author: CAVANAUGH, Judge:

text:
    603 A.2d 627
    In re J.C., T.C., H.C., K.K. & E.K. Appeal of L.C.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1991.
    Filed Feb. 24, 1992.

      Deborah L. Barr, Towanda, for appellant.
    Robert G. Dean, Montrose, for Children & Youth Service, participating party.
    Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

Two issues are asserted on appeal. First, the appellant asserts that a finding of dependency cannot be made until “reasonable” efforts are made to locate an absent, noncustodial parent whose whereabouts are unknown. Second, appellant claims that the trial court erred by failing to grant her request to view the Susquehanna County Children and Youth Services file dealing with allegations of abuse to her children in preparation for a dependency hearing. Although we find the first argument without merit, we agree with the substance of the latter argument. We reverse.

The following facts are uncontested. On November 30, 1990, appellee Susquehanna County Children and Youth Services (hereafter CYS) took appellant’s five minor children into protective custody because of her alleged abuse. On December 20, 1990, the trial court heard argument on the motion of appellant to view the CYS file. The trial court, after initially granting the motion, rescinded the order after further argument. On December 21, 1990, appellant filed a motion in limine for access to the CYS file by her counsel. This motion was denied. On this same date, the Court conducted the dependency hearing. During the hearing, appellant requested the trial court to enforce a subpoena issued on December 20, 1990, requiring the CYS to produce the file. The trial court refused. Appellant also argued at the hearing that a dependency finding could not be made because the CYS must join an absent father to the proceedings. The trial court did not agree with her contention, and found based on the testimony of Forest City Assistant Police Chief Lucas and CYS caseworker Carol Newhart that there existed clear and convincing evidence that the children were dependent.

The first argument of appellant’s we address is that a finding of dependency cannot be made until “reasonable” efforts are made to locate an absent, non-custodial parent whose whereabouts are unknown. Appellant claims that this proposition can be derived from our decision in In Interest of Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988). Appellant’s argument claims that Justin S. established the principle that the non-custodial parent is a necessary party to a dependency hearing, such that a court lacks jurisdiction to make a finding of dependency when an absent father is not notified of the hearing. Our reading of that case suggests otherwise. The relevant facts of that case are as follows.

In Justin S., Justin S. and Matthew S. resided with their natural mother and her paramour. After receiving a report of child abuse and investigating the allegations, the Westmoreland County Children’s Bureau initiated the case by filing a petition claiming “dependency and abuse.” Initially, the natural father, who visited the children on weekends, was suspected of abuse. However, exculpatory evidence soon thereafter eliminated the children’s natural father as a suspect. The Common Pleas court believed that the abuser was either the mother or someone who gained access to the children through their relationship to her, such as her paramour and her brother. It determined, without a finding of dependency, that the father would be awarded custody of the children.

In affirming the Common Pleas court’s order, the Superi- or Court held that a finding of dependency could not be made where the non-custodial parent “is ready, willing, and able to provide the child with proper parental care and control, especially when the lower court finds that the child was abused while under the custodial parent’s care and control.” Id., 375 Pa.Superior Ct. at 103, 543 A.2d at 1199. Although the court did not specifically elaborate on its reasoning, it did declare that “[t]he fundamental purpose of proceedings under the Juvenile Act is to preserve the unity of the family.” Id., 375 Pa.Superior Ct. at 103, 543 A.2d at 1199.

Appellant apparently wants us to extrapolate from this case the general proposition that before a finding of dependency can be made, the local CYS has to make “reasonable” attempts to find the non-custodial parent. Appellant ignores that in Justin S., the father was, as the decision notes, “ready, willing, and able” to provide the children with a proper nurturing atmosphere. Id., 375 Pa.Superior Ct. at 103, 543 A.2d at 1198. The father had close contact with the children, having weekend visitation rights, and the trial court specifically found that “the father could provide proper care for the children.” Id., 375 Pa.Superior Ct. at 101, 543 A.2d at 1198. Given these facts, the decision furthered the fundamental purpose of Juvenile Act proceedings: to preserve family unity. In sharp contrast are the facts of this case. The whereabouts, let alone the fitness, of the non-custodial father is unknown. He has had several different aliases, and he has had no contact with his children since they were a few weeks old.

The Juvenile Act defines a dependent child as one who “is without proper parental care or control____” 42 Pa.C.S.A. § 6302. We have long held that the proper inquiry to decide whether a child lacks proper care and control encompasses two discrete questions: (1) Is the child at this moment without proper care and control?; (2) If so, is such care and control immediately available? (emphasis ours) In the Interest of Anita H., 351 Pa.Super. 342, 344-5, 505 A.2d 1014, 1015 (1986); In re Barclay, 321 Pa.Super. 417, 422, 468 A.2d 778, 781 (1983); In the Matter of Mark T., 296 Pa.Super. 533, 535, 442 A.2d 1179, 1180 (1982). Here, it is clear that “at this moment” the children, if the substance of the allegations are correct, are without proper care and control. Moreover, the non-custodial parent is not “immediately available.” Appellant would have us totally undercut the immediacy implicit in the standard used to determine dependency by placing the onerous burden on the local CYS of attempting to locate an absent father. While it is true that the fundamental purpose of the Juvenile Act is to preserve family unity, cf. Justin S., supra, 375 Pa.Superior Ct. at 103, 543 A.2d at 1199, the above standard reflects a concern that the child be taken out of an abusive environment with dispatch and placed in a more favorable one.

We are especially reluctant to require a local CYS to investigate the whereabouts of an absent non-custodial parent where our legislature has not provided guidance. Judicial restraint demands that we not place on a local CYS a requirement that has no explicit or implicit statutory origin. Investigating the whereabouts of an absent non-custodial parent can be time consuming and costly. This may be especially true because a local CYS may not have the expertise or trained personnel to track down an absent parent. We find the appellant’s first argument without merit.

