected to come into the estates of the minors were monthly annuity payments in the amount of $466.72 for each ward from the Pennsylvania State Employees Retirement Board.

On March 7, 1977, Timothy and Jacob (Paula had previously reached her majority) filed a petition to grant a citation to Charles to show cause why he should not be removed as guardian of their estates and persons. The grounds for the petition were (1) misappropriation and waste of estate funds; (2) appropriation of estate funds by the guardian to his own use; and (3) physical and psychological abuse of the wards by the guardian. The court ordered the guardian to file an accounting. Appellants filed objections to the accounting. A master was appointed, hearings were held, and the master reported his findings of fact, conclusions of law, and recommendations to the Dauphin County Court of Common Pleas. Essentially, the master concluded that substantia] amounts of the guardianship funds had been converted by the guardian (appellee) for his own use, that the guardian had co-mingled guardianship funds with his own funds, and that the guardian had failed to invest the estate assets to yield interest to the wards. On the basis of these findings, the Master recommended to the court: (1) that Paula be paid $5,228.41 as of January 1, 1980, together with interest at the rate of $.65 per day for each day after January 1, 1980; (2) Timothy be paid $15,120.78 as of January 1, 1980, together with interest at the rate of $1.96 per day for each day after January 1, 1980; and (3) that Jacob be paid $17,560.51 as of January 1, 1980, together with interest at the rate of $2.31 per day for each day after January 1, 1980. (RR 179a-180a). In arriving at each of these figures, the master included a surcharge for interest from the date appellee received the guardianship funds in the amount of six percent (6%) per annum, simple interest. The parties then submitted exceptions to the master’s report. In an opinion and order filed July 19, 1982, the Honorable Lee F. Swope, President Judge of the Court of Common Pleas of Dauphin County, dismissed both the guardian’s and the wards’ exceptions and approved and adopted the recommendations made by the master, awarding the aforesaid sums to the wards. These cross-appeals were timely filed.

In this appeal, appellee-guardian Charles Christine presents the following issues for our consideration:

I. Was the court’s refusal to grant an extension or continuance to allow the testimony of the certified public accountant who filed and prepared the accounts of the guardianship so prejudicial as to require a reversal or remand?
II. Should the exceptions of the wards be dismissed because they were filed in an untimely manner or alternatively, should they be dismissed because the court committed no error of law?

Brief for Appellee at iii.

We conclude that President Judge Swope’s opinion thoroughly and accurately addresses appellee’s first issue and we find no need to discuss it further.

As to appellee’s second issue, we find that appellee waived the right to appeal the appellants’ alleged untimely filing of exceptions because he failed to raise the objection at the lower court level. Even if it were necessary for us to address the issue, however, we would find it to be meritless. Rule 6.1 of section 8 of the Dauphin County Orphans’ Court Rules provides that the parties must file exceptions to the master’s report within ten (10) days after receipt of notice from the master. The record reflects that appellants received notice from the master on January 9, 1980. Since the date of service is not included in the computation, 1 Pa.C.S.A. § 1908, the exceptions should have been filed January 19, 1980. However, January 19, 1980 fell on a Saturday; therefore, the appellants’ exceptions were timely filed on Monday, January 21, 1980. See 1 Pa.C.S.A. § 1908.

Since the second half of appellee’s second issue deals with whether the court made an error of law in awarding simple rather than compound interest, we will defer discussion of that point until we reach appellants’ second issue, infra, which addresses that question.

In their cross-appeal, appellants state the first issue for our consideration as follows:

I. Should the exceptions to the master’s report filed by appellee-guardian be dismissed on the basis that the exceptions were improperly filed and in such improper form that the appellants were denied the opportunity to adequately respond?

Brief for Appellants at 3.

As with appellee’s first issue, we find that the lower court adequately addressed this issue, and we find no need to discuss it further.

Appellants’ second issue is:

II. Should a guardian that has been unjustly enriched by the wilful abuse of his position be held liable for the legal rate of interest as compounded to reflect the income that his wards would have received if the guardian had properly discharged his duty to accumulate the income and assets of the guardianship?

Brief for Appellants at 3.

Both the master and the lower court indicated that the facts of the instant case would justify the compounding of the interest payable to the appellants-wards. Nevertheless, both held that 20 Pa.C.S.A. § 3544 and the Pennsylvania Supreme Court’s holding in Mintz Trust, 444 Pa. 189, 282 A.2d 295 (1971) made an award of compound interest in the instant case impermissible. We agree.

