author: CIRILLO, Judge:

text:
    663 A.2d 169
    LaDonna C. JAYNE v. Robert F. JAYNE, Appellant. LaDonna C. JAYNE, Appellant, v. Robert F. JAYNE.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed July 20, 1995.

      Ray DePaola, Towanda, for Robert F. Jayne.
    Gerald A. Kinchy, Sayre, for LaDonna C. Jayne.
    Before CIRILLO, JOHNSON and SAYLOR, JJ.
   CIRILLO, Judge:

Appellant Robert F. Jayne (Husband) appeals, and Ladonna C. Jayne (Wife) cross-appeals, from an order in the Court of Common Pleas of Wyoming County entering a final decree in divorce, ordering equitable distribution of the marital property, requiring Husband to pay alimony, and denying both parties’ exceptions to the Master’s report. We affirm in part, and reverse in part.

The parties were married on June 17, 1967. Two children were born of the marriage, one of whom is a minor. On August 19, 1991, Wife filed a complaint in divorce on the grounds of irretrievable breakdown and indignities. Wife also petitioned the court for equitable distribution of the marital assets, alimony, spousal support, custody, child support, alimony pendente lite, counsel fees and costs. Husband responded to Wife’s complaint by joining in the request for divorce on the grounds of irretrievable breakdown. The parties separated on August 28, 1991, and Husband left the marital home.

The trial court adopted the recommendations of the Master, Selyne K. Youngclaus, Esquire. The Master’s recommendations included, inter alia, a decree in divorce on the ground of indignities. Both parties filed exceptions to the Master’s recommendations. These exceptions were denied by the trial court. On appeal, Husband raises seven issues for our consideration:

(1) Did the trial court commit error in granting Wife a divorce on the grounds of indignities?
(2) Did the trial court commit error in awarding alimony to Wife in light of the 60/40 division of property in favor of Wife?
(3) Did the trial court commit error in failing to credit Husband for payments made by him, with the exception of interest payments, for loans relating to the car wash between the time of the parties’ separation and the hearing, despite the fact that, in support actions, the income from the car wash was attributable to Husband with no consideration being given to these payments?
(4) Did the trial court commit error in failing to take into consideration a $6,000.00 loan incurred by Husband during the parties’ separation which was used to keep the car wash operating?
(5) Did the trial court commit error in failing to credit Husband for payments made to Penelec and Commonwealth Telephone for debts incurred by Wife during the period of separation?
(6) Did the trial court commit error in failing to credit Wife with the receipt of $3,500.00 in personal property in her possession at the time of the equitable distribution?
(7) Did the trial court commit error in awarding the Corvette to Wife without recognizing the value of the automobile?

On cross-appeal, Wife questions the amount, as well as the duration, of the trial court’s award of alimony. Wife contends that the trial court erred in limiting alimony to her in the amount of $200.00 per month for only twenty-four months.

Initially, Husband claims that the trial court committed error when it granted Wife a divorce on grounds of indignities. Our standard of review in cases involving divorce decrees is well-settled:

[I]t is the responsibility of this court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and lower court whether a legal cause of action in divorce exists. The Master’s recommendation, therefore, is advisory only. The exception to this general rule is that in determining issues of credibility the Master’s findings must be given the fullest consideration for it was the Master who observed and heard the testimony and demeanor of various witnesses.

Schuback v. Schuback, 412 Pa.Super. 233, 235, 603 A.2d 194, 195-96 (1992) (quoting Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980)) (citations omitted). Thus, we must review the record and determine, independently, whether a legal cause of action in divorce exists.

In her complaint, Wife sought a divorce based upon no-fault as well as fault grounds. Specifically, Wife requested that a decree of divorce be entered based on irretrievable breakdown and also based on indignities.

Section 3301(d) of the Divorce Code provides for a no-fault divorce if the parties have lived separate and apart for the statutory period and the marriage is irretrievably broken. Irretrievable breakdown is set forth in the statute as follows:

(d) Irretrievable breakdown.—
(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in the affidavit.
(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

23 Pa.C.S. § 3301(d). Section 3301(a)(6), one of the fault grounds for divorce, describes the ground for divorce based on indignities:

(a) Fault — The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:
(6) Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.

23 Pa.C.S.A. § 3301(a)(6). The trial court granted a divorce pursuant to Section 3301(a)(6) based on its findings of fact and conclusions of law that Husband committed indignities toward Wife and that Wife was an innocent and injured spouse.

This court has stated that indignities, as a fault ground for divorce, may consist of “vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” Dukmen, 278 Pa.Super. at 534, 420 A.2d at 669-70 (citations omitted). Also, “there are two requirements for a divorce based on indignities: (1) the existence of indignities and (2) the direction of them to an innocent and injured spouse.” Schuback, 412 Pa.Super. at 236, 603 A.2d at 196.

Wife testified at the Master’s hearing that she believed Husband was engaged in an extra-marital affair. Also, the Master took judicial notice of the Protection From Abuse proceedings which were commenced post-separation based upon an incident which occurred shortly after Husband removed himself from the marital home. Based upon this evidence, the Master concluded that “[t]he facts testified to by [Wife] are sufficient to establish the averments in the complaint setting forth a cause of action on the ground of indignities.” We disagree.

Initially, we point out that, in an action for divorce based upon indignities, “[t]he burden is on the plaintiff to demonstrate a course of conduct on the part of the defendant spouse which is humiliating, degrading, and inconsistent with the innocent and injured spouse’s position rendering his|7her] condition intolerable and his[/her] life burdensome.” Jones v. Jones, 311 Pa.Super. 407, 411-12, 457 A.2d 951, 953 (1983) (citation omitted). While Wife testified at the Master’s hearing that she had confronted Husband concerning the alleged affair, she also testified that Husband denied these allegations by stating that he had only been friends with the other woman. Wife offered no additional testimony supporting her allegation that, prior to the filing of her complaint in divorce, Husband was engaged in an extra-marital affair. While “[i]t is true that a spouse’s relationship with a member of the opposite sex, other than his or her spouse, may constitute an indignity even when the evidence is insufficient to sustain a charge of adultery[,] ... evidence of friendship alone is not sufficient to prove indignities; there must be additional evidence.” Narbesky v. Narbesky, 255 Pa.Super. 48, 54, 386 A.2d 129, 132 (1978).

In addition, we have held that the marital misconduct which must be considered with regard to a divorce based upon indignities is that misconduct which occurred prior to the right to divorce accruing. Schuback, 412 Pa.Super. at 236, 603 A.2d at 196. As a result, any misconduct in which Husband may have engaged after the separation is not to be considered unless it goes to support misconduct occurring prior to the accrual of the right to divorce. Bonawitz v. Bonawitz, 246 Pa.Super. 257, 262, 369 A.2d 1310, 1312 (1976). In other words, Husband’s conduct after Wife’s filing of the complaint for divorce should not be considered in deciding the sufficiency of the allegations in that complaint for a divorce based on indignities unless it is related to or supports similar conduct prior to the accrual of the right to divorce. See McCaskey v. McCaskey, 253 Pa.Super. 360, 385 A.2d 378 (1978) (holding that proof of indignities occurring after parties’ separation was admissible as evidence which shed light upon the behavior of the parties prior to separation); Lee v. Lee, 185 Pa.Super. 252, 137 A.2d 827 (1958) (holding that the conduct of the parties after separation is relevant for the purpose of shedding light upon their behavior prior to the separation). Accordingly, Husband’s post-separation conduct concerning an alleged extra-marital affair, as well as the post-separation Protection From Abuse Proceedings, should not have been considered by the Master since the record does not support that they shed light upon the behavior of the parties prior to their separation.

Further, the Master found that regardless of whether Husband actually engaged in an extra-marital affair, this issue caused continuous arguments between the parties which ultimately led to their separation, thereby justifying a divorce granted in Wife’s favor based on indignities. Both parties testified that they were not getting along and had encountered problems for a long time. The record, therefore, does not support the Master’s conclusion that, even though both parties were not getting along, that one party, Husband, was the more responsible party thereby justifying a divorce granted in Wife’s favor based on indignities. See Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985) (holding that where there is nearly equal contribution by the parties to the marital discord, a divorce will not be granted in favor of either spouse); Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980) (same).

Moreover, the requirement of “an innocent and injured spouse” has not been satisfied in this case. We have stated:

In addition to proving indignities, the moving party must also prove that he or she is the injured and innocent spouse____ It has been said that a finding that the moving party is the innocent and injured spouse is a prerequisite for entitlement to a divorce on the grounds of indignities.

