author: CAVANAUGH, Judge:

text:
    481 A.2d 903
    Francis MARTIN and Barbara Martin, As Parents and Natural Guardians of John F. Martin, Francis Martin and Barbara Martin, H/W In Their Own Right v. Dr. P. Calvin GERNER, Dr. Robert L. Bell and Chester County Hospital. (2 Cases) Appeal of Dr. P. Calvin GERNER and Chester County Hospital. Francis MARTIN and Barbara Martin, As Parents and Natural Guardians of John F. Martin, Francis Martin and Barbara Martin, H/W In Their Own Right, Appellants, v. Dr. P. Calvin GERNER, Dr. Robert L. Bell and Chester County Hospital. Appeal of Dr. Robert L. BELL.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1983.
    Filed Aug. 24, 1984.

      Steven Berk, Philadelphia, for appellants in No. 24 and for appellees in Nos. 198 and 3311.
    Daniel J. Zucker, Philadelphia, for appellants in No. 3311 and for appellees in Nos. 24 and 198.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   CAVANAUGH, Judge:

In this case, the plaintiffs below, Francis Martin and Barbara Martin, as parents and natural guardians of John F. Martin, and Francis Martin and Barbara Martin in their own right, commenced an action in trespass against Dr. P. Calvin Gerner, Dr. Robert L. Bell and Chester County Hospital for alleged medical malpractice. The defendants filed preliminary objections to the amended complaint alleging improper venue and lack of jurisdiction and by order of the court below dated November 6, 1981, the preliminary objections of all defendants were dismissed. In addition, the plaintiffs’ preliminary objections to the defendants’ preliminary objections were overruled. The defendants filed petitions for reconsideration of the order of November 6, 1981. On December 3, 1981, Judge Biunno denied the defendants’ petition for reconsideration. On December 18, 1981, the court entered the following order:

AMENDED ORDER
AND NOW, this 18th day of December, 1981, it is hereby ORDERED that defendants’ Petition for Reconsideration of the Order issued November 6, 1981, is hereby DENIED and further that the issues raised therein regarding improper venue present a substantial issue of jurisdiction.

On December 23, 1981, Dr. Gerner and Chester County Hospital filed their notice of appeal. Plaintiffs below filed their notice of appeal on December 30, 1981, and Dr. Bell filed his notice of appeal on January 4, 1982. All notices of appeal were stated to be from the amended order of December 18, 1981, and all were pursuant to Pa.R.A.P. 311(b)(2). Initially, we must determine if the appeals were timely filed. Pa.R.A.P. 311(b)(2) provides:

(b) Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:
(2) the court states in the order that a substantial issue of jurisdiction is presented.

If the thirty day appeal period under Pa.R.A.P. 903 runs from the date of the original order of November 6, 1981, then all appeals were untimely filed and must be quashed. However, in this case it was not until the order of December 18, 1981, that the unappealable interlocutory order of November 6, 1981, became appealable as of right under Pa.R.A.P. 311(b)(2). By that time, the thirty day appeal period would have already expired if the date of November 6, 1981, were considered the date on which the appeal clock commenced running. The order of November 6, .1981, was interlocutory and unappealable in the absence of an exception to the rule prohibiting appeals from interlocutory orders. To conclude that the time for taking an appeal commenced on November 6, 1981, would obviously be anomalous and indefensible. In the circumstances of this case the appealable order was entered on December 18, 1981, even though it was construed by the court below as an amendment to its earlier order.

We now proceed to dispose of the case on the merits. The first issue is whether the court below properly dismissed the preliminary objections of the plaintiffs below to the defendants’ preliminary objections. After the complaint in trespass was filed the defendants, Chester County Hospital and Dr. Gerner, filed preliminary objections to the complaint on the grounds that the ad damnum clause was defective. These preliminary objections were later joined in by Dr. Bell. The plaintiffs filed an amended complaint before any disposition was made by the court of the defendants’ first preliminary objections. All of the defendants then filed preliminary objections to the amended complaint alleging that the court lacked jurisdiction over the person of the defendants and requesting that the case be transferred to Chester .County. The plaintiffs filed preliminary objections to the defendants’ preliminary objections to the amended complaint which the court below overruled by its order of November 6, 1981.

The basis for the plaintiffs’ preliminary objections was that they constituted a second set of preliminary objections and that they raised preliminary objections separately and serially in violation of the Pennsylvania Rules of Civil Procedure. Pa.R.C.P. 1028(b) states that: “[a]ll preliminary objections shall be raised at one time.” In addition, Pa.R.C.P. 1006(e) states in part that “[ijmproper venue shall be raised by preliminary objections and if not so raised shall be waived.” The court below properly overruled the plaintiffs’ preliminary objections notwithstanding that two sets of preliminary objections were filed. The plaintiffs amended their complaint shortly after the filing of the first preliminary objections without any action being taken by the court. The defendants’ preliminary objections to the amended complaint were proper.