The appellant’s other argument is that the lower court, by failing to follow certain statutory protections to ensure that a parent suspected of abuse receives a fair dependency hearing, violated appellant’s Due Process rights. Namely, the trial court refused to afford the appellant access to the CYS files, thus violating 42 Pa.C.S.A. § 6307(2). Furthermore, appellant asserts that the trial court refused to issue a subpoena at the request of appellant for the CYS files, thus violating 42 Pa.C.S.A. § 6333. Appellant asserts that by failing to provide her access to the CYS records pursuant to these provisions, she was denied the ability to effectively defend against the charges, thus making the dependency hearing fundamentally unfair.

We agree that the trial court erred in failing to follow § 6333, which was designed to ensure a fair dependency hearing, and for this reason reverse and remand. However, we decline to address whether the refusal to provide appellant with the CYS file violated her due process rights. Two reasons persuade us that this would be prudent. First of all, well-settled principles of law militate that this Court should not decide a constitutional issue unless absolutely required to do so. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983); Mt. Lebanon v. County Board of Elections, etc., 470 Pa. 317, 322, 368 A.2d 648, 650 (1977); Coatesville Dev. v. United Food Wkrs., 374 Pa.Super. 330, 337, 542 A.2d 1380, 1383 (1988) (en banc). Since we believe that it is reversible error for a trial court to ignore § 6333, we are not required to address whether the failure to follow these provisions also violates Due Process in some way. Second, appellant’s constitutional argument is more than somewhat vague, the trial court failed to write an opinion, the appellee did not address appellant's constitutional argument other than to simply assert that any Constitutional violation was harmless, and the record before us is incomplete. Important constitutional questions should not be decided except after a hearing and upon a full record. Braden v. University of Pittsburgh, 477 F.2d 1, 4 (3rd Cir.1973) on remand 392 F.Supp. 118 (W.D.Pa.1975), affirmed, cause remanded 552 F.2d 948 (3rd Cir.1977) (en banc). Reasoned disposition would best be served if we do not address under these circumstances what could be a Constitutional issue of wide-ranging significance.

The only hint as to why the trial court denied appellant's request for the CYS file is found in the following exchange which occurred between Ms. Barr, appellant’s lawyer, and the Court at the dependency hearing:

Ms. Barr: I would ask the Court to [order the CYS records released] at this time.
The Court: What records are we talking about?
Ms. Barr: The records that they are using to make these children dependent. They are discoverable at this point in time.
The Court: What records are we talking about, those that are protected by the Child Protective Services Act?
Ms. Barr: Those records that they are using to make the child dependent. If they are using those reports for the basis of their opinion to make the child dependent, at this point in time, they are discoverable. I don’t think there is a distinction between CPSL at this point or [sic] not. This isn’t an abuse proceeding.
The Court: Motion is denied.

(Transcript of December 27, 1990 hearing, pp. 36-37). Thus, the trial court apparently felt the Child Protection Services Law prevented the files from being released.

A finding of dependency is adjudicated under the provisions of the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. Fallaro v. Yeager, 364 Pa.Super. 408, 415, 528 A.2d 222, 225 (1987); In the Interest of R.M.R., 366 Pa.Super. 243, 258-9, 530 A.2d 1381, 1389 (1987); In the Interest of M.B., 356 Pa.Super. 257, 262, 514 A.2d 599, 602. The Juvenile Act provides liberal access to court records and provides the opportunity for liberal discovery in a dependency or delinquency action. In pertinent part, 42 Pa.C.S.A. § 6307 reads:

Inspection of court files and records

All files and records of the court in a proceeding under this chapter are open to inspection by:

* * * ‡ * *

(2) The parties to the proceeding and their counsel and representatives, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court.

42 Pa.C.S.A. § 6333 reads in its entirety:

Subpoena

Upon application of a child, parent, guardian, probation officer, district attorney, or other party to the proceedings, the court, master, or the clerk of the court shall issue, or the court or master may on its own issue, subpoenas requiring attendance and testimony of witnesses and the production of papers at any hearing under this chapter.

The appellant’s argument based on § 6307 fails because it is not apparent that the trial court had in its possession the CYS reports. That section only gives access to reports or files in the court’s possession. While it may be that at dependency hearings a CYS typically submits abuse reports into evidence, here the record indicates that this was probably not the case.

Appellant’s argument based on § 6333, however, has merit. We note that § 6333 is not discretionary: “upon application of ... [a] party to the proceeding, the court shall issue subpoenas requiring ... the production of papers at any hearing under this chapter.” (emphasis ours). This rule, obviously, does not have a similar limitation to § 6307’s which would restrict its application only to documents in the court’s possession.

Apparently, the trial court felt that the Child Protective Services Law mandated that the CYS file be kept confidential despite the liberal discovery requirements given by the Juvenile Act. Simply put, it seems the trial court believed the CPSL conflicts with and supersedes the Juvenile Act. However, “[w]hen laws pertain to the same subject matter, they should be construed, where possible, as one.” Royal Indem. Co. v. Adams, 309 Pa.Super. 233, 244, 455 A.2d 135, 141 (1983); accord, Girard School District v. Pittenger, 481 Pa. 91, 100, 392 A.2d 261, 265 (1978); see also 1 Pa.C.S.A. § 1932. It is true that § 2214 of the CPSL mandates a broad requirement of confidentiality for reports of abuse. However, § 2215(a) & (b) contain numerous exceptions to § 2214’s confidentiality requirement, two of which suggest that the requirement of confidentiality does not conflict with the Juvenile Act’s requirements. Section 2215(a)(5) states that reports of abuse will be made available to “[a] court of competent jurisdiction pursuant to a court order.” When read in conjunction with the requirement in 42 Pa.C.S.A. § 6333 that a court issue, upon application by an accused, a subpoena (a court order) for production of documents, no conflict is apparent between the two statutes.

