source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    647 A.2d 530
    William GORDON, Appellant, v. Rosemarie GORDON.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1994.
    Filed July 11, 1994.
    Reargument Denied Sept. 14, 1994.

      Stanley M. Shingles, Philadelphia, for appellant.
    James D. Crawford, Philadelphia, for appellee.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County dividing the parties’ marital estate. We affirm in part, and vacate and remand in part.

Appellant William Gordon (Husband) and appellee Rosemarie Gordon (Wife) were married on May 31, 1958. Husband initiated this action in January of 1979 with a complaint in divorce alleging indignities to the person. Nine hearings were held, yielding 900 pages of testimony. Now, fifteen years later, the record reads like a Dickens novel. As a result of the parties’ inability to settle their differences and their dissatisfaction with the trial court’s evaluation and distribution of the marital estate, the litigation has now endured almost as long as the marriage.

Following several hearings, the master filed a report recommending entry of a divorce decree on the grounds of indignities. Exceptions were filed and denied and the Honorable Domenic D. Jerome entered a decree in divorce on September 4, 1980.

Wife filed an appeal from the trial court’s order denying her request to proceed under the Divorce Code of 1980. On appeal, this court reversed and remanded for disposition of the economic issues in accordance with the 1980 Divorce Code. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), affirmed 498 Pa. 570, 449 A.2d 1378 (1982).

Thereafter, on August 2, 1985, the Honorable Frank J. Lynch granted a bifurcated divorce on the grounds of indignities. That judgment was affirmed by this court on March 17, 1987.

Hearings on the economic issues began in 1989. By an order dated September 10, 1991, the trial court entered its order finding the date of separation was December 31, 1977. On October 29, 1992, the court entered an order valuing the marital estate at $677,406.00:

Marital Residence $161,000.00

Husband’s Sun Oil Pension ($293,544.00 x .65 marital coverture fraction) 190,804.00

Husband’s Retirement Benefits Continuation pay (88,749.00 x .65) 57,687.00

Retirement bonus (7,100.00 x .65) 4,615.00

Orbit (82,000.00 x .65) 53,300.00

Husband’s Suncap Savings Account 100,000.00

Sun Oil Stock 26,000.00

Pair Rental Value of Marital Residence Less Wife’s Credits for Mortgage Payments and Maintenance 84,000.00

TOTAL MARITAL ESTATE $677,406.00

The court distributed the marital property equally between the parties. Thereafter, on November 9, 1992, Husband filed a “Petition for Reconsideration in the Form of Exceptions to the Court’s Opinion and Order.” One month later, Husband filed a Supplemental Petition for Reconsideration. The trial court failed to respond and Husband filed this appeal to preserve his appellate rights. Wife then filed a motion to quash which this court denied. Pursuant to the trial court’s order, Husband filed a concise statement of matters complained of on appeal and the trial court disposed of those issues in an opinion dated June 21, 1993.

On appeal, Husband raises eight issues:

1. Did the court err in finding that the date of separation was December 31, 1977, rather than the Winter of 1975?

2. Did the court err in using the date of Mr. Gordon’s retirement to value his pension, rather than the date of separation?

3. Did the court err in concluding that the early retirement incentives offered in the Sun Company Involuntary Termination Program of 1987 were marital assets?

4. To the extent the Sun Stock Savings Plan, Employee Stock Ownership Plan, and Sun Capital Accumulation Plan were derived from post-separation contributions, are they marital assets?

5. Did the court err in characterizing the Optional Retirement Benefit Investment Trust (ORBIT) as both a retirement benefit and a marital asset?

6. Did the court err in treating rental value of the marital residence as a marital asset?

7. Did the court err in not awarding Mr. Gordon a credit equal to one-half the rental income from boarders taken in by Mrs. Gordon?

8. Did the court err in failing to give Mr. Gordon a credit in the amount of $555.60 per month for each month from December, 1987 to the present?

Husband’s challenges to the equitable distribution order must be reviewed with the following standard in mind: the trial court has broad discretion in fashioning equitable distribution awards and we will overturn an award only for an abuse of that discretion. Oaks v. Cooper, 536 Pa. 134, 638 A.2d 208 (1994); Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988). The Divorce Code states that the trial court

shall, ... equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors....

23 Pa.C.S. § 3502(a) (emphasis added). With these propositions in mind, as well as the Commonwealth’s policy to effectuate economic justice between the parties, 23 Pa.C.S. § 3102(a)(6), we review the trial court’s distribution order.

Husband worked as a chemical engineer for Sun Oil Company from June 6, 1960 to July 1, 1987, at which time he accepted early retirement. His income consists of stock dividends and pension benefits. At the time of the 1991 hearing Wife worked full time as a secretary at Wyeth Laboratories with an annual income of approximately $20,000.00.

The parties were married for nineteen years. They experienced difficulties beginning in the first year of their marriage. Despite prolonged marriage counseling, the parties were unable to resolve their differences and Husband became the victim of Wife’s habitual verbal and physical assaults. Wife disparaged Husband’s sexual performance in front of their daughter, and humiliated him in front of his employer and coworkers. She joined a “singles’ club” and, in 1975, Wife openly carried on an affair with a co-worker, taunting Husband with that fact. Much of the abuse relayed by Husband was corroborated by Wife’s sister, Edna Jane Wescoat.

The evidence also indicated that Husband was not completely innocent; he frequently insulted and provoked Wife, thus establishing a pattern in their altercations. Nonetheless, the court determined that Wife’s behavior was excessive and unjustified. A divorce based on indignities, therefore, was granted. See 23 Pa.C.S. § 3301(a)(2), (6).

In his first claim, Husband argues that the court erred in finding that the parties’ separation date was December 31, 1977. Absent an abuse of discretion, the trial court’s findings of fact, if supported by credible evidence, are binding upon a reviewing court. Campbell v. Campbell, 357 Pa.Super. 483, 490, 516 A.2d 363, 366 (1986). As a reviewing court, we do hot usurp the trial court’s duty as finder of fact. Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985).

“Separate and apart” is defined by statute as “complete cessation of any and all cohabitation whether living in the same residence or not.” 23 Pa.C.S. § 3103. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), this court interpreted “cohabitation” as “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Id. at 47, 483 A.2d at 948. Compare Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988) (where the court found critical to the determination of separation the fact that the parties had private living quarters, no longer had a public social life together, and ceased sexual relations; despite the fact that the parties resided in the same house, the court concluded that they lived “separate and apart”) with Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990) (where parties jointly purchased a home, shared a checking account, socialized as husband and wife, and had resumed sexual relations, the court found the parties were not living “separate and apart”).

Here, Husband testified that the parties continued sexual relations through March of 1978. Wife testified that the parties last engaged in sexual relations in December of 1977. In addition to each party’s testimony regarding the date that sexual relations had ceased, the trial court found critical the fact that the parties continued their marriage counseling through December of 1977, and the fact that in November of 1977 they entertained and socialized as husband and wife. The evidence indicates that social and financial interaction continued at least through December of 1977. The trial court determined, therefore, that the parties began living “separate and apart” on December 31, 1977. Thomas, supra. The trial court’s findings of fact are supported in the record and are sufficient to uphold the trial court’s determination. Campbell, supra.

Next, Husband argues that the trial court erred in valuing his pension from Sun Oil Company. The trial court utilized the hearing date for valuation. Husband contends that the appropriate valuation date is the date of separation. Husband also contends that the use of the coverture fraction is inappropriate; in fact, he argues that the rationale of the fraction, established in Braderman v. Braderman, 339 Pa.Super. 185, 196, 488 A.2d 613, 618 (1985), is a fallacy.

Retirement pension benefits, vested and non-vested, are marital property subject to equitable distribution. Berrington v. Berrington, 409 Pa.Super. 355, 360, 598 A.2d 31, 34 (1991) (citing Verdile v. Verdile, 370 Pa.Super. 475, 485, 536 A.2d 1364, 1369 (1988)). If the benefits result from employment during the marriage, these benefits are marital property because they are conferred as part of the spouse/employee’s compensation package. See Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). As a general rule, “[o]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property!.]” Braderman, 339 Pa.Super. at 196, 488 A.2d at 618.

The type of pension plan in this case is a defined benefit plan, a plan in which the benefit is determined by a particular formula usually based upon years of service and salary history. The benefit is funded by employer contributions, and actuarily determined on a participant class basis. See Troyan, Federal Income Tax Consequences of Divorce-Related Pension Evaluation, 15 FLR 3015 (1989). Unlike defined contribution plans, which focus on contributions for each individual employee, defined benefit plans do not maintain individual accounts and are therefore more difficult to value. Snyder, Pension Valuation with Inflation and Taxation, IX Pa.Family Lawyer 40 (1988). Present value discounting is utilized to value a defined benefit plan, and there are different rules which may be applied to reach a present value. See Wilder, Family Law Practice & Procedure (3d ed. 1993), § 23-2.

This court has adopted a methodology for valuing a defined benefit plan using the immediate offset method of distribution. See DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871, alloc. denied, 517 Pa. 631, 539 A.2d 811 (1988) (citing Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985)). The trial court applied this method. The last portion of the formula, however, which states that the coverture fraction is applied if a portion of the benefit was earned before marriage, is a point of contention here on appeal. Additionally, the Husband argues that the trial court improperly valued the pension as of the hearing date instead of the date of separation.

