author: HESTER, Judge:

text:
    489 A.2d 248
    ESTATE OF Harvey WOLONGAVICH, Late of the Township of East Cameron, County of Northumberland and Commonwealth of Pennsylvania, Deceased. Appeal of Marie LATSHA, Executrix Cheryl Koch.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1984.
    Filed March 6, 1985.

      Ronald F. Brien, Spring City, for appellant.
    Before MONTEMURO, BECK and HESTER, JJ.
   HESTER, Judge:

This appeal challenges the propriety of a decree of the Orphan’s Court of Northumberland County removing an executrix of an estate and revoking letters testamentary-granted her.

Harvey Wolongavich died testate on May 30, 1981. Surviving Wolongavich were two daughters, Marie Latsha and Dorothy Zeigenfuse and a granddaughter, Cheryl Koch.

Wolongavich’s will, dated October 30, 1975, appointed Marie Latsha as executrix of the estate, devised his real estate to his granddaughter, Cheryl Koch, and bequeathed to each of his daughters “one half of the composite monies via U.S. Savings Bonds, remaining insurance monies and monies remaining in the presence of Dorothy Zeigenfuse, being held by her.” Finally, the will provided that the executrix should receive the sum of $50 “for incidental expenses to carry out the provisions of this will.” The will was probated and Marie Latsha was certified as executrix on June 22, 1981.

On June 10, 1982, a petition was filed by Cheryl Koch to remove the executrix for nonperformance of duties. Her petition averred, inter alia, that the executrix had failed to perform the duties required of. her by law, and that she refused to proceed with the sale of the property or to distribute the real estate to the devisee, despite offers by the devisee to pay the balance of any legitimate estate expenses. Koch alleged that the executrix’s mismanagement of the estate resulted in the deterioration of the real estate and consequential loss to the devisee. An answer was filed by the executrix which denied the allegations and which included a cross-petition requesting authorization for the sale of the property, payment of estate expenses, and distribution of funds.

The matter was scheduled to be heard on September 8, 1982. Following a conference with the parties’ attorneys, the lower court heard oral argument on the petition and answer. On September 10, 1982, an Order of Court was entered removing Mrs. Latasha as executrix and awarding her the sum of $50.00 as executrix fees. Following the dismissal of exceptions on October 5, 1983, this appeal followed.

Appellant contends that she was improperly removed as executrix when the lower court, without benefit of hearing and solely on the pleadings, directed her removal.

It is beyond doubt that a personal representative can be removed from office by an Orphan’s Court. The legislature set forth specific grounds upon which removal may be premised:

The court shall have exclusive power to remove a personal representative when he:
(1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or
(2) has been adjudged a lunatic, a habitual drunkard, or a weakminded person; or
(3) has become incompetent to discharge the duties of his office because of sickness or physical or mental incapacity and his incompetency is likely to continue to the injury of the estate; or
(4) has removed from the Commonwealth or has ceased to have known place of residence therein, without furnishing such security or additional security as the court shall direct; or
(5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office.

20 Pa.C.S.A. § 3182. The removal of a fiduciary is within the discretion of the Orphan’s Court. In re Estate of Georgiana, 312 Pa.Super. 339, 346, 458 A.2d 989, 993 (1983). Thus, our inquiry must focus on whether an abuse of that discretion occurred. In re Estate of Lux, 480 Pa. 256, 389 A.2d 1053 (1978). We are of the opinion that the court committed error.

We have received guidance from our Supreme Court in reviewing decisions to remove an executrix:

The removal of a fiduciary is a drastic action which should be taken only when the estate is endangered and intervention is necessary to protect the property of the estate. Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 295, 270 A.2d 216, 224 (1970). Particularly drastic is the removal of the executrix chosen by the testator, since her appointment represents an expression of trust and confidence in her.

In re Pitone’s Estate, 489 Pa. 60, 68, 413 A.2d 1012, 1016 (1980). See also Estate of Hamill, 487 Pa. 592, 410 A.2d 770 (1980).

In light of the above considerations, we find that the court below abused its discretion in its handling of this matter. At the hearing on September 8, 1982, the trial Judge stated for the record:

I have explained to the attorneys that there are times when the taking of testimony is an exhausting procedure that only comes to more paperwork and the kind of expressing of emotional answers as well as factual ones. It might give someone a chance to say, “Yes, I had my day in court, and I had my say in court,” but when you compound it with a number of witnesses who may be called on each side, you get, as I have learned from my twenty-three years of law practice and seven years sitting up here, it gets to be like two teams of pall bearers coming, six on each side, to see what we can do and we have gone through the passing of the scene and the estate has been a matter of record, and there is now a petition filed to remove the executrix, which is a very narrow issue, and the reasons for it. So, I have asked the attorneys to summarize their positions on the record because every lawyer is an Officer of the Court, and he’s a reasonable man or woman, and he can reason out what would have been a half an hour or hour of testimony and he can distill it down to ten, fifteen minutes and give us the benefit of any recommendations that he has, and then in this instance after we do that we will have about forty-eight hours, two days’ time, for Attorney Tim Reisinger, my law clerk, and I, to do a little research and see how we could take a position on the removal of the executrix based on the facts and based on the record that is in there as well, and based on the law to give you an answer, not today, but by Friday afternoon.
With that kind of a framework or outline, I hope that someone who came a long distance and wanted to get up there and really speak his peace or her peace from the witness stand, I’m sorry, but you won’t get your chance because we are going to have the reasonable man, the Officers of the Court, the two attorneys, will give us the positions that if so-and-so were called, this is what we would say, and also I think Attorney Rovito has some reference to make the pleadings on the record____

Although the lower court stated in its Opinion that the parties stipulated to the procedure utilized in this case, our review of the above statement reveals a strong preference by the trial judge not to elicit testimony from the witnesses present for the hearing.

A similar factual situation arose in In re Estate of Beichner, 432 Pa. 150, 247 A.2d 779 (1968). Therein, a petition was filed seeking the removal of an executrix due to an admitted animosity between the petitioner and the executrix.- On the basis of that admission, and without benefit of a hearing, the lower court so ordered her removal. The Supreme Court held that the court below abused its discretion by failing to justify the removal of the executrix with clear proof that the interests of the estate were jeopardized by the continuance of the personal representative.

Unfortunately, without sworn testimony, we are unable to review that which is mere allegation and that which has not been subjected to the test of an evidentiary hearing and judicial determination. In re Estate of Georgiana, supra, 312 Pa.Superior Ct. at 348, 458 A.2d at 994. Thus, we are constrained to remand this matter for a full hearing, at which time evidence will be adduced upon all issues raised in both the petition for appellant’s removal and in appellant’s cross-petition.

Reversed and remanded for proceedings not inconsistent with this Opinion.

Jurisdiction is relinquished.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    489 A.2d 251
    Pamela RUSSELL, Appellee, v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1984.
    Filed March 8, 1985.

      James T. Moughan, Philadelphia, for appellant.
    David Levenberg, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   CAVANAUGH, Judge:

At issue is the liability of the Pennsylvania Insurance Guaranty Association (PIGA) for post judgment interest on a judgment following an arbitration award entered against an insurer which was later suspended and eventually declared insolvent. The trial court allowed the interest and since we disagree, we reverse.

The appellee, Pamela Russell, asserted an uninsured motorist claim against Safeguard Mutual Insurance Company and received an award at arbitration. The award was thereafter confirmed by the Court of Common Pleas and judgment was entered on April 18, 1979 against Safeguard. Shortly thereafter, on May 29, 1979 Safeguard was suspended by the Pennsylvania Insurance Commissioner. The judgment was unpaid. It was not until almost three years later, on April 21, 1982, that Safeguard was declared insolvent and dissolved. Russell’s claim was presented to PIGA which, in accordance with its obligations under the Pennsylvania Insurance Guaranty Association Act of 1970, November 25, P.L. 716, No. 232, 40 P.S. §§ 1701.101, et seq., paid the amount of the award but refused payment of the post judgment interest on the basis that its statutory obligation extended only to the amount of the claim itself, but not to interest on the judgment.

In Roman Matusz v. Safeguard Mutual Insurance Company, 340 Pa.Super. —, 489 A.2d 868 (1985), we decided that PIGA was responsible for the payment of properly awarded attorney’s fees, costs and interest assessed under provisions of the No-fault Motor Vehicle Insurance Act of 1974, 40 P.S. § 1009.106(2) and § 1009.107. Our theory was that since PIGA’s statutory obligation was to assume all the “rights, duties and obligations of the insolvent insurer as if that insurer had not become insolvent” 40 P.S. § 1701.201(b)(l)(ii) the statutory fees and interest imposed as a result of the insurer’s dereliction were considered part of the “covered claim” insofar as they were necessary to avoid financial loss to the claimant by reason of costs and delay involved in asserting a rightful claim. However, we disallowed the interest for the period following the suspension and for the duration of the insolvency proceedings. We think the same distinction should apply to post judgment interest. Thus, we conclude that while PIGA should be liable for post judgment interest to the date of suspension, we do not think interest liability should accrue for the period following the suspension and until the determination of insolvency.

The purpose of PIGA is to provide a means for payment of covered claims as the result of the “insolvency of an insurer.” 40 P.S. § 1701.102(1). But, an “insolvent insurer” is one determined determined to be insolvent “by a court of competent jurisdiction.” 40 P.S. § 1701.103(6). Thus, PIGA’s responsibilities do not arise until such time as the insolvency determination is made and the claim could not be paid prior to that time. The PIGA Act is remedial legislation which, in effect, places a monetary assessment against property and casualty insurance companies as a cost of doing business in Pennsylvania. This money is used to pay just claims which are unpaid as the result of insurer insolvency. Recognizing the burden on participating insurers, the legislature has recognized limitations on the amount of assessment to member insurers. 40 P.S. § 1701.301(d) (annual limit of assessment to two per cent of insurer’s net direct written premiums); 40 P.S. § 1701.-301(e) (exemption from assessment under certain circumstances). While PIGA is fairly charged with the amount of a claim against an insolvent insurance company including legally imposed enhancements incurred while the company is in operation, we do not think the legislature meant to also impose post judgment interest (42 Pa.C.S.A. § 8101) against PIGA during the period in question.