As pointed out in 2 Goodrich-Amram, 2nd, 1017(b): 6: Where amended preliminary objections are filed, before the original objections are argued, additional and new grounds may be included. This is consistent with the philosophy of having all dilatory matters disposed of at one time.

The basis for the rule that all preliminary objections must be raised at one time is that otherwise the court would have to rule on preliminary objections on a piecemeal basis. The court quoted from 2 Goodrich-Amram, 2nd, 1017(b): 4 in Grugan v. Johns Manville Corp. (No. 2) 3 Pa.D. & C.3rd 748, 750 (1978) as follows:

Following the same principle, and in accordance with prior practice, the defendant cannot attack the plaintiff’s complaint in small bites. He cannot point out a particu lar defect by preliminary objection; have the court pass on it; compel the plaintiff to amend; and then attack the amended complaint by pointing out another particular defect which was in the original complaint. This would make a travesty of the rule limiting the defendant to one dilatory stage.
(Emphasis added).

In the instant case, while it is correct that the defendant did not raise the issue of improper venue or jurisdiction in their original preliminary objections the matter was not passed on by the court. When the plaintiffs of their own volition filed an amended complaint there was no bar to the defendants filing preliminary objections to the amended complaint, evén though the original preliminary objections did not raise the question of improper venue or lack of jurisdiction. Goodrich-Amram succinctly sets forth the situation we have in this case at 2 Goodrich-Amram 2nd, 1033: 6 as follows:

When the plaintiff voluntarily amends his complaint to meet objections by the defendant additional objections which may have been available to the original complaint may be filed, on the theory that the court has not yet ruled on the preliminary objections. Until the court enters an order based upon them, additional objections and additional reasons may be added, for this is not a serial objection. The dilatory pleading is still confined to a single stage.
(Emphasis added).

In the circumstances surrounding the pleadings in this case, the court below properly dismissed the plaintiffs’ preliminary objections to defendants’ preliminary objections to the amended complaint.

The final issue is whether the court below properly dismissed the defendants’ preliminary objections raising the issue of improper venue and lack of jurisdiction. The alleged medical malpractice occurred solely in Chester County and the plaintiffs and physician-defendants involved reside outside of Philadelphia County. The defendant hospital has its principal place of business in West Chester, Chester County, Pennsylvania. Plaintiffs’ amended complaint alleges that Dr. Bell engages in the practice of his profession in West Chester. It also alleges that Dr. Gerner practices medicine in West Chester and Philadelphia, Pennsylvania. Pa.R.C.P. 1006 deals with venue and provides in Rule 1006(a):

Rule 1006. Venue. Change of Venue

(a) Except as otherwise provided by Subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.

Pa.R.C.P. 1009 deals with service of process and provides in Rule 1009(b)(2)(iii):

(b) When the defendant is an individual, the writ of summons, or the complaint if the action is commenced by complaint, may be served
(2) by handing a copy
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

In this case, service of process was made solely on Dr. Gerner and was accomplished by having the sheriff hand a copy of the complaint to the person in charge of Presbyterian Hospital in Philadelphia, Pennsylvania. Dr. Gerner’s deposition established that he was an inactive staff member of Presbyterian Hospital when service was made on June 1, 1981. He did not have an office at Presbyterian Hospital and had not attended a staff meeting at that hospital since 1975. He had not admitted a patient to the hospital since 1963. He had no proprietary interest in the hospital nor any managerial status or responsibility. In fact, Dr. Gerner had not even been in Presbyterian Hospital in 1980 or 1981. Dr. Gerner received the papers in this action by mail delivered to his home in Wynnewood, Montgomery County, Pennsylvania. The issue before us is whether Dr. Gerner was properly served so that the court had in personam jurisdiction over the defendants. Certainly, Presbyterian Hospital was not Dr. Gerner’s “usual place of business,” and the narrow issue is whether his limited status as an inactive staff member at the hospital renders the hospital his “office”, within the meaning of Pa.R.C.P. 1009(b)(2)(iii). No one contends that Presbyterian Hospital would be considered Dr. Gerner’s “office” in the usual meaning of the term as he did not practice medicine there, and had not been active at the hospital for several years prior to commencement of the action.

In Pincus v. Mutual Assurance Company, 457 Pa. 94, 99, 321 A.2d 906, 910 (1974) the Supreme Court stated:

When Rule 1009(b)(2)(iii) refers to an office or place of business “of the defendant,” it requires that the defendant have more propriety responsibility and control over the business than that possessed by the average employee. See generally, Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966); Branch v. Foort, 397 Pa. 99, 152 A.2d 703 (1959).

In Pincus, the Court held that corporate trustees had the requisite proprietary interest, and that they could be served at the main corporate headquarters as the headquarters constituted the trustees’ office.