We believe our interpretation is validated by another exception to § 2214’s confidentiality requirement. Section 2215(b) provides that:

At any time and upon written request, a subject of a report may receive a copy of all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed [pursuant to the CPSL’s procedures].

Thus, appellant, a subject of the report, would be entitled to a copy of all information in the report simply upon written request. Subsection (c) of § 2215 specifies that the only qualification of this entitlement is that data that might reveal the identity of a person who either reported or cooperated with the report would be kept confidential unless it was first determined that the information would not be detrimental to the safety of that person. Given that a subject of a report can obtain a copy of information simply by filing a written request with the local CYS, we submit that § 2215(a)(5)’s reference to a court order must be appropriately broadly construed to include subpoenas.

Appellant rightly brings to our attention and appropriately distinguishes a seemingly similar case which dealt with restriction of access to a CYS file. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), a father was charged criminally with various charges relating to alleged sexual abuse of his minor daughter. He subpoenaed the CYS records which pertained to his daughter, hoping to find exculpatory evidence. The CYS refused the father access to the file, relying on the provisions of the CPSL. The trial court, after reviewing most of the CYS file, refused to order a disclosure. After the father’s subsequent jury trial and conviction, he appealed on the grounds that the failure to disclose the file violated the Confrontation Clause of the Sixth Amendment, as made applicable to the states by the Due Process Clause of the Fourteenth Amendment. After our Superior Court and Supreme Court had addressed the issue, the United States Supreme Court accepted certiorari. Although unable to agree on whether depriving the father access to the files violated the Confrontation Clause, five members of the Court agreed that the Fourteenth Amendment required some disclosure of records, but the requirement was limited to the trial court reviewing the records in camera and deciding whether the file contained evidence that would change the outcome of trial.

The Supreme Court decision in Pennsylvania v. Ritchie is fundamentally different than the case sub judice. In Ritchie, a criminal defendant who had no statutory right to the CYS file argued that under the United States and Pennsylvania Constitutions he should be given access to the file. Ritchie defined the arguably limited extent to which the United States Constitution required that such access be given to a criminal defendant. However, the appellant in this proceeding argues that she has a statutory right to the CYS file. As a state legislature can grant greater access to state agency files than the Constitution mandates, Ritchie is not dispositive. It is easier to receive CYS records in a dependency or delinquency hearing than in a criminal prosecution of an adult for child abuse, because the Juvenile Act makes it easier.

Although we do not decide this case on Constitutional grounds, we are concerned that the trial court ignored a provision which was meant to ensure that a dependency finding is merited. A parent’s interest in the care, custody and management of their children is a fundamental liberty interest protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed 2d 599 (1982). The Fourteenth Amendment’s Due Process Clause militates that when a State moves to terminate the familial bonds between parent and child, it must provide the parent with fundamentally fair procedures. Id. 42 Pa.C.S.A. § 6307(2) and 42 Pa.C.S.A. § 6333 are provisions aimed at ensuring that a parent is fairly treated. The provisions allow a parent charged with abuse to adequately prepare for the dependency hearing. Cf. In Interest of Leslie H., 329 Pa.Super. 453, 457, 478 A.2d 876, 878 (1984). By ignoring § 6333, the appellant was forced to defend against the allegations of abuse blindly. We feel it is reversible error for a court to ignore these provisions which the legislature has designed to ensure the familial bond is not separated without cause.

Counsel for the Susquehanna CYS asserts that no error occurred because the trial court’s order mandated a seemingly judicious and equitable solution to the difficult situation of alleged parental child abuse. The appellant and her boyfriend were moved to an apartment downstairs and were given liberal visitation rights (twice daily). An aunt of the children was given supervisory responsibility over the children, who remained in the apartment upstairs. The Susquehanna CYS monitored the situation, and eventually the children were given back to the appellant.

Notwithstanding the protestations of the CYS that the trial court did an outstanding job of balancing the interests of the children and the accused parents after a finding of dependency, we think the better view is that the protections of the Juvenile Act must be met before a dependency finding can be made. We have repeatedly emphasized the importance of adhering to the legislatively-mandated procedures in a dependency hearing. See, e.g., Fallaro, supra, 364 Pa.Superior Ct. at 424, 528 A.2d at 230 (“[Cjourts must adhere to the procedures developed for resolution of the various problems which arise concerning the welfare of children.”); Leslie H., supra, 329 Pa.Superior Ct. at 457, 478 A.2d at 878.

We reverse and vacate the finding of dependency.

Jurisdiction is relinquished.

      . Appellee has declined to provide us with a Statement of the Case in its brief. Thus, we assume that appellee is satisfied with appellant’s statement of the case, see Pa.R.App.Proc. 2112, upon which we largely rely.

      . Appellant claims her ‘statutory due process’ rights afforded by the aforementioned provisions were violated by CYS and the trial court. Apparently, counsel believes that these provisions create a property interest in the CYS file, although it is hard to determine this from counsel’s brief, since argument on this point is rather sparse and contains no reference to relevant precedent. We remind appellant that it is not the responsibility of this court to develop the appellant’s argument.

      . Such a practice is expressly violative of Pa.R.App.Proc. 1925(a).

      . Appellee’s brief rather simply argues, without citation of case or statute, that it does not believe there was anything in the CYS file that would have helped the appellant, and if there was, the trial court committed no error by not granting access to the file. (See infra).

      . Appellant has accurately complained that there exists obvious gaps in the transcript.