Husband, a chemical engineer, began his employment with Sun Oil Company on June 6, 1960. He worked for Sun Oil Company throughout the marriage. Ten years after the parties separated, on July 1, 1987, Husband accepted early retirement. The equitable distribution order was entered in 1989. Husband contends that since no portion of the pension was earned before marriage, the coverture fraction is inapplicable and the pension should have been valued as of the date of separation. In its opinion, the trial court stated that “from either a legal or equitable standpoint” it could not value the pension as of the date of separation. The trial court cited to this court’s decisions in Katzenberger v. Katzenberger, 409 Pa.Super. 10, 597 A.2d 636 (1991) and Berrington v. Berrington, 409 Pa.Super. 355, 598 A.2d 31 (1991). We agree with the trial court’s valuation. See King v. King, 332 Pa.Super. 526, 534, 481 A.2d 913, 917 (1984). We note, however, that both Katzenberger and Berrington are distinguishable from the instant case.

In Katzenberger, the parties were married in 1963, separated in 1981, and divorced in 1984. Husband was employed with Mohawk Airlines as of 1968. Mohawk subsequently merged with U.S. Air. Husband continued his employment and was so employed as of the date of the hearing. The trial court valued the pension at a future date of retirement and utilized the coverture fraction and the deferred distribution method. Husband appealed. On appeal, this court reversed and remanded with the following instructions: “The pension benefits available for distribution are those which would have been payable if the husband-appellant had retired on the date of separation.” Id., 409 Pa.Super. at 14, 597 A.2d at 638. The Pennsylvania Supreme Court affirmed. Katzenberger v. Katzenberger, 534 Pa. 419, 633 A.2d 602 (1993). In so doing, the Court relied on its decision in Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993).

In Berrington, the parties married in 1955 and separated in 1984. Husband was employed by Westinghouse Electric Corporation and participated in the company’s retirement plan. He continued his employment after separation. The parties were divorced in 1987. Husband presented to the trial court a proposal valuing his pension benefits as of the date of separation. Wife’s proposal valued the pension as of a deferred date, the earliest of (1) Husband’s termination from service; (2) Husband’s death; or (3) the date Wife begins to receive her portion of the pension benefit.

The trial court accepted Wife’s proposal and valued the pension benefit as of the deferred date. Husband appealed and this court reversed, stating that “the trial court’s distribution of the full pension benefits available upon [Husband’s] retirement, much of which was purchased with contributions made following separation, was erroneous.” Berrington, 409 Pa.Super. at 373, 598 A.2d at 40. The Pennsylvania Supreme Court affirmed in a 4-2 decision. The Supreme Court addressed the question of whether Wife would be unfairly penalized if her marital share of Husband’s pension is calculated by utilizing Husband’s salary as of the date of separation even though she would not collect her portion for years after separation. The Court stated:

It may seem at first consideration that the trial court’s application of the coverture fraction to these increased contributions would prevent the post-separation (i.e., non-marital) increases from being distributed to wife. This, however, is not correct, for although the pension benefit would be reduced by the coverture fraction, the reduction would be applied to pension that was partially produced by increased post-separation contributions.

Berrington, 534 Pa. at 399, 633 A.2d at 592. The Court further held:

[I]n a deferred distribution of a defined benefit pension, the spouse not participating may not be awarded any portion of the participant-spouse’s retirement benefits which are based on post-separation salary increases, incentive awards or years of service. Any retirement benefits awarded to the non-participant spouse must be based only on the participant-spouse’s salary at the date of separation.

Id. at 402, 633 A.2d at 594 (emphasis added). We point out that both Katzenberger and Berrington utilized the deferred method of distribution, not immediate offset, which the trial court applied here.

Using the immediate offset method, the present value of the employee spouse’s defined benefit pension plan is determined at the time of the distribution hearing. See King v. King, 332 Pa.Super. 526, 534, 481 A.2d 913, 917 (1984); see also Sutliff v. Sutliff, 518 Pa. 378, 381-82, 543 A.2d 534, 536 (1988) (property must be distributed with reference to its value at the time of distribution); cf. McNaughton v. McNaughton, 412 Pa.Super. 409, 603 A.2d 646 (1992) (in cases where long period of time has passed between separation and distribution, court should set values of marital property as close to distribution as possible).

The rationale of Berrington and Katzenberger, that the nonparticipating spouse is not entitled to receive that portion of the benefit attributable to post-separation contributions, is applicable here. The formula utilized in those decisions, however, is not. The instant case presented circumstances appropriate for immediate offset distribution; there were sufficient marital assets to offset the pension and immediate distribution was feasible. Valuation as of the hearing date, the date closest to distribution, was, therefore, appropriate. King, supra. We note too that the Supreme Court in Berrington made allowance for increases in value as a result of factors other than post-separation employee contributions, presumably to account for inflation or upgrades in the plan. The Court noted that

should there be increases in retirement benefits payable to the employee spouse between the date of marital separation and the date the non-participant spouse begins receiving benefits which are not attributable to the efforts or contributions of the participant-spouse, any such increased benefits may be shared by the non-participant spouse based upon his or her proportionate share of the marital estate. Berrington, 534 Pa. at 403, 633 A.2d at 594. See also Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990). Likewise, utilization of the immediate offset method and the coverture fraction attempts to do the same, that is, eliminate the post-separation portion but at the same time give the nonparticipating spouse the advantage of the passage of time, inflation, upgrades in the retirement plan, and other “increased benefits.” Id. At the risk of oversimplification, we must keep in mind that neither formula can produce a mathematically exact valuation or account for every contingency, and that the trial court is bound by the legislature’s directive to “effectuate economic justice.” 23 Pa.C.S. § 3102(a)(6).

In this case, a part of the benefit was earned after separation and the court utilized the immediate offset method of distribution. Therefore, the coverture fraction is necessary to eliminate the post-separation portion so as to reach the ultimate marital portion of the benefit. We are cognizant of the fact that the coverture fraction “does not completely remove the valuation problem because such an approach does not take into consideration the compounding effect of thé plan.” See Cornbleth v. Cornbleth, 397 Pa.Super. 421, 428, 580 A.2d 369, 373 (1990). A valuation at separation, however, would not effectuate economic justice to the non-participating spouse.

The coverture fraction is applicable to determine what part of the retirement benefit is attributable to the relevant time span, i.e., “the total period of time the employee-spouse contributed to the pension program from the date of marriage until the date of separation.” Berrington, 409 Pa.Super. at 368, 598 A.2d at 38. Here, the retirement benefit exceeded the relevant time span; the parties separated in 1977 and Husband retired in 1987. In order to determine the marital property component of the retirement benefit, where a portion of the benefit is non-marital, the present value of the benefit is multiplied by the coverture fraction to determine the present value of the component that was acquired during the marriage. Miller v. Miller (I), 395 Pa.Super. 255, 577 A.2d 205, alloc. denied, 525 Pa. 664, 583 A.2d 794 (1990); Braderman, supra.

The trial court in this case valued the pension at $293,544.00. Separating from this amount the quotient from the coverture fraction, yields the marital portion of the pension benefit. Here, the trial court applied a coverture fraction of .65 to the value of the pension; this yielded a value of $190,804.00, the marital portion of the pension benefit. Wife’s marital share was one-half of that amount. In determining the coverture fraction, the trial court utilized the separation date of December 31, 1977. See Katzenberger, supra (numerator of the coverture fraction equals the total period of time the employee/spouse participated in the plan from the date of marriage until the date of separation; the denominator equals the total period of time the employee/spouse participated in the pension benefit). In this case, the numerator equaled 17.5 (June 6, 1960 to December 31, 1977) and the denominator equaled 27 (June 6, 1960 to July 1, 1987). The coverture fraction, therefore, equaled .65. The court utilized the immediate offset method, and applied this fraction to the value of the benefit as of the hearing date, the date closest to distribution. See Miller (I), supra (when using the immediate offset method of distribution, the valuation date should be as close as possible to the distribution date); King, supra; see also Sutliff, supra. See generally Wilder, Pa.Family Law Prac. & Proc. (3d ed.), § 23-3. The court properly multiplied the coverture fraction by the present value of the retirement benefit to reach the present value of the pension benefit acquired during the marriage. Braderman, 339 Pa.Super. at 196-200, 488 A.2d at 619-20. We conclude, therefore, that Husband’s argument is meritless.

In his next claim, Husband argues that the trial court improperly included in the marital estate certain early retirement incentives offered in the Sun Company Involuntary Termination Program of 1987. Whether an asset is marital property or separate property for purposes of distribution of the marital estate is a matter within the sound discretion of the trial court. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of discretion occurs if the trial court fails to follow correct legal procedure or misapplies the law. Braderman, supra.

Husband contends that the benefits he received as a result of participating in the Involuntary Termination Program, listed above, should not have been included in the marital estate. This issue, husband submits, is controlled by LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), alloc. denied, 514 Pa. 648, 524 A.2d 494 (1987).

In LaBuda, the parties were married on February 1, 1947 and separated on July 4, 1980. Husband claimed that a lump sum retirement incentive was improperly included in the marital estate. Husband elected to participate in a Bethlehem Steel Corporation “Special Early Retirement Incentive Program” pursuant to which he was to receive a payment of $813.20 for twenty-one months. Id. at 532, 503 A.2d at 976. The fact that the retirement incentive was received after the parties had separated was not disputed, nor was it found to be dispositive of the issue. This court found, however, that the right to receive this property did not accrue during marriage. See Braderman, supra. We stated:

The crucial point is this: eligible employees were not notified of the program until April, 1983.... Employees had to decide no later than May 31, 1983, whether they wished to participate in the plan and they had to retire by July 31, 1983. Appellant did both. Therefore, this property “right” did not accrue prior to the parties’ separation. [Wife] could not expect to enjoy these payments when [Husband] received them because neither party had any idea that he would receive the payments until after they separated.