We note that PIGA relies on Sands v. P.I.G.A., 283 Pa.Super. 217, 423 A.2d 1224 (1980) as controlling authority for reaching essentially the result we reach herein. While Sands is not inconsistent, we read that case as one which did not reach the present issue since the payment of interest would have exceeded the applicable policy limits. See Matusz, supra.

The issue of if and when, after the determination of insolvency PIGA may be responsible for interest is not before us and our decision here is in accordance with the issue presented as to the liability for interest from the date of suspension to the date of judicial declaration of insolvency.

Finally, as stated above, we agree that PIGA should be liable for post-judgment interest to the date of suspension, and since the lower court order properly awarded interest from that date, we affirm insofar as interest from the date of judgment to the date of suspension and reverse as to the award of interest from the date of suspension to the date of determination of insolvency.

Affirmed in part and reversed in part. Remanded for recalculation of interest. We do not retain jurisdiction.


author: BROSKY, Judge:

text:
    489 A.2d 252
    Ocie G. PRICE and Ora H. Price v. Ronald D. ROSS v. Ora H. PRICE. Appeal of Ocie G. PRICE.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1984.
    Filed March 8, 1985.

      John J. Petrush, Beaver Falls, for appellant.
    George A. Verlihay, Beaver Falls, for Ross, appellee.
    C. Gus Kwidis, Beaver, for Ora Price, appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from summary judgment in favor of appellee. Appellant contends that the pleadings aver mutual mistake on the part of herself and the insurance company with regard to language in a release which covers not only that insurance company but also all other parties. The trial court erroneously concluded that the pleadings raised no issue of mistake and, accordingly, we vacate.

The release in question covered Ora H. Price, the insured, and “any and all persons”.

The trial court concluded that, “There is no claim of ... mutual mistake.” This was an error. In appellant’s Reply to Amended Answer and New Matter of Original Defendant is included the following: “At the time such release was executed and delivered, it was not intended by either party thereto to be applicable to the original defendant in any respect ...”

It is not fatal to appellant’s assertion of this issue that the legal conclusion that this constituted a mistake was not present in the pleading. Indeed, “Conclusions of law have no place in a pleading ...” 2 Goodrich Amram 2d 137.

Fraud, the sister ground for invalidation of a written instrument, was held to not be an indispensable term of art in Osborne v. Ball, 1 Pa. D & C 2d 798 at 801 (1954):

They argue that there are no averments of fraud in the pleadings. It is true that the pleadings do not contain the specific statement that there was any fraud on the part of defendants or attorney Fields. As we have stated above, however, it does contain averments which, if proven, would establish fraud. We do not feel that the specific use of the word “fraud” is essential if the facts pleaded actually show that to be the case.

See also Cunger v. Campagna, 71 Pa. D & C 2d 220 at 223 (1975) and 2 Goodrich Amram 2d 142.

While none of the three above-cited authorities are binding authority on this Court, we discern no reason to find contrary to them. Accordingly, we conclude that a pleading, otherwise sufficient, will not fail due to the absence of the exact word “mistake” as a legal conclusion.

Having decided that mistake was properly pleaded, it remains to be seen whether mistake could, as a matter of law, constitute grounds for disregarding the language of the release. A case out of our Commonwealth’s Supreme Court instructs us that, if proven, mistake could be the basis for such an action.

We believe that here, in accepting the averred facts as pleaded, that appellant and the additional defendant agreed specifically to exclude Ethel C. Marks from the release, and the fact that “any and all other persons” was left in the release was sufficient for the court to consider that a mutual mistake had been made. The intent of the parties must be gleaned from the language of the release; however, where it can be shown, as in this case, by the averred facts that the parties specifically meant to exclude Ethel C. Marks, a mutual mistake had obviously occurred, and the parol evidence rule will allow oral testimony in the case of a mutual mistake. We therefore must conclude that the lower court erred in granting appellees’ motion for judgment on the pleadings.

Evans v. Marks, 421 Pa. 146 at 153-4, 218 A.2d 802 at 805-6 (1966).

Since the pleadings, if proven at trial, constituted grounds on which appellant would have prevailed, the trial court erred in granting summary judgment to appellee.

Judgment is vacated and the case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Two other grounds for vacating the summary judgment were advanced by appellant. Since we hold for appellant on the basis of her first argument, it is not necessary to address the second and third arguments.

      . Pa.R.C.P. 1019(a) provides that "... the material facts on which a cause of action is based shall be stated ...” (emphasis supplied).

      . Pa.R.C.P. 1019(b). "Averments of fraud or mistake shall be averred with particularity ...”


author: ROWLEY, Judge:

text:
    489 A.2d 254
    Gerald L. MORGAN, Appellee, v. MONESSEN SOUTHWESTERN RAILWAY COMPANY, a corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1984.
    Filed March 8, 1985.
    Petition for Allowance of Appeal Granted Aug. 29, 1985.

      Paul A. Manion, Pittsburgh, for appellant.

      Thomas Hollander, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and HESTER, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from the Judgment entered on the jury’s verdict in favor of Gerald L. Morgan, appellee, in the amount of $125,000.00 plus delay damages under Pa.R.C.P. 238, following the trial court’s Order dismissing post-trial motions filed by Monessen Southwestern Railway Company (Monessen), appellant. This action was instituted by appellee under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1976) (FELA), for injuries he suffered in the course of his employment with Monessen. On appeal, appellant first argues that the trial court erred in adding $26,712.50 in delay damages pursuant to Pa.R.C.P. 238 in an action under the FELA. Appellant also contends that a new trial is warranted because the trial court erred in failing to instruct the jury that any damage award for future lost earnings must be reduced to present value. For the following reasons, we affirm.

Appellant’s initial contention is that the addition of delay damages under Pa.R.C.P. 238 was improper in an FELA case heard in a Pennsylvania court. This issue was resolved by a unanimous panel of our court in Humphries v. Pittsburgh & Lake Erie Railroad Company, 328 Pa.Super. 119, 476 A.2d 919 (1984). In Humphries, this court held that, “while the FELA does not fix the rate of prejudgment interest, the allowance of such interest pursuant to Rule 238 comports with our understanding of the federal decisional law on the matter.” Id., 328 Pa.Superior Ct. at 132, 476 A.2d at 926. Our decision in Humphries is controlling in this case and, thus, the trial court’s addition of delay damages to the jury’s verdict was proper.

Appellant’s next contention is that the trial court erred in failing to instruct the jury that an award for future lost earnings was to be calculated on the basis of net earnings after taxes in accordance with Norfolk and Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). We have carefully reviewed the charge given by the trial court and we find that it was in keeping with the principles espoused in Liepelt; accordingly, we find no error in the charge regarding this issue which warrants the grant of a new trial.

Appellant’s final contention is that a new trial is required because the trial court failed to charge the jury, as requested by appellant, that a damage award for future" lost earnings must be reduced to its present value. The trial court charged the jury in accordance with the “total offset method” for determining future earning capacity, as set forth in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), which equates the rate of future inflation with that of future interest rates and eliminates the need for adjustment of a verdict based upon these factors. (See N.T., December 4, 1982, pp. 701-701). The trial court refused to give appellant’s requested jury instruction regarding present worth reasoning that, under Kaczkowski, it is unnecessary to burden the jury with such instructions. The court also relied upon the decision in Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453 (3d Cir.1982) vacated 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983), wherein the “total offset method” was approved by the Third Circuit for use in federal actions under the Longshoremen’s and Harbor Workers’ Compensation Act.

During the pendency of this appeal, the United States Supreme Court reversed the Third Circuit’s decision in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). At oral argument in this case, the parties’ were instructed to file supplemental briefs addressing the recent decision of the Court in Pfeifer, and we have had the benefit of reviewing their briefs on this issue.

In Pfeifer, the United States Supreme Court held that it was error for the Third Circuit to adopt the total offset rule of Kaczkowski as a mandatory rule for use in the federal courts; hence, the trial court’s judgment utilizing that rule was set aside. Nonetheless, the Court declined to establish a set rule as the exclusive method in all federal trials for calculating an award for lost earnings in an inflationary economy. The Court observed:

The litigants and the amici in this case urge us to select one of the many rules that have been proposed and establish it for all time as the exclusive method in all federal trials for calculating an award for lost earnings in an inflationary economy. We are not persuaded, however, that such an approach is warranted. Accord, Cookson v. Knowles, supra, at 574 (Lord Salmon). For our review of the foregoing cases leads us to draw three conclusions. First, by its very nature the calculation of an award for lost earnings must be a rough approximation. Because the lost stream can never be predicted with complete confidence, any lump sum represents only a ‘rough and ready’ effort to put the plaintiff in the position he would have been in had he not been injured. Second, sustained price inflation can make the award substantially less precise. Inflation’s current magnitude and unpredictability create a substantial risk that the damage award will prove to have little relation to the lost wages it purports to replace. Third, the question of lost earnings can arise in many different contexts. In some sectors of the economy, it is far easier to assemble evidence of an individual’s most likely career path than in others.
These conclusions all counsel hesitation. Having surveyed the multitude of options available, we will do no more than is necessary to resolve the case before us. We limit our attention to suits under § 5(b) of the Act, noting that Congress has provided generally for an award of damages but has not given specific guidance regarding how they are to be calculated. Within that narrow context, we shall define the general boundaries within which a particular award will be considered legally acceptable.