      . Although the appellee asserts baldly that the trial court committed no error, it fails to argue that 42 Pa.C.S.A. §§ 6307 and 6333 do not afford the protections appellant alleges they do. The tenor of appellee’s argument is that under the circumstances the trial court acted appropriately. (See infra).

      . The CPSL, 11 Pa.S.A. §§ 2201-2224, was repealed by Act of December 19, 1990. The statute was reenacted as Part VII of the Domestic Relations Code, 23 Pa.C.S.A. §§ 6301-6384 (Purdon Supp.1991). Although the arguments before this court were premised on the former statute, the only change in the statute seems to be its new location. Our holding will thus remain unaffected by the statute’s repeal and reenactment. See 1 Pa.C.S.A. § 1962 (Purdon Supp.1991); See also, In Interest of R.T., 405 Pa.Super. 156, 163 n. 2, 592 A.2d 55, 58 n. 2 (1991).

      . The record only indicates that appellant requested the reports at the December 21, 1990, hearing and appellee claimed not to have brought the reports to the hearing.
      If a lower court does possess the CYS files, it is pertinent to note that § 6307 is not discretionary: the statute gives access to a party in a proceeding under the Juvenile Act to all files and records of the court. This was specifically intended to cover “social reports," such as the CYS reports at issue today. Access is only restricted by the limitation that "confidential sources of information” in the social reports could be suppressed at the trial court’s discretion.

      . The only case interpreting the statutory interrelation of the Juvenile Act and § 2215 of the Child Protection Services Act supports this conclusion. See In Re: Mary Kriner, 43 Pa.D. & C.3d 559, 561 (1985).

      . The CPSL defines “[sjubject of a report” as "[a]ny child reported to the central register of child abuse and a parent, guardian or other responsible person also named in the report." Code promulgated pursuant to the CPSL, similarly, defines it as ‘‘[a] child reported to [the central register] and his parent, guardian, other person responsible or other perpetrator named in the report." 55 Pa.Code § 3490.4.

      . This requirement bears strong resemblance to a similar provision in § 6307 of the Juvenile Act.

      . Although the CPSL does not state to whom the written request must be made, 55 Pa.Code § 3490.104 specifies that it can be filed with, inter alia, the Child Protective Services section of a local CYS.

      . As our decision rests on other grounds, we do not decide whether the subpoena, itself, constituted a "written request” within the meaning of § 2215(b).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    603 A.2d 633
    Mary Louise Ryder FITZPATRICK, Appellant, v. Warren Arthur FITZPATRICK. Mary Louise Ryder FITZPATRICK Warren Arthur FITZPATRICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1991.
    Filed Feb. 24, 1992.

      Diane D. Welsh, Norristown, for appellant (at 3005) and appellee (at 1486).
    Kevin C. McCullough, Philadelphia, for appellant (at 1486) and appellee (at 3005).
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

These consolidated appeals are from orders entered October 12, 1990 and April 12, 1991, in the Court of Common Pleas of Montgomery County. The first order granted defendant’s petition to modify an order of support, and the second order limited the retroactive effect of the first. In the appeal docketed at No. 3005 Philadelphia 1990, Mary Louise Ryder Fitzpatrick (hereinafter “Mother”), the plaintiff in this support proceeding, raises the following issues:

(1) Whether the trial court erred in eliminating Father’s private school tuition obligation, where such issue was not raised by Father’s pleadings and in permitting evidence of the cost of such private school, but in precluding evidence that other decreases in Father’s expenses sufficiently offset the increased tuition?
(2) Whether the trial court erred in impermissibly modifying the tuition with respect to the children where such expenses were previously held to be a reasonable need of the children?
(3) Whether the trial court erred in issuing an Order which specifically found no change in either parties [sic] income or in the children’s need since the prior Order, but by eliminating school tuition obligations, caused an $11,-000 reduction in support?
(4) Whether the trial court erred in Reducing Father’s unreimbursed medical and dental obligations from 100% to %, absent a substantial change in circumstances from the prior Order and when such issue was not raised in Father’s pleadings or presented at the hearing?
(5) Whether the trial court erred in permitting a pleading amendment during the hearing to include a claim of increased tuition for one child as a basis for support reduction?

Appellant’s Brief 3.

In the appeal docketed at No. 1486 Philadelphia 1991, Warren Arthur Fitzpatrick (hereinafter “Father”), the defendant, contends that the trial court erred when, in its supplemental order of April 12, 1991, it limited the retroactive effect of its October 12, 1990 support order. For the reasons that follow, we vacate the order of support dated October 12, 1990, and remand both orders for proceedings consistent with this opinion.

The parties were married on December 29, 1974, and three children were bom of the marriage. Father resides in Rhode Island, which was the situs of the marital home for many years. In August, 1987, Mother moved with the children to Audobon, Pennsylvania. Mother commenced a support action on May 2, 1988. Based upon a finding of Mother’s earning capacity of $185.00 net per week and Father’s income of $1800.00 net per week, an Order of Support was entered after a master’s hearing held on October 14, 1988, requiring Husband to pay $300 per week in alimony pendente lite, $350 per week in child support plus private school tuition and 100% of unreimbursed medical and dental expenses for the parties’ three minor children. Neither party filed exceptions or appealed this order. However, less than three months later, on January 4, 1989, Father filed a petition to modify the support order in which he alleged that (1) his income had decreased due to his inability to find a tenant for a jointly owned rental property for which he was paying the mortgage; (2) Mother’s father now permanently resided with her, making financial contributions and, thereby increasing her income; and (3) Father’s commuting expenses for visitation increased. On April 7, 1989, after a hearing, the master recommended denial of Father’s petition. Father filed timely exceptions to the recommendation and requested a de novo hearing which was granted. The Honorable Albert R. Subers then issued an order which eliminated Father’s obligation to pay for the private school and reduced his obligation for unreimbursed medical expenses of the children from 100% to %. In addition, the court ordered Father to pay $284 per week in alimony and $386 per week child support for the three children and $15 per week on any arrearage. The court based its conclusion on (1) the increase in Father’s visitation expenses in coming from Rhode Island twice a month, although the court noted that these increases were not substantial; (2) Mother’s unilateral enrollment of the eldest son in Malvern School; and (3) the decrease in Father’s rental income due to his inability to obtain a tenant in Rhode Island. Opinion, Subers J., March 13, 1991, at 3-4.