In Cohen v. International Organization of Masters, 247 Pa.Super. 83, 371 A.2d 1337 (1977), the defendant in a libel action was served at a union office in Philadelphia. The defendant was the secretary-treasurer of the union and resided in California. He also maintained an office in New York. This Court held that the defendant was not properly served and the complaint was dismissed. The court stated at 247 Pa.Super. 88, 371 A.2d 1340: “We refuse to infer control and proprietary responsibility by virtue of appellant’s official title alone. Accordingly, we hold that the Philadelphia union is not an office or usual place of business of appellant for purposes of Pa.R.C.P. 1009(b)(2)(iii).” (Emphasis added).

In Slater v. Goldberg, 266 Pa.Super. 52, 402 A.2d 1073 (1979), the sheriff attempted to serve the defendants who were the sole stockholders, and officers and directors of a corporation which maintained an office in Lackawanna County. Service was made by deputy sheriff upon the person in charge of the corporate office. This Court held that the defendants had a sufficient proprietary interest in the corporate headquarters located in Lackawanna County to make them amenable to service under Pa.R.C.P. 1009(b)(2)(iii).

In the instant case Dr. Gerner did not maintain sufficient proprietary interest in or control over Presbyterian Hospital that would render him subject to service under Pa.R.C.P. 1009(b)(2)(iii). He was merely an inactive staff member at the hospital who actively practiced medicine outside of Philadelphia. The court below relies principally on Branch v. Foort, 397 Pa. 99, 152 A.2d 703 (1959) to support its conclusion that service on Dr. Gerner was proper. In Branch, service was attempted on a maintenance employee by leaving a copy of the complaint with the person in charge of his employer’s office. The Supreme Court held that service was invalid under Pa.R.C.P. 1009(b)(2)(iii). The court stated at 397 Pa. 101, 152 A.2d 704 in discussing that rule:

Prior practice had limited service at a place of business to cases where the defendant had a proprietary interest in the business. This provision was broadened by the rule quoted above. The question is, To what extent has it been broadened? Does this rule allow service on any ordinary employee or must the employee be in a managerial capacity before he may be served at his “office” or “usual place of business”?

The court further stated at 397 Pa. 101-02, 152 A.2d 704-05:

It is obvious that though the rules as to service have been liberalized their basic purpose, i.e. to assure that the defendant will actually get knowledge of the commencement of the action against him and of his duty to defend, remains the same.

The court below determined that the critical inquiry set forth in Branch is whether the defendant has knowledge of the complaint against him and if so then service is proper. We do not believe that to be a proper interpretation of Branch. The purpose of Pa.R.C.P. 1009(b)(2)(iii) is to assure that the defendant will receive notice of the complaint and Branch has been cited in innumerable cases to that effect. This does not, however, obviate the requirement that service be made at the defendant’s “office” or “usual place of business.” “The rules relating to service of process must be strictly followed, and jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.” Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966). See also, Cassidy v. Keystone Insurance Co., 322 Pa.Super. 168, 469 A.2d 236 (1983). If service is not properly made, in the absence of waiver of an objection to invalid service, it is irrelevant if the defendant subsequently learns, as in the instant case, that the sheriff left a copy of the complaint at a location that was not the defendant’s “office” or “usual place of business.” Service of process upon Dr. Gerner was invalid and jurisdiction does not exist over the persons of the defendants. The question of lack of jurisdiction was properly raised in the defendants’ preliminary objections to the plaintiffs’ amended complaint.

Having decided that there was no in personam jurisdiction over the appellants, we must decide whether the complaint should be dismissed or transferred to a county where proper venue lies. Pa.R.C.P. 1006(e) provides:

(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county.

In this case there was neither in personam jurisdiction over the appellants nor proper venue for the cause of action. The court below should have transferred the case to Chester County where proper venue and jurisdiction lie. In Nicolosi v. Fittin, 434 Pa. 133, 135-36, 252 A.2d 700, 701, our Supreme Court held that where there is no in personam jurisdiction over the defendant, the action should not be dismissed, but “[i]f plaintiff can properly bring defendant on the record, the action may be pursued.” In Tyson v. Basehore, 222 Pa.Super. 572, 295 A.2d 189 (1972), this Court held that in personam jurisdiction may not be obtained through deputized service of process by a court in a county where neither the cause of action arose nor the defendant could be found. We held that the appellant’s successful attack on in personam jurisdiction created the “improper venue” contemplated by Rule 1006(e). Judge Hoffman stated in his concurring opinion, Id., 222 Pa.Superior Ct. at 578, 295 A.2d 193:

Our Supreme Court’s holding in Nicolosi clearly indicates that Rule 1006(e) may be utilized whenever improper venue is established, regardless of whether a party objects on either jurisdictional or venue grounds.