Id. 103 S.Ct. at 2555. With regard to the offset method set forth in Kaczkowski v. Bolubasz, supra, the Court stated:

Although such an approach has the virtue of simplicity and may even be economically precise, we cannot at this time agree with the Court of Appeals for the ■ Third Circuit that its use is mandatory in the federal courts.
# * Hj sfs sfc
As a result, the judgment below must be set aside. In performing its damages calculation, the trial court applied the theory of Kaczkowski, supra, as a mandatory federal rule of decision, even though the petitioner had insisted that if compensation was to be awarded, it ‘must be reduced to its present worth.’ J.A. 60. (footnotes omitted)

Id. 103 S.Ct. at 2557. The Court in Pfeifer further directed:

On remand, the.decision on whether to reopen the record should be left to the sound discretion of the trial court. It bears mention that the present record already gives reason to believe a fair award may be more confidently expected in this case than in many. The employment practices in the longshoring industry appear relatively stable and predictable. The parties seem to have had no difficulty in arriving at the period of respondent’s future work expectency, or in predicting the character of the work that he would have been performing during that entire period if he had not been injured. Moreover, the record discloses that respondent’s wages were determined by a collective bargaining agreement that explicitly provided for ‘cost of living’ increases, J.A. 310, and that recent company history also included a ‘general’ increase and a ‘job class increment increase.’ Although the trial court deemed the latter increases irrelevant during its first review because if felt legally compelled to assume they would offset any real interest rate, further study of them on remand will allow the court to determine whether that assumption should be made in this case.
IV
We do not suggest that the trial judge should embark on a search for ‘delusive exactness.’ It is perfectly obvious that the most detailed inquiry can at best produce an approximate result. And one cannot ignore the fact that in many instances the award for impaired earning capacity may be overshadowed by a highly impressionistic award for pain and suffering. But we are satisfied that whatever rate the District Court may choose to discount the estimated stream of future earnings, it must make a deliberate choice, rather than assuming that it is bound by a rule of state law. (footnotes omitted)

Id. 103 S.Ct. at 2558.

Thus, the Supreme Court in Pfeifer held that it is the trial court’s task to determine the appropriate method to be utilized in discounting estimated future earnings under the circumstances of a particular case. However, the Court directed that the trial court in a federal case “must make a deliberate choice, rather than assuming that it is bound by a rule of state law.” Id. Accordingly, the Court vacated the judgment of the Third Circuit Court of Appeals adopting the “total offset method” as a mandatory rule and remanded the case to allow the court to determine whether the “total offset” formula was the appropriate method to apply in arriving at a future lost earnings figure under the particular circumstances of that case.

Although Pfeifer involved a cause of action under § 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, we are persuaded that the reasoning in that case is applicable to FELA cases brought in state court since the FELA, like the Longshoremen’s Act, provides generally for a damage award, but gives no specific guidance regarding how that award is to be calculated. See 45 U.S.C. § 51; Pfeifer, 103 S.Ct. at 2555. The United States Supreme Court has previously determined that questions concerning the measure of damages in an FELA action are federal in character, and this is true even if the suit is instituted in state court. Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). In Liepelt, the Appellate Court of Illinois held that the trial court had not erred in refusing to instruct the jury as to the non-taxability of an award in an FELA case and in excluding evidence of the effect of income taxes on future earnings of the decedent. The Illinois Supreme Court denied leave to appeal and the United States Supreme Court granted certiorari. In reversing the decision of the Illinois appeals court, the Supreme Court held that the question whether it was error for the state court to refuse the instruction and to exclude evidence concerning federal taxes was “a matter governed by federal law.” Id. at 492-93,100 S.Ct. at 757. Thus, the Court observed that the practice being followed by a particular state — in that case, Illinois— was subject to change by a decision of the United States Supreme Court. This approach is consistent with Congress’ intent to “create uniformity throughout the Union” with respect to railroads’ financial responsibility for injuries to their employees under the FELA. Id. at 493 n. 5, 100 S.Ct. at 755 n. 5.

The dissenting opinion in Liepelt, authored by Justice Blackmun and joined by Justice Marshall, concluded that jury instructions regarding the taxability of a damages award were “cautionary in nature” and that whether such instructions should be given was a matter governed by state law when an FELA action is brought in state court. Id. at 503-504, 100 S.Ct. at 762-63. Justice Blackmun stated that questions of procedure and evidence in cases arising under the FELA should properly be determined according to the law of the forum. Nonetheless, this argument was not adopted by the majority in Liepelt, and we are therefore bound by the Court’s determination that questions concerning the measure of damages in an FELA action are governed by federal law.

Accordingly, we are compelled to analyze the case at bar in light of the principles announced by the United States Supreme Court in Pfeifer, supra. Nonetheless, we do not read Pfeifer as necessarily precluding use of the total offset method set forth in Kaczkowski v. Bolubasz, supra, or an approved variation thereof. Thus, we do not agree with the interpretation given Pfeifer, by the Third Circuit in their recent opinion in DiSabatino v. National Railroad Passenger Corp., 724 F.2d 394 (3rd Cir.1984).

The trial in DiSabatino occurred prior to the Supreme Court’s decision in Pfeifer. In accordance with the total offset method, which had been approved by the Third Circuit, no evidence was presented on reduction of future lost earnings to present worth, and the jury was not instructed on that theory. It is not clear whether the jury was actually instructed regarding the total offset theory. Following the verdict, the Supreme Court’s decision in Pfeifer was filed. On appeal, the court in DiSabatino held that a new trial on damages was mandated because the jury had not been instructed to reduce any award for future lost earnings to its present worth. Thus, DiSabatino appears to interpret the Pfeifer decision as disallowing use of the total offset method in an FELA case and requiring reduction of an award for future lost earnings by some percentage in order to arrive at present value.

We do not interpret the Supreme Court’s decision in Pfeifer as precluding utilization of the total offset method, if appropriate, in a case under the FELA. The Court described at least three “legally acceptable” techniques for arriving at an award for future lost income. See Shaw v. United States, 741 F.2d 1202, 1207 (9th Cir.1984) (offset method referred to as one of three acceptable methods for determining appropriate discount rate in case under Federal Torts Claims Act). See generally, Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir.1983). The Court expressly refused to adopt any one method as the exclusive method to be employed in federal trials under the Longshoremen’s Act or federal trials generally. Rather, the Court directed that the trial judge must make a conscious reasoned choice among the approved methods for arriving at a lost earnings figure, taking interest and inflation rates into account and considering the circumstances of the industry and the particular plaintiff involved. If the relevant factors in a particular case support an assumption that the inflation rate offsets any “real” interest rate, then application of the total offset theory would be appropriate and consistent with the reasoning in Pfeifer. 103 S.Ct. at 2558. We are convinced that if a trial judge chooses an approved method of computation and gives his reasons for doing so, the Supreme Court’s direction in Pfeifer is satisfied.

In the instant case, the trial judge “spent considerable time” determining whether an instruction on present worth should be incorporated in her charge to the jury. (N.T., Vol. V, December 4, 1981, pp. 577-80). She concluded, however, that a present worth instruction was not required, in light of the rule set forth in Kaczkowski v. Bolubasz, supra. Although the Pfeifer decision requires trial judges to make a reasoned choice among the legally acceptable methods for arriving at a lost earnings figure, the trial judge’s decision in this case cannot be faulted since she did not have the benefit of reviewing that decision. Thus, rather than remanding this case for consideration of the principles announced in Pfeifer, we have undertaken a review of the record before us in order to ascertain whether the total offset method was an appropriate method to be utilized under the particular facts and circumstances of this case. On the basis of the record certified to us on appeal, we find that application of the total offset method was appropriate in this case and that its application did not result in prejudicial error. Although appellant submitted a requested instruction concerning reduction of a lost earnings award to present value, and now urges this court to reverse the judgment because the trial judge did not so charge the jury, appellant presented no evidence that would have supported such an instruction. If appellant wanted the trial court to instruct the jury regarding an alternative discount method, evidence relevant to that method should have been offered. See O’Rourke v. Eastern Airlines, Inc., 730 F.2d 842, 858 (2nd Cir.1984); DiSabatino v. National Railroad Passenger Corp., 724 F.2d at 396.

Accordingly, we find that the trial court’s reliance on the total offset method for determining present worth of a future lost earnings award was not erroneous in light of the evidence submitted in this case. Judgment affirmed.

      . Appellant does not allege any error in the trial regarding the verdict on liability.


author: WIEAND, Judge:

text:
    489 A.2d 259
    AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellant, v. ZION & KLEIN, P.A., and the Fidelity Bank, Appellees.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed March 8, 1985.

      Robert E. Slota, Bryn Mawr, for appellant.
    Michael G. Trachtman, Norristown, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal by a judgment creditor from an order awarding counsel fees to a garnishee who was required to defend an attachment execution which, the court found, had been pursued in a vexatious manner. We conclude that counsel fees were properly awarded and, therefore, affirm.

The Judicial Code, at 42 Pa.C.S. § 2503, provides that certain litigants shall be entitled to reasonable counsel fees as part of taxable costs. Included is “(7) [a]ny participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.” Vexatious conduct has been defined as that which is “without sufficient grounds and serving only to cause annoyance.” Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, Inc., 328 Pa.Super. 365, 372, 477 A.2d 487, 490 (1984) quoting Santoro v. City of Philadelphia, 59 Pa.Cmwlth. 114, 122, 429 A.2d 113, 117 (1981). The amount of counsel fees in such instances depends upon the exercise of a sound discretion by the trial court. Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, Inc., supra, 328 Pa.Superior Ct. at 372, 477 A.2d at 491; Shearer v. Moore, 277 Pa.Super. 70, 78, 419 A.2d 665, 669 (1980).