A.

We recognize that our scope of review in the present matter is limited. We will not disturb a modification of a child support order absent a clear abuse of discretion. Van Dyke v. Van Dyke, 392 Pa.Super. 567, 569, 573 A.2d 608, 609 (1990). “ ‘An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ’ ” Coffey v. Coffey, 394 Pa.Super. 194, 196-97, 575 A.2d 587, 588 (1990) (citations omitted); see also Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985).

When determining whether to allow a reduction in a support order, the trial court must consider all pertinent facts and base its decision upon facts included in the record. Koller v. Koller, 333 Pa.Super. 54, 57, 481 A.2d 1218, 1220. A court may only modify an existing support award when a material and substantial change in circumstances has occurred since the entry of the original support order. The petitioner has the burden of proving such change in circumstances. Id. (citing Com. ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981)); Com. ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 39, 457 A.2d 98, 102 (1983).

The support hearing and order below were governed by Pennsylvania Rules of Civil Procedure 1910.16-1 to 1910.-19-5, which became effective September 30, 1989. These statutory guidelines assign a percentage of income as the basis of the award. The guidelines require articulation of each party’s net income to determine fairly apportioned levels of child support. The guidelines essentially operate as follows. The net income of both parents is determined and combined, and the resulting figure is then used to calculate a basic child support obligation. The final amount is then divided between the parents in proportion to their respective net incomes. The formula permits adjustment to the support obligation for extraordinary expenses and needs of the children. However, any deviation from the guidelines in excess of ten percent must be explained on the record. Pa.R.Civ.P. 1910.16-4. Moreover, the statutory child support guidelines must be considered and computed on the record. Blaisure v. Blaisure, 395 Pa.Super. 473, 479, 577 A.2d 640, 643 (1990). See also Shutter v. Reilly, 372 Pa.Super. 251, 258, 539 A.2d 424, 426 (1988) (trial court abused its discretion in entering modification of support order based upon established change in circumstances without referring on the record to county support guidelines); Palmatier v. MacCartney, 365 Pa.Super. 300, 304, 529 A.2d 518, 520 (1987) (in modifying support order, trial court worked within county support guidelines, giving consideration to expenses of both parties).

Although the court purportedly arrived at the numbers by applying the requisite support guidelines, the trial court's opinion does not adequately disclose the basis for its determination. The court first stated that Mother’s earning capacity remained at $185 per week and that Father’s self-employment income remained at $1800 per week. The court then proceeded to find that Father’s visitation expenses had slightly increased and that his rental income had decreased due to the inability to obtain a tenant in his office building in Rhode Island. Finally, the court stated in a conclusory manner that “[i]t is obvious from the facts and figures presented that it is impossible for the Defendant to pay the private school tuitions for the three children and the Court did not abuse its discretion to eliminate the requirement to do so.” Opinion, Subers J., March 13,1991, at 4. However, specific amounts of increased expenses and decreased rental revenue are not stated on the record. Furthermore, the court provides no reason for eliminating Father’s obligation to pay the entire private school tuition when Father only complained of the increased portion resulting from the eldest child’s enrollment in a new school. Moreover, the testimony at the hearing reveals a dispute as to the cost of the tuition for the three children, and we cannot discern which figures the trial court adopted in reaching its conclusion. Without all of the above information, we. are unable to determine whether the new child support award is within the guidelines’ amount, or whether deviations from the guidelines were contemplated. Accordingly, we must vacate the order modifying the support order and remand to the trial court for proceedings consistent with this opinion.

We must, however, address appellant’s allegations of trial court error which are likely to recur at the proceedings below.

B.

Mother contends that the issue of private school tuition was not properly before the trial court. She claims that Father failed to raise the issue of increased tuition in his pleadings, and as a result, the trial court improperly permitted evidence of the alleged increased cost of private school tuition. We disagree. In August of 1989, Father brought charges of contempt against Wife, alleging that she violated the October, 1988 order by unilaterally enrolling their eldest child in the Malvern School, a private school whose tuition greatly exceeded that of his former school. During a contempt hearing held on August 15, 1989, the trial judge decided that Father would not be ordered to pay the Malvern School tuition, but that the obligation for the payment of private school tuition would be determined later at the support hearing. N.T., 8/5/89, at 105-07. Thus, the issue of increased tuition was specifically preserved.

As to the issue of Mother’s father residing in her house and making financial contributions, our review of the record reveals the following. Her father lived in the house from approximately May of 1988 through June of 1989, during which he paid his daughter one hundred dollars per month which reflected an estimation of his expenses. Thus, it appears that he was living there at the time of the October, 1988 hearing on the original support order, but he was not living there at the time of the hearing on the petition to modify the support order. N.T. at 48-49, 55. As a result, these payments presumably were taken into account during the October, 1988 hearing and were not properly considered in the petition to modify.