In Slezynger v. Bischak, 224 Pa.Super. 552, 307 A.2d 405 (1973), this Court was called on to decide whether the court below erred in dismissing a cause of action on the basis of lack of jurisdiction over the person of the defendant and we concluded that it did, where the case could have been transferred to another county where service of process could properly have been made. We held that if a preliminary objection to venue or jurisdiction of the person is sustained and there is a county of proper venue, the action should not have been dismissed, but transferred to the appropriate county. In Anderson v. Uva, 230 Pa.Super. 533, 536, 326 A.2d 430, 431 (1974), we decided that:

when appellees objected to the service of process, they in effect questioned the propriety of both jurisdiction over their persons and venue. After dismissing the complaint on the basis of either lack of personal jurisdiction or improper venue, the court below should have transferred the case to Bucks County where venue could be properly laid.

In this case, service of process properly could have been made in Chester County and venue lies in that county. Accordingly, the order of the court below is reversed and the case is remanded to the court below for proceedings consistent with this opinion.

      . The order of November 6, 1981 stated:
      ORDER
      AND NOW, this 6th day of November, 1981 upon consideration of the preliminary objections of all defendants and plaintiffs’ response thereto, including preliminary objections, it is hereby ORDERED AND DECREED that:
      (1) Plaintiffs’ preliminary objections to the defendants’ preliminary objections tire overruled;
      (2) Defendant’s, Robert L. Bell, preliminary objections to the plaintiff's amended complaint are overruled; and
      (3) Defendants’, Dr. P. Calvin Gerner and Chester County Hospital, preliminary objections to the plaintiffs' amended complaint are overruled.
      (4) Defendants are directed to file an answer to plaintiffs’ amended complaint within thirty (30) days from the date hereof.

      . Pa.R.A.P. 903 provides:
      Rule 903. Time for Appeal
      (a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.
      (b) Cross appeals. Except as otherwise prescribed in Subdivision (c) of this rule, if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.

      . On April 19, 1982, this Court entered an order denying the motion of Dr. Gerner and Chester County Hospital to quash the cross-appeal of the plaintiffs below.

      . The defendants alleged in their preliminary objections that the court lacked jurisdiction over the persons of the defendants. The preliminary objections also alleged that jurisdiction and venue lie in Chester County and requested the action be transferred to Chester County.

      . The plaintiffs’ preliminary objections stated in part:
      6. Defendants’ second set of Preliminary Objections raising for the first time objections to venue and lack of jurisdiction violate Pennsylvania Rules of Civil Procedure 1006, 1017, and 1028 as they constitute an attempt to raise Preliminary Objections separately and serially, and violate the Rules requiring all preliminary objections to be raised at one time.

      . If service of process were proper upon Dr. Gerner then under Pa.R.C.P. 1006(c) venue would be proper as to the other defendants. Pa.R.C.P. 1006(c) provides:
      (c) An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b).

      . Where preliminary objections are filed to a complaint alleging lack of jurisdiction, the plaintiff has the burden of proving that the court has in personam jurisdiction. Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982).

      . Valid service was made on a doctor in Castel v. Mitchell and The Graduate Hospital of the University of Pennsylvania, 56 Pa.Cmwlth. 64, 423 A.2d 1375, 1376 (1981). In that case a physician "held regular hours on Thursday mornings” at the Downtown Jewish Home for the Aged. Papers were served at the hospital, and the physician in question who was making his rounds at the time, was given a copy of the complaint by a nurse. He read the complaint and then refused to accept it. The court held that service was proper and was effective when the physician received and read the complaint, and the fact that he thereafter returned the complaint did not render service invalid.

        . The court below stated at page 9 of its opinion: "Hence this court concludes that the critical inquiry set forth in Branch is met when service is made on a staff member by leaving the complaint at the hospital.”

      . We must conclude under the above opinions that notwithstanding lack of in personam jurisdiction over the appellants, the complaint should not be dismissed. Nevertheless, we recognize that a reasonable argument may be made that if a court has no jurisdiction over the person of a defendant that it has no power to take further action in the matter.


source: Caselaw Access Project

author: WICKERSHAM, Judge: JOHNSON, Judge,

license: Public Domain

text:
    481 A.2d 910
    COMMONWEALTH of Pennsylvania, Appellant, v. Dennis STATEN.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1983.
    Filed Aug. 24, 1984.

      Charles M. Guthrie, Jr., First Assistant District Attorney, Reading, for Commonwealth, appellant.
    Robert L. Moore, Reading, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Dorcas Clouser was found dead in her apartment on April 9, 1981. Her death was caused by the application and inhalation of a caustic containing sodium hydroxide. Appellee, Dennis Staten, was charged with Dorcas Clouser’s murder and with criminal homicide, burglary, theft, aggravated assault, simple assault, and attempted arson. Appellee filed a notice of alibi defense. The burglary charge was eventually dismissed, but appellee was brought to trial on the remaining charges.

