author: CAVANAUGH, Judge:

text:
    644 A.2d 1232
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. FARMERS BANK AND TRUST CO. OF HANOVER, Guardian of Nancy E. Sterner, an Incompetent.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed June 10, 1994.

      Harvey Freedenberg, Harrisburg, for appellant.
    Daniel J. Flaherty, York, for appellee.
    Before CAVANAUGH, WIEAND and SAYLOR, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order which denied appellant American Motorists Insurance Company’s (“American”) motion to amend its petition for declaratory judgment and granted appellee Farmers Bank and Trust Company’s (“Farmers Bank”) motion for judgment on the pleadings. After careful review and for the reasons which follow, we reverse.

The facts of this case, as accurately stated by the trial court, are as follows:

American Motorists Insurance Company, commenced this [declaratory judgment] action on February 24,1988, seeking a determination of its responsibility under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 (repealed 1984), to Nancy Sterner for expenses incurred for services from the Rest Haven-York Nursing and Convalescent Center.
Nancy Sterner was committed to Rest Haven on July 6, 1979 as a result of disabling injuries sustained in a 1978 car accident. Sterner was hit by a car while she walked along Legislative Route 66007 in Stoverton, Pennsylvania, on or about April 12,1978. Sterner was hospitalized for back, leg, and other injuries, before she was transferred to Rest Haven for medical and rehabilitative treatment. Sterner has resided there continuously from 1979 to the present.
Sterner’s expenses have been covered through the present by her parents’ auto insurance policy, issued by [American] and governed by the Pennsylvania No-Fault Act then in force. [American] has provided coverage, as a result of the motor vehicle related accident, for Sterner’s treatment and care pursuant to that policy since April, 1978.
[Appellee] Farmers Bank and Trust Company of Hanover, was appointed guardian for Nancy Sterner by Order of this Court on November 13, 1979. Sterner was born with a mental disability and was cared for by her parents. On the petition of Virgil G. Sterner, her father, Nancy Sterner was adjudged incompetent and Farmers Bank and Trust [was] appointed guardian....
... [American] contends that Sterner attained maximum recovery for her injuries sustained in the April 12, 1978 accident on June 17, 1981 and continues to receive only “custodial care.” [American] asserts that the No-Fault Act and Sterner’s policy do not extend coverage for custodial care. [American] requests its release from liability and demands repayment of benefits paid from the date of the petition.
[Farmers Bank] denies that Sterner has recovered and reached maximum rehabilitation of her injuries....
[Farmers Bank] filed a motion for judgment on the pleadings on January 14, 1993. In response, [American] filed a motion to amend its petition for declaratory judgment and a motion to stay judicial proceedings on January [29], 1993.

Following oral argument, the trial court: (1) granted Farmers Bank’s motion for judgment on the pleadings, concluding that Farmers Bank was entitled to judgment as a matter of law because American did not raise the issue of whether Nancy Sterner’s care was related to the injuries she sustained in the 1978 accident; and (2) denied American’s motion to amend, concluding that the proposed amendment would raise a new cause of action beyond the applicable four year statute of limitations. Judgment was subsequently entered. American then filed this appeal.

Two issues have been raised for our consideration:
(1) Did the York County Court of Common Pleas err in granting Farmers Bank’s motion for judgment on the pleadings?
(2) Did the York County Court of Common Pleas err in denying American’s motion for leave to file an amended petition for declaratory judgment?

We begin with appellant’s first issue. American contends that a material question of fact existed as to whether the medical care provided to Nancy Sterner was accident related, because its petition’s use of the term “custodial services” clearly implicated this issue. We do not agree.

When reviewing the grant of judgment on the pleadings, we employ the following standard:

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Thus, “[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the the pleadings which should properly go to the jury.” An appellate court must accept as true all well-pleaded facts of the party against whom the motion is made, while considering against him only those facts which he specifically admits____ Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings.

Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471-72 (1992) (citations omitted).

In Drake v. Pennsylvania Nat. Mut. Cas. Ins. Co., 529 Pa. 44, 601 A.2d 797 (1992), our supreme court held that, under the No-Fault Act, there is no per se exclusion for expenses related to medical and nursing care which is custodial; and that the cost of custodial care was an allowable expense under the applicable no-fault automobile policy under the No-Fault Act, so long as it was necessary due to accident related injuries. Id. at 51-52, 601 A.2d at 801. Thus, the fact that an insured is receiving custodial care does not, of itself, relieve the insurer of the responsibility of the cost of this care. Rather, the insurer must, in terms of a motion for judgment on the pleadings, allege not only that the care is custodial, but also that the care is unrelated to the accident, in order to be relieved of financial responsibility for the costs of this type of care.

A review of the pleadings in this case reveals that the sole issue raised by American is whether the care provided to Nancy Sterner was custodial rather than rehabilitative in nature. The legal theory underlying American’s petition was that the care was custodial, and therefore, was not its responsibility under the terms of the policy and the No-Fault Act. The issue of whether the care was accident related was not raised in American’s petition. Thus, there did not exist a genuine issue of fact which would preclude the entry of judgment on the pleadings; American’s argument is meritless. However, because of our resolution of American’s second issue, infra, we find that the trial court’s grant of judgment on the pleadings was premature in this case.

We now turn our attention to American’s second issue. American contends that the trial court erred in denying its motion to amend because the proposed amendment did not introduce a new cause of action; or alternatively, that even if the amendment did introduce a new cause of action, its duty to pay benefits is in the nature of a continuing contract, and as such, the statute of limitations does not prevent it from contesting its current and future obligations under the policy.

Pa.R.C.P. 1033 provides, in pertinent part, that:
A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense.

Pa.R.C.P. 1033 (emphasis added). However, an amendment will not be allowed after the statute of limitations has expired if it introduces a new cause of action. Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 251, 518 A.2d 1213, 1220 (1986). An amendment states a new cause of action where the amendment rests on a different legal theory, basis for recovery or relationship between the parties than did the original pleading. Id. at 253, 518 A.2d at 1221.

As noted, the trial court denied American’s motion to amend its declaratory judgment petition because it would have raised a new cause of action after the applicable four year statute of limitations had expired. While we agree with the trial court that American’s proposed amendment would introduce a new cause of action because the amendment rests on a different legal theory, and that a four year statute of limitations is applicable to declaratory judgment actions, we nonetheless find that the trial court erred in ruling that the statute of limitations barred amendment of American’s petition.

“Our courts have held that where installment or periodic payments are owed, a separate and distinct cause of action accrues for each payment as it becomes due.” Ritter v. Theodore Pendergrass Teddy Bear Productions, Inc., 356 Pa.Super. 422, 430, 514 A.2d 930, 935 (1986). Accord Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa.Cmwlth. 212, 375 A.2d 890 (1977) aff'd 482 Pa. 615, 394 A.2d 491 (1978). Thus, American accrues a new cause of action with each payment it makes for Nancy Sterner’s care. The statute of limitations, therefore, does not bar American from contesting its current and future obligations under the policy, as well as those payments which were made within the four years preceding the filing of the motion to amend the petition for declaratory judgment. Only American’s claims for those payments made more than four years prior to the filing of the motion to amend will be barred by the statute. As such, the trial court erred in denying American’s motion to amend.

Accordingly, we reverse the trial court’s order which granted Farmers Bank judgment on the pleadings and denied American’s motion to amend; and remand this matter to the trial court for further proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . See Wagner v. Apollo Gas Co., 399 Pa.Super. 323, 582 A.2d 364 (1990) (four year statute of limitations applies to declaratory judgment actions arising out of contractual relationships).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    644 A.2d 1235
    COMMONWEALTH of Pennsylvania, Appellee, v. Humberto LOPEZ-MELENDEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 9, 1994.
    Filed July 8, 1994.

      Linda F. Gerencser, Asst. Public Defender, Lancaster, for appellant.
    Joseph C. Madenspacher, Dist. Atty., Lancaster, for the Com., appellee.
    Before TAMILIA, POPOVICH and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lancaster County, following appellant’s convictions in a bench trial on charges of driving under the influence of alcohol and driving on roadways laned for traffic. Herein, appellant contends that the lower court erred in denying his motion to dismiss pursuant to Pa. R.Crim.P. 1100. Finding that Rule 1100 was violated and the Commonwealth failed to exercise due diligence in bringing appellant to trial, we reverse the decision of the court below and vacate appellant’s judgment of sentence.

The record reveals the following facts: The charges sub judice were filed against appellant on September 24, 1991, and his preliminary hearing was scheduled for October 31, 1991. At appellant’s request, the preliminary hearing was continued until November 26, 1991. Following his preliminary hearing, appellant prepared documents to apply for acceptance into the Accelerated Rehabilitative Disposition Program. See, Pa. R.Crim.P. 176 et seq. Appellant’s ARD application and “Motion for Trial Continuance and Waiver” were then filed with the Office of the Impaired Driver Program on or about December 18, 1991. On December 19, 1991, the criminal information was filed by the Commonwealth. Appellant then waived his formal arraignment which had been scheduled for January 29, 1992. On March 30, 1992, appellant appeared before the Office of the Impaired Driver Program for his evaluation.