As to the issue of the decrease in Father’s rental income, the record reveals the following. Father owns the building which houses his office and another space that he rents out. Between January and August of 1988, he received $4800 in rent from a tenant who subsequently moved. The space remained unoccupied until March 1989 at which time a new tenant moved in and was subsequently evicted. Father apparently incurred expenses resulting from this eviction. The property then remained vacant from July of 1989 until the time of the October 1989 hearing. N.T. 58-64. In other words, it appears from the record that at the time of the October, 1988, hearing the space also had been unrented since the preceding August. N.T. at 116. If the trial court on remand determines this to be an accurate representation of the facts, then it must, on remand, consider only the loss in revenue that has occurred after the initial support order.

Finally, the testimony about Father’s traveling expenses revealed the following. Father commutes twice a month from Rhode Island to visit the children in Pennsylvania. He estimated the traveling and visitation expenses to have been $455 in 1989 and $352 in 1988, representing an increase of $103 per month. N.T. at 67. However, the testimony was unclear as to whether the additional expenses were the result of increased prices since the original hearing or the failure to include amounts properly includable during the original hearing. Again we note that the court below is to consider only increased expenses since the initial support award.

Reversed and remanded. Jurisdiction relinquished.

      . The support grids, however, do not take into consideration expenditures for private school tuition for which adjustments to the support order may be made. Pa.R.Civ.P. 1910.16-5(k).

      . The new order for alimony and child support totals $670 per month ($284 for alimony and $386 for child support) which is $20 higher than the previous order ($300 for alimony and $350 for child support). At the same time, compensation for unreimbursed medical expenses was reduced by one-third and private school tuition was terminated. The trial court provides absolutely no explanation of how these numbers were reached. On remand, the court is instructed to demonstrate why alimony was decreased, child support was increased, medical expenses were decreased, and tuition expenses were eliminated, and whether the latter two adjustments are reflected in the $36 adjustment to child support.
      We recognize that the support grids do not take into consideration expenditures for private school tuition and that the support award may be adjusted in order for each parent to provide a reasonable share of the tuition if private school tuition is found to be a reasonable need of the child. Pa.R.Civ.P. 1910.16-5(k). However, the trial court’s opinion does not explain why it eliminated what was previously found to be a reasonable need of the children.

      . Because of our resolution of Mother’s appeal, the April 12, 1991, order no longer has any effect. Therefore, we need not address Father’s contentions regarding retroactivity.

      . According to Mother’s testimony, the cost of enrolling all three children at Fairview Christian Academy was approximately $5300 per year until Mother obtained employment at the school during part of the 1988-1989 school year. At that time, the tuition obligation was reduced by nearly one-half. The eldest child then became too old to attend that school and Mother enrolled him at Malvern at a cost of $6300. N.T. 10/13/89, at 36-38. The tuition for the two younger children at Fairview then totalled $4148. Id. at 40.

      . Even if they were not considered originally, it would have been improper for Judge Subers to consider them in the petition to modify. Any error in the original support order should have been addressed by filing exceptions and an appeal. As we noted earlier, this was not done. Instead, we are presented here with a petition to modify, and not an appeal from an original order. As such, only subsequent changes in the parties’ positions may be considered.


author: BROSKY, Judge.

text:
    603 A.2d 637
    Melvin A. DAVIS, Appellant, v. EQUIBANK and Mary Jo Malesky.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Feb. 25, 1992.

      Jan I. Medoff, Pittsburgh, for appellant.
    Edward Yurcon, Pittsburgh, for appellees.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order granting appellees’ preliminary objections in the nature of a demurrer and dismissing appellant’s complaint. Appellant raises one issue for our consideration, whether appellant stated a cause of action for which relief could be granted? We affirm.

The facts of relevance, briefly stated, are: on January 12, 1990, an Equibank branch located in the Hazelwood section of Pittsburgh was the subject of a robbery. During the course of the police investigation an officer displayed a number of photographs to the teller involved, appellee Male-sky. Appellee Malesky identified one of the photos as the perpetrator of the robbery. The police subsequently arrested the subject of the identified photo, appellant Davis, and charged him with robbery of the bank. Appellant was incarcerated on February 7, 1990 until his preliminary hearing on February 23, 1990, at which time appellee Malesky testified that she did not believe that appellant perpetrated the crime as the perpetrator was taller than Davis. Davis was then released from custody. Appellant later filed an action for negligence against appellees asserting that appellee Malesky was negligent in identifying appellant as the perpetrator of the robbery which resulted in various damages connected to his incarceration. Appellees filed preliminary objections in response to appellant’s complaint asserting that appellant had not pled a cognizable action under the laws of Pennsylvania. The preliminary objections were granted and this appeal followed.

We start our analysis and commentary with the proviso that we are deciding this case with a narrow focus. Our holding today shall reflect a decision relating only to what has been termed “negligent identification.” That is, where an individual identifies an individual as a perpetrator of a crime and where such identification turns out to be incorrect or mistaken. There are many situations where some form of “negligent” behavior results in an erroneous arrest of another. There may be circumstances where the balancing of interests tips the scales in the direction of allowing recovery for an arrest which is the result of another’s negligence. Those interests appear readily with only minimal contemplation. With regard to the provision of information to law enforcement authorities, it is generally recognized that to allow recovery where an individual’s provision of incorrect or mistaken information results in the arrest of another would have a substantial chilling effect upon the willingness of citizens to come forward with information relevant to criminal investigations. We are certain that law enforcement authorities would assert that it is difficult enough under the present status of the law to conduct investigations and gather information without the natural dissuasion that potential liability would create.

On the other hand, we are not insensitive to the consequences of an individual being incorrectly accused of a crime, much less actual arrest for a crime one did not commit. The present case amply illustrates the unfortunate, and, perhaps, unavoidable, side of any criminal justice system. In any system where individuals are subject to arrest for violation of laws there is a substantial risk that some individuals who are arrested will be exonerated of the initial suspicion that precipitated their arrest. In such cases, they may be said to have suffered an unfortunate and possibly avoidable embarrassment, humiliation and loss of freedom. We do not dismiss these interests lightly. However, it appears clear that the weight of authority is contrary to allowing recovery under the factual pattern presented here.