LaBuda, 349 Pa.Super. at 533, 503 A.2d at 976. See also Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989) (marital property is identified at the date of separation and valued at the date of distribution).

Frequently, an employer will offer incentives, such as wage continuation payments or bonuses, in addition to the basic pension benefit, to encourage early retirement. Here, Husband retired at the age of 56 under such an incentive program, the involuntary termination program. Such a plan exists in a company only on a periodic basis, usually at a time when the company is downsizing, restructuring or streamlining its operations.

Sun Oil Company offered the plan in 1987, ten years after the parties had separated. Husband had ten days to consider the plan and, after deciding to take advantage of the plan, he was required to retire on July 1 of that year. The trial court reasoned that because the inducements were “figured and based upon the Husband’s 27 years of service [17 of which were marital years] ... [t]hey are part and parcel of the pension package that accrued during the entire period of the employment and cannot and should not be equitably cut out, thereby denying the wife the marital portion thereof.” The court relied upon the case of Holland v. Holland, 403 Pa.Super. 116, 588 A.2d 58 (1991) and Schubert v. Schubert, 398 Pa.Super. 284, 580 A.2d 1351 (1990) to support its reasoning. We find such reliance misplaced.

In Holland, the deferred distribution method was applied. The court stated that since the non-employed spouse is required to wait until he or she receives the distribution of pension benefits, that spouse is permitted “to enjoy increases in value occasioned by continued employment of the worker.” Holland, 403 Pa.Super. at 118, 588 A.2d at 60. In other words, the non-participating spouse is compensated for the inconvenience of deferred distribution. Here, the court utilized the immediate offset method of distribution; the non-employed spouse is not required to wait for distribution.

In Schubert, husband accepted an early retirement plan after 37 years of employment at Honeywell Corporation.

During the course of the parties’ marriage, the Banker’s and Traveler’s insurance policies were provided by [Honeywell] and were paid in part from deductions from [Husband’s] salary. Pursuant to the early retirement plan, paycheck deductions were continued to pay the premiums of the insurance policies.

Id., 398 Pa.Super. at 291, 580 A.2d at 1355 (emphasis added). The parties were married for 21 years.' The insurance policies were taken out on the life of the parties’ daughter. Four years after the parties separated, the parties’ daughter died in an automobile accident. The trial court found that although the wife was entitled to the cash value of the policies at the time of separation, she was not entitled to the proceeds.

On appeal, this court reversed and held that wife was entitled to a share of the proceeds from these insurance policies because the benefits had accrued during the marriage. We stated: “Most importantly, we find that [wife] is entitled to a share of the proceeds ... since we find that the policies were not only purchased but maintained with marital funds.” Id. at 291, 580 A.2d at 1355.

This reasoning is not applicable in the case before us. The fact that the policies in Schubert were purchased and maintained during the marriage is a distinguishing feature. We find, therefore, that the trial court’s reliance upon Schubert is misplaced. The insurance policies in Schubert are unlike post-separation upgrades in a pension plan. Moreover, the insuranee policies were not offered as an incentive to early retirement. The policies are comparable to deferred compensation, and align more clearly with basic retirement benefits, the marital portion of which is subject to equitable distribution, Braderman, supra, than with post-separation incentives and bonuses which, although based on years of service, are separate property. LaBuda, supra. Unlike basic pension benefits which are planned and contemplated throughout service, the incentive plan is not anticipated, but offered unexpectedly.

Further, an incentive retirement plan is not necessarily occasioned by the continued employment of the worker; in fact, it is a condition of termination of employment. In most cases, this is an unpredictable and fortuitous event not contemplated during the marriage. LaBuda, supra.

Here, Husband testified that his department had been reorganized, that his position had been altered, and that he believed he was being phased out. He stated that unlike the younger engineers, he was not computer literate and he believed that his management skills and experience were insufficient to compensate for this. Essentially, Husband stated that his decision to accept the early retirement program was based on the fact that he could not be assured of these incentives upon normal retirement age, nor could he be assured that his position would not be eliminated entirely. Unlike basic retirement benefits, which accrue during the course of employment, the early retirement incentives are an inducement to persuade termination.

We agree with Husband’s argument; LaBuda is controlling here. Neither Holland nor Schubert is applicable, and neither case has altered the law as stated in LaBuda, supra. We conclude, therefore, that the early retirement incentive plan benefits offered to Husband in 1987 are not marital property. LaBuda, supra.

In his fourth claim, Husband argues that the marital portion of his Suncap Savings Account was improperly valued at $100,000.00. The trial court, in its opinion, has acknowledged its error. Because Husband had already filed his notice of appeal, however, the court was unable to modify its order. See Pa.R.A.P. 1701(a).

The Suncap Savings Account, an employee stock option plan offered by Sun Oil Company, entitled Husband to purchase shares of stock in the company at a reduced cost on an annual basis. The trial court was correct in including the Suncap account in the marital estate. The shares purchased during the marriage and prior to separation, and the distributions or increase in value of those shares are properly includable in the marital estate. See 23 Pa.C.S. § 3501(a); see also Schneeman v. Schneeman, 420 Pa.Super. 65, 615 A.2d 1369 (1992) (increases due to interest or returns on investment in the value of the amount contributed during the marriage are marital property); Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988) (proceeds from sale of jointly held stock was marital property, subject to equitable distribution).

Our review of the document on which the parties and the court relied, Sun Stock Savings Plan and Suncap Accrual/Distribution/Disposition, R. 22, indicates that, as a result of contributions made during the marriage, from July 1, 1970 through June 30, 1977, the Sun Stock Account realized $44,-001.75 from the sale of shares which were purchased during the marriage. This amount, along with compounded interest, represents the marital share. See Schneeman, supra.

Husband also argues that the court erred in identifying 465 shares of Sun Oil stock as marital property. In its opinion the trial court acknowledges this error, indicating that 157 shares, not 465 shares, are marital property. We agree. The record indicates that 314 shares of Sun Oil stock were issued to Husband between July 1, 1977 and June 30, 1978; for half of that period, six months, the parties were married and not separated. One-half of that amount 157 shares, must be valued as marital property.

In his fifth claim, Husband argues that the trial court improperly characterized his Optional Retirement Benefit Investment Trust (ORBIT) as a marital asset. ORBIT was offered by Sun Oil Company in 1981, four years after the parties separated. Although separate from the early retirement incentive program offered by Sun Oil in 1987, ORBIT increased Husband’s monthly retirement benefit beginning in July of 1988. Although Husband purchased ORBIT with funds ($27,033.47) from the Suncap Account, we do not find this dispositive here. This was an option offered to Husband four years after separation; at that time, the funds in the Suncap Account had not been distributed into marital shares. It is impossible to tell at this point whether any of the marital portion of the Suncap Account was used to purchase ORBIT and we cannot speculate that it was. See 23 Pa.C.S. § 3501(a)(3) (assets acquired in exchange for marital assets are marital property unless the assets are altered significantly and improved post-separation); cf. Solomon v. Solomon, 531 Pa. 113, 611 A.2d 686 (1992) (portion of trust fund was not marital property where wife had no right to it during the marriage and it was not in exchange for marital property). We conclude, therefore, that this claim must be resolved in accordance with Labuda, supra, and our discussion in issue three above.

In his final three claims, Husband challenges the trial court’s order with respect to the marital residence. Husband argues that the court’s inclusion of the rental value of the marital home into the marital estate was error, that its failure to credit him for one-half of the rental income was error, and that its failure to credit him for the interim payments made to Wife pending resolution of the parties’ property rights was error. We agree with Husband’s argument that fair rental value is not includable in the marital estate, Ruth, supra; we find no abuse of discretion, however, in the court’s finding that Husband was not entitled to the aforementioned credits. See Schneeman, supra.

With respect to the interim payments, Wife received $555.60 each month from July, 1987 to October, 1989. Husband’s argument consists of the statement that he should be given credit for those payments. Husband’s claim is unsupported, lacking references to the record or to any legal authority. We, therefore, dismiss this claim as meritless.

We also find meritless Husband’s claims that the rental value of the marital home was improperly included in the marital estate and that he should have been credited for one-half of the rental income. A court must consider the efforts of both spouses in preserving and maintaining the marital assets. See 23 Pa.C.S. § 3502(a)(7). An equitable distribution order, therefore, may include an award to the non-possessing spouse of one-half of the rental value of the marital residence when possessed exclusively by the other spouse during the parties’ separation. Powell v. Powell, 395 Pa.Super. 345, 577 A.2d 576 (1990); Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988); Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). This award, however, is not mandatory. See Butler v. Butler, 423 Pa.Super. 530, 545, 621 A.2d 659, 668 (1993); see also 23 Pa.C.S. § 3502(a)(7).