Even though appellant properly completed his ARD application and “Motion for Trial Continuance and Waiver” and appellant appeared for his evaluation, none of his documents were forwarded to the District Attorney’s Office by the Office of the Impaired Driver Program. Thus, his continuance and waiver of Rule 1100 motion was never signed by a member of the District Attorney’s Office and was never forwarded- to the lower court for entry of an order granting the continuance. In fact, neither the ARD application nor the “Motion for Trial Continuance and Waiver” appear in the record.

No further action was taken after the ARD evaluation in appellant’s case until November 9, 1992, when appellant filed his motion to dismiss pursuant to Pa.R.Crim.P. 1100. Appellant alleged that he had not been brought to trial within 365 days of the filing of the written complaint. See, Pa.R.Crim.P. 1100(a)(3). The Commonwealth responded that the delay in prosecution was attributable to the ARD application process and the Office of the Impaired Driver Program’s failure to handle appellant’s application properly, and that appellant had waived his Rule 1100 rights.

Following.an in camera discussion on January 8, 1993, the lower court entered its factual findings and conclusions of law, and it denied appellant’s motion. The lower court determined that Rule 1100 had been violated in appellant’s case since the run-date was October 20, 1992, and appellant still had not been brought to trial when he filed his Rule 1100 motion on November 9, 1992. However, the court also determined that appellant had waived his Rule 1100 rights when he applied for ARD. Further, the court determined that the trial delay was beyond the control of the Commonwealth. The court placed the blame solely upon the Office of the Impaired Driver Program for its failure to forward the appropriate documents to the District Attorney’s Office. Immediately following the denial of his Rule 1100 motion, a bench trial was held, and appellant was convicted. Post-trial motions were denied, and this timely appeal followed.

We will first address the lower court’s conclusion that appellant waived his right to assert a violation of Rule 1100. It is true that as a part of his application for admission into the ARD program, appellant completed a form which was captioned “Motion for Trial Continuance and Waiver” and submitted it to the Officer of the Impaired Driver Program, as required under Lancaster County’s scheme for handling ARD applications from driver who have been charged with DUI. However, the Office of the Impaired Driver Program inexplicably failed to forward this form to the District Attorney’s Office. Thus, the Commonwealth never agreed to the continuance, nor was the motion ever filed in the lower court and entered as an order granting the continuance.

Despite never having entered an order granting a continuance while appellant’s ARD application was pending, the lower court nevertheless found that appellant had waived his “right to be tried within 365 days from the filing of the Criminal Complaint.” Consequently, under the lower court’s reasoning, all the time from the date of appellant’s application for ARD in December of 1991 until the actual date of his trial or the date which his application was rejected was excludable under Rule 1100.

The lower court cites Commonwealth v. Wright, 354 Pa.Super. 120, 511 A.2d 217 (1986) in support of its decision. In Wright, supra, the defendant alleged that he was not brought to trial in a timely manner. Wright argued that the sixty-three days during which his ARD application was pending should not have been excluded when computing the Rule 1100 run-date. However, when applying for the ARD program, Wright executed a limited waiver of his Rule 1100 rights while his application was pending. Wright’s application to the ARD program was denied, and he was convicted of robbery, burglary and theft. Therein, we stated:

[Wright] does not argue that his limited waiver of Rule 1100 during the pendency of his A.R.D. application was involuntary or unknowing. Rather, he argues that the Commonwealth simply took too long to act on his application, that the applications for A.R.D. must be reviewed within a reasonable period of time, and that the amended Rule 1100 implies such a requirement. Appellant cites us to no cases, and we have found none, in which a limitation has been placed on the time in which the District Attorney must either accept of reject the application for participation in the A.R.D. program. A fortiori, sixty-three days is not too long.

Wright, 121, 511 A.2d at 218.

Today, we distinguish Wright, supra, from the facts of the case subjudice. The clear difference between the two cases is that, in Wright, supra, the District Attorney’s office was in possession of the defendant’s ARD application and his written waiver of Rule 1100 rights, while, presently, the record does not reveal whether the District Attorney’s office was even aware that appellant had applied for the ARD program or agreed to waive his Rule 1100 rights. In other words, Wright received the benefit of his bargain, i.e., waiver of his rights in exchange for consideration of his application in a timely manner. However, from the record before us, we cannot discern whether appellant’s application for ARD was ever acted upon by the Office of the Impaired Driver Program after appellant’s evaluation on March 30, 1991, and it is absolutely clear that the Commonwealth never reviewed the application.

Further, the “Motion for Trial Continuance and Waiver” form required approval by the District Attorney’s Office prior to its submission to the court for entry as an order. Since the District Attorney’s Office never acted upon the motion, we must question what effect, if any, it should have in this action. Clearly, appellant executed the waiver and completed the application forms with the expectation that they would be acted upon within a reasonable period of time. Unlike our decision in Wright, supra, when only sixty-three days elapsed during the review of the defendant’s ARD application, we cannot say that the three hundred and six days during which appellant waited for a decision on his application was reasonable. In fact, from the record it appears that if appellant had not filed his Rule 1100 motion on November 9, 1992, he might still be waiting.

Under the circumstances presented herein, we conclude that three hundred and six days was “too long” for appellant to have to wait for a decision on his ARD application. Moreover, to the extent that appellant’s waiver of his rights under Rule 1100 was valid, it was effective only to the extent that the Commonwealth fulfilled its end of the bargain and reviewed appellant’s application in a timely manner. Since the Commonwealth did not execute its duties diligently, we find that appellant’s act of signing the continuance motion was ineffective to waive his rights under Rule 1100.

Next, we turn the lower court’s determination that any delay was attributable to the Office of the Impaired Driver Program, and, thus, the Commonwealth acted with diligence in bringing appellant to trial. Pa.R.Crim.P. 1100(g), in pertinent part, provides:

For defendants on bail after the expiration of three hundred sixty-five (365) days, at any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain____

In Commonwealth v. Browne, 526 Pa. 83, 88, 584 A.2d 902, 905 (1990), our Supreme Court stated:

Under Rule 1100, the Commonwealth must act with “due diligence” to bring a criminal defendant to trial. “When a case has possible Rule 1100 problems, prosecutors must do everything within their power to see that the case is tried on time.” Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). See also, Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981). The test to be met is whether the Commonwealth’s efforts to bring the defendant to trial were reasonable and pursued with diligence. Commonwealth v. Koonce, 511 Pa. 452, 515 A.2d 543 (1986).

Browne, 526 Pa. 88, 584 A.2d at 905.

As previously noted, the lower court excused the delay “bebause the Office of the Impaired Driver Program was not under the auspices or control of the District Attorney, [therefore,] the delay in processing the Defendant’s application was not the result of the Commonwealth’s failure to exercise due diligence[.]” Tr.Ct.Op., p. 5. The court also stated “we do not believe that the Commonwealth should be held accountable for the Impaired Driver Program’s failure to forward the Defendant’s application to the District Attorney.” Tr.Ct.Op., p. 5. Further, the lower court opined that appellant, who “waived” his Rule 1100 rights so that his ARD application could be considered, should not be permitted to turn the delay, which originated for his benefit, against the Commonwealth. Tr.Ct. Op., p. 5.

We are convinced that the lower court’s conclusion is pure sophistry. First, the decision whether to submit a case for accelerated rehabilitative disposition is in the sole discretion of the District Attorney. Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991); Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930 (1990); Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989), appeal denied, 525 Pa. 633, 578 A.2d 927 (1989). Thus, it is the responsibility of the District Attorney’s Office of Lancaster County to control, oversee and review the ARD application process, and the Office of the Impaired Driver Program is necessarily under the control of the District Attorney’s Office. More to the point, it is the sole responsibility of the District Attorney to govern the ARD program, and application and approval process in his county. See, Pa.R.Crim.P. 176 et seq.

Second, the record reveals that the “Motion for Trial Continuance and Waiver” signed by appellant was never forwarded to the District Attorney’s Office. Thus, the Commonwealth was not aware that appellant had purported to waive his Rule 1100 rights, and the Commonwealth should have proceeded to trial within three hundred and sixty-five days. Although it is true that the delay originated for appellant’s benefit, i.e., possible entry into the ARD program, the Commonwealth failed to act with due diligence by either bringing appellant to trial before the run-date or, at least, questioning the Office of the Impaired Driver Program about appellant’s status.

In Browne, supra, our Supreme Court faced an analogous situation. Therein, the defendant filed a motion to dismiss pursuant to Rule 1100 which the lower court granted. The Commonwealth argued Lancaster County’s term system of criminal court in conjunction with the system whereby the district justices notify defendants as to which arraignment they are to report made it unduly harsh to require the District Attorney’s Office to monitor all cases being bound over to the Court of Common Pleas in order to unearth “problem cases” under Rule 1100 occasioned by the arraignment date assigned to the defendants by the district justices. That argument was flatly rejected as “sheer nonsense”, and our high court held that “due diligence” required the District Attorney’s Office to employ a simple record-keeping system to insure that its cases were docketed and checked for possible Rule 1100 problems as a matter of course. Browne, 526 Pa. 90, 584 A.2d at 906.

Similarly, we reject the lower court’s analysis. In this case, “due diligence” would at least require the Commonwealth to track the progress of defendant’s engaged in the ARD application process. Such a system would relieve ARD applicants, like appellant, from having to wait endlessly for action on his case.