Although it is asserted by the parties to the present appeal that there are no cases in Pennsylvania dealing with the viability of a negligence action where the injury is arrest as the result of another’s negligence, there are cases in other jurisdictions dealing with this precise issue. In Shires v. Cobb & Mayfair Market, 271 Or. 769, 534 P.2d 188 (1975), the respondent was arrested for the robbery of Mayfair Market. Respondent was identified by the cashier who had been robbed as the perpetrator of the robbery. The cashier’s identification resulted in the respondent’s arrest. However, the charges were later dismissed whereupon the respondent filed suit against the cashier and the market. The respondent received a jury verdict as a result of the “negligent identification” of respondent as the robber. On appeal, both defendants demurred, which was permissibly raised, under Oregon law, for the first time on appeal. In reversing the verdict below, the Supreme Court of Oregon opined that it was apparent that respondent had failed to state a cause of action upon which relief could be granted. The court stated: “[i]t is the law of this state (and we have found no cases from other jurisdictions to the contrary) that public policy will protect the victim of a crime who, in good faith and without malice, identifies another as the perpetrator of the crime, although that identification may, in fact, be mistaken.” Id., 271 Or. at 772, 534 P.2d at 189.

Under a similar factual pattern, the misidentification of an individual as a robbery, the District Court of Appeal of Florida, in Manis v. Miller, 327 So.2d 117 (1976), made a similar holding to the one found in Shires, and, in fact, quoted from that case. The Florida Court stated:

[cjlearly the question posed is one of substantial public interest and great concern. Prompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and not discouraged under apprehension or fear of recrimination.

Id., 327 So.2d at 117. In Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15 (1953), the Supreme Court of California considered a case where, again similar to here, an individual had been identified as the perpetrator of a series of robberies of a Western Union office. After the suspect had been arrested and detained overnight the identifying witness decided that, despite the fact that the suspect bore a striking resemblance to the perpetrator, he could not be certain that the suspect was indeed the one who had committed the various robberies. The individual, after being released from custody, filed a suit against the witness and Western Union. Despite discussing concepts of false imprisonment, the Court’s commentary in reversing a plaintiff’s verdict is instructive, the Court said:

Plaintiff relies upon Turner v. Elliot, (citation omitted) wherein understandable and commendable concern is shown for the victims of mistaken identification and ensuing false arrest. We share this concern but we think that proper concern for the victim in such a case must stop at some point along the line where to support his claims further would contravene the public interest. We think it serves the public interest and, hence, the line should be drawn here — that citizens who have been criminally wronged may, without fear of civil reprisal for an honest mistake, report to the police or public prosecutor the facts of the crime and in good faith, without malice, identify to the best of their ability to such public officers the perpetrator of the crime. Investigation and action from then on are the responsibility of the public employes who are skilled in that work and who are paid to perform it. The victims of crimes should not be held to the responsibility of guarantors of the accuracy of their identifications____ A view contrary to that ... would, we think, inevitably tend to discourage a private citizen from imparting information of a tentative, honest belief to the police and, hence, would contravene the public interest which must control.

New York law appears to be no more sympathetic to the victim of a mistaken arrest. Again under a similar factual pattern the Supreme Court of New York, Appellate division, in Collins v. Brown, 129 A.D.2d 902, 514 N.Y.S.2d 538 (1987), upheld the granting of summary judgment against the individual arrested on actions for false imprisonment, malicious prosecution, negligence and defamation. With regard to the negligence count the court concluded that the negligence count was really an action for negligent misrepresentation but found that action flawed by the fact that it was the police who relied upon the identification and made the arrest.

Several other cases have dealt with other allegations of negligence which either caused or contributed to an individual’s arrest on grounds later determined to have been mistaken. The overwhelming majority of these cases have also disallowed recovery on a negligence theory. For instance, in LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 360 A.2d 899 (1976), a Connecticut court, in granting judgment notwithstanding the verdict, considered a case where a pharmacist’s suspicions were aroused regarding the filling of a prescription. The pharmacist notified the police that, for a variety of reasons, he believed that the plaintiff appeared to be attempting to have a forged prescription filled. After the plaintiff picked up the prescription, she was arrested. The plaintiff successfully sought a jury verdict but defendant sought and was granted judgment N.O.V. The Connecticut court determined that there was not a duty of reasonable care owed the plaintiff under the facts presented there. The court quoted with approval from the Restatement of Torts:

Where a private person gives to a prosecuting officer information which he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief therein was one which a reasonable man would not entertain.

Restatement, 3 Torts § 653, comment g. The court further stated:

The rule exonerating an honest informer rests on the premise that either (1) there is no duty of reasonable care owed to the person informed against and as a consequence there is no negligence on which the informer can be held liable, or (2) there is a privilege or immunity granted to the informer in performing his public responsibility____ On either premise, the rule derives from sound public policy that the efficient enforcement of criminal law requires that a private person who renders aid to the police by giving honest, even if mistaken, information about crime should be given effective protection.

Id., 360 A.2d at 905.

We would hesitate to state that an individual has no duty owed to another whom he implicates as the perpetrator of a crime. The general rule as to determining whether a legal duty exists to another has been stated that where the parties are strangers to one another the general duty imposed upon all persons not to place others at risk of harm through their actions applies. The scope of this duty is limited, however, to those risks which are reasonably foreseeable. Alumni Association v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987). If one includes within the definition of harm incarceration, then it would appear that under the facts of the present case, and those like it, the witness identifying the suspect certainly would have a duty to that individual because it is clearly foreseeable that as a result of one’s identification of another that that individual may be incarcerated as a result. Consequently, rather than simply concluding that there was no duty owed appellant by appellees, we believe we would be on sounder legal ground by relying upon the well stated public policy considerations outlined above.