Beaver v. Beaver, 313 Pa.Super. 512, 516, 460 A.2d 305, 307 (1983); accord Crawford v. Crawford, 429 Pa.Super. 540, 633 A.2d 155 (1993). The Master noted that Husband’s actions were not “sufficiently provoked by [Wife] so as to disallow the granting of a divorce on the ground that [Wife] was not the innocent and injured spouse.” While both parties testified that they were not “getting along” and experienced problems with each other for a long time, the Master attributed these problems to Husband. This is improper. While we recognize that in determining issues of credibility the Master’s findings must be given the fullest consideration, we emphasize that the record must support the Master’s conclusions and the findings upon which those conclusions are based. Schuback, supra at 412 Pa.Super. 233, 603 A.2d 194.

Finally, we emphasize that the purpose of the legislature’s enactment of no-fault provisions in divorce in addition to the traditional fault provisions was to provide for dissolution of marriage in a manner which would keep pace with contemporary social realities and not to advance “the vindication of private rights or the punishment of matrimonial wrongs.” See 23 Pa.C.S.A. § 3102(a); Perlberger v. Perlberger, 426 Pa.Super. 245, 626 A.2d 1186 (1993). The entry of a fault divorce is inappropriate, in a case such as this, when the record does not support the entry of a fault divorce, but, rather, supports the entry of a no-fault divorce. Accordingly, the entry of a fault divorce granted in Wife’s favor on the ground of indignities was error, as the record supports that a no-fault divorce based upon grounds of irretrievable breakdown should have been entered.

Next, we address Husband’s and Wife’s complaints regarding the award of alimony. Husband claims that the trial court erred in awarding alimony to Wife in light of the 60/40 division of property in favor of Wife. Wife, on the other hand, claims on cross-appeal that it was error for the award of alimony to be limited to $200.00 per month for only twenty-four months.

Our scope of review for purposes of evaluating a trial court’s award of alimony is limited to a determination of whether the trial court abused its discretion. Nemoto v. Nemoto, 423 Pa.Super. 269, 620 A.2d 1216 (1993). An abuse of discretion exists when the judgment of the trial court is manifestly unreasonable or is the result of prejudice, bias or ill-will. O’Callaghan v. O’Callaghan, 530 Pa. 176, 607 A.2d 735 (1992). While it is not an appellate court’s duty to create the record or assess credibility, we must nevertheless examine the existing record to ascertain whether sufficient facts are present to support the trial court’s order. Id. If sufficient evidence exists in the record to substantiate the trial court’s action, and the trial court has properly applied accurate case law to the relevant facts, then we must affirm. Id. Also, the purpose of alimony is not to reward one party and punish another, but rather to ensure that the reasonable needs of the person who is unable to support himself/herself through appropriate employment are met. Nemoto, supra.

In the recommendation adopted by the trial court, the Master specifically considered all relevant factors set forth in 23 Pa.C.S.A. § 3701 for determining whether alimony is necessary. Our review of the record reveals that, although Wife received 60% of the marital estate and Husband received 40%, a temporary award of alimony is necessary under all of the circumstances in this case, including the fact that Wife is not presently able to support herself. The Master pointed out that the great disparity between the actual earnings of the parties can be lessened once Wife obtains full time employment.

Prior to the opening of her ceramic business in 1982, Wife operated her own beauty shop for twenty-two years and, although she has not actively worked as a beautician for several years, she still maintains her hair dressing license in this Commonwealth as well as the State of New York. Wife has also taken an adult typing class and has applied for employment as a secretary. Thus, Husband’s claim is without merit because the Master properly determined, after considering all relevant factors, that alimony of $200.00 per month for twenty-four months was necessary and sufficient to enable Wife to become self-supporting. This award of alimony would enable Wife to obtain “refresher” courses to update her training as a hair dresser or to pursue other self-supporting employment.

Similarly, Wife’s claim that she is entitled to permanent alimony is without merit in view of factors considered by the trial court and since she has the tools which will enable her to become self-supporting. Consequently, the trial court did not abuse its discretion in adopting the Master’s recommendations and denying Husband’s and Wife’s objections to the award of alimony. O’Callaghan, supra; Nemoto, supra.

Husband’s next contention on appeal is that the trial court erred by failing to credit him for payments on loans related to the car wash business when calculating his support obligations. Husband argues that, in prior support actions, the Wyoming County Domestic Relations Office attributed to him income from the car wash in determining the amount of support due to Wife and the parties’ children but that the Domestic Relations Office failed to offset that income by the loan repayment expenses incurred by Husband. This court has recognized that:

it is not unusual in a small business setting ... for a proprietor to own as well as manage the business. This arrangement does not render a proprietor’s business decisions inherently suspicious or unreasonable. When these business decisions impact other obligations, such as support payments, an inquiry by the courts should be carefully tailored.

Labar v. Labar, 434 Pa.Super. 612, 619, 644 A.2d 777, 781 (1994). Moreover, “in evaluating a parent’s support obligation[,] the lower courts should consider the parent’s income ... and the full nature of the parent’s property interests and financial resources.” Lyday v. Lyday, 360 Pa.Super. 16, 22, 519 A.2d 967, 970 (1986) (quoting Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977)). We have also held that “only actual expenses may be deducted to determine [the husband’s] income to which [the wife] may look for her support.” Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 573, 87 A.2d 799, 800 (1952).

In this case, Husband argues that his support obligations were based upon the income generated from the car wash business and that this income was calculated without first deducting from that income the payments for loans related to the car wash. We find that the trial court should have evaluated Husband’s claims by inquiring into these expenses incurred on behalf of the car wash business and whether these expenses would have affected his support obligations. Labar, supra; Lyday, supra; Rankin, supra. Accordingly, the trial court is ordered to address this issue on remand.

Husband next argues that the trial court erred in failing to credit him with the payment of a $6,000.00 loan, which Husband claims was obtained to keep the car wash operational. The testimony presented at the Master’s hearing revealed that Husband borrowed $6,000.00 after the parties’ separation. To secure the loan, Husband gave the bank a lien on his pick-up truck. Husband claims that the pick-up truck, rather than the car wash, was used as collateral for the loan because the car wash was in his and his Wife’s names. Also, the $6,000.00 was placed in Husband’s personal bank account, rather than the car wash’s bank account. Nevertheless, the closest Husband came to specifically identifying where the money was utilized in the car wash business was that the money was used to pay “various bills.” The only evidence on the record as to the use of the $6,000.00 was Husband’s testimony, which is an issue of credibility. Since the Master was in the best position to assess Husband’s credibility as to what use was actually made of the loan, his credibility determination will not be disturbed. Schuback, supra.

Husband’s next issue is whether the trial court committed error in failing to credit Husband for payments made for joint bills of the parties, including telephone bills, credit card bills, and payments made for Wife’s automobile. The Master recommended that Wife was in need of alimony pendente lite during the pendency of the divorce. The Master specifically recognized that during the parties’ separation, Husband had paid to Wife or on her behalf $4,691.54 for the payment of various bills. The Master concluded that, while Wife was to be awarded alimony pendente lite, Husband had already paid her $4,691.54, and, therefore, Husband was to “receive credit for the $4,691.54 previously paid and that [the alimony pendente lite] award be limited to that amount.” Thus, because Husband’s duty to pay alimony pendente lite was limited to the $4,691.54, the amount he had already contributed towards the payment of bills, Husband was found to have satisfied his alimony pendente lite obligation.

Husband argues that the Master’s award of alimony pendente lite was improper in light of his concurrent duty to pay spousal support in the amount of $80.00 per week. Our standard of review for awards of alimony pendente lite is well settled. If an order for alimony pendente lite is bolstered by competent evidence, the order will not be reversed absent an abuse of discretion by the trial court. Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990) (quoting Fichthorn v. Fichthorn, 368 Pa.Super. 305, 533 A.2d 1388, 1389 (1987)).

Alimony pendente lite means alimony or maintenance “pending litigation” and is payable during the pendency of a divorce proceeding so as to enable a dependent spouse to proceed with or defend against the action. Heilbron v. Heilbron, 158 Pa. 297, 27 A. 967 (1893); DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871, allo. denied, 517 Pa. 631, 539 A.2d 811 (1987). Alimony pendente lite is designed to be temporary and is available to those who demonstrate the need for maintenance and professional services during the pendency of the proceedings. DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); Pollice v. Pollice, 277 Pa.Super. 1, 419 A.2d 630 (1980).

The obligation to pay alimony pendente lite continues following the entry of the bifurcated divorce decree until all economic issues have been resolved. Horn v. Horn, 388 Pa.Super. 46, 564 A.2d 995 (1989). This court has held that this obligation continues even after the entry of a final decree in equitable distribution when an appeal remains pending and terminates only after all litigation has ended. DeMasi v. DeMasi (II), 408 Pa.Super. 414, 597 A.2d 101 (1991). We have also held, however, that alimony pendente lite may be terminated before the litigation is concluded where the recipient has acquired assets or income which sufficiently equalizes the financial ability of the parties to pursue the action. See, e.g., Nemoto, supra; Spink v. Spink, 422 Pa.Super. 126, 619 A.2d 277 (1992).