In sum, we find that appellant did not effectively waive his rights under Rule 1100. Further, we find that the Commonwealth did not act with due diligence in prosecuting this manner. As we have previously stated, if not for appellant’s motion to dismiss, this case still might not be before us.

Judgment of sentence vacated.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . 75 Pa.C.S.A. § 3309(1).

      . The Office of the Impaired Driver Program is a Lancaster County “agency” charged with screening applicants for ARD eligibility.

      . The Commonwealth has attached copies of the documents to its brief. We ordinarily will not consider evidence or documents that are not a part of the official record. See, Pa.R.App.P. 1921, In re D.D., 409 Pa.Super. 35, 597 A.2d 648 (1991); Commonwealth v. Osellanie, 408 Pa.Super. 472, 597 A.2d 130 (1991). However, since all parties acknowledge the ARD application and "Motion for Trial Continuance and Waiver” were filed with the Office of the Impaired Driver Program, we will review those documents.

      . Twenty-six days were excluded when determining the period for commencement of trial because of the continuance granted at appellant’s request. See, Pa.R.Crim.P. 1100(c)(3)(ii).

      . Although appellant proceeded to trial, there is no evidence in the record to suggest that appellant's application to ARD was ever completely reviewed by the Office of the Impaired Driver Program, much less rejected by the District Attorney's Office.

      . We note that herein we are not placing a per se specific limitation on the time within which the Commonwealth must accept or reject an application for the ARD program. Rather, we are simply stating that was the particular facts presented herein, the Commonwealth’s lengthy inaction was unreasonable.

      . Although Browne, supra, was decided under a prior version of Rule 1100, cases, like Browne, supra, decided under prior Rule 1100(c), remain instructive on the concept of "due diligence.” Commonwealth v. Senft, 404 Pa.Super. 499, 504 n. 2, 591 A.2d 318, 320 n. 2 (1991).

      . The present case is clearly distinguishable from the case of Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986), wherein our high court ruled that when a district attorney was unaware of inadvertent delay caused by the misfiling of papers by the district magistrate’s office, such delay may justify granting of an extension of time under Rule 1100. Unlike the present action and Browne, supra, in Monosky, supra, the district attorney had no knowledge whatsoever about the case; he did not even know that a criminal complaint had been filed. However, presently, the Commonwealth was well aware of the criminal proceeding against appellant as evidenced by its filing of a criminal information on December 19, 1991 and the scheduling of a preliminary hearing for January 29, 1992, which appellant waived. Similar to our Supreme Court’s decision in Browne, supra, we believe that the Commonwealth must keep track of the status of ARD applicants; even if a so-called "independent” county agency processes the application. Such an effort would not be burdensome and would avoid the problem we face today. Moreover, if the District Attorney in Lancaster County has not signed and entered as an order of court an ARD applicant's Rule 1100 waiver, the District Attorney must assume that the case is progressing normally and must compute the Rule 1100 run-date accordingly.


text:
    644 A.2d 1240
    James CHESNEY, Sr. and Cora B. Chesney, His Wife, v. John STEVENS, Individually and d/b/a Woodbury Clay Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1994.
    Filed July 13, 1994.

      John R. Woodcock, Jr., Hollidaysburg, for appellant.
    John C. Peters, Jr., Altoona, for appellees.
    Before CAVANAUGH, HUDOCK and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

This appeal requires us to decide whether a landlord is required to reimburse his tenant for the cost of improvements that the tenant unilaterally makes to the leased premises. The trial court ruled that appellant-landlord, John Stevens, was required to reimburse appellees-tenants, James and Cora Chesney, $11,790.00 for the improvements they made to the leased realty under a theory of unjust enrichment. After careful review and for the reasons which follow, we affirm.

In 1984, appellant-landlord and appellees-tenants entered into a month-to-month lease for a piece of residential property. The dwelling which was the subject of the lease was old and its condition was reflected by the rent charged by appellant-landlord: $31.00 per month until 1988 and $46.00 per month thereafter. From 1984 through 1987, appellees-tenants made substantial improvements to the leased premises. These improvements included, inter alia: two néw bathrooms, carpeting the floors, a new septic system, new windows, a new furnace, a new kitchen, wiring the entire house, two new porches, new plumbing, and painting the outside of the house. Appellees-tenants never demanded or requested that appellant-landlord pay for these improvements.

In April of 1991, appellant-landlord gave appellees-tenants fifteen days notice to vacate the leased premises. In response, appellees-tenants commenced the underlying action, requesting that the trial court enter judgment declaring that they had a life estate in the leased premises; or alternatively, enter judgment against appellant-landlord for the value of the improvements they had made to the real estate. Following a non-jury trial, the court concluded that appellees-tenants had not established that they had a life estate in the leased premises; but that they were entitled, under the theory of unjust enrichment, to recover $11,790.00 for the improvements they had made to the leased realty. Both parties filed exceptions, which the trial court subsequently denied. A final decree was entered and appellant-landlord filed this appeal.

Appellant-landlord argues that appellees-tenants should not be able to recover the cost of the improvements because: (1) they never gave him notice of any defects in the leased premises; and (2) a landlord is not responsible for the costs incurred by a tenant in making improvements to the leased premises, but rather, is only required to make those repairs which are necessary to make the leased premises habitable. See Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979); Asper v. Haffley, 312 Pa.Super. 424, 458 A.2d 1364 (1983); Glickman Real Estate Development v. Korf, 300 Pa.Super. 202, 446 A.2d 300 (1982); Beasley v. Freedman, 256 Pa.Super. 208, 389 A.2d 1087 (1978). We find this argument to be unpersuasive as the cases relied upon by appellant-landlord are of dubious relevance in the case at bar. Each of these cases involved an alleged breach of the implied warranty of habitability. This warranty is breached when there is a defect in the dwelling, the “kind and nature of which prevents the use of the dwelling for its intended purpose to provide premises fit for habitation.” Glickman, supra, at 206, 446 A.2d at 302. Appellees-tenants theory of recovery, however, is not premised upon a breach of the implied warranty of habitability, but rather, upon the theory of unjust enrichment. They have not alleged, nor has the trial court made a factual finding, that any of the improvements made by them were to remedy a defect which made the leased premises uninhabitable. Furthermore, after reviewing the cases relied upon by appellant-landlord, supra, we find that they do not necessarily preclude recovery under a theory of unjust enrichment, in a situation where a tenant confers an economic benefit upon the landlord by making improvements to the leased premises. The scope of the line of cases relied upon by appellant-landlord is limited to a situation where a landlord has failed to provide the acceptable minimum with respect to the safety and sanitariness of the premises. Thus, these cases are not controlling to the present issue; nor do they preclude a recovery on a theory other than inhabitability.

Although we accordingly reject appellant-landlord’s arguments, our inquiry does not end at this point. We must now determine whether there is legal support for the trial court’s award of damages to appellees-tenants under the theory of unjust enrichment. After thorough review, our research reveals that the law does support the trial court’s award of damages under this theory. In reaching its decision to award appellees-tenants damages, the trial court relied upon Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986) and Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981). An examination of the facts of these cases is warranted.

In Wolf husband’s parents purchased a house at the request of their son because he was unable to obtain financing. Husband’s parents were titled owners of this house (which was used by son and his wife as their marital residence) by virtue of their obtaining a mortgage for 100 percent of the purchase price. It was husband and wife, however, who paid the mortgage and all expenses related to the ownership and upkeep of the property. Husband and wife also paid the entire cost for improvements which they made to the house. On appeal, this court concluded that husband’s parents were required, under the doctrine of unjust enrichment, to reimburse both husband and wife for the amount of the benefit conferred upon the parents. The court reasoned that the facts clearly indicated that husband’s parents were to acquire title for the benefit of their son and his wife, and were to hold title only until son and his wife were able to stand on their own financially.

In Zvonik, son orally agreed with his mother that he would repair and make improvements to her home and also pay all of the utilities and property taxes. In exchange, mother promised son that he and his family could live with her, and that prior to her death she would convey the house to him. Instead, mother conveyed the property to a third party. On appeal, this court concluded that the third party transferee was required to reimburse son under a theory of unjust enrichment. The court reasoned that the third party had passively received the benefit of the son’s expenditure of time and money in substantially improving the condition of the premises, and that it would be unconscionable for the third party to retain this benefit in light of the mother’s oral promise to convey to her son.

In both Wolf and Zvonik, the respective plaintiffs were able to recover damages because they could make a colorable claim to title of the residence in dispute; either on the basis of being the “equitable” owner of the premises, or by virtue of having been given an oral promise by the owner of the realty to convey. The improvements, made by each of the respective plaintiffs, were made with the implicit knowledge and understanding that they would eventually have title to the realty that they had improved. Here, while appellees-tenants cannot claim title to the leased premises either by virtue of their being “equitable” owners, or on the basis of a promise to convey made by appellant-landlord, they did make a reasoned claim of right to long-term (life estate) occupancy. Thus, it is reasonable to conclude from Wolf, Zvonik and the present case, that if a tenant, with a reasonable and good faith expectation of long-term occupancy or ownership, makes substantial and obvious improvements to the real estate of another, the tenant is entitled to compensation for the improvements when they have been accomplished with the actual or implied knowledge and consent of the owner. It is a reasonable corollary of the implied promise to furnish a habitable leasehold rule, see Pugh; Asper; Glickman; Beasley, supra, to imply a promise by the owner to reimburse a tenant for improvements reasonably made when there is a basis for concluding that there has been consent by the owner to the improvements.