Wife remained in the marital residence after the parties separated. Although Husband continued to pay the mortgage until February of 1991, Wife took in tenants, maintained the property, and made the mortgage payments after February of 1991. Wife received a small amount of rental income from various tenants, usually college students in the area. Additionally, the parties’ son lived with Wife for a time after his college graduation. He assisted his mother with the maintenance and upkeep of the property and also paid room and board. Husband claims that the rental income should be included as a marital asset and that he is entitled to one-half of that amount. We disagree.

First, we note that there is some discrepancy as to the amount of room and board the parties’ son paid Wife. At the hearing on August 1,1990, Wife testified that her son paid her $45.00 each week. N.T., 8/1/90, pp. 86-87. Wife later testified that he paid $50.00 per week. N.T., 4/11/91, p. 79. In his brief, Husband states the amount was $50.00 per month plus some shared household expenses. Husband’s references to the record are not conclusive as to the amount in question. More importantly, however, contrary to Husband’s assertions, room and board is not necessarily marital property. Room and board is more than mere rental income; it may encompass meal preparation, grocery shopping, laundry services and housecleaning services. There is nothing in the record which establishes what portion of room and board pertained specifically to rent, we conclude, therefore, that Husband’s claim for a share of room and board is without merit.

Husband’s claim for a share of rental income also fails. The trial court, in fashioning an equitable distribution order, must consider all relevant factors including, inter alia, the “contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, ...” 23 Pa.C.S. § 3502(a)(7). See Sutliff v. Sutliff, 361 Pa.Super. 504, 525, 522 A.2d 1144, 1154 (1987) (“Although an award of rent is permissible, we do not deem it an abuse of discretion by the court to refuse to take such an action in this case.”); see also Sehneeman, supra (while each party is entitled to his or her equitable share of marital property, including the fair rental value of the marital residence, the trial court need not compute that equitable share as a credit to the non-possessory spouse, as long as the total distributory scheme is equitable); Powell, supra (it is in the trial court’s discretion to determine whether the non-possessor spouse is entitled to a portion of the fair market rental value).

We find that the trial court did not abuse its discretion in declining to credit Husband for rental income. The award adequately compensated Husband for his rights and interests in the marital property. In addition to considering Wife’s contributions and maintenance of the home, the court considered other relevant factors, including the amount and sources of income of the parties, the parties’ relative vocational skills and employability, and the opportunity of each party for future acquisitions of capital assets and income. 23 Pa.C.S. § 3502(a)(5), (6). We note, too, that the court was not unaware that Husband possessed substantial non-marital assets. The court properly considered all of these factors in attempting to effect economic justice between the parties, 23 Pa.C.S. § 3102(a)(6), and we, in turn, “evaluate the court’s decision in light of the totality of the circumstances and the equitable distribution order as a whole.” Sutliff, 361 Pa.Super. at 525, 522 A.2d at 1154.

The trial court also included in the marital estate $84,000.00, an amount representing the fair rental value of the marital home. The trial court adopted the Husband’s proposed findings of fact and valued the fair market rental of the marital residence at $105,000.00. The court then deducted from that amount Wife’s credit of $21,000.00, which included $18,497.30 for maintenance expenses and $3,122.60 in mortgage payments. The resulting figure, which the trial court rounded off to $84,000.00, was included in the marital estate and divided equally between the parties. This was error.

In Butler, supra, we stated:

The fair market rental value of the marital residence cannot be considered a marital asset subject to equitable distribution as it represents revenues that were foregone by the marital estate due to the wife’s residence in the property after the parties separation. Therefore, the fair rental value of the marital home was improperly deemed a marital asset by the trial court, thereby artificially inflating the value of the marital estate. As the wife’s share of these foregone potential revenues, which would have been part of the aggregate marital estate, were consumed during her tenure in the marital home[,] she is not entitled to receive any portion of these foregone revenues.

Butler, 423 Pa.Super. at 547, 621 A.2d at 668. We do find it appropriate, however, for the court to consider on remand the propriety of crediting Wife for her mortgage and maintenance payments and to consider as well the effect that the aforementioned recalculations will have on the total distributory scheme. Butler, supra; Schneeman, supra.

Accordingly, we affirm in part and vacate and remand in part for correction of the order in accordance with this opinion. Jurisdiction is relinquished.

      . In Bleak House, Charles Dickens lamented the protracted suit of "Jarndyce and Jarndyce,” which had outlived the original parties and their descendants, but persisted in dragging "its weary length before the Court[.]” Dickens, Bleak House, Part One, Chapter One (1852-1858).

      . It should be noted that the trial judge has indicated in his opinion that the issues are waived because the Petition for Reconsideration in the Form of Exceptions was untimely filed. The court’s order was entered October 29, 1992 and Husband’s petition was filed on November 9, 1992. (November 8, 1992 fell on a Sunday). Despite its statement that the issues were waived, the court addressed Husband’s claims. Wife filed a motion to quash and this court denied that motion on the authority of Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 409, 595 A.2d 1211, 1214 (1991). In Gemini, this court found that a timely filed petition for reconsideration performed the function of a post-trial motion under Pa.RX.P. 227.1. Here, Husband’s petition for reconsideration was filed within ten (10) days of the entry of the court’s order and, although not in proper form, it performs the function of a post-trial motion. Wife claims that the procedural irregularities require dismissal. Although we agree that this case is fraught with procedural anomalies, dismissal is neither warranted nor permitted where we can effectively review those claims preserved for our review. See Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989); see also Downey v. Downey, 399 Pa.Super. 437, 582 A.2d 674 (1990).

      . The Divorce Code of April 2, 1980, P.L. 63, No. 26, as amended 1988, February 12, P.L. 66, No. 13 was repealed by Act of December 19, 1990, P.L. 1240, No. 206, § 2, and substantially reenacted as Part IV of the Domestic Relations Code. See 23 Pa.C.S. §§ 3101-3707.

      . Section 3301 provides in relevant part:
      § 3301. Grounds for divorce
      (а) Fault. The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:
      j¡; :}s s*s H* H*
      (2) Committed adultery.
      (б) Offered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.
      23 Pa.C.S. § 3301(a)(2), (6).

      . Justice Larsen did not participate in this decision, nor did he participate in Berrington, supra. Justice Cappy and Justice Montemuro dissented in both Katzenberger, supra, and Berrington, supra.

      . The immediate offset method assigns a present value to the benefits and divides the benefits at the time of the equitable distribution order. This method "has the advantage of avoiding further entanglement between the parties ... [and] it effectuates a final and immediate settlement of the distribution of the retirement benefits.... ” Miller I, 395 Pa.Super. at 261-62, 577 A.2d at 208-09, (quoting Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613, 619-20 (1985)). See also Miller v. Miller (II), 421 Pa.Super. 23, 25 n. 1, 617 A.2d 375, 376 n. 1 (1992).

      . This is illustrated in the dissenting views of Justice Cappy and Justice Montemuro in Berrington, supra. Justice Cappy stated:
      A promise to pay an amount based upon a formula that may be influenced by efforts after separation is "property” acquired at the time of the promise under a normal definition of the term.... In my view, at the time of the parties’ separation, a participant spouse has acquired a promise from the employer to make deferred compensation payments (for the years of the marriage) based upon a formula that can produce higher or lower pension benefits than those calculated based upon the employee’s earnings at the date of separation.

        Berrington, 534 Pa. at 409-10, 633 A.2d at 598 (emphasis in original). Justice Cappy noted that in a downward economy, income reductions may result in a salary which is lower at the time of retirement than at the time of separation, and, therefore, the "inequity resulting from the majority's approach can cut both ways.” Id. at 406, 633 A.2d at 596.
      Justice Montemuro stated in his dissent that the majority had departed from the two discrete forms of distribution, immediate offset and deferred distribution, and had created another method with properties of both. He suggested that the "amalgamation” was “premised on a questionable valuation mechanism, which consequently fails to compensate the non-employee spouse for waiting to receive her portion of the pension, benefit....” Id. at 414, 633 A.2d at 600.

      . The trial court adopted the Distribution/Disposition schedule marked R.22 in the record. Neither parties have objected to the use of this schedule and we, therefore, have utilized it in reaching this determination. The amount realized during the marriage as a result of shares sold from contributions made during the marriage is broken down as follows:


author: KELLY, Judge:

text:
    647 A.2d 542
    David L. HART and Ann B. Hart, Appellants, v. Elizabeth O’MALLEY and Charles J. Aliano, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1993.
    Filed Aug. 16, 1994.

      Charles M. Watkins, Reading, for appellants.
    Frank T. Blasi, Scranton, for O’Malley, appellee.
    Joseph E. Jane, Scranton, for Aliano, appellee.

      Before ROWLEY, P.J., and McEWEN and KELLY, JJ.
   KELLY, Judge:

In this appeal, we must determine if an individual, who should have been joined as an indispensable party in an equity action but was not joined as an indispensable party, now has standing to bring a cause of action for wrongful use of civil proceedings against the party who instituted the equity action. We conclude that an indispensable party has standing to bring a cause of action for wrongful use of civil proceedings. We are next asked to determine if 1) the complaint alleges causes of action for wrongful use of civil proceedings and abuse of process against the plaintiff in the underlying equity action and against the plaintiffs attorney and 2) whether a cause of action for intentional infliction of emotional distress has been alleged against the plaintiff in the equity action. Under the facts of this case, a cause of action has been stated for wrongful use of civil proceedings against the plaintiff in the equity case. No cause of action has been stated against the plaintiffs attorney. Nor has a cause of action for abuse of process or intentional infliction of emotional distress been stated. Finally, we are called upon to determine if a plaintiff has the absolute right to plead over against a defendant when the plaintiffs preliminary objections to a defendant’s preliminary objections are dismissed. We conclude that when there are two defendants in the case and both defendants file separate but substantially similar preliminary objections to the plaintiffs complaint and the plaintiff has responded to one of the defendant’s preliminary objections, the plaintiff has, for practical purposes, responded to the other defendant’s preliminary objections. Thus, we reverse in part and affirm in part.