In Nemoto, we had occasion to review a trial court’s termination of an alimony pendente lite order. We recognized that the termination of litigation involving divorce and equitable distribution matters unquestionably results in the cessation of an alimony pendente lite order. Nemoto, 423 Pa.Super. at 280, 620 A.2d at 1221. We pointed out, however, that “[t]his rule does not mean ... that only the termination of the litigation may mark the end of APL [alimony pendente lite].” Id. (emphasis in original). If the spouse who had been receiving alimony pendente lite has acquired assets or income which sufficiently equalized the financial resources of the parties to pursue the action, then alimony pendente lite may be discontinued. Id. (citing Spink, 422 Pa.Super. at 132, 619 A.2d at 279). The record in Nemoto showed that wife had adequate assets and income available to her through equitable distribution, alimony, and her own earning capacity so that she could litigate the case as she chose. Nemoto, 423 Pa.Super. at 280-81, 620 A.2d at 1221-22.

In this case, the Master recommended that Wife was in need of alimony pendente lite. There was no entry of a bifurcated divorce decree, however, as the trial court ordered that Husband and Wife were divorced at the same time that it adopted the Master’s recommendations concerning equitable distribution of the marital property, alimony, alimony pendente lite, costs, and counsel fees. Therefore, all economic issues were resolved when the trial court adopted the Master’s recommendation concerning alimony pendente lite. We find that, even though the obligation to pay alimony pendente lite normally continues after the entry of a divorce decree in equitable distribution and terminates after all litigation has ended, this case provides us with a situation as in Nemoto where the recipient has acquired assets/income which sufficiently equalized the financial ability of the parties to pursue the action. Specifically, total distribution to Wife was $225,-866.84, in addition to alimony to be paid to Wife in the amount of $200.00 per month for twenty-four months. As a result, the award of alimony pendente lite was improper. Wayda, supra.

Husband argues, however, that he should be given credit for payments totalling $4,691.54 which were made by him to Wife, or on Wife’s behalf, and which were paid over and above his spousal support order during the period of separation. We find no merit in Husband’s argument. Husband was only required to pay spousal support during the period of separation. The voluntary payment of Wife’s expenses from his own resources will not be credited at equitable distribution. See, e.g., Hunsinger v. Hunsinger, 381 Pa.Super. 453, 554 A.2d 89 (1989) (holding that expenses voluntarily incurred post-separation may not be credited at equitable distribution); but see Grandovic v. Grandovic, 387 Pa.Super. 619, 564 A.2d 960 (1989) (holding that payment with marital assets of joint debts, which had been incurred post-separation, requires an add-back to the marital estate) (emphasis supplied). Husband does not claim that the payment of these expenses were paid with marital assets, nor does Husband refer this court to any cases supporting the proposition that he should be credited for his voluntary payment of these debts/expenses.

Husband also contends that the trial court erroneously failed to credit Wife with the receipt of $3,500.00 in personal property which was in her possession at the marital home at the time of the equitable distribution hearing. The record reflects that defense counsel’s enumeration and appraisement of each item on Husband’s inventory and appraisement list was interrupted by a stipulation by the parties that all of the household furnishings in the marital home at that time had a fair market value of $7,000.00 for purposes of distribution. Excluded from this stipulation was a grandfather clock, ceramic items which were part of the ceramic business, and eighty shares of stock from Grange National Bank.

Husband now asks this court to compensate him for items which Wife had in her possession and which the trial court allegedly failed to consider for equitable distribution purposes. Specifically, Husband claims that the trial court failed to consider that Wife had in her possession a $1,500.00 dividend check from Proctor and Gamble, a $1,000.00 savings bond, and $1,000.00 in old coins. We believe that the stipulation entered into by the parties covers these items and, even if it did not, it was Husband’s responsibility to bring these items to the attention of the trial court for .purposes of excluding them from the stipulation if it was Husband’s intention to do so. Kadel v. McMonigle, 425 Pa.Super. 253, 624 A.2d 1059 (1993) (holding that the Divorce Code is intended to provide the exclusive means of property determinations between divorcing spouses and a party may not attempt post decree to litigate property issues which could have been raised in the divorce proceedings). (

Lastly, Husband submits that the trial court committed error in awarding Wife the 1972 Chevrolet Corvette without first recognizing the value of the automobile. Pursuant to a stipulation between the parties, the value of the Corvette was set at $4,000.00. In her report, the Master recommended that the Corvette be awarded to Husband. The Corvette was actually awarded to Wife by the trial court after Husband specifically requested the trial court to do so.

Despite the fact that Husband requested that the trial court award the Corvette to Wife, Husband now argues that the trial court should have, in turn, provided him with the value of the transferred automobile. While there may have been merit to Husband’s argument at an earlier stage in these proceedings, he cannot now ask this court to do something which he did not ask the trial court to do, namely, to give him credit for the value of the transferred automobile. Kadel, supra.

Order affirmed in part and reversed and remanded in part in accordance with this opinion. That part of the order granting alimony pendente lite is vacated.

      . Delana was born on November 15, 1971, and Delecia was bom on June 25, 1977.

      . Custody of Delecia was placed with Wife pursuant to a prior court order. As Delana was over the age of eighteen at the time the court order was entered, she was not included in said order. Also, the Master made no recommendation regarding the issues of support as these issues were within the jurisdiction of the Domestic Relations division of the court.

      . Husband and Wife have lived separate and apart for the statutory period and the marriage is irretrievably broken, thereby providing grounds for a no-fault divorce pursuant to Section 3301(d).

      . Concerning the relationship between spousal support and alimony pendente lite, an award of spousal support may be converted to alimony pendente lite when a divorce is bifurcated from the economic claims. Desch v. Desch, 329 Pa.Super. 22, 477 A.2d 883 (1984). This court in McKeown v. McKeown, 417 Pa.Super. 520, 612 A.2d 1060 (1992) held that this conversion from spousal support to alimony pendente lite was not automatic and required some affirmative action on the part of the payee. This rule has since been changed under Pennsylvania Rule of Civil Procedure 1920.31(d) which provides, in its entirety, "Upon entry of a decree in divorce, any existing order for spousal support shall be deemed an order for alimony pendente lite if any economic claims remain pending.” Pa.R.C.P. 1920.31(d). The 1994 explanatory comment to Rule 1920.31 states that subsection (d) was created to change the decision in McKeown so that spousal support can be converted automatically to alimony pendente lite since there is a need in many cases for alimony pendente lite after the decree is entered, just as there was a need for spousal support before the decree.

      . In addition, it is important to point out that the trial court’s award of alimony pendente lite is actually a misnomer under the circumstances in this case. The Master recommended that Wife was entitled to alimony pendente lite, but determined that she would not receive any assistance under this award other than what Husband had already paid to her or on her behalf during the separation. Therefore, while the purpose of alimony pendente lite is to provide a dependent spouse with maintenance and professional services during the pendency of the proceedings, the Master’s recommendation did not serve this purpose since the award was merely a label for assistance which Husband had already provided. Restated, the Master’s recommendation of alimony pendente lite provided no maintenance to Wife during the pendency of the proceedings.

      . Husband had argued that the note following Pennsylvania Rule of Civil Procedure 1910.16-1 for Amount of Support, Support Guidelines, prevents orders for spousal support and alimony pendente lite from being in effect simultaneously. The note to Rule 1910.16-1 provides, in its entirety, “Orders for spousal support and alimony pendente lite shall not be in effect simultaneously.” Pa.R.C.P. 1910.16-1 note.
      The Master had determined that Husband had made certain payments of marital debts after the parties separated, but also determined that Wife was entitled to alimony pendente lite. The Master concluded that the amount of marital debts which Husband had paid during the separation was equal to his obligation for alimony pendente lite and, therefore, found that Husband had satisfied his alimony pendente lite obligation. Husband challenged this as effectively charging him with payment of spousal support and alimony pendente lite simultaneously in violation of the note to Rule 1910.16-1.
      In light of our disposition of this issue, we need not reach the question of whether the note that follows Rule 1910.16-1 applies retroactively to the improper award of alimony pendente lite in this case. Nonetheless, we question Husband’s assumption that he should be credited for his payment of debts when almost half of those debts, that is the credit card bills, were attributable to only him and not Wife.

      . Apparently, the Corvette was inoperable and Husband chose to give the automobile to Wife rather than have the vehicle towed from the former marital residence or attempt to perform maintenance upon the vehicle at the same location.

      . See Pa.R.C.P. 1910.1(c) defining "vacate” as declaring a particular order null and void, as if it were never entered.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    663 A.2d 178
    Robert WALKENSTEIN and Sally Walkenstein v. Susan WALKENSTEIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 14, 1995.
    Filed July 28, 1995.