In the instant case, American Mutual Liability Insurance Co. (AMI) held a judgment against Zion & Klein, P.A., for $7,682.75. This was the basis for an attachment execution issued by AMI to The Fidelity Bank (Fidelity), which was named garnishee. The writ sought to attach accounts in the names of “Zion & Klein, P.A.,” and “Benson Zion Associates.” Although Fidelity immediately put a hold on both accounts, it subsequently released the Benson Zion Associates account when it learned that it was owned by a separate entity which threatened legal action if its funds were witheld. This information was given to AMI’s counsel, who was told that the situation was unusual and that Fidelity’s answers to interrogatories would be delayed pending further investigation. AMI insisted that the Benson Zion Associates account was available for payment of the debts of Zion & Klein. When answers to interrogatories were not filed by the twentieth day following service, AMI caused a default judgment to be entered against Fidelity, without notice, on the twenty-first day. Unaware that a default judgment had been entered against it, Fidelity filed answers to the interrogatories on the twenty-seventh day. When Fidelity thereafter learned of the entry of the default judgment, it promptly notified AMI that answers had been filed and requested that AMI agree to remove the default judgment. It suggested to AMI that its default judgment was defective for failure to give the notice required by Pa.R.C.P. 237.1 and cited AMI to the official commentary to the rule which instructed that the rule was applicable to attachment executions issued under Pa.R.C.P. 3146. When AMI refused to act, Fidelity was forced to employ counsel who filed a petition to strike or open the judgment and obtained a stay of execution, for which Fidelity was required to post a bond. Fidelity’s counsel also forwarded to AMI’s attorney a copy of the slip opinion of the Supreme Court in Queen City Electrical Supply Co. v. Soltis Electric Co., and called attention to Footnote 8 wherein the Court had noted the applicability of Pa.R.C.P. 237.1 to default judgments entered against garnishees. AMI continued to refuse any agreement to open or strike the judgment against Fidelity. This continued even after Fidelity proposed separate litigation to determine whether the Benson Zion Associates account had been properly subjected to attachment for payment of debts owed by Zion & Klein, P.A. AMI’s continuing attempts to force Fidelity to pay the Zion & Klein judgment or collect payment thereof from Zion & Klein were clearly without foundation and served only to increase Fidelity’s counsel fees. In addition, AMI rejected proposals by Fidelity to submit the underlying issue for decision to the court in an expeditious and inexpensive manner without the taking of depositions. Ultimately, the judgment was stricken by court order.

The default judgment which AMI caused to be entered against Fidelity without notice on the twenty-first day, when it knew that Fidelity’s answers had been delayed because of its efforts to determine the relationship between Benson Zion Associates and Zion & Klein, P.A., was patently defective. Its attempt to use that invalid judgment as a device by which to force Fidelity to settle or obtain payment of AMI’s claim against Zion & Klein, P.A., was without legal support. This conduct by AMI, the trial court could find, was arbitrary, obdurate and vexatious. An award of counsel fees as taxable costs, therefore, could properly be made. See and compare: Brenckle v. Arblaster, 320 Pa.Super. 87, 93-95, 466 A.2d 1075, 1078-1079 (1983); In re Estate of Roos, 305 Pa.Super. 86, 451 A.2d 255 (1982). See also: Queen City Electrical Supply Co. v. Soltis Electric Co., supra; Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, Inc., supra, 328 Pa.Superior Ct. at 372-373, 477 A.2d at 490-491; Santoro v. City of Philadelphia, supra, 59 Pa.Cmwlth. at 121-122, 429 A.2d at 117-118.

We reject AMI’s argument that the arbitrary and vexatious conduct in this case was the product of counsel’s beligerence and that Fidelity’s counsel fees, therefore, should have been assessed against counsel and not his client. The general rule is that “[a] client is liable to a third person who is injured by an act which the attorney does in the execution of matters within his authority. 3 P.L.E., Attorneys § 31. See also: Steehler v. Volk, 109 Pa.Super. 190, 167 A. 424 (1933).

The trial court’s award of counsel fees was based on 42 Pa.C.S. § 2503(7) and we have reviewed its order in that light. It may be observed, however, that Fidelity was also entitled to recover counsel fees under and by virtue of 42 Pa.C.S. § 2503(3). As a garnishee, it was not in possession of property of the debtor, Zion & Klein, P.A., other than that admitted in its answers to AMI’s interrogatories. Appellant has never been able to demonstrate that the Benson Zion Associates account was properly subject to attachment for the debts of Zion & Klein, P.A.

An award of counsel fees is intended to reimburse an innocent litigant for expenses made necessary by the conduct of an opponent. Such an award is not usually intended to include reimbursement for fees and expenses incurred in proceedings to recover such attorney’s fees under 42 Pa.C.S. § 2503. Cf. Weidner v. Workmen’s Compensation Appeal Board, 497 Pa. 516, 442 A.2d 242 (1982). In the instant case, however, the request for counsel fees was included in the petition to open/strike the judgment; and it does not appear that the award of counsel fees included fees attributable to counsel’s representation of Fidelity at the hearing on its claim for such counsel fees. The award of counsel fees in the amount of $2,821.00 does not constitute an abuse of discretion.

The order is affirmed.

POPOVICH, J., dissents.

      . This opinion is reported at 491 Pa. 354, 421 A.2d 174 (1980).

      . In the meantime, AMI’s judgment against Zion & Klein, P.A. had also been stricken. An appeal therefrom was non prossed. Following the striking of the underlying judgment, AMI continued to refuse to open the judgment against Fidelity unless Fidelity agreed to withdraw a pending request for counsel fees.


author: OLSZEWSKI, Judge:

text:
    489 A.2d 262
    Daniel CATANZARO and Fox Chapel School District, a Municipal Corporation, v. WASCO PRODUCTS, INC., a Corporation v. AMERICAN CYANAMID COMPANY. Appeal of, Daniel CATANZARO.
    Superior Court of Pennsylvania.
    Argued Dec. 19, 1984.
    Filed March 8, 1985.

      Theodore Goldberg, Pittsburgh, for appellant.
    Terry L.M. Bashline, Pittsburgh, for Wasco, appellee.
    Eric P. Reif, Pittsburgh, for American Cyanamid, appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in a personal injury action. The lower court held that appellant’s personal injury claim was barred by 42 Pa.C.S. Sec. 5536, a twelve year statute of repose relating to real estate construction. Appellant contests the applicability of this statute to his claim.

The facts of this case may be quickly summarized. On or about June 30, 1980, appellant, Daniel Catanzaro, was injured when he fell through an acrylic skylight/skydome located on the roof of Fox Chapel High School. At the time of the accident, appellant was employed by the school as a laborer. Appellant filed suit against appellee, Wasco Products, Inc., alleging, inter alia, that (1) Wasco had manufactured and sold the skydome; and (2) the skydome was defectively designed and improperly constructed. On December 15, 1981, Wasco joined American Cyanamid Company as an additional defendant. Both Wasco and American Cyanamid filed motions for summary judgment based primarily on 42 Pa.C.S. Sec. 5536. The lower court granted these motions and this appeal followed.

The statute at issue in this case is 42 Pa.C.S. Sec. 5536. This act disallows any action seeking recovery for personal injuries arising out of an alleged deficiency in design, planning or construction of an improvement to real property brought more than 12 years after completion of the improvement. In Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981), this Court characterized Sec. 5536 as not merely a statute of limitations, but instead as a statute of repose which effectively abolishes any cause of action which might have existed against a person within the purview of the act.

The threshold question in determining the applicability of Sec. 5536 is whether the action arises from alleged deficiencies in an “improvement to real property.” The legislature did not define “improvement to real property” in the act and case law has yet to adopt a general definition of the term. However, Pennsylvania courts, in keeping with, the statutory presumption favoring liberal construction of statutes, have construed the term broadly thereby maximizing the coverage of the statute. See e.g. Keeler v. Commonwealth Department of Transportation, 56 Pa.Cmwlth. 236, 239, 424 A.2d 614, 616 (1981). (Highway guard rails, lights, signs and directional signals constitute improvements to real property); Mitchell v. United Elevator Co., Inc., supra. (Elevator is an improvement to real property.) Furthermore, Pennsylvania courts agree that fixtures are included within the category of “improvements to real property.” For example, in Keeler, supra, the Commonwealth Court concluded that “a fixture is by definition, an improvement to real property.” 56 Pa.Cmwlth. at 239, 424 A.2d at 616.

No Pennsylvania decision directly addresses the issue of whether a skydome/skylight is a fixture. However, analogous authority strongly suggests that a skydome should be considered a fixture. For example, windows have historically been held to be fixtures. 35 Am.Jur.2d Fixtures Sec. 93 (1967); Kratovil, Fixtures and the Real Estate Mortgagee, 97 U.Pa.L.Rev. 180, 186 (1948). In function and appearance, a skydome or skylight is virtually identical to a window. Moreover, a skydome, like a window, is physically annexed to a building and made a part thereof. Therefore, we do not hesitate in holding that a skydome is a fixture and as such, is an “improvement to real property” within the meaning of 42 Pa.C.S. Sec. 5536.

The gravamen of appellant’s argument is that Sec. 5536 does not shield appellees because they are mere manufacturers of a product. Appellant contends that the statute’s application is restricted to persons who not only design or construct real property improvements, but who also “customize” the improvement to the real estate and assist in its installation. We do not agree.

The statute applies to civil actions brought against “any person lawfully performing or furnishing the design, planning, supervision, or observation of construction, or construction of any improvement to real property.” In Leach v. Philadelphia Savings Fund Society, 234 Pa.Super. 486, 340 A.2d 491 (1975), this Court held that the statute should be construed liberally to include all persons engaged in the statutorily listed activities.

The Pennsylvania statute identifies its class not by the status or occupation of its members but rather by the contribution or acts done in relation to the improvements to the real property. Thus, the statute immunizes from liability after 12 years “any” person lawfully performing or furnishing such activities. The word “any” is generally used in the sense of “all” or “every” and its meaning is most comprehensive.