Here, appellees-tenants claimed a life estate in the premises by virtue of appellant-landlord’s alleged promise that they could live on the leased premises for as long as they continued to pay rent. Although the trial court concluded that appellees-tenants had not proven that they possessed a legally cognizable life estate, the court did not make a finding that such a promise had not been made by appellant-landlord. Furthermore, although appellant-landlord, in his brief to this court, asserts that he was never given notice, and was thus, unaware that improvements were being made to the realty, a review of his trial testimony reveals that he had been on the property on numerous occasions and that he conceded that he was aware of many of the improvements.

Having reviewed the record of the proceedings below, we find that the improvements made to the leased premises were patent and obvious; and that there was a nearly complete transformation of the dwelling from an old and dilapidated structure into a greatly improved home over a period exceeding three years. Thus, we conclude that appellees-tenants made substantial and obvious improvements with a reasonable and good faith expectation of long-term occupancy; and that appellant-landlord had knowledge of these improvements, and consented to them by his passive receipt of the benefit conferred upon him (an improved dwelling, with a substantially increased market and rental value). In these circumstances, it would be unconscionable to allow appellant-landlord to retain this benefit without reasonably compensating appellees-tenants for the improvements they had made to the dwelling.

In addition to challenging the trial court’s award of damages, appellant-landlord also takes issue with the trial court’s calculation of the amount appellees-tenants are entitled to recover. Appellant-landlord argues that appellees-tenants can only recover the reasonable cost for the repairs made, and under no circumstances, may the amount exceed the rent owed for the term of the lease. See Pugh, supra (“repair and deduct” remedy is appropriate for breaches of the implied warranty of habitability; this remedy provides that a tenant may apply his rent to eliminate the landlord’s default, but is limited to situations where the repairs are necessary to make the premises habitable; and additionally, the repairs must be reasonably priced, and the cost may not exceed the amount of rent owed for the term of the lease). As we have already noted, the line of cases involving the implied warranty of habitability are not controlling in the present case. Furthermore, where a plaintiff proves his case and unjust enrichment is found:

[T]he law implies a contract between the parties pursuant to which the plaintiff must be compensated for the benefits unjustly received by the defendant. This contract, referred to as either a quasi-contract or a contract implied in law, requires that the defendant pay the plaintiff the value of the benefits conferred, i.e. that the defendant make restitution to the plaintiff in quantum meruit.

Styer, supra, 422 Pa.Super. at 268, 619 A.2d at 350 (citations omitted). Thus, the amount which appellees-tenants may recover in this case is the value of the benefit they have conferred upon appellant-landlord.

Following trial, the court awarded appellees-tenants $11,790.00 as the value of the improvements. The court found as a fact that because of the improvements made by appelleestenants the market value of the realty increased by $20,000.00, from $12,000,00 to $32,000.00. The court, however, awarded appellees-tenants $11,790.00 after making deductions for rent owed to appellant-landlord. We will not disturb the trial court’s award as appellant-landlord has offered no alternative basis to calculate the value of the benefit conferred upon him.

In any event, the weight to be given to expert testimony on valuation of land is for the trier of fact; and it is the province of the trier of fact to weigh the credibility of the valuation witnesses’ testimony and to determine the fair value of the land. Mellon Bank (East) Nat. Assn. v. Pennsylvania Restaurant of A.B.E., Inc., 364 Pa.Super. 567, 528 A.2d 654 (1987). We find no fault with the trial court’s acceptance of the expert’s valuation of the realty and its adoption of a valuation fully supported by the record. Furthermore, we find that the amount awarded by the trial court is not unreasonable in terms of the benefit conferred upon appellant-landlord. The amount awarded by the trial court is far less than that expended by appellees-tenants in terms of materials and labor; and appellant-landlord is enjoying the benefit of not only a higher market value ($32,000.00) of the property, but also a higher rental value ($150.00 per month fair market rental value, as found by the trial court).

Having found the arguments raised by appellant-landlord to be meritless, and also having found support in the caselaw for the trial court’s award of damages to appellees-tenants under the theory of unjust enrichment, we affirm the final decree entered in the court below.

Decree affirmed.

      . The trial court characterized the additions made to the leased realty by appellees-tenants as "repairs and improvements.” However, for purposes of our analysis, we will refer to these additions strictly as improvements. See note 2, infra.

      . As we have already noted, the trial court characterized the work done by appellees-tenants on the leased premises as "repairs and improvements.” Our supreme court has adopted the following definition of “improvement” from Black's Law Dictionary:

        Improvement: a valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value or utility or to adapt it for new or further purposes.

        Schmoyer by Schmoyer v. Mexico Forge, Inc., 423 Pa.Super. 593, 596, 621 A.2d 692, 694 (1993), citing, McCormick v. Columbus Conveyer Co., 522 Pa. 520, 524, 564 A.2d 907, 909 (1989). Although we are unaware of any Pennsylvania caselaw which defines "repair,” Black’s Law Dictionary defines the term as follows:

        Repair: to mend, remedy, restore, renovate; to restore to a sound state after decay, injury, dilapidation, or partial destruction.
      Black’s Law Dictionary (rev. 4th ed.), 1462 (1968). After reviewing the nature of the additions appellees-tenants have made to the realty, we find that each of these additions is more appropriately described as an improvement than as a repair. Although we may conclude that an addition to realty is an improvement as a matter of law, we decline to do so as such is not necessary to the resolution of this case. See Schmoyer, supra, at 597, 621 A.2d at 694 (superior court has held as a matter of law that the following are improvements to real estate: electrical panel; elevator; skylight; insulation). To dispose of appellant-landlord’s argument, we need only determine whether the work done by appellees-tenants was to remedy a defect which made the realty uninhabitable. As noted supra, the trial court made no such finding. Furthermore, we find that the additions made to the leased premises were of a substantial nature and enhanced the value and utility of the leased realty. As such, the question before us is whether a landlord must reimburse his tenant, when the tenant confers an economic benefit upon the landlord by making improvements to the leased premises.

      . Appellant-landlord also contends that appellees-tenants have no claim for reimbursement against him because they acted as volunteers in improving the property, and never informed him of what they were doing. He points to Hanley v. Stewart, 155 Pa.Super. 535, 39 A.2d 323 (1944), in support of his argument. That case, however, is totally inapposite to the case at bar. Hanley involved a situation where one tenant in common defended an action to partition the tenancy through a claim of adverse possession. The court, in reviewing the burden a cotenant must carry in proving adverse possession, stated that, ”[o]ne cotenant does not acquire title by adverse possession as against his cotenants by ... [making] repairs or improvements to the buildings.” Id. at 542, 39 A.2d at 327. Hanley does not address the issue of a landlord’s liability to his tenant for improvements the tenant makes to the leased realty; nor for that matter, does it even address one cotenant’s liability for improvements another cotenant makes to the tenancy.
        Cf. Cobbett v. Gallagher, 339 Pa. 231, 13 A.2d 403 (1940) (tenant in common can claim reimbursement for improvements made on the common property when they were made with the cotenant’s consent); Sharp v. Reiser, 95 Pa.Super. 174 (1928) (cotenant, absent his consent, is not liable for improvements made by another cotenant).

      . In order to recover under the doctrine of unjust enrichment, there must be: (1) an enrichment; and (2) an injustice resulting if recovery for the enrichment is denied. Meehan v. Cheltenham Township, 410 Pa. 446, 449, 189 A.2d 593, 595 (1963). In determining whether the doctrine applies, the most significant requirement for recovery is that the enrichment of the defendant is unjust. Styer v. Hugo, 422 Pa.Super. 262, 268, 619 A.2d 347, 350 (1993), aff'd per curiam, 535 Pa. 610, 637 A.2d 276 (1994).

      . Although appellant-landlord has argued, as a general matter, that the "repair and deduct” remedy is the appropriate method for calculating damages, we note that we have already concluded that it is totally inapposite in this case. Appellant-landlord has proffered no reason why the trial court’s calculation of the value of the benefit conferred is erroneous; nor an alternate method of calculating this value.


author: WIEAND, Judge.

text:
    644 A.2d 1245
    COMMONWEALTH of Pennsylvania v. William PARKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1994.
    Filed July 14, 1994.

      Quentin Brooks, Philadelphia, for appellant.
    William R. Toal, III, Asst. Dist. Atty., Havertown, for Com., appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge.

William Parker was tried by jury and was found guilty of aggravated assault and possession of an instrument of crime. Post-trial and supplemental post-trial motions were denied, and Parker was sentenced to serve concurrent terms of imprisonment for not less than ninety-three (93) months and not more than sixteen (16) years for aggravated assault and not less than six (6) months nor more than two (2) years for possession of an instrument of crime. On direct appeal from the judgment of sentence, Parker argues that the evidence was insufficient to support his convictions, and, alternatively, that the guilty verdicts were contrary to the weight of the evidence. He also argues that the decision of the Pennsylvania Supreme Court in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), which was decided while his post-trial motions were pending, is applicable to require a new trial because two prior inconsistent statements by Commonwealth witnesses were improperly received as substantive evidence against him.