      Joseph M. Lamonaca, West Chester, for appellant.
    Charles C. Shainberg, Philadelphia, for appellees.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HESTER, Judge:

This is an appeal by appellant-mother, Susan Walkenstein, from the May 10, 1994 order granting primary physical custody of David Walkenstein to his maternal grandmother, Sally Walkenstein, appellee. We affirm.

David was born out of wedlock on November 8, 1987. He lived with Mother until September 26, 1990, when she was involuntarily committed to Eastern Pennsylvania Psychiatric Institute (“EPPI”) for drug and alcohol abuse. Notes of Testimony (“N.T.”), 3/23/94, at 153. Grandmother and Grandfather, Robert Walkenstein, who are divorced, petitioned for and were granted joint custody of David in November, 1990. David has lived with Grandmother outside of Philadelphia since that time. Following Mother’s discharge from EPPI in October, 1990, she attended a six-week program at Eagleville Rehabilitative Hospital until November 26, 1990. At that time, Mother moved into Oxford House, a recovery rooming house, and attended a rehabilitative program supervised by the Council on Alcohol and Drug Abuse in Allentown, Pennsylvania. N.T., 11/10/93, at 11-12. Since November, 1990, Mother has remained drug and alcohol free, obtained an apartment, opened her own cleaning business, and enrolled in college. N.T., 11/23/94, at 150-53.

Mother attempted to visit David informally, but Grandmother was uncooperative. Grandfather, on the other hand, has encouraged Mother’s attempts at visitation. On October 15, 1992, Mother filed a petition for visitation and later sought, on February 16, 1993, primary physical custody of David. Hearings were held on November 10, 1993, March 1, 1994, March 23, 1994, and May 2, 1994. The witnesses included Mother, Grandmother, Grandfather, Mother’s boyfriend, Mother’s sister, Mother’s program director from the Council on Alcohol and Drug Abuse, psychologist Jonathan Gould, who evaluated Mother, Dr. Marla Isaacs, who evaluated everyone who has a caregiving role with David, and Dr. Marc Pellico, David’s school psychologist. In addition, the court spoke with then six-year-old David in chambers.

On May 10, 1994, the trial court granted Grandmother primary physical custody of David and ordered that Mother, Grandmother, and Grandfather share legal custody of the child. In addition, the court granted Mother partial physical custody every other weekend, alternating between Mother’s home and Grandfather’s home, and two weeks during the summer. Mother and Grandmother also were ordered to participate in joint and individual counseling.

Appellant raises the following issues for our review:

I. Whether the Trial Court respectfully erred in concluding that the subject minor child’s interest and permanent welfare would be best served by vesting custody in the Appellee, against the weight of the record evidence.
II. Whether the Trial Court respectfully erred in concluding that the appellant, as the child’s natural mother, did not have a Prima Facia (sic) right to custody of her child, against the child’s grandmother.
III. Whether the Trial Court respectfully erred in failing to rule at the onset of the hearing regarding matters raised of record regarding who had the burden of proof in this matter, and what that burden was.
IV. Whether the Trial Court respectfully erred in giving undue weight to the refuted testimony of the Court appointed evaluator.

Initially, we will address the first and third issues together, followed by the remaining two issues. Appellant contends that the trial court erred in concluding that Mother did not have a prima facie right to custody in her child and in failing to so rale at the beginning of the custody hearings.

In leveling these arguments, appellant has confused burden of proof as to custody with principles of standing as they relate to a third party’s ability to pursue a custody action against a natural parent. In such a case, we have stated:

Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parent. If the courts were to grant standing to third parties under these circumstances,
a parent’s prima facie right to custody could thus be challenged without a clear and convincing showing that the child is not receiving proper parental care. This is not appropriate when the party seeking custody lacks a legal basis to claim custody equal with that of a parent. It is an unacceptable means of circumventing the procedures established to determine the necessity of forfeiting parental rights.

Rosado v. Diaz, 425 Pa.Super. 155, 158-59, 624 A.2d 193, 195 (1993), quoting Gradwell v. Strausser, 416 Pa.Super. 118, 123, 610 A.2d 999, 1002 (1992). Standing is granted where a party stands in loco parentis to a child and thus has assumed obligations incident to the parental relationship. Id.

In the present case, Grandmother has established her standing since she was granted custody of David by court order dated November 28, 1990, at which time Mother was committed involuntarily to a psychiatric hospital and the identity of father was unknown. The November 28 order also indicates that the matter could be reopened upon application of Mother or Father. Obviously, Mother was in no position to seek the return of her child until she did so in February, 1993. See Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995) (maternal aunt clearly established that she stood in loco parentis to child and therefore had standing to seek custody where child was in aunt’s custody for twenty-eight months, mother consensually left child in aunt’s care, and aunt provided food, shelter, and clothing during that period).

Clearly, this is not a situation where a third party is seeking custody from a natural parent and the issue of standing initially must be addressed. Rather, due to Mother’s unavailability and incapacity, and Father’s non-involvement, Grandmother and Grandfather were awarded custody pursuant to a valid, unchallenged court order. When Mother rehabilitated herself to the point she became ready to resume the care of her child, approximately two and one-half years later, the court’s focus was whether it was in David’s best interest to remain in his Grandmother’s care or to return to his Mother.

The record is not clear whether David was declared a dependent child in November, 1990, when Grandparents sought and were awarded custody. Any issue of standing properly would have been before the court at that time. What is clear, however, is that the November, 1990 order never was appealed, and Grandmother has raised David since he was barely three years old. Upon Mother’s 1993 petition, the trial court accepted Grandmother’s in-loco-parentis status and considered whether it was in David’s best interest to remain with his Grandmother or return to his Mother. The trial court did not err.

We find guidance from Vicki N. v. Josephine N., 437 Pa.Super. 166, 649 A.2d 709 (1994). The natural mother in Vicki N. appealed the lower court’s award of primary custody of her child to the maternal aunt. We stated therein:

[A]unt did not need to file a dependency action once she established herself as one in loco parentis with the child. Rosado v. Diaz, 425 Pa.Super. 155, 161, 624 A.2d 193, 196 (1993). Mother was in no way deprived of a determination by the court of the necessity of forfeiting her rights. Rather, mother voluntarily forfeited her rights by abandoning [the child] at birth with no intent to assume parental obligations. The evidence was clear and convincing [the child] was not receiving any parental care when aunt acquired in loco parentis status. Mother’s challenge came well after [the child] had been placed in the temporary custody of aunt, who had a prima facie right to custody by virtue of her status in loco parentis.

Id., 437 Pa.Super. at 171-72, 649 A.2d at 711.

Finally, the trial court stated that it had, in fact, “required Grandmother to carry the burden of proof by clear and convincing evidence____” Trial court opinion, 9/28/94, at 11. In a recent case where the natural father sought custody of his child from the maternal grandmother after the child’s mother was killed, we stated:

In a custody dispute between a parent and a non-parent, the non-parent bears both the burden of persuasion and the burden of production concerning evidence. Karner v. McMahon, 433 Pa.Super. 290, 299, 640 A.2d 926, 930 (1994). The non-parent’s evidentiary burden is a heavy one as the scales are “tipped hard” in favor of the parent. Id (quoting In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977)). Although it has sometimes been said that a natural parent possesses a “prima facie right” to custody of his or her child, this cannot be understood as designating a property right in the child. Id. (citing Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980)). Parenthood alone is insufficient to defeat a custody claim raised by a non-parent; the hearing court must remain free to award custody to the person who will most adequately foster the best interests of the child. Id., 433 Pa.Super. at 300, 640 A.2d at 931.

Dorsey v. Freeman, 438 Pa.Super. 236, 239, 652 A.2d 352, 353 (1994). See also Cardamone v. Elshoff, supra (standard for adjudication of custody disputes between parent and third party requires non-parent to bear burden of production and persuasion but does not preclude award of custody to the non-parent). The trial court applied the appropriate standard for adjudication of custody disputes between a parent and a third party and required Grandmother to carry her burden of persuasion and production concerning the evidence.

Moreover, there is no merit to appellant’s claim that the trial court erred in failing to so rule at the start of the hearings in this matter. Appellant was aware at all times what burden she carried as evidenced by her request that the trial court rule that Grandmother carried the burden of proof. Her nebulous claim that the court’s failure to rule at the outset deprived her of guidance “in questioning and cross-examining witnesses, and experts, and in preparing for and presenting the case” simply is not substantiated in the record. Appellant’s brief at 20.

Furthermore, by not ruling as to the allocation of the burden of proof at the outset, the trial court actually forced appellant to proceed as if she carried the burden of production and persuasion. Thus, when the trial court analyzed the evidence, noting that Grandmother bore the burden of persuasion and production, appellant was held to a less stringent standard than she may have thought during the hearings. Therefore, the trial court is correct that any error in failing to rule on this matter at the outset was to her benefit.