The facts are as follows. Appellants, the Harts, own a mobile home park which they wished to expand. The Harts filed the necessary applications for approval with the Susquehanna County Planning Commission (“the Planning Commission”). Just as the Planning Commission was about to grant final approval, appellee, Elizabeth O’Malley, through her attorney, appellee, Charles Aliano, filed a suit in equity against the Planning Commission seeking to preliminarily and permanently enjoin the Planning Commission from approving the Harts’ application. The Harts’ land adjoins that of Mrs. O’Malley.

The Honorable Kenneth W. Seamans, President Judge of Susquehanna County, on March 5, 1992 granted Mrs. O’Malley’s ex parte petition for a preliminary injunction and enjoined the Planning Commission from granting approval to the Harts’ application. Pursuant to Pennsylvania Rule of Civil Procedure 1521(d), a hearing was scheduled on Mrs. O’Malley’s complaint for March 10, 1992. However, on March 6, 1992, Judge Seamans approved and entered a stipulation in which the Planning Commission agreed “to continue the preliminary injunction in effect until a hearing or further order of court.” March 6, 1992 Stipulation. On March 9, 1992, Judge Seamans recused himself. The case was reassigned to the learned President Judge Brendan J. Vanston of the Sullivan County Court of Common Pleas.

On April 9, 1992, the Harts filed a petition to intervene which was granted. The Harts filed a petition requesting that a hearing on the injunction be scheduled. The trial court scheduled a hearing for July 10, 1992. However, the effort to schedule the hearing was frustrated by the parties’ agreements to multiple continuances of the hearing. (Trial Court Opinion of President Judge Brendan J. Vanston, March 28, 1998 at 2). A hearing was scheduled for August 10, 1992, but on June 15, 1992, at the request of the County Solicitor, the hearing was continued. A new hearing date was set for October 16, 1992.

The Harts retained new counsel who diverted the direction of this case by improperly filing in the Commonwealth Court, on June 25, 1992, an appeal from an interlocutory order. In July, 1992 the appeal was dismissed and reconsideration was denied. The Commonwealth Court remanded the record to the trial court.

On October 16, 1992, the trial court held an evidentiary hearing and heard argument on the validity of the preliminary injunction. Following the hearing, the trial court vacated the preliminary injunction and granted summary judgment in the equity suit in favor of the Planning Commission and the Harts. In its opinion, the trial court states:

At long last, this Court was finally able to conduct an evidentiary hearing and argument on the issue of continuation on the preliminary injunction on October 16, 1992. Following the hearing, the court vacated the injunctions and granted summary judgment in favor of Harts and the Planning Commission.

Trial Court Opinion of President Judge Brendan J. Vanston, May 28, 1993 at 2.

The Harts then instituted the case which is now before us on appeal. The Harts filed a complaint against both Elizabeth O’Malley and Charles Aliano, alleging wrongful use of civil proceedings and abuse of process. The complaint also included a count of intentional infliction of emotional distress against Mrs. O’Malley. Mrs. O’Malley and Mr. Aliano separately filed preliminary objections. The Harts filed preliminary objections to Mr. Aliano’s preliminary objections. The trial court dismissed the Harts’ preliminary objections to Mr. Aliano’s preliminary objections, sustained both appellees’ preliminary objections and dismissed the complaint against both appellees. This timely appeal follows.

The Harts raise the following issues for our review:

1. DOES AN INTERVENOR, WHO IS ACTUALLY AN INDISPENSABLE PARTY TO AN ACTION, HAVE STANDING TO BRING A SUIT FOR WRONGFUL USE OF CIVIL PROCEEDINGS AGAINST A PERSON WHO WRONGFULLY PROCURED, INITIATED, OR CONTINUED THE UNDERLYING ACTION?

2. DOES AN INTERVENOR, WHO IS ACTUALLY AN INDISPENSABLE PARTY TO AN ACTION, HAVE STANDING TO BRING A SUIT FOR ABUSE OF PROCESS TO RECOVER DAMAGES FROM A PARTY TO THE UNDERLYING ACTION?

3. DOES A PARTY HAVE AN ABSOLUTE RIGHT TO PLEAD OVER WHEN PRELIMINARY OBJECTIONS TO PRELIMINARY OBJECTIONS ARE OVERRULED?

4. MAY A COMPLAINT FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BE DISMISSES [sic] ON A PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER BASED SOLELY UPON CONFLICTING PLEADINGS?

Appellants’ Brief at 4.

Our standard of review of an order granting preliminary objections in the nature of a demurrer is well-settled.

All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless. Ford Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 566, 564 A.2d 931, 933 (1989) (collecting cases). Finally, “the novelty of a claim or theory alone, does not compel affirmance.” Neff v. Lasso, supra, [382 Pa.Super. 487] 555 A.2d [1304] at 1305 [ (1989) ].

Foflygen v. R. Zemel, M.D., 420 Pa.Super. 18, 32, 615 A.2d 1345, 1352 (1992) (quoting Valley Forge Towers South Condominiums v. RonIke Foam Insulators, Inc., 393 Pa.Super. 339, 345, 574 A.2d 641, 644 (1990), affirmed per curiam, 529 Pa. 512, 605 A.2d 798 (1992)). See also Kelly-Springfield Tire Co. v. D’Ambro, 408 Pa.Super. 301, 596 A.2d 867 (1991).

An action for wrongful use of civil proceedings differs from an action for abuse of process. Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190 (1993); Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017 (1984); Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983). “The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it. Mayer v. Walter, 64 Pa. 283; Annotation, 80 A.L.R. 581 ... Malicious use of civil process has to do with the wrongful initiation of such process.” Rosen v. American Bank of Rolla, supra, 426 Pa.Super. at 381, 627 A.2d at 192. See also Weiss v. Equibank, supra.

Wrongful use of civil proceedings is a tort which arises when a person institutes civil proceedings with a malicious motive and lacking probable cause. Rosen v. American Bank of Rolla, supra; Shaffer v. Stewart, supra. See also Kelly-Springfield Tire Co. v. D'Ambro, supra. The tort has been codified at 42 Pa.C.S.A. § 8351 as follows:

§ 8351. Wrongful use of civil proceedings

(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:

(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and

(2) The proceedings have terminated in favor of the person against whom they are brought.

To succeed in a cause of action for wrongful use of civil proceedings, a plaintiff must allege and prove the following three elements: 1) that the underlying proceedings were terminated in their favor; 2) that defendants caused those proceedings to be instituted against plaintiffs without probable cause; and 3) that the proceedings were instituted primarily for an improper cause. Kelly-Springfield Tire Co. v. D'Am- bro, supra; Shaffer v. Stewart, supra; Junod v. Bader, 312 Pa.Super. 92, 458 A.2d 251 (1983).

Instantly, the Harts aver that they have stated a cause of action against both Mrs. O’Malley and Mr. Aliano. They argue that the trial judge erred in dismissing the complaint for wrongful use of civil proceedings.

Mrs. O’Malley argues that the Harts do not meet the threshold requirements set forth in the statute to sustain the cause of action for wrongful use of civil proceedings. Specifically, Mrs. O’Malley posits, the Harts do not have standing to bring a suit for wrongful use of civil proceedings because they were not an original “party” to the underlying action when it was initiated. Rather, Mrs. O’Malley states, the Harts were not a party to the suit until their petition to intervene was granted three months after the equity action was filed.

The Harts counter this argument with two distinct contentions. First, the Harts argue that the civil proceedings Mrs. O’Malley instituted were against them, despite the fact they were not the named defendants. Although the equity suit named the Planning Commission and requested that the Planning Commission be enjoined from approving the Harts’ application, the Harts aver that the action was intended to and, in actuality, did stop them from using their land in a legal and beneficial way. Therefore, the Harts conclude, the civil proceedings that Mrs. O’Malley initiated and continued were against them. Thus, the Harts assert they have standing to institute a wrongful use of civil proceedings action against Mrs. O’Malley.

The Harts analogize the instant case to Weiss v. Equibank, supra. In Weiss v. Equibank, supra, Equibank bought a piece of property next to Weiss’ property. Equibank then attempted to buy Weiss’ property but Weiss refused to sell. Equibank razed the buildings on its property and then arranged for an engineering consulting firm to evaluate whether the razing of Equibank’s buildings had damaged the adjacent Weiss building. The engineering firm stated that Weiss’ building did not meet the building code. Equibank notified the township authorities who closed off Weiss’ building and marked it condemned. Weiss appealed the decision to the Board of Appeals which affirmed the condemnation. Weiss then took an appeal to the Court of Common Pleas.