234 Pa.Super. at 490-491, 340 A.2d at 493.

Leach clearly establishes that any civil defendant who performed one of the activities listed in the act can use the twelve year limitations period as a defense. Furthermore, following the decision in Leach, the act’s protection was judicially extended to include defendant manufacturers who had designed, planned or constructed improvements to real property. Mitchell v. United Elevator Co., Inc., supra (elevator manufacturer immunized from liability by virtue of Sec. 5536).

Despite this Court’s holding that the act applies to “any” person engaged in one of the statutorily enumerated activities and despite decisions holding that manufacturers of real property improvements fall within the act, appellant argues for a more restrictive reading of the statutory language. Appellant maintains that the correct test is whether the supplier of the product had to customize the product to the real estate and had to assist in its installation.

Appellant cites no authority for such a restrictive reading of the statute. In fact, this Court in Mitchell rejected an interpretation of Sec. 5536 very similar to that espoused by appellant. In Mitchell, the trial court held that an elevator manufacturer was not protected by the act, because construction of an elevator was “like supplying a ready made item that was merely incorporated into the building.” 290 Pa.Super. at 488, 434 A.2d at 1249. This Court rejected that narrow view of the act’s scope and stated that “the fact that the basic design of the elevator may be identical in different buildings does not render the elevator any less an improvement to real estate.” 290 Pa.Super. at 488, 434 A.2d at 1249.

Appellant’s argument advocating a restrictive reading of the act’s coverage is not supported by either the statutory language or the case law. This Court concludes that the appellees, as alleged manufacturers of the sky-dome, necessarily planned, designed and built the skydome, and are, therefore, persons within the class afforded protection by the act.

Thus far this Court has decided that (1) a skydome is an improvement to real property within the meaning of Sec. 5536; and (2) that appellees are protected defendants under the act. The only question remaining is whether the lower court properly granted summary judgment in favor of appellees.

Rule 1035(b) of the Pennsylvania Rules of Civil Procedure states that a court shall enter summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In the instant case, the skydome involved in the accident was part of the roof erected during the construction of the high school. The high school’s answers to interrogatories reveal that the construction was completed in 1961 and that the skydomes were installed in that year. The twelve year statutory period, therefore, began to run in 1961 and expired in 1973. Since appellant’s personal injury claim was not filed until July of 1981, we hold that the claims against appellees are time barred and that the lower court properly granted appellees’ motions for summary judgment.

Accordingly, the judgment of the lower court is affirmed.

Judgment affirmed.

      . Wasco alleged, inter alia, that American Cyanamid, rather than Wasco, had manufactured the skydome involved in appellant's alleged accident and that the skydome had been defectively designed and constructed by American Cyanamid.

        American Cyanamid responded to Wasco’s complaint on February 12, 1982. In its answer, American Cyanamid stated that, after reasonable investigation, it was without knowledge or information sufficient to form a belief as to the whether it had manufactured the skydome which was installed on the roof of Fox Chapel High School.

      . 42 Pa.C.S. Sec. 5536 (Purdon’s 1982) provides in pertinent part: Section 5536. Construction projects
      (a) General Rule____ (A) civil action ... brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
      (1) any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
      (3) Injury to the person ... arising out of any such deficiency.
      (4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph ... (3).

      . Section 1928(c) of the Statutory Construction Act of 1972, 1 Pa.C.S. Sec. 1928(c) (Purdon’s 1980).

      . Pennsylvania courts have traditionally defined a fixture as an article of personal property which by reason of physical annexation to a building becomes in legal contemplation a part of the real estate. See 16 P.L.E. Fixtures Section 1 (1959 and Supp.1982).

      . In addition, the definition of a skylight is framed in terms of a window. Funk and Wagnell’s Standard Encyclopedic Dictionary, 1972, page 630, defines skylight as “A window in a roof or ceiling admitting daylight from above.” Webster’s New Ideal Dictionary, 1978, page 496, defines skylight as a "window or group of windows in a roof or ceiling.” Finally, the Illustrated Heritage Dictionary and Information Book (unabridged), 1977, page 1214, defines skylight as “An overhead window admitting light.”

      . See also Stellute v. Realty Operating Company, 131 P.L.J. 162 (C.P. Allegheny 1982) (revolving door manufacturer entitled to summary judgment based on act); Fromm v. Frarikhouser, 7 D & C3d 560 (C.P. Lancaster 1977) (furnace manufacturer entitled to summary judgment based on act).

      . In Patraka v. Armco Steel Co., 495 F.Supp. 1013 (M.D.Pa.1980), a federal district court applying Pennsylvania law was asked to decide when the repose period set forth in the act begins to run. The court reasoned that by employing the phrase “after completion of the construction of such improvement”, the General Assembly meant to mark the commencement of the repose period at the point when third parties are first exposed to defects in design, planning, or construction. The Court, therefore, held that the twelve year period begins when the entire construction project is so far completed that it can be used by the general public.


author: JOHNSON, Judge:

text:
    489 A.2d 266
    Arlene DURANT v. Mike DURANT, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1984.
    Filed March 8, 1985.

      See also, 294 Pa.Super. 202, 439 A.2d 821.
    Charles C. Gentile, Uniontown, for appellant.
    Anne N. John, Uniontown, for appellee.

      Before BROSKY, ROWLEY and JOHNSON, JJ.
   JOHNSON, Judge:

Mike Durant was found to be in willful contempt of court for failing to pay a support order. He was sentenced to imprisonment unless he purged himself by paying $4,766.00 in arrearages within ten days of the October 25, 1983 contempt order. On appeal, he argues (1) that the order of the court amounted to a criminal contempt citation, requiring procedural safeguards in sentencing, and (2) that the record does not disclose that he had the present ability to comply with the conditions imposed by the court for purging himself of contempt, making the confinement punitive and not coercive. We find the citation to be clearly civil and affirm the order of contempt, but remand that portion of the order requiring payment of $4,766.00 because we do not find sufficient evidence to indicate beyond a reasonable doubt that the contemnor has the ability to comply.

On June 29, 1978, appellant was directed to pay the sum of $300.00 per month for the support of his wife, Arlene Durant, and minor son, Michael Wilson Durant. Subsequent petitions to decrease and increase the award were denied. After accumulation of substantial arrearages, a petition was filed by Arlene Durant for a rule to issue on appellant to show cause why he should not be held in contempt. A hearing was held on the petition on May 24, 1983, wherein it was determined that Mike Durant was making payments in the area of $104.00 to $106.00 per month, approximately one-third of the original support order. Appellant testified at this time that he had no ownership interest in Durant’s Tavern, and only worked there part-time for his brother at an average income of $60.00 to $80.00 per week. Further, it was stated that Durant had not filed an income tax return in the preceding five years.

The trial judge rescheduled the matter and directed the accountant for the tavern and appellant’s brother to appear for a hearing on September 8, 1983. At this hearing, the accountant testified that he prepared income tax returns and kept the books for Mike Durant on behalf of Durant’s Tavern. It was also established that appellant was entitled to operate, pay all expenses, and keep all profits from the tavern, although the liquor license was in his brother’s name. Based on this testimony, the court found that Mike Durant was in fact the owner and operator of Durant’s Tavern, receiving all income and profits, and that he had “willfully and deliberately perjured himself ... to avoid his obligations for support of his wife and child”. Opinion in Support of Order of October 25, 1983, 12/19/83 at 3. He was found in contempt and the court directed that he pay $4,766.00 to purge himself, or be committed to the Fayette County Jail. Appellant failed to make payment and brought this appeal.

Appellant argues that the court was “outraged” by his behavior and, therefore, the citation imposed was criminal in nature. However, this Court has held that “the purpose of a criminal contempt is to vindicate the dignity and authority of the court and to protect the interests of the general public. The purpose of a civil contempt, in contrast, is ‘to enforce compliance with an order of court for the benefit of the party in whose favor the order runs.’ ” Commonwealth v. Falkenham, 306 Pa.Super. 330, 343-44, 452 A.2d 750, 757 (1982), quoting Commonwealth v. Marcone, 487 Pa. 572, 577, 410 A.2d 759, 762 (1980). See also Barrett v. Barrett, 470 Pa. 253, 260, 368 A.2d 616, 619 (1977) [“It is well-settled that where the dominant purpose of the contempt proceeding is to aid a private litigant or interest rather than to vindicate the authority of the court or to protect the public interest, the contempt is civil.” (citations omitted)]. We find the trial judge’s “dominant purpose” in holding appellant in contempt was clearly to coerce compliance for the benefit of Arlene Durant rather than to punish appellant for his behavior in court.

The enforcement provision of the Civil Procedural Support Law, 42 Pa.C.S. § 6708(a), provides: “A defendant who willfully fails to comply with any order under this subchapter ... may, as prescribed by general rule, be adjudged in contempt and committed to jail by the court.” See also Pa.R.C.P. 1910.20-21. In Commonwealth ex rel. Heimbrook v. Heimbrook, 295 Pa.Super. 300, 441 A.2d 1242 (1982), we held such contempt proceedings to be civil in nature. There, as here, we found that the trial court had complied fully with the necessary statutory and procedural safeguards, and the sentencing requirements of Pa.R. Crim.P. 1405 need not be applied.

In Heimbrook, id,., we went on to apply the principles set forth in Barrett v. Barrett, supra, wherein our supreme court determined that in imposing a coercive sentence upon a finding of civil contempt, the court must set conditions for purging the contempt “with which it is convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply.” Id. 470 Pa. at 264, 368 A.2d at 621 (emphasis in original). The record in Heimbrook failed to disclose that appellant was able to comply with the conditions imposed by the court for purging himself of contempt, and we remanded for a determination of appropriate coercive conditions.

Similarly, in the instant case, a totality of the evidence supports a conclusion that Mike Durant operates Durant’s Tavern and is entitled to all proceeds therefrom, but his accountant testified that the net profit of the business in 1982 was $1,848.10. N.T., 9/8/83 at 6. There must be sufficient evidence from which the trial court may find beyond a reasonable doubt that appellant has the present ability to purge himself of the contempt citation. After a thorough review of the entire record, however, we find nothing further to indicate that appellant has access to the sum of $4,766.00 or may readily obtain that amount.