Finally, we note that appellant has failed to cite any cases in support of her argument, thereby supporting our conclusion regarding the meritless nature of this claim. Gordon v. Gordon, 436 Pa.Super. 126, 647 A.2d 530 (1994), petition for allowance of appeal granted, 540 Pa. 583, 655 A.2d 515 (1995) (where husband’s claim was unsupported, lacking references to the record or to any legal authority, it was dismissed as meritless).

Appellant also argues that the trial court erred in concluding that it was in David’s best interest to remain in his Grandmother’s custody.

In any custody dispute, whether the case involves two natural parents or a parent and a third party, the court’s overriding concern is always to determine what will serve the best interests of the child. Id. This question may never be subordinated to other considerations such as “fundamental rights and fair play.” Andrews v. Andrews, 411 Pa.Super. 286, 289 n. 2, 601 A.2d 352, 353 n. 2 (1991), aff’d, 533 Pa. 354, 625 A.2d 613 (1993). The custody court has the obligation to weigh all relevant factors that could affect the child’s well being. Id., 411 Pa.Super. at 289, 601 A.2d at 353. In a custody dispute, all other issues are deemed less important than the child’s physical, intellectual, moral, and spiritual well-being. Nonnenman v. Elshimy, 419 Pa.Super. 597, 600, 615 A.2d 799, 801 (1992), appeal denied, 535 Pa. 637, 631 A.2d 1008 (1993); Warren v. Rickabaugh, 410 Pa.Super. 431, 600 A.2d 218 (1991).
[T]he fact that the best interests of the child is the paramount consideration is ... beyond peradventure ... Indeed, even the rights of natural parents are subordinate to the child’s best interest. Constant A. v. Paul C. A., 344 Pa.Super. 49, 496 A.2d 1 (1985).
Karner v. McMahon, 433 Pa.Super. at 301-02, 640 A.2d at 932.

Dorsey v. Freeman, supra, 438 Pa.Super. at 239, 652 A.2d at 353 (1994).

The trial court reviewed all of the evidence offered at the hearings on this matter and concluded that while Mother should have increased partial custody with David, it was in the child’s best interest to remain in Grandmother’s care. The trial court stated:

It should be emphasized that the Court envisions a point in the future where Mother will regain custody. Throughout the hearings on this matter, the Court took pains to remind these litigants that, just as David will grow and change, they will age and change. No custody decision is written in stone and this one certainly will need to be revisited to assess David’s development and his needs as well as the progress made by the adults in his life. However, at the present time, David is at a point in his progress where stability, routine, and clear limits are key.

Trial court opinion, 9/28/94, at 9.

The trial court emphasized David’s special needs in that he has been diagnosed with attention deficit disorder. During the 1994-95 school year, David was to be placed in a special class wherein his learning deficits were to be addressed through a program of specially designed instruction. The trial court concluded based upon all of the evidence presented that a major change in David’s home and school situation would jeopardize his progress and thus, was not in his best interest.

In arguing that the trial court erred in concluding that David’s best interests compel that he remain in Grandmother’s primary physical custody, appellant focuses upon the unfavorable testimony presented by Dr. Marla Isaacs, the court-appointed evaluator, regarding Grandmother. For example, Dr. Isaacs noted that Grandmother, to David’s detriment, refused to refer to appellant as “mommy” when speaking to David and insisted in referring to her as Susan. Moreover, the evaluator noted that Grandmother’s anger toward appellant and her lack of compassion for Susan “may lead her to undermind (sic) any constructive relationship that David can develop with his mother----” N.T., 3/23/94, at 78.

While the record certainly supports the fact that Grandmother’s attitude toward appellant has the potential to undermine David’s relationship with Mother, there also was considerable testimony regarding factors weighing against David’s return to appellant. Dr. Isaacs testified that Mother, while usually able to control her emotions, experiences lapses “when the temper outburst is being turned into rages.” Id. at 38. The psychologist described Mother as immature and impulsive with a tendency to overreact. Id. In response to appellant’s counsel’s question, “[Wjouldn’t it be better to take the risk and transfer custody back to the Mother now, presently?”, Id. at 98, Dr. Isaacs responded,

Well, for the reasons that I said and I can repeat them, but the plain one is he is very much connected to his Grandmother and this is the life that he knows, this is where he’s been for the last three years, close to three years, the psychological capacity when compared leaves the Grandmother in a far better position at this point to deal with David. Notwithstanding she’s not perfect and it’s a major problem that she feels the way she does towards her daughter. But it’s also a major problem that Susan feels the way she does towards the Grandmother who would have to stay an active part of this child’s life if we’re talking about this child’s development because he’s already sustained a lot. He can’t afford to sustain any more losses. Right now the loss that he would be sustaining would be losing his home and his Grandmother. That would be experienced by him as the loss. That’s where he’s been living. That’s the life he knows and I don’t think he can sustain that loss at this time in his life.

Id. at 98-99.

That we may have decided this case differently from the trial court does not, in light of our standard of review, allow us to reverse the trial court. It is clear that Mother has worked very hard at conquering the factors in her life that impeded her relationship with her child. Moreover, it also is clear that Grandmother’s attitude to Mother has the potential to undermine any relationship between Mother and David, which will not be tolerated. However, the trial court considered all of the evidence presented in this case, evaluated the credibility of the witnesses, as it must, and made conclusions which are supported by the evidence presented. We cannot say that the trial court erred.

Finally, Mother contends the trial court erred in giving undue weight to the testimony of Dr. Isaacs. Again, appellant underscores Dr. Isaacs’s testimony that Grandmother harbors anger toward Mother which may impact on the relationship between David and appellant. We defer to the trial court on issues of credibility and weight of the evidence, as that court has had the opportunity to observe the demeanor of the witnesses. Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988). We are not troubled by the trial court’s apparent conclusion that the evidence offered in support of transferring custody to appellant was outweighed by the evidence offered in support of not doing so. The trial court considered all of the factors impacting upon David’s best interest, and determined that they compel that David remain with Grandmother. A review of the trial court opinion reveals that not only did the trial court consider the testimony of Dr. Isaacs, but it also considered testimony of the parties, Dr. Gould, Dr. Pellico, and others. From our independent review of the record, we cannot say that the trial court’s order represents an abuse of discretion.

Order affirmed.


author: DEL SOLE, Judge:

text:
    663 A.2d 184
    Dolores CALIBEO, Appellant, v. Joseph J. CALIBEO, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed July 31, 1995.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    David E. Wagenseller, III, Lancaster, for appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

Dolores Calibeo appeals from the Order of October 18, 1993 entered following a hearing on her Petition For Increase Of Support Order. We affirm.

The following is a brief recitation of the procedural history in this case. The parties were married for thirty-one years and had five children. They separated in May 1987. Appellant filed a Complaint in Divorce which included a claim for support in April 1988. She filed a separate complaint for spousal support in July 1988, and on that complaint a Domestic Relations Hearing Officer recommended that Appellee pay alimony pendente lite of $200 per week. Exceptions were filed, and a hearing was held on the matter. The trial court increased the order to $500 per week. Appellee appealed to this court and was denied relief. On March 12, 1993, Appellant filed a Petition For Increase Of Support Order. A conference was held and the Domestic Relations Officer recommended that the order be increased to $712 per week to be effective as of the date of the filing of the petition. The Appellee was also required to pay an additional $20 per week on arrears. Appellee filed exceptions to this recommendation and a hearing was held. The trial court dismissed Appellee’s claims and ratified the hearing officer’s recommendation in all respects. Appellant then filed this appeal.

Before addressing Appellant’s contentions, we first raise sua sponte the issue of this court’s jurisdiction. The trial court failed to clearly designate whether it was awarding spousal support or alimony pendente lite. In the past, this would have been important for appeal purposes. It is well settled that alimony pendente lite is interim relief which is interlocutory and unappealable until the final disposition of a divorce case. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). We have also determined that an order for spousal support, set in a divorce action, is indistinguishable from alimony pendente lite, and is interlocutory and unreviewable on appeal as well. Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319, 321 (1986). Until recently, where a an order for spousal support was entered in a support proceeding initiated by a complaint filed separately from the divorce action, the order for spousal support was a final, appealable order. Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991), citing Ritter, supra, 359 Pa.Super. 12, 16, n. 2, 518 A.2d 319, 321 n. 2 (1986).