Appellee’s jury trial commenced on November 9, 1981 before the Honorable W. Richard Eshelman. The Commonwealth’s theory of the case was basically that appellee initially went to the victim’s apartment in order to appropriate various stereo components. A friend of appellee’s, Rodrique Miller, testified that on April 7, 1981, appellee informed him that he (appellee) intended to take possession of the stereo components by getting the victim or another woman high on drugs. Later that same day, appellee returned to Miller’s residence carrying a bag containing stereo parts which appellee later sold to Miller. Miller also testified that two days later, on April 9, 1981, appellee asked Miller if he had seen the news reports of Dorcas Clouser’s death and asked Miller to throw the stereo components in the river.

Another Commonwealth witness observed the victim and the appellee at the victim’s apartment on April 7, 1981 at about 6:00 p.m. The same witness observed appellee’s car parked in the vicinity of the victim’s apartment at approximately 7:30 p.m. on the same evening.

After three days of trial, the pathologist who performed the autopsy on the victim on August 10, 1981 took the stand. The doctor fixed the time of Ms. Clouser’s death at or about 8:15 p.m. on April 8, 1981. The doctor was eventually excused from the witness stand and the Commonwealth continued to present its case. At a later time, the Commonwealth requested permission to recall the pathologist to clarify or attempt to correct the problem which had developed in the medical testimony. Defense counsel objected, and the trial judge refused to allow the recall.

At the close of the Commonwealth’s evidence, appellee demurred to the evidence. Since much of the Commonwealth’s testimony placed appellee at the scene and with the victim on April 7, whereas the date of death was fixed at April 8, the trial court sustained the appellee’s demurrer. Judge Eshelman explained:

The Commonwealth’s evidence was clearly insufficient to allow the jury to find [appellee] guilty on the homicide charges. On the one hand, the Commonwealth, by the pathologist’s testimony, established that the victim died on the evening of April 8, whereas all of the other evidence of the Commonwealth showed that [appellee] was last seen in the vicinity of the victim’s apartment building on the evening of April 7. There was not a scintilla of evidence which placed [appellee] in Ms. Clouser’s neighborhood, let alone in her company or in her apartment, on the evening of April 8, 1981. Further, the proof adduced at trial regarding time of death was in irreconcilable conflict with the charge set forth in the information that “on the same day and year [April 7, 1981] ... [appellee] did feloniously, willfully, deliberately, intentionally and premeditatedly, kill one Dorcas Clouser, and the said victim, being so mortally wounded, did die on April 7, 1981, between 6:00 p.m. and 8:00 p.m.”
Where time is of the essence of the offense, such a discrepancy is fatal to the Commonwealth’s case. Commonwealth v. Boyer, 216 Pa.Super. 286, 264 A.2d 173 (1970). Since [appellee’s] reliance on an alibi defense made time of the essence in this case, Commonwealth v. Boyer, supra, it would have been error to deprive [appellee] of this defense by allowing the jury to find him guilty of killing Dorcas Clouser at any time other than April 7 between 6:00 and 8:00 p.m. as charged. Yet, as stated above, the Commonwealth’s only probative evidence of the actual time of death, i.e. the evening of April 8, made impossible a conviction predicated on the April 7 date and time as charged.

Lower ct. op. at 5-6.

The lower court also held that the Commonwealth’s evidence was insufficient to allow the remaining charges to go to the jury. The Commonwealth filed this timely appeal.

The Commonwealth argues that the trial court erred in refusing to permit the Commonwealth to recall its expert medical witness. Before we can address this issue, however, we must first consider the following question:

Is appeal of demurrer by Commonwealth barred by double jeopardy?

Supplemental Brief for Appellant at 1.

Because of our disposition of this appeal, we need not reach the substantive issue presented by the Commonwealth.

This appeal is controlled by Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984). In Smalis, an en banc panel of this court held:

An order sustaining a demurrer to the evidence under current Pennsylvania practice is a mid-trial determination that the prosecution’s evidence is legally insufficient to support a conviction. Pa.R.Crim.P. 1124(a)(1). For double jeopardy purposes it has precisely the same effect as a directed verdict of acquittal. A court has made a determination that upon the evidence presented no rational fact finder could vote to convict the defendant. This is a termination of the trial on a basis related to a factual determination of guilt or innocence. “Under the dispositive [decisions of the Supreme Court] such a ruling of insufficiency, no matter how labeled, represents a conclusion that there has been a failure of proof: that is, there has been an acquittal which is to be accorded the special significance of finality and unreviewability.” Strazzella, Commonwealth Appeals and Double Jeopardy, 4 Pa. L.J. 11, 12 (1981).
sf- * sft * *
How, then, can an order sustaining a demurrer to the evidence under Pennsylvania practice be distinguished from other insufficiency determinations which are not appealable? If it cannot be so distinguished, how can we refuse to follow the decisions of the Supreme Court of the Unite States which define and apply the Double Jeopardy Clause of the United States Constitution? The answer is that we cannot. Prior Pennsylvania decisions holding that orders sustaining demurrers are appealable by the Commonwealth can no longer be followed. They are at variance with decisions of the Supreme Court of the United States. We hold, therefore, that a mid-trial order holding the evidence insufficient to support a conviction is not appealable by the Commonwealth.