In a later action, Weiss sued Equibank for wrongful use of civil proceedings. The trial court held that Equibank was not a proper party in the wrongful use of civil proceedings brought against it by Weiss because Equibank was not a party in the underlying civil proceeding. Id., 313 Pa.Super. at 456, 460 A.2d at 276. This Court, however, held that Equibank was a proper party to a wrongful use of civil proceedings suit because it was Equibank’s actions which led to the initiation of civil proceedings against Weiss. Id. This holding is based on comment (a) of the Restatement (Second) of Torts § 674, Wrongful Use of Civil Proceedings — General Principle, which explains “initiation of proceedings”:

a. Meaning of “initiation of proceedings. ” The person who initiates civil proceedings is the person who sets the machinery of the law in motion, whether he acts in his own name or in that of a third person, or whether the proceedings are brought to enforce a claim of his own or that of a third person.

Since the term “civil proceedings” includes a counterclaim, one who filed a counterclaim to a cause of action initiates a civil proceeding.

The Harts argue that because a defendant in a wrongful use of civil proceedings action need not be a party in the underlying action but need merely to have caused the initiation of the proceeding, the reverse also should be true. In short, the Harts urge that a plaintiff in a wrongful use of civil proceedings suit need not be a party to the underlying action so long as the plaintiff was adversely affected by the proceedings.

Mrs. O’Malley posits, to the contrary, that a plaintiff in a wrongful use of civil proceedings action must be a party to the underlying action and cites Lessard v. Jersey Shore State Bank, 702 F.Supp. 96 (M.D.Pa.1988) to support her contention. In Lessard v. Jersey Shore State Bank, supra, the court held that because the plaintiff in the wrongful use of civil proceedings suit was not an original, named party to the underlying action, she lacked standing and, therefore, could not set forth a cause of action under 42 Pa.C.S.A. § 8351 even though her interests had been adversely affected in the underlying action.

Recently, this Court decided Rosen v. American Bank of Rolla, supra, regarding the requisite standing to maintain a wrongful use of civil proceedings claim. In Rosen v. American Bank of Rolla, supra, the plaintiff in the wrongful use of civil proceedings action was an attorney who had, in the underlying action, been subpoenaed to give a deposition regarding a settlement he had made for one of his clients. Rosen filed a wrongful use of civil proceedings action. In reaching the conclusion that Rosen had no standing to maintain an action under 42 Pa.C.S.A. § 8351, this Court stated:

It has also been held that an action under 42 Pa.C.S. § 8351 cannot be maintained by one who was not a party to the underlying action. See: Lessard v. Jersey Shore State Bank, 702 F.Supp. 96, 98 (M.D.Pa.1988) (“The plaintiff herein, was not a party to the underlying state court action. Thus, she lacks the requisite standing and cannot set forth a cause of action under 42 Pa.C.S.A. § 8351.”). Cf. Mintz v. Bur, 6 Pa.D. & C.3d 779, 786 (Montg.1977), aff'd per curiam, 257 Pa.Super. 641, 390 A.2d 311 (1978) (“The language of section 674 of the Restatement Torts 2d, indicates that a cause of action for wrongful use of civil process will not arise until civil proceedings have been brought against a party.... Mere adversity of interest is clearly not sufficient to meet the requirements of the Restatement.”). See also: Gosling v. Ace Hardware Corp., 616 F.Supp. 1195, 1197 (D.C.Ill.1985).

It follows, therefore, that Rosen cannot maintain an action for wrongful use of a civil proceeding as defined by 42 Pa.C.S. § 8351. No civil proceeding was procured, instituíed or continued against Rosen. The issuance of a subpoena to him in an action against a former client did not constitute the commencement of a civil action against him, as contemplated by the statute. Because there was no action against him, moreover, it could not have been decided in his favor.

Id., 426 Pa.Super. at 383, 627 A.2d at 193.

The case Mintz v. Bur, 6 Pa.D. & C.3d 779 (Montg.1977), affirmed per curiam, 257 Pa.Super. 641, 390 A.2d 311 (1978), which is cited in Rosen v. American Bank of Rolla, supra, is directly on point. In Mintz v. Bur, supra, the Board of Supervisors of Horsham Township amended the zoning ordinances of the township creating a new zone allowing townhouses, apartments and quadraplexes. Due to the amendment, plaintiffs (“Mintz”) planned to develop their property in accordance with the new zone. Defendant (“Bur”) filed an appeal with the Zoning Hearing Board of Horsham Township challenging the validity of the ordinances creating the new zone. The appeal stopped Mintz’s development of their property. Bur also took an appeal to the Court of Common Pleas. Bur’s action in the Court of Common Pleas was against the Board of Supervisors only.

After suit was filed, Mintz’s petition to intervene was granted. The Zoning Board dismissed the appeal without prejudice. Because Bur failed to post the required bond for his appeal to the Court of Common Pleas, the Court of Common Pleas dismissed Bur’s appeal. Bur then appealed to the Commonwealth Court and renewed his appeal to the Zoning Board, which was later withdrawn. The Commonwealth Court dismissed Bur’s appeal.

Mintz then filed suit against Bur for the tort of wrongful use of civil proceedings. Bur filed preliminary objections in the nature of a demurrer claiming Mintz had no standing to bring the action for wrongful use of civil proceedings. The trial court held that mere adversity of interest is clearly not sufficient to give a plaintiff standing to bring a wrongful use of civil proceedings claim and, therefore, Mintz did not have the standing to maintain a suit for wrongful use of civil proceedings against Bur. Id. at 786.

Case law has consistently stated, in a variety of circumstances, that an action under 42 Pa.C.S.A. § 8351 for wrongful use of civil proceedings cannot be maintained by one who is not an original party to the underlying action. Lessard v. Jersey Shore State Bank, supra; Rosen v. American Bank of Rolla, supra; Mintz v. Bur, supra. Therefore, we cannot conclude that the Harts have standing to maintain a wrongful use of civil proceedings suit based on the argument that they were adversely affected by the underlying equity action.

However, the Harts alternatively argue that they should have been joined as indispensable parties to the equity action brought by Mrs. O’Malley. The Harts assert that because they should have been recognized and joined as indispensable parties in the original action, we should hold that they have standing to bring the instant suit.

As a general rule, an indispensable party is one whose rights are so connected with the claims of the litigants that no decree can be made without impairing its rights. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988); Grimme Combustion, Inc. v. Mergentime Corp., 406 Pa.Super. 620, 595 A.2d 77 (1991), alloc. denied, 530 Pa. 644, 607 A.2d 254 (1992); Burkett v. Smyder, 369 Pa.Super. 519, 535 A.2d 671 (1988). Appellate courts have consistently held that property owners are indispensable parties in lawsuits concerning the owners’ property rights. See Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 346 A.2d 788 (1975) (in litigation involving an easement, the fee simple owner of a servient tenement is an indispensable party); Barren v. Dubas, 295 Pa.Super. 443, 441 A.2d 1315 (1982) (in a dispute as to the existence of an easement, all owners of the servient tenements are indispensable parties); Zerr v. Dept. of Environmental Resources, 131 Pa.Cmwlth. 317, 570 A.2d 132 (1990) (United States which owned the mineral rights in a piece of property was an indispensable party in adjacent landowner’s suit for quiet title of strips of land along the boundary); Posel v. Redevelopment Authority, 72 Pa.Cmwlth. 115, 456 A.2d 243 (1983) (equitable owner in a piece of property is an indispensable party to an equity action attempting to stop the sale of the property to the equitable owner).

The absence of an indispensable party goes absolutely to the court’s jurisdiction. Sprague v. Casey, supra; Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra; Tigue v. Basalyga, 451 Pa. 436, 304 A.2d 119 (1973). If an indispensable party is not joined, a court is without jurisdiction to decide the matter. Fiore v. Oakwood Plaza Shopping Center, 401 Pa.Super. 446, 585 A.2d 1012 (1991); Burkett v. Smyder, supra; Nelson by Nelson v. Dibble, 353 Pa.Super. 537, 510 A.2d 792 (1986); Barren v. Dubas, supra. The absence of an indispensable party renders any order or decree of the court null and void. Barren v. Dubas, supra, 295 Pa.Super. at 446, 441 A.2d at 1316. See also Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra. The issue of “the failure to join an indispensable party” cannot be waived. Fiore v. Oakwood Plaza Shopping Center, Inc., supra; Nelson by Nelson v. Dibble, supra.

Presently, the preliminary injunction which enjoined the Planning Commission from approving the Harts’ application to expand their mobile home park impaired the Harts’ property rights. Thus, the Harts, the owners of the property affected by the suit instituted by Mrs. O’Malley, were indispensable parties to the equity action. Because the Harts were indispensable parties to the equity action, it was error to grant the motion for a preliminary injunction in their absence. Accordingly, the Harts should not be barred from bringing a cause of action pursuant to 42 Pa.C.S.A. § 8351 against Mrs. O’Malley due to her failure to properly join them as indispensable parties to the underlying lawsuit which gave rise to their wrongful use of civil proceedings action. Therefore, the Harts have standing to assert a wrongful use of civil proceedings action against Mrs. O’Malley.

Additionally, the Harts have pled that the underlying action was terminated in their favor. The Harts have also asserted that Mrs. O’Malley instituted the proceedings without probable cause. Finally, in their complaint, the Harts have alleged that Mrs. O’Malley maliciously and wrongfully instituted the underlying action to improperly interfere with the Harts’ legal and beneficial use of their land. Accordingly, as the Harts have standing to maintain an action for wrongful use of civil proceedings against Mrs. O’Malley and have pled sufficient facts which, if proven, establish a claim for wrongful use of civil proceedings, we hold that it was error for the trial court to grant Mrs. O’Malley’s preliminary objections and dismiss this cause of action against her.