In a prior unpublished memorandum on this case, we stated that there was some confusion regarding whether the order was for alimony pendente lite or spousal support. We concluded that the thrust of the court’s action was to grant support under the Rules, instead of in relation to the divorce action, and therefore the order was final and we considered the appeal. However, since that decision, the Pennsylvania Rules of Civil Procedure have been modified. For instance, Pa.R.C.P. 1920.76 was amended on December 2,1994, effective March 1, 1995. This Rule sets forth the basic form of a divorce decree. The new language provides that “[a]ny existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending.” Similarly, Pennsylvania Rule of Civil Procedure 1920.31(d) was amended December 2, 1994, effective March 1, 1995. It states that “[ujpon entry of a decree in divorce, any existing order for spousal support shall be deemed an order for alimony pendente lite if any economic claims remain pending.” The Explanatory Comment to Rule 1920.31 asserts that prior to the recent changes to the Rules, spousal support could not be automatically converted to alimony pendente lite. See McKeown v. McKeoum, 417 Pa.Super. 520, 612 A.2d 1060 (1992). But, since amended Rule 1910.16-l(a) requires that alimony pendente lite be determined pursuant to the support guidelines, the difference between alimony pendente lite and spousal support, no matter if it is part of the divorce action or filed separately, is negligible and now neither is appealable until all claims are resolved. Under new Rule 1920.76 and 1920.31(d), pre-divorce spousal support is automatically converted to alimony pendente lite upon entry of a divorce decree.

Furthermore, the rules provide that an unallocated order for the support of a spouse and at least one child is a final order which would be appealable. 42 Pa.R.C.P. 1910.16(b). This Rule serves as a child support enforcement procedure which unfortunately has become necessary in light of the deterioration of the families in our society. We note that there is no comparable language in our Rules of Civil Procedure making an order solely for spousal support final and appealable.

Pursuant to 42 Pa.R.C.P. 52(c), an amendment to a rule is applicable to cases pending on the effective date of the amendment, unless our supreme court specifies otherwise. Because the amended Rules discussed above became effective while the present appeal was pending, they are applicable to the case before us. The record, prior to augmentation by Appellant, did not contain information that the other economic claims between the parties had been resolved. If the divorce had been entered while other economic claims were still pending, we would have determined that the spousal support automatically converted to alimony pendente lite pursuant to the new applicable rules, and the appeal would have been considered interlocutory and unappealable. But, since a divorce was entered in this case and the supplemented record now reflects that no economic claims remain to be decided, the spousal support award is deemed alimony pendente lite and will be reviewed on its merits.

When reviewing support orders, our scope of review is limited.

A trial court has broad discretion in fashioning support awards and we will not reverse its decision unless there is insufficient evidence in the record to sustain it or the trial court abused its discretion. An abuse of discretion is “more than an error of judgment. It must be a misapplication of law or an unreasonable exercise of judgment.” A finding of such abuse is not lightly made an must rest upon a showing of clear and convincing evidence. (Citations omitted).

Brower v. Brower, 413 Pa.Super. 48, 53, 604 A.2d 726, 729 (1992).

Appellant first argues that the trial court committed an error of law and abused its discretion by failing to make the order for support retroactive to the date of the filing of the Petition For Increase of Support Order which was filed on March 12, 1993. Pennsylvania Rule of Civil Procedure 1910.17(a) states that “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” We also note that there is a sound policy favoring retroactivity in the majority of cases, and, unless the trial court articulates specific and appropriate reasons for denying retroactive support, the support order will be made retroactive. Crawford v. Crawford, 429 Pa.Super. 540, 633 A.2d 155 (1993). The order of the court dated October 18, 1993 states that “the Recommended Order entered on June 3, 1993 be ratified and confirmed in all respects and particulars. Effective October 15, 1993 [the date of the hearing].” We believe that Appellant misinterpreted the trial court’s order.

The Recommended Order entered on June 3, 1993 required Appellee to pay $712.00 per week to Appellant retroactive to March 12, 1993 — the date Appellant filed the , petition to increase support. Since the trial court’s October 18, 1993 order ratified and confirmed the June 3, 1993 order in all “respects and particulars,” this would include the retroactive date of March 12, 1993. If the trial court had changed the retroactivity date of the increase in support to the date of the October hearing, this clearly would have been an error as no reasons were articulated by the court justifying a nonretroactive order. In any case, it appears to this court that the trial court did not change the retroactive date of the support order, but merely specified the effective date of its new order.

Next, Appellant contends that the trial court erred by assigning to her a $200.00 a week earning capacity. Appellant testified at the hearing in October 1993 that she was still recuperating from a fractured ankle which occurred in June 1991. She complained that the ankle continues to cause her pain. Appellant further stated that she had surgery on the ankle in February of 1992 and has not applied for a job since that time. Appellant stated she had not been employed since shortly after the separation in 1987, and was only employed then for five weeks as a clerk at $3.50 per hour. She concluded that she could not stand on her ankle for any length of time.

Rule 1910.16 — 5(c)(5) of the Rules of Civil Procedure provides:

Income potential. Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity.

Appellant was fifty-seven years of age at the time of the hearing. She has a twelfth grade education and some work experience outside of the home. The record does not contain any medical evaluation which would sustain Appellant’s claim that she is disabled and unable to work. Appellant admits that she has not sought employment since February 1992. Under these circumstances, an earning capacity of $200.00 per week is not an unreasonable amount to attribute to Appellant, nor is it an abuse of discretion or an error of law.

Finally, Appellant asserts that the trial court failed to enter a guideline support order. Appellant argues that Appellee’s net income for 1992 was $116,106. Appellee estimates his earning capacity to be approximately $100,000. Ostensibly, the hearing officer determined that Appellee’s total income for 1992 was $149,944 based upon his federal tax return. After deductions and exemptions totalling $46,824, Appellee’s taxable income was $103,120. The support guidelines computation sheet completed by the Domestics Relations Officer indicated that Appellee’s average pay period income was $1980.00 [$103,000 divided by 52]. The monthly income for Appellee is approximately $8583.00 [$1980 times 4.33]. Appellant’s monthly income, based on a $200.00 earning capacity, is approximately $866 [$200.00 times 4.33]. The difference between the parties’ monthly net income multiplied by 40% is $3,086. The monthly spousal support amount of $3,086 divided by 4.33 is $712 per week.

Contrary to Appellant’s position, the appropriate guideline calculation was made pursuant to the formula enunciated at Pa.R.C.P. 1910.16-3. Appellant has not established that the trial court abused its discretion or erred as a matter of law.

Accordingly, the order is affirmed.

      . Although Appellant complied with the trial court’s order to file a concise statement of the matters complained of on appeal pursuant to PA.R.A.P. 1925(b), the trial court failed to file an opinion.

      . The number of weeks in a year divided by the number of months in a year equals 4.33.


author: HUDOCK, Judge:

text:
    663 A.2d 187
    David S. EDWARDS, Appellant, v. FRANKLIN & MARSHALL COLLEGE, Appellee.
    Superior Court of Pennsylvania.
    Argued June 27, 1995.
    Filed Aug. 3, 1995.

      Richard C. Low, Lancaster, for appellant.
    Christian S. Erb, Jr., Harrisburg, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

David S. Edwards (Edwards) appeals from the order of the trial court granting summary judgment in favor of Franklin & Marshall College (F & M) in a personal injury action. Edwards’ sole claim on appeal is that the trial court erred in determining that the Peculiar Risk Doctrine, an exception to the rule that an employer of an independent contractor is not liable for injuries caused by the negligence of the contractor or its servants, is not applicable. Finding no merit to this contention, we affirm.

The facts were summarized by the trial court as follows:

[Edwards], a construction worker, was injured when he fell through a roof on property owned by [F & M] on July 1, 1987. At the time of the accident, [Edwards] was an employee of Benchmark Construction Company, Inc. [Benchmark]. Benchmark had been hired by [F & M] to do primarily exterior renovation work on several buildings. The work to be done consisted of removal of broken glass, the placement of corrugated panels behind windows for weather protection and the placement of plexiglass panels on the exterior portion of a building. The buildings in question were part of the former Posey Iron Works, which had been purchased by [F & M]. One structure was to be used as a tennis building, another as an ice skating rink. The tennis building is next to the ice skating rink building. Benchmark was retained to install corrugated panels over the outside of the windows to the tennis building. To install these corrugated panels, Benchmark placed a moveable scaffold next to the tennis building. During the course of the work on the tennis building, at least one Benchmark employee walked over the roof of yet another building intended to house an indoor track. The indoor track building is located next to the tennis building on the other side from the ice rink. One of [Benchmark’s] employees stepped on the transite roofing and his foot went through. Fortunately, he was not injured. The employees had apparently been instructed prior to commencing work on the indoor track building that the roof was brittle and that they should walk where there were supporting trusses or other supports under the roof. [Edwards] was injured when he went up on the transite roof over the indoor track building to patch the hole from where his fellow employee’s foot went through. While on the roof, [Edwards] broke through the roofing and fell to the floor below.

Trial Court Opinion, 1/5/95, at pp. 1-2.