In Mintz Trust, supra, Dorothy Mintz brought suit against her brothers concerning the administration of a trust of which the brothers were the trustees and she was the beneficiary. Dorothy alleged, inter alia, that the trustees made an improper loan out of the trust funds. The principal of the loan together with simple interest was repaid. On appeal, Dorothy argued that she was entitled to compound interest instead of the mere simple interest she had obtained. Our supreme court held:

As a matter of policy, we believe appellant’s position is the correct view. Section 207 of the Restatement (Second) of Trusts, provides in relevant part:
(2) Where the trustee is chargeable with interest, he is chargeable with simple and not compound interest, unless
(a) he has received compound interest, or
(b) he has received a profit which cannot be ascertained but is presumably at least equal to compound interest, or
(c) it was his duty to accumulate the income.

Comment d on Subsection (2) states:

If the trustee uses trust funds in his own business and it does not appear how much he has earned thereon, he is ordinarily chargeable with compound interest on the ground that he probably received a return from the trust fund so used at least equal to compound interest.
At a time when more is rightly being expected of those in fiduciary positions, we believe the Restatement’s view is preferable. However, we are not free to adopt this position. Section 754 of the Fiduciaries Act of 1949 states:
A personal representative who has committed a breach of duty with respect to estate assets shall, in the discretion of the court, be liable for interest, not exceeding the legal rate on such assets.
Act of April 18, 1949, P.L. 512, art. VII, § 754, 20 P.S. § 320.754.[] This section is made equally applicable to trustees and trust funds by Section 983 of the same Act. See Act of April 18, 1949, supra, 20 P.S. § 320.983(11).[] We therefore conclude the hearing judge’s disposition of this issue was proper.

Id., 444 Pa. at 205-06, 282 A.2d at 303-04 (quotations omitted).

We note that Mintz Trust has never been overruled nor even criticized. Also, the statute referred to was re-pronvulgated after the Mintz Trust opinion was filed. Therefore, we feel that the statute and its interpretation in Mintz Trust are still valid and that we are bound by them. Thus, we affirm the order of the lower court.

Order affirmed.

      . Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1908.

      . Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 3544. This section is made applicable to trust estates through the Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 7183.

      . This statute is now found at 20 Pa.C.S.A. § 3544. See n. 2, supra.

      . This statute is now found at 20 Pa.C.S.A. § 7183. See n. 2, supra.

      . Appellants cite Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980) to support their position that "the Pennsylvania Supreme Court has commented favorably on the imposition of compound interest when such action is necessary to prevent injustice or unjust enrichment." Brief for Appellants at 18. In Sack, our supreme court quoted a passage from Dobbs on Remedies in which Professor Dobbs noted, inter alia, that the only way to prevent unjust enrichment of the fiduciary who breached his duty would be to permit an award of compound interest. We note, however, that the court quoted Professor Dobbs for the purpose of supporting its views on pre-judgment interest. Also Professor Dobbs’ comments on compound interest were but a small portion of the quoted passage. Furthermore, compound interest was not an issue in the Sack case and the court made no further comments on the subject. While Sack might indicate the court’s favorable attitude to awards of compound interest in certain fiduciary situations, it neither overrules nor even mentions the Mintz Trust decision. Even in Mintz Trust, the court indicated that it favored the award of compound interest in certain cases. Nevertheless, that court felt bound by the statute which provides that a fiduciary cannot be liable for interest exceeding the legal rate. We are likewise bound by that statute.


author: McEWEN, Judge:

text:
    475 A.2d 820
    Shirley A. PROZZOLY, Appellant, v. Anthony P. PROZZOLY. (Two cases.)
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed April 27, 1984.

      J. Kerrington Lewis, Pittsburgh, for appellant.
    Shelley W. Elovitz, Pittsburgh, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

This is a consolidated appeal taken from two orders entered by the Court of Common Pleas of Allegheny County in a divorce proceeding instituted by appellant under Section 201(d) of the Divorce Code. The first order denied the request of appellant for alimony pendente lite and awarded appellant counsel fees in the sum of $200.00. While this appeal from that order was pending, the trial court entered a final decree in divorce, which has become the subject of the second appeal by appellant. Appellant contends that the prior appeal from the order concerning alimony pendente lite and counsel fees had operated to divest the lower court of jurisdiction. We are constrained (1) to vacate the order denying appellant alimony pendente lite and awarding appellant counsel fees in the amount of $200.00 and (2) to vacate the final decree in divorce. We do so as a result of our conclusion that the appeal from the order denying alimony pendente lite operated to divest the trial court of jurisdiction to proceed further in the matter.