On May 30, 1990, at or about 11:00 o’clock, p.m., Stanley Newell was standing, in the company of several friends, in front of the Pizza Paradise Restaurant in Yeadon, Delaware County, when a white Mustang pulled up to the curb. The driver of the vehicle was a black male, who was identified at trial as William Parker; and one of the occupants of the vehicle was Newell’s cousin. When Newell said to the driver, “Take care of my Cuz,” the driver heatedly responded, “Man, you don’t know who you are messing with.” After an additional exchange, the vehicle and its occupants left the scene.

About three-quarters of an hour later, Parker returned to the pizza shop on foot, carrying a large black gun. With this gun, he fired several shots at Newell, striking him once in the chest. Newell was the beneficiary of emergency surgery and survived after being hospitalized for several days.

Newell could not be found at the time of trial and did not testify against Parker. However, Chad Robinson, an eyewitness, identified Parker as the driver of the white Mustang and also as the person who had shot Newell. Two other persons present at the scene of the shooting refused to identify Parker as the assailant. Therefore, Detective William Costello, who had investigated the shooting, was allowed to testify to oral statements made by the witnesses that appellant was the driver of the white Mustang who had had an argument with Newell and who had returned to do the shooting.

Appellant has incorrectly treated the sufficiency of the evidence and the weight of the evidence as a single issue. These are discrete inquiries. The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment. Commonwealth v. Holmes, 315 Pa.Super. 256, 260, 461 A.2d 1268, 1270 (1983). In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Sample, 321 Pa.Super. 457, 461-462, 468 A.2d 799, 801 (1983); Commonwealth v. Curry, 318 Pa.Super. 490, 494, 465 A.2d 660, 662 (1983). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence. Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Nelson, 320 Pa.Super. 488, 491, 467 A.2d 638, 640 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 132, 463 A.2d 1117, 1120 (1983); Commonwealth v. Owens, 315 Pa.Super. 400, 404, 462 A.2d 255, 257 (1983); Commonwealth v. Nunez, 312 Pa.Super. 584, 586, 459 A.2d 376, 376-377 (1983).

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Ruffin, supra, 317 Pa.Superior Ct. at 133, 463 A.2d at 1120; Commonwealth v. Brown, 314 Pa.Super. 311, 322, 460 A.2d 1155, 1161 (1983); Commonwealth v. Starks, 298 Pa.Super. 213, 216, 444 A.2d 736, 738 (1982). The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Sample, supra, 321 Pa.Superior Ct. at 465, 468 A.2d at 802; Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). See: Commonwealth v. Jensch, 322 Pa.Super. 304, 315, 469 A.2d 632, 638 (1983).

Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984).

In determining the sufficiency of the evidence, we do not review a diminished record. The law is clear “that in determining the sufficiency of the evidence to support the verdict, we are required to consider all evidence actually received, whether the trial court’s rulings on evidence were correct or incorrect.” Commonwealth v. Pankraz, 382 Pa.Super. 116, 119-120, 554 A.2d 974, 976 (1989). See also: Commonwealth v. Smith, 523 Pa. 577, 582, 568 A.2d 600, 602-603 (1989); Commonwealth v. DiSabatino, 399 Pa.Super. 1, 4, 581 A.2d 645, 646 (1990). “Where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial.” Commonwealth v. Smith, supra, 523 Pa. at 582, 568 A.2d at 603.

Instantly, the testimony of Chad Robinson unequivocally identified appellant as the person who had shot Stanley New-ell in the chest. Robinson’s testimony, although alone sufficient to sustain appellant’s convictions, was corroborated by prior, extra-judicial statements which had been made by Commonwealth witnesses Stacey Scott and Anthony Blunt. These statements were received as substantive evidence pursuant to Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). The total evidence, when viewed in the light most favorable to the Commonwealth, was clearly sufficient to sustain appellant’s convictions.

We also reject appellant’s contention that the jury’s verdicts were contrary to the weight of the evidence. “Where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for a new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). The trial court’s sense of justice was not shocked by the findings of the jury in this case, and our review of the record discloses no abuse of discretion by the trial court in making-such a determination.

At trial, Stacey Scott testified that he was present at the time of the shooting but did not see the gunman. He was then confronted with a statement which he had made to Detective Costello shortly after the shooting in which he had identified appellant as the perpetrator. Scott explained at trial that the information which he had given to Costello had been based upon what other people had told him. He also said that his prior statement, as memorialized by Detective Costello, had not been “written the way I said it to him that night.” Anthony Blunt testified at trial that appellant had been the person with whom the victim had had an argument prior to the shooting, but he said that he had not been able to get a good look at the person who had done the shooting and was not able to identify appellant as the person who had shot Stanley Newell. Blunt was also confronted with a prior statement made to Detective Costello shortly after the shooting, in which he had said that the same person who had argued with the victim had returned later to the pizza shop and had shot Newell. Blunt denied that he had made such a statement to Detective Costello.

The Commonwealth was also permitted to have Costello, over defense objection, read into evidence his notes regarding the statements which had been made to him by Stacey Scott and Anthony Blunt. The defense argued that because these statements were not verbatim recordings of what the witnesses had said and were not signed by the witnesses, the statements were not given under sufficiently reliable circumstances to justify their admission as substantive evidence.

The trial court overruled defense objections to the receipt of the prior inconsistent statements and, with respect thereto, instructed the jury as follows:

Now, you may consider and use a statement given by a witness at this trial, which statement was made prior to trial, which is inconsistent with his trial testimony, not only to evaluate that witness’s testimony, or that witness’s credibility, but also as substantive evidence to prove the truth of the matters asserted in the earlier statement. If that statement was rendered under reliable circumstances, assuring voluntariness, knowledge, and understanding. Now it’s for you, the jury, to determine which of the two inconsistent statements, that is the statement prior to trial, and the testimony at trial you will accept as the factual statement, if either.

In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the Pennsylvania Supreme Court rejected the long-standing rule that a witness’s prior inconsistent statements can only be used for purposes of impeaching the credibility of the testimony given by the witness at trial. The Supreme Court held “that otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Id. at 131, 507 A.2d at 70.

Six years after its decision in Brady, while appellant’s post-trial motions were pending in the instant case, the Supreme Court decided Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), in which it refined its holding in Brady in the following manner:

[T]he important components of the Brady rule are that otherwise admissible prior inconsistent statements be given under highly reliable circumstances and the non-party declarant be subject to cross-examination in the proceeding where the prior statement is to be admitted.
Although the statement of the holding in Brady was that “otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein,” 510 Pa. at 131, 507 A.2d at 70, we noted that Ms. Traxler’s tape recorded statement was rendered under highly reliable circumstances assuring that it was voluntary, knowing and understanding. Those highly reliable circumstances included Ms. Traxler’s attorney and her mother being present when Ms. Traxler gave her statement to police. In addition, Ms. Traxler’s attorney questioned both Ms. Traxler and her mother to assure that the statement was being given knowingly, voluntarily and with understanding of her rights and options. Furthermore, her statement was recorded verbatim contemporaneously with its making. Commonwealth v. Brady, 510 Pa. at 131-32, 507 A.2d at 70.
In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that a prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements. See Note, Substantive Admissibility of a Non-Party Witness’ Prior Inconsistent Statements: Pennsylvania Adopts the Modern View, 32 Vill.L.Rev. 471 (1987).

Commonwealth v. Lively, supra, 530 Pa. at 469-471, 610 A.2d at 9-10. See also: Commonwealth v. Reid, 533 Pa. 508, 514-515, 626 A.2d 118, 121 (1993); Commonwealth v. Burgos, 530 Pa. 473, 478-479, 610 A.2d 11, 14-15 (1992).

Instantly, the prior inconsistent statements made by Commonwealth witnesses Stacey Scott and Anthony Blunt had not been given under oath at a formal legal proceeding, had not been contemporaneously recorded in a verbatim manner at the time they were made, and had not been reduced to writing and signed by the witnesses. According to the testimony of Detective Costello, he had summarized the statements made by Scott and Blunt by paraphrasing what the witnesses had told him. The witnesses were not then given the opportunity to make corrections to and/or sign the detective’s notes. Under Lively, therefore, Costello’s recollections of the witnesses’ statements were not admissible as substantive evidence.

The Commonwealth argues, however, that Lively should not be given retroactive application. With respect to whether a judicial decision should be applied retroactively or prospectively, the Pennsylvania Supreme Court has said:

The general rule followed in Pennsylvania is that we apply the law in effect at the time of the appellate decision. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). This principle applies with equal force to both civil and criminal proceedings. Id.; Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981). This means that we adhere to the principle that, “a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occurs before the judgment becomes final.” Commonwealth v. Brown, supra, 494 Pa. 383, 431 A.2d at 906-07, citing August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981).