However, with regard to Mr. Aliano, the Harts fail to state a claim under which relief may be granted. We discuss an attorney’s liability for wrongful use of civil process in Kelly-Springfield Tire Co. v. D’Ambro, supra. An attorney of record has probable cause for initiating a civil action if he believes “in good faith that his ... initiation ... of a civil cause is not intended to merely harass or maliciously injure the other party.” Id., 408 Pa.Super. at 305, 596 A.2d at 867 (citing 42 Pa.C.S.A. § 8352(3)). See also Shaffer v. Stewart, supra. Comment (d) to Section 674 of the Restatement (Second) of Torts also discusses the potential liability of a lawyer for wrongful use of civil proceedings.

An attorney who initiates a civil proceeding on behalf of his client[,] ... even if he has no probable cause and is convinced that his client’s claim is unfounded, ... is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.

If, however, the attorney acts without probable cause or belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.

Restatement (Second) of Torts § 674 comment (d).

Instantly, the Harts do not allege that Mr. Aliano initiated the equity action to harass or maliciously injure them. Additionally, the Harts have not alleged that Mr. Aliano initiated the civil proceedings to put pressure on them in order to gain their cooperation or that he acted without belief of the possibility that the equity action could succeed. At worst, the complaint alleges that Mr. Aliano was negligent. Absent more, a claim of negligence is not sufficient to maintain a cause of action under 42 Pa.C.S.A. § 8351 against an attorney filing a lawsuit on behalf of his client. Thus, the Harts have failed to aver sufficient facts to state a claim for wrongful use of civil proceedings against an attorney representing a client. Therefore, it was not error for the trial court to sustain Mr. Aliano’s preliminary objections and dismiss this cause of action against him.

The Harts next challenge the dismissal of their complaint alleging abuse of process. “Abuse of civil process is concerned /with the perversion of a process after it is issued.” Rosen v. Tesoro Petroleum Corp., 399 Pa.Super. 226, 236, 582 A.2d 27, 32 (1990), alloc. denied, 527 Pa. 636, 592 A.2d 1303 (1991) (quoting McGee v. Feege, 517 Pa. 247, 253, 535 A.2d 1020, 1023 (1987)). The Restatement (Second) of Torts § 682 defines the tort “abuse of process” as the use of legal process against another “primarily to accomplish a purpose for which it is not designed.” Rosen v. American Bank of Rolla, supra, 426 Pa.Super. at 381, 627 A.2d at 192 (quoting Restatement (Second) of Torts § 682). “To establish a claim for abuse of process, it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, and (3) harm has been caused to the plaintiff.” Id. at 382, 627 A.2d at 192. “The word ‘process’ as used in the tort of abuse of process has been interpreted broadly and encompasses the entire range of procedures incident to the litigation process.” Id. at 381, 627 A.2d at 192.

The Harts argue that the institution of the preliminary injunction and the March 6, 1992 continuance which delayed the hearing to review the propriety of the preliminary injunction was an instance of abuse of process. The Harts aver that because of the continuance, the preliminary injunction “was perverted from redressing any alleged harm done to O’Malley into the objective of preventing the Harts from proceeding with the expansion of their Mobile Home Park for what amounted to (because of the onset of winter) an entire year.” Harts’ Brief at 20. We disagree.

The material facts necessary to support the cause of action for abuse of process must establish (1) that Elizabeth O’Malley’s stipulation to the first continuance constituted the use of a legal process, (2) that the primary purpose for which Elizabeth O’Malley agreed to the continuance was not the purpose for which continuances are intended, and (3) that the delay resulting from Elizabeth O’Malley’s stipulation harmed the appellants. See Rosen v. American Bank of Rolla, supra at 381, 627 A.2d at 192. The material facts set forth in the appellants’ complaint, when read in conjunction with the applicable law, do not support a cause of action for abuse of process.

The averments of the complaint are not sufficient to establish that Elizabeth O’Malley “used” a legal process. The term “use”, in the context of an abuse of process claim, requires that a party actively seek and employ a legal process primarily for the purpose of harming an adverse party. The Harts’ complaint is grounded upon the allegation that Elizabeth O’Malley “entered into a stipulation” for the first continuance. There is no assertion that the first continuance was initiated by Elizabeth O’Malley, only that Elizabeth O’Malley agreed to it.

Moreover, the complaint fails to address an essential element of the tort of abuse of process, i.e., that the process was used primarily for a purpose for which the process was not designed. See McGee v. Feege, supra, 517 Pa. at 253, 535 A.2d at 1023; Rosen v. American Bank of Rolla, supra, 426 Pa.Super. at 381-82, 627 A.2d at 192; Rosen v. Tesoro Petroleum Corporation, supra, 399 Pa.Super. at 235, 582 A.2d at 32. It is not enough that the process employed was used with a collateral purpose in mind.

A cause of action for abuse of process requires “[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process ... [;] there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.”

Shaffer v. Stewart, supra, 326 Pa.Super. at 138-39, 473 A.2d at 1019 (quoting Di Sante v. Russ Financial Co., 251 Pa.Super. 184, 189, 380 A.2d 439, 441 (1977) (emphasis supplied)). See also Junod v. Bader, supra, 312 Pa.Super. at 96-97, 458 A.2d at 253. Accord Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987) (no cause of action where process used for intended purpose, even if there was an incidental motive); Community Nat. Bank in Monmouth v. McCrery, 156 Ill.App.3d 580, 108 Ill.Dec. 696, 509 N.E.2d 122 (1987), appeal denied, 116 Ill.2d 550, 113 Ill.Dec. 295, 515 N.E.2d 104 (1987) (even if bad motive or ulterior motive was shown, complaint must also allege that the process itself was used for some other improper purpose to sustain a claim for abuse of process); Zamora v. Creamland Dairies, Inc., 106 N.M. 628, 747 P.2d 923 (1987) (plaintiff failed to state cause of action for abuse of process where pleadings did not allege improper acts in the use of the process). Cf. Peterson v. Worthen Bank and Trust Co., N.A., 296 Ark. 201, 753 S.W.2d 278 (1988) (use of writs of garnishment in order to get judgment debtor fired from job represented ulterior motive upon which cause of action for abuse of process could be based); Scozari v. Barone, 546 So.2d 750 (Fla.Dist.Ct.App.1989) (use of action to impose lien on house for use as bargaining chip to negotiate custody of child was ulterior motive upon which a cause of action for abuse of process could be based); Meehan v. Michigan Bell Telephone Co., 174 Mich.App. 538, 436 N.W.2d 711 (1989) (jury could find abuse of process based on defendant’s offer to drop charges as a bargaining chip); Volk v. Wisconsin Mortg. Assur. Co., 474 N.W.2d 40 (N.D.1991) (evidence raised reasonable inference that defendants attempted to use foreclosure action as a means of coercing plaintiff to pay a deficiency judgment not allowed under state law).

The Harts’ complaint alleges that the injunction was continued “for the purpose of interfering with Plaintiffs’ beneficial use of their land” and that the “use of the said injunction was for an unlawful purpose and not for a purpose for which injunctions are intended.” This is insufficient to state an abuse of process claim based on the first continuance for a number of reasons. Proof of abuse of process based on the first continuance requires that the appellants’ complaint factually set forth that the continuance was not used for the purpose for which continuances are intended. The complaint makes no such claim. Rather, it avers that “use of the said injunction was for an unlawful purpose and not for a purpose for which injunctions are intended.” Conspicuous by its absence is any assertion that the first continuance was used for a purpose other than that for which continuances are intended, an omission which suggests that it was not the Harts’ intention to plead a separate cause of action based on the first continuance.

This Court, during review of an order granting a demurrer, may not supply a fact missing in the complaint. See Leach v. Hough, 352 Pa.Super. 213, 216, 507 A.2d 848, 849 (1986). We are also precluded from considering any conclusions of law or inferences which are not supported by the factual allegations contained in the complaint. Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 418 Pa.Super. 178, 184-85, 613 A.2d 1235, 1238-1239 (1992); MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 225-26, 576 A.2d 1123, 1125 (1990). This includes argumentative allegations or expressions of opinion. Surgical Laser Technologies, Inc. v. Commonwealth, Dept. of Revenue, 156 Pa.Cmwlth. 48, 56, 626 A.2d 664, 667 (1993). And while it is true that allegations of malice, intent and other conditions of the mind may be pled generally, see Pa.R.C.P. 1019(b), such characterizations of conduct, without supporting factual allegations, are insufficient. Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895, 896 (1953), cert. denied, 346 U.S. 866, 74 S.Ct. 106, 98 L.Ed. 377 (1953); Wallaesa v. Wallaesa, 174 Pa.Super. 192, 196, 100 A.2d 149, 152 (1953).

The complaint of the Harts fails to set forth those facts which, if taken as true, would illustrate that Elizabeth O’Malley’s use of the first continuance was wrongful. Rather, the complaint states a legal conclusion without the support of factual averments. In this jurisdiction, such a complaint fails to state a cause of action.

The Harts also have failed to state a claim for abuse of process against Mr. Aliano. An attorney is liable for abuse of process when the acts complained of are his own personal acts or the acts of others wholly instigated and carried on by him. Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15 (1938). An attorney cannot be liable for doing nothing more than carrying out the process to its authorized conclusion, even though with bad intentions. Shaffer v. Stewart, supra; Di Sante v. Russ Financial Co., supra.