As stated in Barrett, id., 470 Pa. at 262, 368 A.2d at 621, “a court may not convert a coercive sentence into a' punitive one by imposing conditions that the contemnor cannot perform and thereby purge himself of the contempt.” The trial court must therefore establish what conditions, when imposed upon Mike Durant, will be sufficiently coercive. Upon remand, the court may, if necessary, receive additional evidence to assist in its determination.

Appellant failed to fully meet his support obligations and accumulated substantial arrearages, justifying the trial court’s finding of civil contempt. There is not sufficient evidence in the record, however, from which we can conclude that contemnor can comply with the conditions imposed by the trial court. We must therefore vacate that portion of the order which requires that appellant pay the sum of $4,766.00 to purge himself of contempt, and remand for further findings of fact or other proceedings to determine what conditions will be sufficiently coercive yet enable appellant to comply.

The finding of contempt is affirmed. The order directing payment of $4,766.00 is vacated. The action is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.


author:
WICKERSHAM, Judge:
      MONTEMURO, Judge,

text:
    489 A.2d 748
    Norman C. MANBECK v. Shirley R. MANBECK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1984.
    Filed Feb. 6, 1985.
    Reargument Denied April 11, 1985.

      J. Robert Zane, Schuylkill, for appellant.
    Maureen E. Hogan, Pottsville, for appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

Norman and Shirley Manbeck were married on September 22, 1956. Plaintiff-appellee Norman Manbeck filed a complaint in divorce on May 14, 1980. The complaint alleged a cause of action under section 201(a)(6) of the Divorce Code (indignities), and a cause of action under section 205(a)(4) of the Divorce Code (impotency of the defendant-appellant Shirley Manbeck). Shirley Manbeck filed an answer containing a counterclaim for indignities under section 201(a)(6). She also filed claims for alimony and counsel fees and requested that the parties’ marital property be equitably distributed.

A master was appointed and hearings were held. The master recommended that the court grant an annulment on the ground that appellant was and is impotent. The master found that each party was capable of supporting himself or herself and that each could provide for his or her reasonable needs. Thus, he recommended that no alimony be granted. He also found that the parties should pay their own counsel fees and costs. Each party was granted a one-half (V2) interest in the marital home and, with one exception, the other marital property was equitably divided.

Appellant filed timely exceptions to the master’s report. With the exception of the issue of appellee’s pension, the lower court concurred in the findings and recommendations of the master, and dismissed all of appellant’s exceptions, except those relating to the distribution of appellee’s pension plan. In an opinion and order dated July 19, 1982, the Honorable Donald D. Dolbin granted Norman Manbeck an annulment pursuant to section 205(a)(4) of the Divorce Code. Shirley Manbeck’s requests for alimony and counsel fees were denied. This appeal timely followed.

Appellant presents a number of issues for our consideration. The first issue is stated as follows:

Did the lower Court err in recommending that an annulment be granted on the grounds that wife was naturally and incurably impotent at the time of the marriage?

Brief for Appellant at 3.

[11 To justify the grant of an annulment on the grounds of impotency it must be proven that the impotency is natural and incurable. 23 P.S. § 205(a)(4). Appellant concedes that the parties never completed vaginal intercourse during the marriage. She argues, however, that appellee failed to meet his burden of proving that she was “impotent” and that this impotence was “incurable.” She also avers that appellee’s claim with regard to her alleged impotency is barred by the doctrine of laches.

We will address the laches question first. Generally, mere delay in bringing a divorce action is not a ground for denial of the relief sought. Regan v. Regan, 227 Pa.Super. 552, 322 A.2d 711 (1974). The Regan case noted, however, that long delay in bringing a divorce action after separation, although not grounds for denial in and of itself, casts doubts on the good faith of the plaintiff. We note that in the case sub judice, plaintiff-appellee filed his complaint in divorce on May 14, 1980, almost one month before the parties separated in early June of 1980. Thus, there was no delay in filing the complaint after separation.

In another case discussing the effect of delay in bringing a divorce action, this court stated:

Although it is true that long delay in bringing a divorce action casts doubt on the good faith of the plaintiff, it does not bar a decree where the right to a divorce is otherwise clearly established. Gillen v. Gillen, 195 Pa. Super. 60, 169 A.2d 340 (1961). It only affects the credibility of the plaintiff in the consideration of the finder of the facts.

Campbell v. Campbell, 205 Pa.Super. 207, 211, 208 A.2d 36, 38 (1965). We find that the delay in the instant case goes only to the credibility of the appellee and the weight to be given the evidence; the delay does not create an absolute bar to appellee’s cause of action.

Pursuant to the Campbell case, supra, the question then becomes: was appellee’s right to an annulment otherwise clearly established. Appellant argues that appellee failed to meet his burden of proving that she was incurably impotent. As previously stated, both parties admit that they never completed vaginal intercourse during the marriage. At the master’s hearing on November 10, 1981, appellant presented the testimony of Doctor Harold B. Cooper. The testimony of Dr. Cooper and the written report of Doctor Richard Kleppinger entered into the record indicated that while appellant is physically capable of sexual intercourse, she suffers from a psychological or emotional disorder referred to as a “sexual disfunction.” Dr. Cooper further testified that a person diagnosed as having a sexual disfunction “would be someone that cannot participate with normal sexual intercourse.” N.T., 11-10-81, at 32.

We must first decide whether appellant’s “sexual disfunction” is sufficient evidence on which to base a finding of impotence. As the trial court noted, there is little appellate case law in Pennsylvania dealing with the subject of male impotence, and even less with female impotence. In Wilson v. Wilson, 126 Pa.Super. 423, 191 A. 666 (1937), this court held that impotence as a cause for divorce means the incapacity for sexual intercourse. We agree with the lower court that this definition includes “incapacity not only resulting from physical malfunction or impairment of the sexual organs, but also incapacity based upon emotional or psychological factors.” Lower ct. op. at 5-6. See, Rickards v. Rickards, 3 Storey 134, 53 Del. 134, 166 A.2d 425 (1960); Hiebink v. Hiebink, 56 N.Y.S.2d 394, aff'd, 269 App.Div. 786, 56 N.Y.S.2d 397 (1945). Instantly, appellant’s own witness testified that a person diagnosed as having a sexual disfunction would be someone that cannot participate with normal sexual intercourse. We find that appellant’s sexual disfunction makes her incapable of normal sexual intercourse and thus is a valid ground for annulment of the parties’ marriage.

Appellant next claims that appellee failed to prove that she is “incurably” impotent. It is true that no doctor testified that appellant’s condition was incurable. It is also true, however, that there was no testimony that appellant’s sexual disfunction was curable. Of course, appellee bore the burden of proving his wife’s “incurability.” Since no medical testimony established whether appellant’s condition was incurable or not, we must look at the other evidence presented in order to determine whether appellee met his burden of proof.

The majority of appellee’s evidence on the annulment ground had to do with the parties’ failure to consummate the marriage over a twenty-four (24) year period. Appellee testified that he had attempted to have intercourse with his' wife on innumerable occasions. Each attempt was ultimately rebuffed when appellant told her husband that she was tired or didn’t feel well. Appellant admits that no vaginal intercourse had, in fact, occurred throughout the marriage.

At this point, we find it appropriate to note that there is no appellate case law in Pennsylvania that holds that a presumption of impotence arises where no intercourse has taken place for a given length of time. Some New Jersey cases, on the other hand, have adopted the rule of triennial cohabitation. This rule provides that a presumption of impotence may arise from the wife’s remaining a virgin for three (3) years, during which time the parties cohabit. See Bissell v. Bissell, 93 N.J.Eq. 537, 117 A. 252 (1922); Tompkins v. Tompkins, 92 N.J.Eq. 113, 111 A. 599 (1920). See also Heller v. Heller, 116 N.J.Eq. 543, 174 A. 573 (1934) (stating that although incurability may be presumed from the establishment of appropriate facts, such as continued cohabitation where the wife is apt yet remains a virgin, a period of two (2) months was wholly inadequate to cause a presumption to arise). While we do not specifically adopt the rule of triennial cohabitation, we feel that the reasoning giving rise to the rule is valid. There are cases in which incurable impotency can be inferred from the facts and circumstances. This is such a case. Instantly, appellant has been diagnosed as having a “sexual disfunction.” Appellant admits that, despite her husband’s repeated attempts, no intercourse had taken place throughout the twenty-four (24) year marriage. We find that, given the facts of this case, there was sufficient evidence to infer that appellant is incurably impotent. Thus, we affirm the lower court’s grant of an annulment based on section 205(a)(4) of the Divorce Code.

Appellant’s next two (2) issues are stated as follows: Did the lower Court err in denying the low income wife any alimony despite the much higher income of husband and the existence of a twenty-four (24) year marriage?
Did the lower Court err in denying wife any counsel fees or costs whatsoever?

Brief for Appellant at 3.

Our scope of review as to essentially monetary judgments in divorce actions is limited. Orders regarding alimony and counsel fees should be reviewed only for an abuse of discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Under this standard, we are not to usurp the trial court’s duty as the finder of fact. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

In the case sub judice, the master found that appellant has failed to meet the statutory requirements to justify an award of alimony. Initially, the master found that appellant is able to support herself through her present self-employment as a dog groomer. See section 501(a)(2). Appellant testified that during her marriage to Norman she worked only part time at her dog grooming business and that her income during that time was between $2,500.00 and $3,000.00 per year. (N.T., 11-10-81, at 56-57). The master obviously believed that appellant could increase her income by expanding her business and working longer hours. That the lower court agreed with the master’s finding is apparent from its statement: “It is clear from the record that [appellant] by virtue of her pet grooming business is quite capable of maintaining herself.” Lower ct. op. at 9. We find no abuse of discretion in that conclusion.