Appellant, Shirley Prozzoly, filed a complaint in divorce on June 2, 1980, pursuant to the Divorce Law of 1929 alleging that her husband, appellee Anthony Prozzoly, had committed indignities to her person. Appellant subsequently petitioned the court for permission to proceed under the newly enacted Divorce Code and, on August 5, 1981, filed with leave of court an amended complaint under Section 201(d) of the new Divorce Code, alleging that the parties had lived separate and apart for three years and that the marriage was irretrievably broken. Appellant also requested in her amended complaint alimony pendente lite, counsel fees, alimony and equitable distribution of marital property. The answer of appellee admitted the allegations set forth in the complaint concerning the status of the marriage. The Master, appointed by the trial court pursuant to Pa.R.C.P. 1920.51 to take testimony concerning appellant’s petition for alimony pendente lite and counsel fees, conducted such a hearing on November 19, 1980. While both parties agree that the Master, on November 24, 1980, submitted the report and recommendation required by Pa.R.C.P. 1920.54, the docket does not reflect that these documents were filed and the record on appeal does not contain the report of the Master. The record, however, suggests that the Report of the Master recommended that appellant receive alimony pendente lite in the amount of $100.00 per month as well as counsel fees in the amount of $300.00. Both parties filed exceptions to the Report and recommendation of the Master as required by Pa.R.C.P. 1920.55. The trial court dismissed the exceptions filed by appellant, granted the exceptions filed by appellee, and entered an order denying appellant alimony pendente lite and awarding appellant counsel fees in the amount of $200.00. Appellant filed a timely notice of appeal from this order of January 22, 1981, both as to the meager amount of the counsel fees awarded as well as the denial of alimony pendente lite. Twenty days thereafter appellant filed a petition for a stay of the divorce proceedings, alleging, inter alia, that the appeal from the order denying alimony pendente lite had operated to divest the trial court of jurisdiction to proceed further in the matter. The trial court entered a final decree in divorce on March 3, 1981, without acting upon the petition for a stay. Appellant filed a timely notice of appeal from the final decree in divorce.

Appellee initially contends that the appeal from the order denying alimony pendente lite and awarding counsel fees to appellant is interlocutory and must be quashed. This Court, sitting en banc, has, however, recently held that an order denying alimony pendente lite is a final, appealable order. See Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984). The order denying alimony pendente lite and awarding counsel fees is, therefore, a final, appealable order properly before us for review.

Our review of the merits of the order of the trial court concerning alimony pendente lite and counsel fees is hindered by the paucity of the available record. The record includes the transcript of the hearing before the Master on November 19, 1980, but not the budgets which the parties introduced into evidence at the hearing; nor, as we earlier noted, is the formal report and recommendation of the Master available; and, while the opinion of the trial court provides a one sentence explanation for its refusal to allow appellant alimony pendente lite, it does not discuss the reason for what appellant asserts is an inadequate award for counsel fees. The opinion of the trial court states that appellant “is not entitled to alimony pendente lite as previously adjudicated by this court in its order dated July 11, 1979”. The order of July 11, 1979, did not concern alimony pendente lite but, rather, was an order denying a petition for modification of a prior order of support.

Our scope of review of the award or denial of alimony pendente lite and counsel fees and expenses is limited to a determination of whether the trial court abused its discretion, Remick v. Remick, 310 Pa.Super. 23, 28, 456 A.2d 163, 168 (1983), or committed an error of law. Jack v. Jack, 253 Pa.Super. 538, 542, 385 A.2d 469, 472 (1978). The courts of this Commonwealth have long recognized that support payments are separate and distinct from an award of alimony pendente lite. Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa.Super. 527, 117 A.2d 793 (1955); Hanson v. Hanson, 177 Pa.Super. 384, 110 A.2d 750 (1955). The obligation of support arises out of the marital relationship itself, White v. White, 226 Pa.Super. 499, 313 A.2d 776 (1973), while alimony pendente lite is awarded only to enable the dependent spouse to maintain or defend the divorce litigation. See Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980). This Court has determined that a support action does not preclude a party from pursuing a separate action for alimony pendente lite. Remick v. Remick, supra 310 Pa.Super. at 37, 456 A.2d at 169-171. Moreover, this Court has previously noted that “[a]n order terminating the obligation of support does not prevent the court from entering an order awarding alimony pendente lite”. Commonwealth ex rel. Brown v. Brown, 254 Pa.Super. 410, 414 n. 2, 386 A.2d 15, 17 n. 2 (1978). Application of these principles to the instant appeal compels us to conclude that the order of the court denying alimony pendente lite to appellant solely by reason of a prior adjudication in a support action constitutes an error of law. We are constrained, therefore, to reverse the order denying alimony pendente lite.