Id., 331 Pa.Superior Ct. at 318, 480 A.2d at 1051 (footnote omitted).

In the case sub judice, the trial court sustained appellee’s demurrer to the evidence; this constituted a mid-trial determination that the Commonwealth’s evidence was legally insufficient to support a conviction. Since further proceedings in this case would be barred by principles of double jeopardy, the Commonwealth has no right of appeal. Appeal quashed.

JOHNSON, J., filed a dissenting statement.

JOHNSON, Judge,

dissenting:

I dissent.

I continue to believe that appellate review of the midtrial determination on the issue of legal sufficiency does not invade any interest protected by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. I also believe that the sustaining of a demurrer at the close of the Commonwealth’s case-in-chief is not an event which terminates the original jeopardy. See Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984) (Dissenting Opinion of Johnson, J.). Cf. Richardson v. United States, — U.S. —, —, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984).


author: BROSKY, Judge:

text:
    481 A.2d 913
    Raymond F. KING, Sr., Appellant, v. Eleanor F. KING.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1984.
    Filed Aug. 24, 1984.

      Frank Kroto, Jr., Erie, for appellant.
    Donald W. Grieshober, Erie, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.

      . Appellee contends that appellant has waived the issues he presents to us. We do not agree.
      Specifically appellee complains that appellant did not below: (1) raise an issue as to the increase in value of the pension plan after 1974; (2) raise an issue as to the fair market rental value of the residence occupied by appellee or; (3) raise an issue as to purchase by appellant of military time towards his pension. Nor, appellee argues, did appellant seek Judge Jiuliante’s recusal. As to this last question we note that appellant did seek reconsideration of Judge Jiuliante’s February 2, 1983 decision in response to which request the Judge recused himself.
      As to the other assignments of error made by appellee we observe that appellant’s dissatisfaction was not with the Master’s Report, but with the trial court’s disposition of appellee’s exceptions to that report. Pa.R.C.P. 1920.55(c) in effect at the time of the hearings below, provided:
      If exceptions [to the Master's Report] are filed, the court shall hear argument on the exceptions and enter an appropriate final decree. No exceptions may be filed to the final decree.
      We conclude that appellant has not waived the issues he now argues and therefore proceed to the merits of the argument.

   BROSKY, Judge:

Appellant is the former husband of appellee. He contests the distribution of property ordered by the trial court in conjunction with the parties’ divorce. Specifically he challenges the valuation of his pension plan, which was subject to equitable distribution, and what he claims was the failure of the trial court to take into consideration in making its distribution of marital property the fact that appellee had resided since the date of separation in the marital residence rent free.

Initially, though, appellant contends that another hearing should be conducted on the equitable distribution issue because of the failure of Judge Jiuliante to recuse himself from reviewing the Master’s findings. Appellant concedes that after writing an opinion dated February 2, 1983, Judge Jiuliante did in fact recuse himself and another en banc panel reviewed the case. He argues, however, that this panel did not actually review the Master’s findings but instead merely affirmed the previous order of Judge Jiuliante. We disagree.

The opinion of the court en banc issued on August 29, 1983 indicates that it relied not only on the previous opinion but also heard argument in July and considered the record made at the Master’s hearing. The court wrote: “After careful review of the testimony presented at the Master’s hearings, and with the benefit of the second en banc argument, we concur with the initial opinion of the court, and deny plaintiff’s Motion for Reconsideration.” While the August opinion did refer to Judge Jiuliante’s previous opinion, we believe that the court en banc itself reviewed the evidence and we see no need for remand on this ground.

Turning to appellant’s remaining claims, we note that we utilize an abuse of discretion standard of review in determining the propriety of property distribution. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). We will not usurp the trial court’s duty as factfinder nor will we adopt guidelines or presumptions in addition to those set forth by the legislature. Ruth v. Ruth, supra.

Appellant’s primary contention is that the trial court erred in valuing the pension fund as of January, 1981. Instead, he argues that it should have been valued as of the date of separation in October, 1973 or the date of the filing of the divorce complaint in 1974.

Appellee, on the other hand, believes that the valuation of the pension plan gave the husband credit for the increased value between the date of separation in 1973 and valuation date in 1981 and urges us to affirm.

We conclude that only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.

We have based our decision on the terms of the Divorce Code which defines marital property as all property acquired by either party during the marriage with certain exceptions. See 23 P.S. § 401(e) which states in relevant part:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.

The statute indicates that the Legislature did not intend that property acquired after separation be treated as marital property. That portion of the pension property that was acquired after the date of final separation should therefore not be subject to equitable distribution.

Mr. and Mrs. King, who were both 53 years of age at the time of the divorce hearing, were married in August, 1951 and separated in October, 1973 at which time Mr. King was employed, as he still is, by the Erie Police Department. He has been employed by the Department since April, 1956.