Blackwell v. Commonwealth, State Ethics Commission, 527 Pa. 172, 182, 589 A.2d 1094, 1099 (1991). The Court in Blackwell, however, also declared that “although retroactivity is the general rule, a sweeping rule of retroactive application is not justified. Retrospective application is a matter of judicial discretion which must be exercised on a case by case basis.” Blackwell v. Commonwealth, State Ethics Commission, supra. See also: August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981). In making this determination, courts should consider: “(1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule.” Blackwell v. Commonwealth, State Ethics Commission, supra, 527 Pa. at 183, 589 A.2d at 1099, citing Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, 255 (1969) and Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203 (1967). See also: Commonwealth v. Miller, 490 Pa. 457, 472, 417 A.2d 128, 136 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Hill v. Thorne, 430 Pa.Super. 551, 559, 635 A.2d 186, 190 (1993). “Where the purpose of the new standard affects the truth finding function, thereby raising serious questions about the accuracy of prior guilty verdicts, the new rule has been given complete retroactive effect.” Commonwealth v. McCormick, 359 Pa.Super. 461, 471, 519 A.2d 442, 447 (1986), citing Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395 (1971). See also: Commonwealth v. Miller, supra; Commonwealth v. Flis, 369 Pa.Super. 275, 285-286, 535 A.2d 157, 161-162 (1987).

The Pennsylvania Supreme Court has further observed that:

Judicial decisionmaking inherently requires courts to resolve conflicts after they arise. See P. Mishkin, The High Court, The Great Wit and Due Process of Time and Law, 79 Harv.L.Rev. 56, 60 (1962). As Justice Holmes observed: “Judicial decisions have had retrospective operation for near a thousand years.” Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (1910) (dissenting opinion). Only recently have courts limited the full effect of their decisions. See e.g. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977); see generally P. Mishkin, The High Court, supra; R.J. Aldisert, The Judicial Process 877-938 (1976). The prime impetus behind this occasional willingness not to give a decision full effect is the concern that a novel decision will unfairly prejudice those formerly advantaged by the old rules. See e.g. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) (decision on statute of limitations applied in limited fashion to avoid bar on tort recovery); Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (decision striking down bond law applied in limited fashion to avoid “injustice or hardship” to cities and bondholders); England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (holding that state adjudication of federal claims is res judicata in subsequent federal court action applied in limited fashion to avoid undue prejudice to plaintiffs).

Gibson v. Commonwealth, 490 Pa. 156, 163-164, 415 A.2d 80, 84 (1980) (footnote omitted). It has been held, therefore, that prospective application of judicial decisions is warranted only when all of the following conditions are met:

(1) the decision establishes a new principle of law by either overruling clear past precedent or involves an issue of first impression, the resolution of which was not clearly foreshadowed, (2) the merits of purely prospective application of the new decision outweigh the disadvantages, based on the history of the rule in question, its purpose and effect, and whether a retrospective application would retard operation of the new law, and (3) the inequity of a retroactive application of the new rule outweighs the benefit of such an application.

Batoff v. Commonwealth, Bureau of Professional and Occupational Affairs, 158 Pa.Commw. 267, 271, 631 A.2d 781, 783 (1993), citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971). See also: Blackwell v. Commonwealth, State Ethics Commission, supra at 184-185, 589 A.2d at 1100; Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 622 & n. 6, 375 A.2d 1285, 1289 & n. 6 (1977).

In this case, the appellant repeatedly argued at trial and in post-trial motions that Costello’s recollections of prior, oral statements made by the witnesses were not sufficiently reliable and trustworthy to be received as substantive evidence. This issue, therefore, clearly has been preserved for appellate review. In accordance with the general rule followed in Pennsylvania, our review of this evidentiary issue must be conducted in the light of the precedent established by the Supreme Court in Commonwealth v. Lively, supra. The Lively decision did not announce a new rule of law or break with clearly established precedent. It did no more than clarify the Court’s prior holding in Commonwealth v. Brady, supra. The Court’s purpose in Lively was to enhance the truth determining process by requiring that only statements made under circumstances calculated to insure their reliability and trustworthiness should be received as substantive evidence. Finally, there certainly can be no inequity in applying Lively to cases pending on direct appeal in which the issue has been raised and preserved for appellate review. In effect, appellant will receive no more than a proper application of the law regarding the use of prior inconsistent statements as substantive evidence. To this he is entitled, no more and no less. See: Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981).

We hold, therefore, that Commonwealth v. Lively, supra, has application. The prior statements of Stacey Scott and Anthony Blunt were improperly received and considered by the jury as substantive evidence. Because of this error, it is necessary to reverse the judgment of sentence and remand for a new trial.

Reversed and remanded for a new trial.

      . He was acquitted on a charge of attempted murder.

      . The general rule of retroactive application assumes, of course, that "the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

      . The admission of the prior inconsistent statements of Stacey Scott and Anthony Blunt cannot be deemed harmless error. Indeed, during closing argument, the prosecuting attorney characterized this evidence as crucial, and, with respect thereto said, "There is no more important evidence in the case than came from these statements.”


author: KELLY, Judge.

text:
    644 A.2d 1251
    ACCU-WEATHER, INC., Appellant, v. PROSPECT COMMUNICATIONS, INC., and CRB of Westchester, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 5, 1994.
    Filed July 14, 1994.

      John G. Milakovic, Harrisburg, for appellant.
    John R. Miller, Jr., Bellefonte, for appellees.
    Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.
   KELLY, Judge.

In this appeal, appellant, Accu-Weather, Inc. (Accu-Weather), asks us to determine whether the Centre County Court of Common Pleas properly ordered summary judgment in favor of appellee, CRB of Westchester, Inc. (CRB). We hold that because CRB’s notice of termination does not strictly comply with the notice provisions of the agreement, it does not constitute legal notice. Further, a genuine issue of material fact exists as to whether Accu-Weather had adequate actual notice of termination of the agreement. Accordingly, we reverse the order of summary judgment in favor of CRB and remand for further proceedings.

The relevant facts and procedural history are as follows. On August 22, 1986, Accu-Weather entered into a written agreement with Prospect Communications, Inc. (Prospect), under which Accu-Weather agreed to provide weather information service for Prospect in connection with the radio station WFAS. The duration of the service was clearly set forth in the agreement, which provided:

27. This Agreement shall remain in full force and effect for a period of two (2) years beginning on the 16th day of August, 1986, and it shall renew and continue in full force and effect for subsequent periods of two years each unless written notice of termination is received by one party from the other party at least one-hundred-twenty (120) days prior to the initial expiration date hereof or of any subsequent expiration date. Time is of the essence in this paragraph.

(Accu-Weather Exclusive Radio Service Agreement, 8/22/86 at 5.)

On February 20, 1990, Accu-Weather acknowledged and agreed to the assignment of all contractual rights and duties from Prospect to CRB. On March 7,1990, Accu-Weather and CRB signed a written addendum to the June, 1986 agreement which extended the agreement to August 15,1992, and provided that subsequent renewals would occur pursuant to provision 27 of the original June, 1986 agreement. However, by letter dated February 20, 1991, CRB attempted to terminate the agreement as follows:

This is to serve you notice to cancel our contract with you, effective 90 days from February 1, 1991 (our 1st conversation).
Due to the reorganization of the statiQn and market condition, we are forced to take this step, but at a later date, we may continue your services.

(CRB’s Letter of 2/20/91.) Accu-Weather rejected CRB’s notice of termination and responded on February 25, 1991, stating in part:

... We are not in a position based on your telephone conversation or on your letter to honor a cancellation effective 90 days from February 1, 1991. Such a cancellation on or about May 1st is not in accord with contract terms and does not relate to any contract date for ending of service. The contract currently runs through August 15, 1992 and proper notification would be required to end it at that time....

(Accu-Weather’s Letter of 2/25/91) (emphasis added).

CRB did not cease performance under the 1986 agreement on May 1, 1991 but continued to perform within the terms of the agreement. However,. on June 1, 1992, CRB notified Accu-Weather of its intent to terminate at the next expiration date of the agreement, August 16, 1992. The notice referenced the letter of February 20, 1991 and purported to confirm the earlier attempted notice of termination given at that time. On June 18, 1992, Accu-Weather indicated that it would not accept CRB’s June 1, 1992 notice of termination because it did not comply with the requirement that notice be given one hundred and twenty days prior to the expiration of the agreement. Additionally, Accu-Weather stated that the alleged notice of February 20, 1991 was ineffective and could not terminate the agreement at its August 16, 1992 expiration date.

CRB ceased performance on the contract as of August 16, 1992. In response, Accu-Weather filed a complaint against CRB alleging breach of contract. Accu-Weather argued that effective notice of termination had not been give one hundred and twenty days prior to the expiration date of the agreement. Therefore, the agreement automatically renewed and continued until August 15, 1994.

CRB filed a motion for summary judgment on June 8, 1993. After review of the pleadings and affidavits, the trial court concluded that no genuine issue of material fact existed as to whether CRB had given Accu-Weather notice to terminate the agreement. Moreover, the trial court stated that, as a matter of law, the notice of termination was timely and proper. Therefore, the trial court entered the order for summary judgment on September 1, 1993, in favor of CRB. AccuWeather’s timely appeal followed.