Appellant points to the unequal income of the parties as support for her argument that alimony should have been awarded. The master stated:

[Appellant], while not earning the same amount of yearly income as [appellee], has an established trade and is employed as a dog groomer. Given the fact that both parties are regularly employed at admittedly satisfactory jobs, no particular significance could be placed on the relative earnings and earning capacity of the parties.

Master’s Report, R.R. for Appellee at 22a. Thus, the master apparently decided that while the relative earnings of the parties are unequal at the present time, the earning capacities of the parties are similar. We believe that the record sufficiently supports this conclusion.

We hold that the findings and conclusions reached by the master and adopted by the lower court are supported by the testimony and evidence of record. The master considered each of the factors set forth in section 501 of the Divorce Code and set forth his reasons for denying an award of alimony. The lower court adopted the master’s report. We find no abuse of discretion.

The master also recommended that each party bear his or her own costs and counsel fees. The court adopted this recommendation. Given the economic considerations already discussed, we again find no abuse of discretion.

Appellant’s fourth issue deals with equitable distribution:

Did the lower Court err in dividing the marital home equally therefor forcing wife to vacate the premises and her place of employment?

Brief for Appellant at 3.

At this point, we must reiterate that the lower court remanded the issue of the division of appellee’s pension plan to the master for further hearings and recommendations. Thus, it is clear that we do not have the entire equitable distribution plan before us. We are of the opinion that we should not consider the propriety of a portion of the equitable distribution plan when some of the marital property has not yet been divided.

In his order of July 19, 1982, Judge Dolbin dismissed appellant’s exceptions to the Master’s Report; however, since he found it necessary to remand the pension plan issue to the master, Judge Dolbin did not enter a final order as to the equitable distribution of marital property. Since there is no final order of equitable distribution, we will not address any equitable distribution issues. Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983) (per curiam) (order dismissing exceptions is not a final order and, therefore, not appealable). Thus, we must remand the case to the lower court so that the division of appellee’s pension plan may be decided. The court should also consider the effect, if any, of the division of the pension plan on the division of the other marital property.

Affirmed in part and remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

MONTEMURO, J., files a concurring and dissenting opinion.

MONTEMURO, Judge,

concurring and dissenting:

While I agree with the majority’s decision that review of the equitable distribution plan is premature at this time, I disagree with the majority’s conclusions that: (1) laches is inappropriate here, and (2) the trial court did not abuse its discretion regarding the denial of alimony to appellant.

The majority rejects appellant’s laches argument by relying on the often repeated principle that mere delay in bringing a divorce action after separation is not ground for denial of relief sought. Regan v. Regan, 227 Pa.Super. 552, 322 A.2d 711 (1974). In applying this principle, the majority notes that the appellee filed his complaint “in divorce” before separation, so there was no delay after separation at all; and, in any event, delay would only affect the credibility of appellee in the consideration of the finder of fact. Campbell v. Campbell, 205 Pa.Super. 207, 208 A.2d 36 (1965).

Although I acknowledge the soundness of this principle, it stems from actions in divorce based on fault grounds. My research has not revealed any cases wherein this principle was applied to the annulment of a voidable marriage, and, in my view, such a principle should not apply to actions of annulment of a voidable marriage, as is the case before us.

In actions of divorce based on fault grounds, the principle that delay goes only to credibility derives from concerns of the authenticity of the alleged fault grounds, such concerns arising at a time prior to the implementation of no-fault divorce. If there was a long delay after the alleged fault grounds accrued and before the divorce action was brought, the delay raised the question of whether the divorce was brought in sincerity and truth for those grounds, or whether the divorce had been brought for the mere purpose of being freed and separated from a spouse. Garroway v. Garroway, 361 Pa. 464, 65 A.2d 414 (1949).

Here, however, we do not have the issue of delay raised in the context of an action for divorce brought on fault grounds. Instead, the question of delay before us arises in an action for annulment of a voidable marriage, which is significantly different from a divorce on fault grounds. A voidable marriage is valid and subsisting unless and until challenged by either party, In Interest of Miller, 301 Pa.Super. 511, 448 A.2d 25 (1982); but contains an impediment or defect at its inception which permits the marriage to be nullified. N. PERLBERGER, PENNSYLVANIA DIVORCE CODE § 3.2.1 (1980). Most importantly, the defect can be ratified or condoned, thereby barring any attack on the validity of such voidable marriage. Id.; 23 P.S. § 205(b).

Thus, while delay in an action in divorce based on fault grounds goes only to credibility, delay in an action of annulment of a voidable marriage can be a type of ratification which will act as a complete defense. In an action of annulment of a voidable marriage, the factor of delay does not merely require us to consider whether the asserted defect is a trumped-up guise, but whether, assuming the validity of the defect, the complainant has ratified that defect.

Other jurisdictions have held that laches is applicable to bar an action of annulment based on impotency where the complaining spouse continues to live with the offending spouse for an unreasonable length of time after learning of the impotency. See cases discussed in Annot., 52 A.L.R.3d 589 § 22 (1973); Annot., 28 A.L.R.2d 499 § 7 (1953). Appellant specifically points to Kirschbaum v. Kirschbaum, 92 N.J.Eq. 7, 111 A. 697 (1920), where a wife, having lived with her husband for eleven years, brought an action for annulment based upon his impotence. The court held that where the wife had accepted and enjoyed the benefits, such as they were, of a merely platonic marriage for more than eleven years, she could not be permitted to repudiate the contract but was held to have ratified it by conduct which she in no way explained. The court noted that in the absence of explanation, they would not meddle with what the complaining party’s conduct showed, though a considerable number of years, to be no grievance.

Our research has not found any Pennsylvania cases addressing this issue, however, in Wilson v. Wilson, 126 Pa.Super. 423, 191 A. 666 (1937), this court approvingly referred to Kirschbaum in dicta. The Wilson court dealt with the issue of whether natural and incurable impotency meant sterility or the inability to copulate. After deciding that the wife’s sterility did not amount to natural and incurable impotency; the court pointed out that, although they did not decide whether fraudulent concealment of known and permanent sterility would be a ground for annulment in Pennsylvania, the husband had continued to cohabit with the wife for two and one-half years after he knew of her true physical condition, and cited Kirschbaum.

I would agree with the reasoning of Kirschbaum and hold that laches is applicable to an action in annulment based on impotency. In a suit for nullity of a marriage, where, as here, the facts and circumstances so plainly imply that the complaining spouse recognized the existence and validity of the marriage and accepted the status of husband or wife, it would be most inequitable and contrary to public policy that he or she should be permitted to treat the marriage relation as if it never existed. See Donati v. Church, 13 N.J.Super. 454, 80 A.2d 633 (1951). Thus, I would find that appellee’s twenty-four year delay in challenging the validity of the marriage exhibited his ratification of appellant’s impotency, and so he is barred from asserting appellant’s impotency now as a basis for annulment.

I am also in disagreement with the majority concerning the issue of alimony. The majority finds no abuse of discretion in the trial court’s denial of alimony, which was based on the master’s recommendation. The lower court’s reasoning for the denial of alimony was encapsulated in its statement that “It is clear from the record that the [appellant] by virtue of her pet grooming business is quite capable of maintaining herself.” Lower Court Opinion at 9. To the contrary, it is far from clear that appellant can maintain herself on the income from her pet grooming business.

The evidence presented at the master’s hearing revealed that appellant’s dog grooming business took in $3,309.60 gross income in 1980, or $2,769.26 net income. This income figure was not disputed; however, it represented appellant’s efforts only in the evening and on Saturdays. The master’s finding that appellant was able to support herself through dog grooming apparently reflected a conclusion that if appellant pursued dog grooming on a full-time basis, she would have the capacity to support herself. This hypothetical earning potential of appellant was belied by the record, however.

Appellant testified that since the separation, she had been available for full-time employment, but that her workload had not increased. N.T. November 10, 1981, at 65. She later explained that most of her customers worked and, consequently, the only time that they brought their pets for grooming was in the evening. Id, at 74-75. She further testified that it was rare that a Saturday grooming was requested Id. When questioned by the master as to whether she would be prevented from pursuing her dog grooming business during the day, appellant responded that she had problems with her hands, and that she would need money to advertise in order to build the business up. Id. at 75-76.

From this evidence, the master blithely concluded that the dog grooming business could be expanded to enable appellant to support herself. While it is true that a court .has the power to look beyond actual earning to consider earning capacity, Commonwealth ex rel. Hargrave v. Hargrave, 275 Pa.Super. 198, 418 A.2d 680 (1980); such extrapolation must have a realistic basis. Thus, if the party’s prior work experience or educational background denotes that the party is not earning up to his or her proven or assured ability, a court may substitute capacity to earn for actual earning in the determination of income.

Here, however, there are no indices that appellant has the capacity to support herself by virtue of her dog grooming business. By her undisputed testimony, she has held herself out for full-time operation, but her workload has not increased. Further, there is no evidence that the Pine Grove area, where appellant resides, could ever supply enough dog grooming business in order to double or triple the size of appellant’s present operation. Finally, the master ignored the practical problem of where appellant would conduct the business once the marital home was sold. Appellant testified that she was currently operating out of the basement of the house. Id. at 37. Since the property was equally divided between the parties in equitable distribution, appellant will be forced to relocate her residence and at the same time find a facility which would accommodate the “expanded” dog grooming enterprise. Thus, the finding that appellant is able to support herself as a dog groomer, rather than being “clear”, was clearly erroneous.

After the divorce was filed, appellant realized that she could not support herself by dog grooming and the $47.00 per week court-ordered support payment by appellee. Id. at 76. Appellant enrolled at Reading Area Community College and pursued a computer science/management program so that she would be able to support herself. Id. at 54-55. She discontinued the program after one semester because of lack of funding and problems with her nerves. In light of the limited, rehabilitative purpose of alimony, a temporary order of alimony to allow appellant time to build-up her dog grooming business and/or re-educate herself for the job market would seem to be in order.