We are unable, however, to consider the order of the trial court awarding appellant counsel fees in the amount of $200.00, since the absence of the report and recommendation of the Master prevents us from determining what factors the Master relied upon to recommend the award and amount of counsel fees. Moreover, the absence of explanation by the trial court for the award of the sum of $200.00 for counsel fees leaves us unable to determine whether the trial court abused its discretion or committed an error of law. We ourselves are, of course, precluded from determining the proper amount of counsel fees, for to do so would “usurp the trial court’s duty as finder of fact.” Ruth v. Ruth, 316 Pa.Super. 282, 287, 462 A.2d 1351, 1353 (1983). Therefore, we reverse the order of the trial court denying appellant alimony pendente lite and establishing the amount of counsel fees and remand the case to the Common Pleas Court for further proceedings consistent with this opinion.

We move now to consider the contention of appellant that the trial court was without jurisdiction to enter a final decree in divorce during the pendency of the appeal from the order denying alimony pendente lite. Appellee argues that jurisdiction to render a valid decree in divorce remained with the trial court pursuant to Pa.R.A.P. 1701(c) since the initial appeal from the order denying alimony pendente lite and awarding counsel fees concerned issues which were separate and distinct from the issue of the parties’ right to a divorce. Appellee also argues that an appeal from an order awarding or denying alimony pendente lite and awarding counsel fees should not operate to divest the trial court of jurisdiction to proceed with the main action in divorce as the purpose and intent of the legislature in enacting the Divorce Code of 1980 was to facilitate the procurement of divorces.

We hold that an appeal from an order granting or denying alimony pendente lite and counsel fees operates to divest the trial court of jurisdiction to proceed further with the action in divorce. It is well settled that the purpose of an award of alimony pendente lite and counsel fees is to enable the recipient to maintain or defend the action in divorce and to meet expenses accrued during such litigation. Oswald v. Oswald, 263 Pa.Super. 85, 87, 397 A.2d 7, 8 (1979); Jack v. Jack, 253 Pa.Super. 538, 542, 385 A.2d 469, 472 (1978); Wiegand v. Wiegand, 242 Pa.Super. 170, 176, 363 A.2d 1215, 1218 (1976); Belsky v. Belsky, 196 Pa.Super. 374, 377, 175 A.2d 348, 350 (1961). Were we to allow the litigation to proceed while issues concerning alimony pendente lite and counsel fees were being considered on appeal, the express purpose of such awards would be defeated. When this Court in Sutliff v. Sutliff, supra, held that an order denying alimony pendente lite and counsel fees was a final, appealable order, our distinguished colleague Judge James R. Cavanaugh observed:

... [W]e recognize that some delay in the principal litigation may result because the general rule is that an appeal removes jurisdiction from the lower court, see Pa.R.A.P. 1701, but feel that this is necessary to insure the fair and impartial administration of justice, and protection of the rights of the dependent spouse. At the same time, we specifically recognize the special character of domestic relations cases, and our obligation to decide them as expeditiously as is reasonably possible.

Id. 326 Pa.Super. at 502, 474 A.2d at 601.

We are constrained, therefore, to vacate the final decree of divorce which was entered after the trial court had been divested of jurisdiction to proceed in the matter.

The order of the trial court at appeal number 106, which denied appellant alimony pendente lite and awarded counsel fees in the amount of $200.00 is hereby vacated and the matter remanded for further proceedings consistent with this opinion. The decree of divorce entered by the trial court and before us at appeal number 383, is hereby vacated. Jurisdiction is relinquished.

      . The Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 201, 23 P.S. § 201.

      . The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1, et seq. (repealed).

      . The Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

      . The report and recommendation of the Master which are not included in the record transmitted to this Court may not be considered by this Court in resolving the issues presently before us. Pa.R.A.P. 1921.

      . Appellee suggests that where alimony pendente lite and counsel fees are denied to the plaintiff in a divorce action, no prejudice will result. We disagree. Economic claims may no longer be bifurcated pro forma from issues pertaining to entitlement of the parties to a divorce. Rather, an inquiry must be made in each case to determine if bifurcation is appropriate under the particular facts and circumstances of the case. See Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983). Thus, even the plaintiff in a divorce action may be irreparably prejudiced by a denial of alimony pendente lite and counsel fees if the divorce action is permitted to proceed during the pendency of an appeal from the order denying alimony pendente lite and counsel fees.

      . Having concluded that the trial court was without jurisdiction to enter the final decree in divorce, we need not here consider whether the trial court erred in denying appellant’s petition for a stay of proceedings.