Accu-Weather presents the following issues for our review:

1. WHETHER IN A BREACH OF CONTRACT ACTION SUMMARY JUDGMENT MAY BE GRANTED FOR THE DEFENDANT BASED UPON ITS NOTICE OF TERMINATION OF A CONTRACT, WHICH NOTICE DOES NOT COMPLY STRICTLY WITH THE CONTRACTUAL PROVISIONS FOR SUCH NOTICE AND IS VAGUE AND AMBIGUOUS?

2. WHETHER THE LOWER COURT SHOULD HAVE APPLIED NEW YORK LAW?

3. WHETHER SUMMARY JUDGMENT MAY BE GRANTED FOR THE DEFENDANT IN A BREACH OF CONTRACT ACTION BASED UPON A NOTICE OF CANCELLATION WHERE, IN RESPONSE TO THE PLAINTIFF’S OBJECTION TO THE NOTICE, THE DEFENDANT, BY ITS CONDUCT, WITHDRAWS THE NOTICE BY ACTING DIRECTLY CONTRARY THERETO FOR A YEAR AND A HALF, BY PERFORMING THE CONTRACT?

Accu-Weather’s Brief at 2.

The scope of appellate review of a grant of summary judgment involves the following principles. First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Pa.R.C.P. 1035(b). Second, the moving party must be entitled to judgment as a matter of law. Id. The moving party has the burden of proving that no genuine issue of material fact exists. Overly v. Kass, 382 Pa.Super. 108, 111, 554 A.2d 970, 972 (1989). However, the non-moving party may not rest upon averments contained in its pleadings; the non-moving party must demonstrate that there is a genuine issue for trial. Id. The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 558, 618 A.2d 945, 950 (1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (1993) (citing Kerns v. Methodist Hosp., 393 Pa.Super. 533, 536-37, 574 A.2d 1068, 1069 (1990)). Finally, an entry of summary judgment is granted only in cases where the right is clear and free of doubt. Ducko v. Chrysler Motors Corporation, 433 Pa.Super. 47, 48, 639 A.2d 1204, 1205 (1993) (citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989)). We reverse an entry of summary judgment when the trial court commits an error of law or abuses its discretion. Kelly by Kelly v. Ickes, 427 Pa.Super. 542, 547, 629 A.2d 1002, 1004 (1993) (citing Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991)).

Accu-Weather first contends that summary judgment should not have been entered in favor of CRB based upon the February, 1991 notice of termination. Accu-Weather asserts that the notice was vague and ambiguous and did not comply strictly with the contractual provision. Accu-Weather suggests that CRB’s subsequent performance under the agreement negated the notice of termination. We agree.

In Pennsylvania, conditions precedent to a contract termination must be strictly fulfilled. Wright v. Bristol Patent Leather Co., 257 Pa. 552, 556, 101 A. 844, 845 (1917); Virginia Heart Institute Ltd. v. Northwest Pennsylvania Bank & Trust Co., 448 F.Supp. 215, 220 (W.D.Pa.1978). Additionally, notice to terminate a contract must be clear and unambiguous. Eastern Milk Producers Co-op Ass’n, Inc. v. Lehigh Valley Co-op Farmers, 568 F.Supp. 1205, 1207 (E.D.Pa.1983) (citing Maloney v. Madrid Motor Corp., 385 Pa. 224, 228, 122 A.2d 694, 696 (1956)). “Ambiguous conduct and language intended to signal contract termination will be deemed not to have terminated the contract.” Id.

The notice of February 20, 1991 did not comply with provision 27 of the agreement for several reasons. First, the provision explicitly stated that the agreement would not terminate prior to the expiration date which, at that time, was August 15, 1992. However, CRB attempted to terminate the agreement as of May 1, 1991, over a year before the term of the agreement was to expire, in contravention of provision 27. Upon receiving CRB’s alleged notice of termination on February 20, 1991, Accu-Weather responded, in writing, unequivocally rejecting the notice and clearly setting forth the conditions under which the agreement could be terminated. CRB did not strictly comply with the conditions required to terminate the agreement.

Second, even if we were to consider the February 20, 1991 notice timely for purposes of terminating the agreement on the August 15, 1992 expiration date, the notice of termination would still fail as unclear and ambiguous. The language of CRB’s February 20, 1991 notice creates ambiguity. Although it refers to termination, the notice gives no indication that it will apply to the August, 1992 expiration date of the agreement if not to an earlier date. On the contrary, the notice specifically states that the termination is to apply in “ninety days.” Moreover, the notice continues, at some later date, Accu-Weather’s services may be “continued.” This statement fails to manifest a clear intent to terminate the agreement and constitutes ambiguity in the notice.

Third, ambiguity is also evident in CRB’s continued performance after the notice of termination. When CRB attempted to terminate the agreement as of May 1, 1991, Accu-Weather rejected the notice and demanded strict compliance with the contract terms. Therefore, in reviewing the record in the light most favorable to the non-moving party, CRB’s subsequent performance may be construed as an attempt to correct an anticipatory breach and as a withdrawal of the February 20, 1991 notice of termination. See Kleiman, et ux. v. Cohen, 98 Pa.Super. 61, 64 (1929) (notice of an intent to breach, if not accepted, may be withdrawn at any time before performance is due). At the very least, CRB’s subsequent performance is conduct inconsistent with respect to a clear intent to terminate the contract. Hence, CRB’s continued performance in conjunction with its February 20, 1991 notice of termination constituted a message that was both mixed and ambiguous. We hold, therefore, that under the relevant contract provision, Accu-Weather did not have legal notice of termination.

A conflict of testimony upon the controlling question in the case is a question of fact and one for the jury to determine. Berwick Hotel Co. v. Vaughn, 300 Pa. 389, 395, 150 A. 613, 616 (1930). An agreement prohibiting non-written modification may be modified by a subsequent oral agreement if the parties’ conduct clearly shows an intent to waive the requirement that amendments be in writing. Douglas v. Benson, 294 Pa.Super. 119, 127, 439 A.2d 779, 783 (1982). Further, even though the time fixed in an agreement is stated to be “of the essence,” it may be waived by the conduct of the parties. Warner Co. v. MacMullen, 381 Pa. 22, 29, 112 A.2d 74, 78 (1955).

A central question in this case remains whether AccuWeather had adequate actual notice of CRB’s intent to terminate the agreement. The record reveals conflicting testimony on whether CRB gave Accu-Weather oral notice of termination subsequent to CRB’s initial effort to terminate the agreement in February, 1991. CRB asserts in the affidavit of its business manager that, through oral communications following the notice of February 20, 1991, CRB continuously evidenced an intention to terminate the agreement at its next expiration date, August 16, 1992. However, in its affidavit submitted pursuant to Pa.R.Civ.P. 1035(e), Accu-Weather denies that any oral communications occurred in which CRB advised Accu-Weather of a continued desire to terminate the agreement at the next expiration date. Therefore, a genuine issue of material fact exists, i.e. whether CRB evidenced a continued notice of intent to terminate the agreement following the rejected notification of February 20, 1991. Thus, the trial court erred in entering summary judgment in favor of CRB as that right is not clear and free of doubt. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Order entering summary judgment reversed and remanded for further proceedings.

      . Prospect was dissolved January 14, 1987.

      . Accu-Weather filed an affidavit pursuant to Pa.R.Civ.P. 1035(e) on August 3, 1993 alleging that a genuine issue of material fact exists as to whether CRB presented notice of termination.

      . We note that the notice of June 1, 1992 did not legally terminate the agreement under provision 27. The notice of that date was given only seventy-six days prior to the natural expiration date of the agreement, and, therefore, did not conform to the one hundred and twenty day requirement for termination.

      . Accu-Weather also claims that the trial court erred by applying New York law’s erroneous date rule. See G.B. Kent & Sons, Ltd. v. Helena Rubinstein, Inc., 47 N.Y.2d 561, 393 N.E.2d 460, 419 N.Y.S.2d 465 (1979) (notice of termination may be valid notwithstanding the fact that the notice specifies the "wrong date” for termination). Even if Pennsylvania law recognized this rule, the notice of termination would still fail as unclear and ambiguous.

      . Provision 24 of the contract provides that "no modifications to the agreement shall be made except by written addendum signed by both parties hereto." (Accu-Weather Exclusive Radio Service Agreement, 8/22/86 at 5). Whether subsequent oral communications modified the agreement and permitted CRB to terminate the contract is a question of fact. See Douglas v. Benson, supra.

      . The affidavit of CRB business manager, Bipin Shah, in support of the motion for' summary judgment, states in part:
      ... Thus, during numerous telephone conversations with AccuWeather employees throughout 1991 and the first half of 1992, I reminded Accu-Weather, when appropriate, that it was WFAS’ intention that the Agreement terminate in August of 1992. Similarly, upon information and belief, Mr. Gary Starr, the station manager, also advised Accu-Weather on a number of occasions that WFAS would treat the Agreement as terminated as of August 1992....
      (CRB’s Affidavit in Support of Summary Judgment, 6/3/93 at 3.)