Presently, the Harts have failed to allege that Mr. Aliano did anything more than carry out the process of the preliminary injunction to its authorized conclusion. The Harts do not contend that Mr. Aliano, when he agreed to the first continuance, acted on his own or instigated Mrs. O’Malley to agree to the continuance. Therefore, the Harts have not stated a cause of action for abuse of process against Mr. Aliano. The trial court did not err when it granted his preliminary objections and dismissed this cause of action against Mr. Aliano.

The Harts also argue that the trial court erred when it granted the demurrer and dismissed their complaint for intentional infliction of emotional distress against Mrs. O’Malley based solely upon conflicting pleadings. The trial court did not dismiss the complaint based on conflicting pleadings. Rather, the trial court dismissed the complaint because the Harts failed to state a claim under which recovery is possible.

There is much controversy over whether Pennsylvania jurisprudence recognizes the tort of intentional infliction of emotional distress. See Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987) (did not adopt the definition of the tort of intentional infliction of emotional distress as defined by Restatement (Second) of Torts § 46); Johnson v. Caparelli, 425 Pa.Super. 404, 625 A.2d 668 (1993) (discusses the different cases addressing the tort of intentional infliction of emotional distress; notes some cases adopted § 46 of the Restatement (Second) of Torts and some do not); Kelly v. Resource Housing of America, Inc., 419 Pa.Super. 393, 615 A.2d 423 (1992) (does not recognize the tort of intentional infliction of emotional distress); Strain v. Ferroni, 405 Pa.Super. 349, 592 A.2d 698 (1991) (does not adopt the Restatement (Second) of Torts § 46’s definition of the tort of intentional infliction of emotional distress); Baker v. Morjon, 393 Pa.Super. 409, 574 A.2d 676 (1990) (same). Compare, Hackney v. Woodring, 424 Pa.Super. 96, 622 A.2d 286 (1993) (§ 46 of the Restatement (Second) of Torts definition of the tort of intentional infliction has been adopted by this Commonwealth); Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991) (same); Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (same); Field v. Philadelphia Elec. Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (same; distinguishing the Superior Court case of Kazatsky v. King David Memorial Park, supra on procedural grounds). Compare also Ford v. Isdaner, 374 Pa.Super. 40, 542 A.2d 137 (1988), alloc. denied, 520 Pa. 617, 554 A.2d 509 (1988) (interprets Kazatsky v. King David Memorial Park, supra as stating the tort of intentional infliction of emotional distress is not recognized in this Commonwealth). However, it is clear that in Pennsylvania, in order to state a claim under which relief can be granted for the tort of intentional infliction of emotional distress, the plaintiffs must allege physical injury. Kazatsky v. King David Memorial Park, supra; Johnson v. Caparelli, supra; Kelly v. Resource Housing of America, supra; Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175 (1992); Strain v. Ferroni, supra.

Instantly, in the count for intentional infliction of emotional distress against Mrs. O’Malley, the Harts fail to allege physical injury. Thus, under the tort of intentional infliction of emotional distress in Pennsylvania, the Harts have failed to state a claim. The trial court did not err in dismissing the Harts’ complaint against Mrs. O’Malley for intentional infliction of emotional distress.

The last issue for our review is whether the trial court erred in not allowing the Harts to file responsive pleadings to Mr. Aliano’s preliminary objections. The Harts contend that because their preliminary objections were dismissed, they have a right to plead over; to respond to Mr. Aliano’s preliminary objections. The Harts claim that this right is absolute and cite Ambrose v. Cross Creek Condominiums, 412 Pa.Super. 1, 602 A.2d 864 (1992) (Wieand, J., dissenting) to support their averment. We agree that Ambrose v. Cross Creek Condominiums, supra does hold that a plaintiff whose preliminary objections to a defendant’s preliminary objections were dismissed does have a right to file a responsive pleading to the defendant’s preliminary objections.

Presently, Mrs. O’Malley and Mr. Aliano filed separate but substantially similar preliminary objections. The trial court, in its opinion, did not differentiate between the two sets of preliminary objections. More important, however, is that the Harts did respond to Mrs. O’Malley’s preliminary objections which were substantially the same as Mr. Aliano’s. As it is unlikely that the Harts would be able to file different responsive pleadings to Mr. Aliano’s preliminary objections than they filed to Mrs. O’Malley’s, which were substantially similar to Mr. Aliano’s, and the Harts did respond to Mrs. O’Malley’s preliminary objections, the Harts’ right to file responsive pleadings to Mr. Aliano’s preliminary objections has been met for all practical purposes. The trial court did not err by refusing to allow the Harts to file responsive pleadings to Mr. Aliano’s preliminary objections.

We reverse that part of the trial court’s order which dismisses the Harts’ complaint for wrongful use of civil proceedings against Mrs. O’Malley. We affirm that part of the trial court’s order which dismisses the Harts’ complaint for wrongful use of civil proceedings and abuse of process against Mr. Aliano and the complaint for abuse of process and intentional infliction of emotional distress against Mrs. O’Malley. We also affirm that part of the trial court’s order which overrules the Harts’ preliminary objections to all of Mr. Aliano’s preliminary objections.

Order reversed in part, affirmed in part.

      . Mr. Aliano does not address the issue of the Harts’ standing to maintain an action under 42 Pa.C.S.A. § 8351. However, the discussion regarding the Harts’ standing is also applicable to him.

      . A preliminary injunction is a process in civil litigation. The Harts allege that the preliminary injunction was instituted for an improper purpose. However, this claim, if proven, only establishes a cause of action for wrongful use of civil proceedings, not a claim for abuse of process.

      . Appellee, Mr. Aliano, argues that the Harts waived any objection to the use of process which instituted the action because they were intervenors. Also, Mr. Aliano avers that because the Harts chose to intervene they cannot now complain about the preliminary injunction or the first stipulation which continued it. Appellee, Mrs. O’Malley, does not make these contentions. Instead, she argues that the Harts withdrew their claim for abuse of process at the oral argument on the preliminary objections. The record does not contain the transcript of the oral arguments, nor is there anything in the record to substantiate this claim. In its opinion, the trial court discusses and disposes of the claim of abuse of process on the basis of the preliminary objections. Because there is no indication in the record that the Harts withdrew the claim, we will not view the claim of abuse of process as having been withdrawn.
      As to Mr. Aliano’s argument, he correctly states that "[[Intervention is a procedural tool by which a person, not originally a party, can participate in a given action.” Appeal of Municipality of Penn Hills, 519 Pa. 164, 168, 546 A.2d 50, 52 (1988). It is well settled that an intervenor must take the suit as he finds it. Appeal of Municipality of Penn Hills, supra at 169, 546 A.2d at 52; Pennsylvania Coal Mining Ass’n. v. Department of Envtl. Resources, 498 Pa. 1, 4, 444 A.2d 637, 638 (1982); Tremont Township Sch. Dist. v. Western Anthracite Coal Co., 381 Pa. 276, 280, 113 A.2d 234, 237 (1955); Commonwealth ex rel. Chidsey v. Keystone Mut. Casualty Co., 366 Pa. 149, 153-54, 76 A.2d 867, 870 (1950).
      However, as we recognized above, the Harts should have been joined as indispensable parties and should not be held to have entered the suit with the more limiting status of intervening parties. Because we recognize the Harts as indispensable parties to the underlying equity action, they are not bound by the rules governing mere intervenors. Therefore, the Harts do not have to accept the suit as they found it when they were finally joined.

      . “The basis for a continuance rests on the right of a party to a cause of action to try the case on its merits with a view to obtaining justice.” C.J.S. Continuances § 4. See also: Bierstein v. Whitman, 355 Pa. 515, 519, 50 A.2d 334, 335-336 (1947); Cotter v. State Civil Service Commission of Commonwealth, 6 Pa.Cmwlth. 498, 500, 297 A.2d 176, 179 (1972).

      . While Paragraph 25 of the complaint states that "[t]he injunction obtained was wrongfully continued”, this is a conclusion of law which we are not required to accept as true during this review. See: Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., supra; MacGregor v. Mediq, Inc., supra.

        . We further note that the delay caused by the appeal is not an instance of abuse of process. The Harts’ new counsel delayed the review hearing of the preliminary injunction by filing an appeal to the Commonwealth Court. The Common Pleas Court was divested of jurisdiction to hold a hearing regarding the continuance of the preliminary injunction and so was constrained to wait for the disposition of the appeal before it could review the preliminary injunction. As Mrs. O’Malley and Mr. Aliano did not file the appeal, nor prolong it, they cannot be liable for abuse of process for the delay which stemmed from the appeal.

      . We note that the Harts allege physical injury in their counts for wrongful use of civil proceedings and abuse of process against Mrs. O'Malley. However, the Harts fail to incorporate those paragraphs in the count for intentional infliction of emotional distress. Their failure to incorporate those paragraphs must be viewed as intentional as they did incorporate other, relevant paragraphs located elsewhere in the complaint in the count for intentional infliction of emotional distress.

      . We recognize that the appellate briefs filed by Mrs. O’Malley and Mr. Aliano are not substantially similar. However, the issue is whether the Harts were able to file responsive pleadings to Mr. Aliano’s preliminary objections. As the preliminary objections of Mrs. O'Malley and Mr. Aliano were substantially similar, the Harts did have the chance to file responsive pleadings to Mr. Aliano’s.