Correcting the lower court’s finding regarding appellant’s ability to support herself through employment, the guidelines for determining alimony set forth in 23 P.S. § 501(b) indicate that an award of alimony would be appropriate. That statute provides:

(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 see 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 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.

A glaring inequity is immediately perceived from the first factor, relative earnings and earning capacities. At the time of the master’s hearing, appellee was employed as a laborer for Garden State Tannery and earned $18,000.00 per year gross income, or $13,000.00 per year net income. See Income and Expense Statement of Appellee. In contrast, appellant’s yearly income was about $3,300.00 gross or $2,770.00 net. Neither party had an exhibited capacity to increase these earnings.

As to the second factor, appellant was born in 1936, and appellee in 1935. The master attributed no significance to this factor since he found the ages, physical, mental, and emotional conditions to be equal for both parties. Although appellant alluded to a problem with her nerves, and her doctor testified to her infected dermititis, these problems did not seem to be serious.

Similarly, the master found no significance in the third factor: income from medical, retirement, or other benefits. The only major source of income in this category was appellee’s pension. Since the master recommended that the pension benefits be divided equally, he attached no significance to this factor. Although the lower court remanded the pension issue to the master for further hearings, its concern seemed to be with the method of distribution rather than with the relative division.

The fourth factor involves the expectancies and inheritances of the parties, which were not applicable in this case.

The master found that the fifth factor, duration of the marriage, appeared to favor the granting of alimony. However, the master then went on to state that since the parties were on an equal basis financially, the effect of this factor favoring alimony was counter balanced. Because I would find that the parties were not on an equal basis financially, the effect of this factor favoring alimony would not be mitigated.

The sixth and seventh factors are not pertinent to the situations of the parties here, and the master so specified.

The eighth factor concerns the standard of living established by the parties during the marriage. The master described the standard of living achieved as “adequate”, and concluded that both parties would be able to maintain such standard of living. I disagree with this conclusion. While the appellee is able to maintain an adequate standard of living on $13,000.00 per year, appellant’s income of only $2,770.00 per year could not ensure even a subsistence standard of living. I feel that this factor would strongly militate in favor of an alimony award.

The master afforded no weight to the ninth factor, the relative education of the parties and the time necessary for further education or training to enable the party seeking alimony to find appropriate employment. The master determined that there was no disparity in the relative education of the parties, and that appellant would not require additional education or training to enable her to find appropriate employment. Since I would not find that appellant’s dog grooming business constituted appropriate employment, and since she would have difficulty entering the general job market without additional education or training, this factor would also suggest a temporary grant of alimony.

The master found no significant variance between the parties as to assets and liabilities, the tenth factor. The marital home was the major consideration in this category, and upon sale would provide roughly $32,000.00 to each party. I note that this asset to appellant will be offset by her increased living costs. Furthermore, appellant should not be expected to completely dissipate her assets. See Kuhn v. Kuhn, 25 D & C 3d 234 (1982). Thus, this asset is not so substantial as to enable appellant to provide for her reasonable needs.

No property was brought to the marriage by either party, and so the eleventh factor is inapplicable.

The twelfth factor, the contribution of a spouse as homemaker, was resolved by the master in favor of appellant. It was not disputed that appellant was fully responsible for the care of the home. The master felt that appellant’s homemaking contribution was reflected by the equitable distribution of the marital resident, and apparently found that, consequently, it need not be considered in a determination of alimony. I dispute this analysis — many of the factors considered in equitable distribution also pertain to a consideration of alimony. This does not mean that consideration of such a factor under one award precludes its consideration under a different award. Thus, appellant’s contribution as homemaker should weigh in favor of alimony.

The master found that the relative needs of the parties, factor thirteen, were generally well-balanced. We note that neither party had inordinate expenses.

The final factor, marital misconduct prior to separation, was discounted by the master who stated that the testimony in this regard was not sufficient to affect the determination of alimony. The appellee admitted, however, that he was seeing another woman prior to the filing of the complaint and separation. N.T. August 11, 1981, at 36. (Appellee testified that Katherine Eichert had been his “girlfriend” since February 27, 1980. The complaint was filed on May 14, 1980, and the parties separated thereafter.) This testimony certainly indicates appellee’s marital misconduct, and should weigh in favor of appellant’s claim for alimony.

On the whole, therefore, many of the 23 § 501(b) factors strongly signify that rehabilitative alimony to appellant is appropriate. None of the remaining factors detract from this indication. Accordingly, I would hold that the trial court abused its discretion in denying appellant’s claim for alimony.

      . Act of April 2, 1980, P.L. 63, No. 26, § 201, 23 P.S. § 201(a)(6).

      . Act of April 2, 1980, P.L. 63, No. 26, § 205, 23 P.S. § 205(a)(4).

      . In his order of July 19, 1982, Judge Dolbin remanded a portion of the case to the master for the purpose of taking testimony on the issue of the disposition of appellee’s pension plan.

      . Given our disposition of this appeal, we find it unnecessary to address appellant’s fifth issue which she states as follows:
      Did the lower court err in not granting wife a divorce on the grounds of indignities?
      Brief for Appellant at 3.
      It is true that neither the master nor the lower court discussed or ruled on appellant’s counterclaim. While we do not condone this omission, we feel that given our affirmation of the grant of the annulment, it is unnecessary to have the court consider appellant’s counterclaim.

      . Prior to the promulgation of the Divorce Code of 1980, impotency was grounds for divorce. Section 205(a)(4) of the Divorce Code allows an individual to secure an annulment if the other spouse, at the time of marriage, was and still is naturally and incurably impotent. We do not believe that the fact that the Divorce Code changed the type of relief granted from a divorce to an annulment effects prior case law with regard to the definition of impotency.

      . When asked how he would treat appellant’s problem, Dr. Cooper replied: "The patient and partner should be referred for prompt [sic] psychological and emotional and sexual counseling and guidance.”

        N.T., 11-10-81, at 22. This does not indicate, however, that such counseling would necessarily cure appellant.

      . As the lower court aptly stated:
      The sexual problems in this unhappy union commenced on the honeymoon and have persisted for the last twenty-four years. When husband tried to confide his desires to his bride a thousand or so times, the object of his love quest told him to “knock it off" or that she was tired and didn’t feel good. However, hope resided abundant in husband's emotional reservoir and he persisted throughout twenty-four years, or two hundred eighty-eight months to attempt to cement their union in a concrete manner. Vain and fruitless were his attempts for his wife’s reluctance or sexual short-circuit could not be overcome and she remained insurmountable and to him, her problems-impenetrable and inscrutable. It is an instance of: “The spirit is unwilling though the flesh be strong”.
      Lower ct. op. at 6.

      . Act of April 2, 1980, P.L. 63, No. 26, § 501, 23 P.S. § 501(a)(2).

      . We believe this to be the basis of the master’s analysis given his comments regarding the distribution of marital property: "[SJince [appellant] is self-employed, [appellant] is able to a certain extent to control her income depending on how much time [appellant] desires to work____ [Appellant] has the potential to increase her income in her self-employment." Master’s Report, R.R. for Appellee at 30a-31a.

      . Appellee’s complaint prayed for divorce on the grounds of indignities, as well as annulment of a voidable marriage under 23 P.S. § 205(a)(4). The master found that appellee had failed to establish grounds for a divorce based on indignities, but concluded that an annulment was proper. The trial court did not address the propriety of the indignities claim, but considered only the annulment claim, and granted the annulment.

      . In Garroway, the husband commenced an action for divorce based on indignities which had allegedly occurred over seventeen years previously. The court held that the husband had not brought the action on the grounds of indignities in good faith, and intimated that his motive might have been to terminate an existing court order for his wife's support.

      . 23 P.S. § 205(b) provides: "... The validity of such voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties thereto ...” (emphasis added).

      . Estoppel because of delay is not new to actions of voidable marriages. If annulment actions based on certain types of voidable defects are not commenced within sixty days after the marriage ceremony, the marriage is no longer deemed to be voidable. 23 P.S. § 205(a)(2, 3). In actions alleging voidable defects based on fraud, duress, coercion, or force, if, after discovery of the unlawful conduct, the complainant voluntarily continues cohabitation, an action of this ground will be barred. N. PERLBERGER, supra, § 3.2.3(d). Even in annulment actions where the marriage was void rather than merely voidable, timeliness has been responsible for barring the action. Diamond v. Diamond, 501 Pa. 418, 461 A.2d 1227 (1983); Wisecup v. Wisecup, 190 Pa.Super. 384, 154 A.2d 332 (1959).

      . Of course, where the complaining party’s delay in moving for annulment on the basis of impotency is explained by bona fide hopes of improved condition, the complaining spouse would not have ratified the marriage. See Singer v. Singer, 9 N.J.Super. 397, 74 A.2d 622 (1950). In the case at bar, appellee testified that he made attempts to have sex with his wife until 1972 or ’73, and after that he gave up. N.T. August 11, 1981, at 27. Without deciding whether intermittent attempts to have sexual intercourse would constitute bona fide hopes of an improved condition, appellee’s continued residence with appellant after 1972 or ’73, was not explained.

      . Appellant testified that she had developed a rash on her hands which restricted her washing of the dogs. Id. at 55-56. Her mother testified and confirmed that she had to help appellant wash the dogs because of the condition of appellant’s hands. Id. at 80. Dr. Harold B. Cooper, appellant’s family physician, testified that appellant had infected dermititis. Id. at 34.

      . In her Pre-hearing Memorandum, appellant stated that she was enrolled for a four-year college program to gain employable skills, and requested alimony in the amount of $125.00 per week for a period of four years.

      . Even if appellant quadrupled her dog grooming business, there would still be a significant difference between her earnings and those of appellee.