The marital property consisted primarily of the residence at 1120 West 41st Street, Erie, (valued in October, 1973 at $22,100 and in January, 1981 at $37,500) and appellant’s pension which had not vested as of October, 1973, but was due to vest within a few months.

Appellant’s pension plan is apparently considered to be both a contributory and non-contributory plan. By October, 1973 Mr. King had contributed $4,197.34 to the plan, by January, 1981, he had contributed another $5,389.92. The Master found the $4,197.34 to be marital property and awarded it to the husband.

Exceptions were filed to the Master’s Report and the court reversed his proposed finding that the value of the pension was limited to the dollar amount contributed by appellant. Instead the court found that the pension had a value based on the likelihood of its being paid.

An actuary testified at the Master’s hearing and his written report was entered into evidence. At the hearing the actuary, Randall M. Luzader, testified that in October, 1973 the value of the pension was $67,893. The witness explained that he reached that figure by considering Mr. King’s vital statistics; the provisions of the pension plan; the form of benefits, eligibility to retire; the basic format; a cost of living adjustment; the discount factor and 1973 group annuity mortality rates. As the witness explained, he was not saying that Mr. King could withdraw $67,893 from the pension fund in 1973 (in fact he could at that time withdraw only his $4,197.34 contribution). Instead, the $67,893 figure represented what the actuary said was the financial equivalent to the stream of payment to which Mr. King was entitled at that time.

Mr. Luzader was asked what was his opinion of the value of the pension in January, 1981 but he did not answer because appellant’s counsel objected and the Master said that he did not believe the testimony would be material.

In a written report prepared by Mr. Luzader for appellee’s counsel, the attorney estimated the value of the pension in January, 1981 to $151,272. The court en banc used that figure in dividing the pension fund although our review of the record does not indicate that the report was ever actually admitted into evidence.

We believe the lower court erred in relying on facts not in evidence. Additionally, we have concluded that the method used by the court to divide the pension was faulty in that it utilized a present value in ordering a deferred payment.

The lower court made a determination of the present value of the pension and awarded a portion of that value to Mrs. King, although it ordered that actual payment would be deferred until the pension entered pay status.

The method used by the court involved multiplying the estimated present value ($151,272) by a fraction known as the “coverture fraction”. The fraction represents that portion of the value of the pension that is attributable to the marriage. The numerator of the fraction is the total period of time the employee spouse was participant in the plan from date of marriage until date of separation, and the denominator is the total period of participation in the pension plan. The court found the numerator to be 19.67 years and the denominator 26.83, as of January, 1981. Therefore, the court found that .733134 of the value of the plan was marital property, since that is the portion of the value of the pension earned during marriage.

The trial court determined that the pension should be divided equally and therefore awarded to Mrs. King lk of .733134 of $151,272.00 or $55,451. This amount was reduced by $12,750 which represents xk of the net equity in the marital residence which had been awarded to the wife as an offset against the pension. Although $42,701.00 in marital property was thus awarded to Mrs. King, the court noted that there is no practicable way that Mr. King can pay that amount to his former wife. The court therefore ordered a deferred distribution to take place when Mr. King begins to receive his pension.

While we agree with the court’s order of a deferred distribution, we would so order without assessing a present value to the pension. See Troyan, “Pension Evaluation and Equitable Distribution”, 10 Family Law Reporter No. 4, Monograph No. 1, Nov. 22, 1983. Mr. Troyan contends and we agree that when a deferred distribution is used, present value should not be employed because there are too many variables projected into the future for this calculation to have any merit. Instead, the “coverture” fraction is to be applied to the benefit when it enters pay status. We believe that this approach should be used in the present case where it is undisputed that there are insufficient assets to offset the pension immediately.

If the pension fund were to be divided between the parties at the time the equitable distribution order was entered, we would agree that the coverture fraction should be used in conjunction with the present value. As we have indicated earlier in this opinion, we agree further that in determining the number of years participation in the pension plan attributable to the marriage, the period should be computed from the date of marriage to the date of separation. We also would value the plan as of the date of the hearing,, as the court did instantly. We would therefore multiply the coverture fraction by the estimated present value of the pension to find the present value of the entitlement which was acquired during marriage. For a discussion of the computation of present value see Troyan, “Pension Evaluation and Equitable Distribution”, 10 Family Law Reporter No. 4, Monagraph No. 1, Nov. 22, 1983.

However, we have determined that in this case an immediate distribution of the value of the pension plan is not possible, given its disproportionate value in relation to the other marital assets. We therefore find that a present value calculation is inappropriate.

If the non-employee spouse is to wait until the pension enters pay status to receive her share of the marital property, she should not receive only that portion of the benefit that it seemed likely she would receive at an earlier date. Instead she should receive that portion of the actual payment attributable to the period commencing with the marriage and ending on the date of separation.