      . The affidavit of John G. Milakovic, pursuant to Pa.R.Civ.P. 1035(e), states in part:
      ... In Defendant’s ("CRB”), supporting papers to its motion for summary judgment, Mr. Bipin Shah swears to the alleged fact that he had a number of conversations with unnamed Accu-Weather employees, wherein he allegedly orally advised these unnamed persons that CRB desired to terminate its contract with Accu-Weather in August 1992.
      As noted in the affidavit of Barry L. Myers submitted in opposition to CRB’s motion for summary judgment, Accu-Weather has no record of any such conversation ever occurring----
      (Accu-Weather’s Affidavit Pursuant to Pa.R.Civ.P. 1035(e), 8/3/93 at 1.)


author: CERCONE, Judge.

text:
    644 A.2d 1256
    Margaret McKOLANIS v. David McKOLANIS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1994.
    Filed July 20, 1994.

      Jonathan C. Hook, Brookville, for appellant.
    Jay Y. Rubin, Indiana, for appellee.
    Before BECK, HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

The principal issue in this support action is whether the wife, who voluntarily left the marital home without her husband’s consent, had adequate legal reason for doing so. We find wife’s reasons to be legally adequate and affirm the order of the trial court awarding spousal support to wife.

Husband and wife married in 1983 and are the parents of two sons. The oldest boy suffers from “persuasive developmental disorder.” Both husband and wife testified at a hearing de novo about the strain this condition placed upon their relationship. Although the marriage was foundering, it was not until 1992, when husband announced his proclivity for cross-dressing, that wife left husband. At that time, husband informed wife that he was a transvestite and had been since before the time of their marriage.

At the hearing, wife testified that she did not wish to be married to a transvestite. Husband both testified and presented testimony that it is possible for a marriage to work where one of the parties is a transvestite and encouraged counseling for wife. The trial court determined that wife’s reasons for leaving the marital residence were legally adequate and awarded wife support. Thereafter, husband filed the instant timely appeal.

Husband raises one issue for our review:

Does husband’s status as a cross-dresser transvestite constitute just cause for Wife’s departure from the home such that the Wife may be entitled to spousal support?

Our scope of review is limited. We may reverse a support order only where the order cannot be sustained on any valid ground. Shovlin v. Shovlin, 318 Pa.Super. 516, 521, 465 A.2d 673, 676 (1983). Absent an abuse of discretion or insufficient evidence to sustain the support order, this court will not interfere with the broad discretion afforded the trial court. Rock v. Rock, 385 Pa.Super. 126, 130, 560 A.2d 199, 201 (1989). Assessment of the credibility of witnesses is within the sole province of the trial court. Id.

Our Supreme Court has opined:

“Abuse of discretion” is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that [an] appellate court is of opinion that there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment — one that is clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; and improvident exercise of discretion; and error of law.

Commonwealth v. Powell, 527 Pa. 288, 297 n. 8, 590 A.2d 1240, 1244 n. 8 (1991) (quoting Black’s Law Dictionary, 5th Ed. (1979). Where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable and must be reversed. Myers v. Myers, 405 Pa.Super. 290, 293, 592 A.2d 339, 341 (1991).

A wife, seeking support following a nonconsensual voluntary vacation from the marital home has the burden of proving that her husband’s conduct justified her in leaving the marital home. Rock v. Rock, 385 Pa.Super. at 130, 560 A.2d at 201. “A voluntary withdrawal by [a spouse] without adequate legal reason defeats her right to support.” Myers v. Myers, 405 Pa.Super. at 294, 592 A.2d at 341 (quoting Martin v. Martin, 282 Pa.Super. 484, 486, 423 A.2d 6, 7 (1980)).

[The] phrase adequate legal cause for leaving is not subject to exact definition. It must be interpreted based on the facts of each case. A spouse who over a period of time suffers psychological oppression may be harmed as much as a spouse who over a period of time suffers physical injury. The law must recognize this harm and not force the oppressed spouse to remain in the unhappy environment in order to be entitled to support. On the other hand, the law should not impose on a spouse the duty of support where his or her mate departs the marital residence maliciously or casually on a whim or caprice.

Clendenning v. Clendenning, 392 Pa.Super. 33, 38-39, 572 A.2d 18, 21 (1990). Accord Myers v. Myers, 405 Pa.Super. at 294, 592 A.2d at 341. It is not necessary to establish that the wife prove grounds for leaving which would justify grounds for divorce. Myers v. Myers, 405 Pa.Super. at 294, 592 A.2d at 341.

In Larkin v. Larkin, 262 Pa.Super. 294, 396 A.2d 761 (1978) this court summarized applicable case law as follows:

In Commonwealth ex rel. Loosley v. Loosley, 236 Pa.Super. 389, 345 A.2d 721 (1975), we held that where the testimony-established that the husband knew the wife was being treated for a psychiatric disorder, yet persisted in sleeping in a separate bedroom, even though this made her nervous, and also exchanged bitter words with her and told her on numerous occasions that he wanted a divorce, the wife had reasonable cause to leave. In Commonwealth ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135 (1965), a support order was upheld where the wife testified that she left her husband because he would curse her and argue with her incessantly, and that if she tried to escape him by sleeping in their second bedroom, he would follow her, pull the pillows and blankets from her, and try to drag her out of bed. In Commonwealth ex rel. Keeth v. Keeth, 223 Pa.Super. 96, 289 A.2d 732 (1972), we held that where the husband was away from home an entire weekend, and the wife found him in his car with another woman, and the husband slapped the wife after she slapped the woman, the wife was entitled to support from her husband after he permanently moved out of their common abode. In Commonwealth ex rel. Lebowitz v. Lebowitz, 227 Pa.Super. 593, 307 A.2d 442 (1973), a wife was held to have adequate legal cause for leaving her husband when he refused to allow her to be a practicing Jehovah’s Witness in their house.... On the other hand, we have denied petitions for support where the wife left the husband because he refused to give her two thousand dollars, Commonwealth ex rel. Coleman v. Coleman, 184 Pa.Super. 256, 133 A.2d 307 (1957); where the wife left, even though her husband loved her, because members of the husband’s family complained of her race, Commonwealth ex rel. Pitucci v. Pitucci, 200 Pa.Super. 591, 189 A.2d 912 (1963); where the wife left because her husband criticized her house work (and she was also seeing another man), Commonwealth ex rel. Bergwerk v. Bergwerk, 228 Pa.Super. 190, 323 A.2d 243 (1974); and where the wife’s reasons for leaving were expressed in generalities, such as the fact that her husband “went into temper tantrums,” charged her with infidelity, and complained of her “incapacity to do for him,” Commonwealth ex rel. Van Wagenen v. Van Wagenen, 167 Pa.Super. 354, 74 A.2d 740 (1950)....

Larkin, supra, 262 Pa.Super. at 298-99, 396 A.2d at 763-64.

After careful review, we find no case law directly addressing the issue of whether a spouse’s .cross-dressing constitutes legal justification for leaving the vacating the marital home. However, we note that in Steinke v. Steinke, 238 Pa.Super. 74, 357 A.2d 674 (1975), this court addressed whether a husband’s cross-dressing constituted grounds for divorce. In Steinke, the husband dressed in women’s clothes around the house and later began taking hormones with the view of developing himself into a woman. Eventually, husband began to assume the total identity and appearance of a woman at work and in public.

In holding that such actions constituted grounds for divorce, we stated:

That the appellant-wife in the present case has come to find life with her husband intolerable and burdensome does not indicate unusual sensitivity or extraordinary delicacy on her part. It is certainly to be anticipated that a reasonable woman might react to her husband adopting not only the clothing but the full physical appearance of a woman, by becoming shocked and repelled. This Court has recognized that unnatural sexual conduct or excessive and unusual sexual demands represents indignities making a spouse’s condition intolerable and life burdensome.
A course of conduct which is humiliating and degrading to a woman has been held to provide evidence sufficient in itself to constitute indignities.

Id. at 79-80, 357 A.2d at 676-77 (footnotes and citations omitted).

In the instant case, husband argues that there is no such evidence of humiliating or degrading actions as were present in the Steinke case. He contends that he is before this court merely because he revealed a hidden impulse to wife. He believes that by revealing this proclivity, the parties could seek counseling and strengthen their marriage.

Upon reviewing the evidence presented at the hearing, the trial court found that husband sought counseling as “the panacea to reconciling the parties, or rather the wife into accepting this alternate lifestyle of husband.” Trial Court Opinion date 2/1/94 at 2. Moreover, our review of the testimony reveals that husband, although aware of these yearnings, did not inform wife of his cross-dressing prior to their marriage. N.T. 10/7/93 at 19. Although wife acknowledged that she had never seen her husband dressed as a woman, husband informed her that he did appear in public cross-dressed. Id. at 18, 19. Wife confirmed that husband wanted to seek counseling, but not to change the cross-dressing behavior. Id. at 19.

More than nineteen years have passed since this court’s decision in Steinke, and society’s acceptance of alternative lifestyles has increased over the years. In this particular marriage, however, we find that husband’s cross-dressing caused such harm to wife as to justify her departure from the marital home. The sexual identity of one’s marital partner, no matter the lifestyle, is crucial to the marriage relationship. Husband’s concealment of his cross-dressing until 1992, his subsequent decision to inform wife of this proclivity, as well as his appearance in public in female attire, was inconsistent with wife’s conception of her status as a spouse and justified her departure.

Under the facts of this case, we find that wife established legal justification to vacate the marital residence. Accordingly, we affirm the order of the trial court awarding wife support.

Order affirmed.