Edwards filed a complaint for injuries arising from the accident on June 30, 1989. The parties completed discovery and a pre-trial conference was held. Thereafter, F & M filed a motion for summary judgment as to the issue of liability. It was F & M’s position that Edwards, as an employee of an independent contractor, could not maintain an action against it for injuries sustained while he was on the job with his employer. After hearing oral argument and receiving briefs from the parties, the trial court granted F & M’s motion. In doing so, the court concluded that “the risk of stepping through this roof was not different from the usual and ordinary risks associated with the general type of work being done.” Trial Court Opinion, 1/5/95, at p. 6. This appeal followed.

Our standard used when reviewing the grant or denial of a motion for summary judgment is well-settled:

The law relating to summary judgment is settled. A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party, and must resolve all doubts against the moving party.

Lorah v. Luppold Roofing Company, Inc., 424 Pa.Super. 439, 443, 622 A.2d 1383, 1385 (1993) (citations omitted).

With regard to the Peculiar Risk Doctrine, this Court has recently stated:

The established law in Pennsylvania provides that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Hader v. Coplay Cement Co[.], 410 Pa. 139, 150, 189 A.2d 271, 277 (1963); Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 52, 528 A.2d 1355, 1357 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987). See also Restatement (Second) of Torts, §§ 416, 427. One exception to this rule provides that an employer may be liable for the negligence of its employee/independent contractor where the work to be performed by the independent contractor involves a special danger or peculiar risk.

Steiner v. Bell of Pennsylvania, 426 Pa.Super. 84, 88, 626 A.2d 584, 586 (1993) (footnote omitted). The Peculiar Risk Doctrine denotes a concept of employer nonliability as set forth in sections 416 and 427 of the Restatement (Second) of Torts:

§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
§ 427. Negligence as to Danger Inherent in the Work
One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precaution against such danger.

The rationale underlying this exception was articulated in Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987), alloc. den., 517 Pa. 608, 536 A.2d 1332:

[A]n employer of the independent contractor ought to anticipate a heightened level of risk where the work is specially dangerous or peculiarly risky. It is reasonable for the employer to take precautions or cause the independent contractor to take precautions to minimize the possibility of injury to others. After all, it is the employer who primarily benefits from the [independent] contractor’s work and the employer who selects the independent contractor. Furthermore, the employer is in a position to make the selection of the independent contractor based on competency. The employer also may demand indemnity from the [independent] contractor. Finally, the employer, anticipating the risk, can purchase insurance to cover it.

Id. 365 Pa.Super. 53-54, 528 A.2d at 1357-58. After noting that no Pennsylvania appellate decision had enunciated a precise definition of the terms “special danger” or “peculiar risk,” the Ortiz panel held that a special danger or peculiar risk exists where:

1) the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.

Id. at 54, 528 A.2d at 1358 (emphasis added). This Court has further stated that the key to the proper application of the two Restatement sections lies in the definition of a “peculiar risk” or a “special danger.” Mentzer v. Ognibene, 408 Pa.Super. 578, 590, 597 A.2d 604, 610 (1991) (plurality), alloc. den., 530 Pa. 660, 609 A.2d 168 (1992). As the Mentzer panel also stated:

The risk of harm must arise from the peculiar or inherent nature of the task or the manner of performance, and not the ordinary negligence which might attend the performance of any task. “[Liability does not ordinarily extend to so called ‘collateral’ or ‘casual’ negligence on the part of the contractor ... in the performance of the operative details of the work. The negligence for which the employer [of a general contractor] is liable ... must be such as is intimately connected with the work authorized and such as is reasonably likely from its nature.”

Id. 408 Pa.Super. 590, 597 A.2d at 610 (quoting McDonough v. United States Steel Corporation, 228 Pa.Super. 268, 275-76, 324 A.2d 542, 546 (1974) (emphasis in original). Stated differently, the definition of “peculiar risk” or “special danger” requires that “... the risk be recognizable in advance and contemplated by the employer [of the independent contractor] at the time the contract was formed____[and that] it must not be a risk created solely by the contractor’s ‘collateral negligence’ ... [i.e.,] negligence consisting wholly of the improper manner in which the contractor performs the operative details of the work.” Mentzer, 592, 597 A.2d at 611 (citation omitted).

Finally, we note that: “The determination of whether a particular case presents a peculiar risk or special danger is a mixed question of law and fact and may, in clear cases, be made by the trial judge as a matter of law.” Id. 590, 597 A.2d at 610 n. 6.; see also Ortiz, 365 Pa.Super. 55, 528 A.2d at 1359; McDonough, 228 Pa.Super. 275, 324 A.2d at 546 n. 6. Compare Lorah, 424 Pa.Super. 445, 622 A.2d at 1386 (“Whether a peculiar risk exists is a matter for the court to decide before submission to the jury.”). Finally, because the Peculiar Risk Doctrine is an exception to a general rule, it should be viewed narrowly. As this Court has stated:

To characterize all construction work or all scaffold work as involving a special danger or peculiar risk would render the terms “special danger” or “peculiar risk” meaningless:
In order for the liability concepts involving contractors to retain any meaning, especially in industries such as construction where almost every job task involves the potential for injury unless ordinary care is exercised, peculiar risk situations should be viewed narrowly, as any other exception to a general rule is usually viewed.
Marshall v. Southeastern Pa. Transp. Auth., 587 F.Supp. 258, 264 (E.D.Pa.1984); see also Restatement (Second) of Torts § 413 comment b. All construction work involves a risk of some harm; only where the work is done under unusually dangerous circumstances does it involve a “special danger” or “peculiar risk.”

Ortiz, 55, 528 A.2d at 1359 (footnote omitted).

Applying the above principles of law to the facts presented in the instant case, we conclude that the Peculiar Risk Doctrine has no application. Thus, the trial court did not err in granting F & M’s motion for summary judgment.

As noted above, the determination as to whether a peculiar risk existed involves a two-step test. The first step is whether the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., would a reasonable person, in the position of the employer, foresee the risk and recognize the need to take special measures. Ortiz, 53, 528 A.2d at 1358. The trial court found that both F & M and Benchmark were fully aware of the deteriorating and dangerous nature of the roof. The trial court further found, however, that F & M did take “special measures” with regard to this dangerous condition by selecting an experienced construction contractor, Benchmark, to perform the task assigned. Even if we were to disagree with this conclusion, it is clear from the record that Edwards cannot satisfy the second prong of the Ortiz test, that is, “the risk is different from the usual and ordinary risk associated with the general type of work done[.]” Id. 53, 528 A.2d at 1358. The record reveals that Benchmark was in the business of constructing and reconstructing commercial structures. All parties involved were aware that the structures to be worked on were old and deteriorating in certain areas. Because the remodeling of these old structures necessarily involved working high off the ground, the danger of falling is apparent. Moreover, from the beginning of the work project Benchmark employees were informed of the dangerous nature of the roof and were told that, if they had to traverse the roof, they were to walk only on the supporting trusses and purlins. Indeed, a fellow Benchmark employee’s foot had, on a prior occasion, gone through the roof and Edwards was in the process of patching that hole when he fell. Thus, in this situation, we are not persuaded by Edwards’ claim that a fall off the roof was foreseeable, while a fall through the roof was not. Clearly, the risk that Edwards might fall through the roof, given the known deteriorated condition of the building that was being repaired, did not present a “special danger” or “peculiar risk.”

Order affirmed.

      . In essence, Edwards’ argument that the transite roof was an unfit and dangerous work surface is a claim that the working conditions were unreasonably dangerous. Such a claim has been rejected by this Court when considering the applicability of the Peculiar Risk Doctrine. See Lorah, 424 Pa.Super. 439, 622 A.2d at 1386 (because many if not all industrial accidents result from the failure to follow safety regulations, a violation of safety conditions alone cannot be the basis for finding that the Peculiar Risk Doctrine applies); Peffer v. Penn 21 Associates, 406 Pa.Super. 460, 464-65, 594 A.2d 711, 713 (1991) (same); Mentzer, 597 A.2d at 611 (a peculiar risk is not found where the negligence consists wholly of the improper manner by which the contractor performs the operative details of the work).


author: BECK, Judge:

text:
    663 A.2d 191
    COMMONWEALTH of Pennsylvania v. Thomas NAMACK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1995.
    Filed Aug. 2, 1995.

      Michael E. Geltner, Washington DC, amicus curiae.
    Jay R. Rose, Paupach, for appellee Com.
    Before WIEAND, BECK and BROSKY, JJ.
   BECK, Judge:

Appellant Thomas Namack challenges the sufficiency of the evidence supporting his conviction for defiant trespass, 18 Pa.C.S. § 3503(b)(1). Upon review of the parties’ briefs, the record and the applicable law, we conclude that the evidence was insufficient to establish that appellant had the mens rea necessary to commit the crime of defiant trespass. We therefore reverse.