See also Skoloff, “How to Evaluate and Distribute Employee Benefits in a Divorce.” The National Law Journal, February 13, 1984. (Present value is estimated to be the amount of monies the employee would take in return for giving up his right to an unknown number of future payments.) Here future payments will be made and present value is therefore inappropriate.

We note with approval the comments of the Illinois Appellate Court in In re Marriage of Fairchild, supra 110 Ill.App.3d at 475, 66 Ill.Dec. at 134, 442 N.Ed. at 560, in which the court noted:

[Reserving jurisdiction over the future benefits and effecting a subsequent division of the actual monetary benefits had the dual advantage of allocating equally between the parties the risk that the rights may never vest [or enter pay status] and enabling the court to better determine the actual proportion of future benefits that accrued to each party during the marriage.

See also Janssen v. Janssen, supra.

Having determined that a deferred distribution is to be effectuated when appellant’s pension enters pay status, we are left to respond to appellant’s remaining claims.

Mr. King contends that the trial court erred in determining how much of his pension is attributable to the period of his marriage insofar as it included in that period years of service purchased by him.

Appellant commenced his employment with the Erie Police Department in 1956 and by the date of separation had served 17.583 years. However, in July, 1973 he purchased twenty-five months of military service to be used in computing his years of service with the Police Department for pension purposes.

As appellant notes, there is no evidence in the record as to whether the military time was served prior to or during the marriage. However, we have concluded that in either event the purchased time is marital property.

Section 401(f) of the Divorce Code provides that there is a presumption that all property acquired during marriage is marital property, although that presumption can be overcome by a showing that the property was acquired in certain excepted ways listed in Subsection (e) of that Section. No such showing was made in this case and we therefore find no error in the lower court’s inclusion of the military service time in its calculation of appellant’s years of service during his marriage. See Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983).

Appellant also argues that the lower court erred in its division of marital property insofar as it failed to consider that Mrs. King had lived in the marital residence rent free since the date of separation. In support of this argument Mr. King cites Gee v. Gee, supra, in which this court refused to find that the trial court had abused its discretion in requiring a husband to pay his former wife one-half of the estimated fair market rental value of the marital home for each month he resided there after she left.

As we said in Gee, supra, 314 Pa.Superior Ct. at 35 n. 2, 460 A.2d at 360 n. 2, the trial court has the duty to dispose of existing property rights of the parties after considering all relevant factors. We concluded that the court had not abused its discretion in ordering the rental payments since they compensated the appellee for her rights and interests in the land.

We believe that the lower court in the instant case gave due consideration to appellant’s payment of the mortgage on the home when it denied alimony to Mrs. King. Moreover, Mr. King received credit for the increased net equity in the home in the division of the proceeds of the home.

Although we do not find that the lower court erred in its weighing of this factor, we do believe that given our holding as to the pension fund, that the court may wish to reconsider the order directing that Mrs. King retain all of the proceeds from the sale of the house as an offset to what the court found to be her share of the pension fund. Therefore, we vacate the order and remand for proceedings not inconsistent with this opinion. We realize that the trial court may still determine that the house should be awarded to Mrs. King, but since we have reversed the order as to the pension plan we believe we ought to give the court an opportunity to reconsider its order in view of our decision. See Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984).

Order vacated and case is remanded for further proceedings. We do not retain jurisdiction.

      . Although he does not raise the question as a separate issue, appellant does suggest in the body of his argument that perhaps his pension fund is not subject to equitable distribution. He cites our opinion in
        Young v. Young, 320 Pa.Super. 269, 467 A.2d 33 (1983). In that case, however, we did not say that a municipal pension was not marital property, but that it was not subject to attachment. As we said, "Appellant must utilize other means, whether at law or in equity, to enforce such order.”
      We believe it is clear that the pension is marital property subject to equitable distribution and agree with the decisions of other jurisdictions that have so found. See e.g. In re Marriage of Fairchild, 110 Ill.App.3d 470, 66 Ill.Dec. 131, 442 N.E.2d 557 (1982), Janssen v. Janssen, Minn., 331 N.W.2d 752 (1973); Jerry L.C. v. Lucille H.C., Del., 448 A.2d 223 (1982).
      Moreover, the Divorce Code, 23 P.S. § 401(e) defines marital property as “all property acquired by either party during the marriage.” None of the exclusions to the definition applies to pensions.

      . We recognize, as Mr. Troyan explains, that an order directing deferred payment raises risks. For example, if the employee spouse predeceases the non-employee spouse, the non-employee spouse stands to lose the entitlement. The trial court order sought to avoid this problem and the extent that its order complies with Federal law (see F.L.R. supra at 10 F.L.R. 3008), we support its efforts. The propriety of that part of the order is not, however, before us.
      Nevertheless, while expressing a preference for an immediate offset and settlement of marital property claims under most circumstances, Mr. Troyan concedes that often a deferred distribution is necessary. This is so when, as is the situation in the instant case, the value of the employee spouse’s pension far exceeds the value of other marital property. (See 12 F.L.R. 3006).