Appellant’s conviction arose from his use of a trail leading across property owned by complainant John McKay and McKay’s father and brothers, to the banks of the Delaware River. John McKay and his father William McKay testified that the property, which they characterized as woodland, was not fenced in any way but was posted against trespassers. The McKays further testified that they had given permission to several neighbors, the appellant among them, to use the trail in order to reach a swimming hole on the river. In May, 1993, John McKay asked appellant to sign a hold-harmless agreement which recited that in consideration of McKay’s grant to appellant of permission to use the trail free of charge, appellant agreed to hold McKay harmless for any injuries or other harm suffered while on the property. Appellant refused to sign the agreement, advising McKay that he believed he had a legal right to use the trail which would be compromised if he signed. Subsequently, McKay presented appellant with a second, similar agreement and told appellant that if he did not sign the agreement, he would not be permitted to use the trail. Appellant responded that he would have to look the agreement over.

On August 15, 1998, McKay met appellant on the trail and asked him whether he had signed the hold harmless agreement. Appellant stated that he had not, and asked whether McKay had received a letter from his lawyer. McKay replied in the negative, and some discussion ensued regarding appellant’s right to be on the trail, which ended with appellant telling McKay that he should call the authorities if he felt it necessary. Appellant then left the property.

On August 18, 1993, John McKay filed a private criminal complaint asserting that the August 15 incident constituted a defiant trespass in violation of 18 Pa.C.S. § 3503(b)(1) in that appellant “did, knowing that he was not licensed or priviledged [sic] to do so, enter or remain in any place, to wit: affiants [sic] river property ... as to which notice against trespass was given by actual communication to him. The defendant then defied an order to leave personally communicated to him by one John S. McKay, the owner/caretaker of the premises and also by affiant’s attorney.” Appellant was found guilty in summary proceedings before a district justice. He appealed this determination to the court of common pleas, which conducted a non-jury trial on May 2, 1994.

At trial, the prosecution introduced evidence establishing the facts recited above. The defense introduced witnesses who testified that appellant and other members of his family, including those from whom he inherited his property near the trail, had used the trail for many years without permission from the McKays or their predecessors in interest. An aunt of appellant who was born in 1920 testified that the trail had been in use by the family since her childhood and that such use had always been with the knowledge but without the permission of the owners of the property now owned by the McKays. She testified further that, prior to a flood in 1955, the area surrounding the trail was not woodland, but had been covered primarily with grass and low brush with only a few trees. Appellant and his wife also testified that they had consulted with counsel regarding the trail and had been advised that they had a right to use the trail independent of the McKays’ permission and therefore that they should not sign any hold-harmless agreement which suggested that their right to use the trail was dependent upon such permission.

Following the non-jury trial, the trial court found appellant guilty of defiant trespass and sentenced him to pay a fine of $200. This timely appeal followed.

Appellant raises three issues on appeal, each of which essentially challenges the sufficiency of the evidence against him. Because we are persuaded by appellant’s first claim, namely that the conviction “must be reversed because there was no evidence or finding below that appellant knew that he was not privileged to be on the property on which he was claimed to be trespassing,” we will not address his other claims.

In considering this challenge to appellant’s conviction, we are mindful that our review is limited. In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the crime charged beyond a reasonable doubt. Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335 (1995).

The crime of defiant trespass is defined as a subspecies of criminal trespass. The pertinent statute provides:

(b) Defiant trespasser.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor; or
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(in) fencing or other enclosure manifestly designed to exclude intruders.

18 Pa.C.S. § 3503(b)(1). Thus in order to establish a violation it is necessary to prove that the defendant: 1) entered or remained upon property without a right to do so; 2) while knowing that he had no license or privilege to be on the property; and 3) after receiving direct or indirect notice against trespass. The crime of defiant trespass thus includes an element of intent or mens rea. See Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978) (holding that parallel language in 18 Pa.C.S. § 3503(a), defining crime of criminal trespass with respect to occupied buildings or structures, includes an element of scienter); Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992) (stating, in dicta, that defiant trespass could not be proven in absence of evidence that appellant knew she was not privileged to be on the subject property). This element of intent, like every other element of the crime, must be proven beyond a reasonable doubt if the conviction is to survive a challenge to the sufficiency of the evidence.

The evidence in this case, even when viewed in the light most favorable to the Commonwealth, does not establish that appellant, when he entered the McKay property on August 15, 1993, knew that he was not privileged to be there. To the contrary, the uncontradicted testimony of appellant and his wife establishes that appellant, after consulting with counsel on the issue, believed that he had acquired a right to use the trail through an easement by prescription. Moreover, the testimony of the complainant himself established that appellant had previously expressed this belief to the complainant. Even if, as the Commonwealth asserts, this belief was in error because no prescriptive easement could be created on unenclosed woodland, the evidence established no more than a good faith mistake on appellant’s part.

It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances, negate the element of criminal intent. 18 Pa.C.S. § 304 (providing, inter alia, that ignorance or mistake as to a matter of fact, for which there is a reasonable explanation or excuse, is a defense if “the ignorance or mistake negatives the intent, knowledge, recklessness, or negligence required to establish a material element of the offense”); Commonwealth v. Compel, 236 Pa.Super. 404, 344 A.2d 701 (1975); Commonwealth v. Bollinger, 197 Pa.Super. 492, 496, 179 A.2d 253, 255 (1962). “It is not necessary that the facts be as the actor believed them to be; it is only necessary that he have ‘a bona fide and reasonable belief in the existence of facts which, if they did exist, would render an act innocent.’ Commonwealth v. Lefever, 151 Pa.Super. 351, 353-54, 30 A.2d 364, 365 (1943). See generally, Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).” Commonwealth v. Compel, supra at 407, 344 A.2d at 702-03. When evidence of a mistake of fact is introduced, the Commonwealth retains the burden of proving the necessary criminal intent beyond a reasonable doubt. Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 1000-01 (1992). In other words, the Commonwealth must prove either the absence of a bona fide, reasonable mistake, or that the mistake alleged would not have negated the intent necessary to prove the crime charged.

Here, the evidence clearly establishes appellant’s belief that he had a right to be on the property. Moreover, the history of his family’s use of the trail, the testimony that the family’s right to use the trail had been established when the property was not wooded, and the fact that appellant’s actions were based in part on the advice of counsel suggest that appellant’s belief was not unreasonable and was held in good faith. Further, if appellant’s belief were correct, he would not have been trespassing and thus could not have possessed the knowledge of wrongful presence on the land necessary to the crime of defiant trespass. The trial court did not find the testimony of the defense witnesses incredible. Rather, it completely ignored such evidence on the basis that appellant’s subjective belief was irrelevant. As the cases discussed above amply demonstrate, this was error.

Because the Commonwealth failed to establish either that appellant did not have a bona fide belief in his right to use the trail or that the facts believed would not, if true, have rendered his presence on the McKay property entirely innocent, we must conclude that the Commonwealth failed to prove beyond a reasonable doubt that appellant entered the property knowing that he had no license or privilege to do so. In light of the failure to prove this essential element of the crime of defiant trespass, appellant’s conviction must be reversed.

Judgment of sentence reversed. Jurisdiction relinquished.

      . We emphasize that we do not decide whether on these facts a prescriptive easement could have been or was in fact created in favor of appellant over the McKays' property.

      . Commonwealth v. Compel, supra, dealt with a mistaken claim of right to property which was the subject of a charge of larceny. At common law, and under the Penal Code which was in effect when Compel was decided, a claim of right, even if mistaken, was held to negate criminal intent and, therefore, was a defense to larceny. Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 459 n. 2, 418 A.2d 493, 497 n. 2. See also Commonwealth v. English, 446 Pa. 161, 279 A.2d 4 (1971) (plurality opinion by Eagen, J.). More recent authority, however, has limited this defense in cases where the claim of right is asserted by violence, threat of violence, or stealth. Thus in Commonwealth v. Dombrauskas, supra, this court held that "[ajlthough there is authority to the contrary, the modern and better reasoned rule is that a claim of right defense is not available to one who employs force or stealth to recoup money lost in a gambling game or to collect an unliquidated debt. Disputed claims of this type are better resolved in a court of law than by violence or stealth.” Dombrauskas, supra at 459, 418 A.2d at 497. See also Commonwealth v. Sleighter, 495 Pa. 262, 433 A.2d 469 (1981) ("While there exists case law which provides that in certain isolated circumstances a good faith claim of right will negate the requisite mental element for theft, certainly where there is violence or threat of violence in the assertion of that claim of right, the law does not excuse the actor who so asserts his claim." [per Flaherty J., joined by two justices with Roberts, J., joined by three justices, concurring in the result]).
      The limitations that these subsequent cases have placed upon the availability of the claim of right defense in larceny cases do not, however, affect the vitality of the basic principal on which Compel instructs, namely that a bona fide, reasonable mistake of fact which negates the element of criminal intent will serve as a defense to the crime charged. Indeed, as noted above, that fundamental principal has now been codified in section 304 of the Crimes Code, 18 Pa.C.S. § 304.