There is little reason to think that the policy considerations that shaped the above holdings are any different than the policy considerations present in Pennsylvania. It is safe to say that Pennsylvania, like the other states represented in the above decisions, certainly has an interest in effective law enforcement. We further recognize that the potential of civil liability for the provision of mistaken information to law enforcement agents would have a chilling effect on citizen cooperation and the provision of valuable information by citizens to police. Further, we are in agreement that the public interest in investigation of crime outweighs the recognition of a negligence action for negligent identification of a suspect. Consequently, we see no reason to take a divergent path from the authorities outlined above. Relying upon the weight of authority and a weighing of policy considerations, we decline to recognize a cause of action for negligent identification of another as a perpetrator of a crime. Consequently, for these reasons, we affirm the order appealed from.

Order affirmed.

      . The specific allegations of negligence in appellant’s complaint state appellee Malesky was negligent in, misidentifying appellant, in failing to be certain of the actor before informing the police that the appellant was the actor in question, in acting too fast and hastily, in failing to adequately examine the photo array before choosing appellant and in being inattentive. (Appellant’s complaint par. 8.)


author: OLSZEWSKI, Judge:

text:
    603 A.2d 641
    Howard I. ENDY, Appellant, v. Emilie A. ENDY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 10, 1991.
    Filed Feb. 25, 1992.

      Paul R. Wagner, Harrisburg, for appellant.
    Joanne H. Clough, Hershey, for appellee.
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a decree entered in the Court of Common Pleas of Dauphin County, directing the equitable distribution of property between appellant and appellee following their divorce. Appellant alleges that the divorce court abused its discretion in six specific ways:

1) the deferred distribution method of allocating appellant’s pension between the parties was erroneous;
2) the divorce court erred in not considering the tax consequences of distributing the pension;
3) the court erred in its evaluation of the pension because it did not consider the amount of Social Security included in the pension;
4) the court erred by awarding alimony without considering appellant’s tax consequences on the pension distribution;
5) the award of counsel fees to appellee was erroneous;
6) it was error for the divorce court to conclude that 48.77 acres of property in Tioga County was marital property, because the date of separation preceded the date of purchase.

Contrary to most of appellant’s assertions, we find error only on the pension distribution (first) and the Social Security (third) issues, and remand this case for proceedings consistent with our disposition of appellant’s first and third objections.

An apprehension of the facts of this case is helpful in understanding our disposition. The parties were married in 1965. Appellant Howard Endy is now 53 years of age, and appellee Emilie Endy is 49. The parties have two daughters, ages 23 and 20, both of whom still reside with appellee. Appellant has been employed by the Pennsylvania State Police since 1962 and now earns approximately $39,700 per year. Appellee worked as a receptionist prior to marriage and left the work force for approximately twelve years during the marriage to care for the parties’ children. For the past ten years, appellee has been employed as a receptionist earning approximately $17,000 per year. Both parties are in good health.

The parties separated in 1984, with appellant leaving the marital home. Appellant filed for divorce in 1987, under the Irretrievable Breakdown provision [§ 3301(d)] of the Divorce Code, 23 Pa.C.S.A. § 3101 et seq. The divorce was uncontested by appellee. At the time of the divorce, appellant and appellee owned a marital residence in Palmyra, Dauphin County, Pennsylvania. During the term of the marriage, appellant acquired a Pennsylvania State Police pension and appellee acquired her own pension. The parties also acquired personal property in the residence, individual personal property, and three parcels of real estate in Tioga County, Pennsylvania.

A master’s hearing was held on the equitable distribution of the parties’ property on March 2, 1990. The master’s report was filed on June 8,1990. Exceptions were filed by appellant. On June 18, 1990, the court of common pleas entered a final divorce decree, adopting the master’s report in its entirety. This appeal followed. Before turning to the issues presented, we note that in reviewing challenges to equitable distribution orders, the divorce court’s decision will stand unless the court abused its discretion in formulating the order. Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988). Except for the court’s decision on appellant’s Social Security benefits, we find no such abuse of discretion in this case.

As to appellant’s first allegation of error, we find that the distribution method utilized by the divorce court in allocating appellant’s pension was incorrect. Initially, we note that the amount of pension funds accrued during marriage is marital property and subject to equitable distribution. Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988); Verdile v. Verdile, 370 Pa.Super. 475, 536 A.2d 1364 (1988); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). Two distinct methods for equitable distribution of pensions have been established in Pennsylvania. The first is the “immediate offset” method, which divides the benefits at the time of equitable distribution by assigning a present value to the marital portion of the pension, and awarding that share to a party. Id., 339 Pa.Superior Ct. at 197, 488 A.2d at 619. The second method, entitled “deferred distribution,” does not incorporate present value figures. Rather, the court retains jurisdiction and distributes the benefits when they enter pay status or when they mature. Id.

When, as here, the value of the marital share of pension benefits is larger than the value of the remaining marital assets to be equitably divided, the immediate offset method is not the best alternative. Though it is the preferred alternative because it avoids continuing contact between the parties, this method is impractical where the parties do not possess sufficient assets to offset the pension award. In these cases, the deferred distribution method is employed, and the non-employee spouse receives a portion of the benefits as they are paid to the employee spouse. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984); Braderman, 339 Pa.Super. 185, 198-99, 488 A.2d 613, 620. In the present case, the immediate offset calculation was applied to the marital portion of appellant’s pension. The divorce court found that this present value determination was necessary to calculate whether there were sufficient additional assets to utilize the immediate offset method. It found that there were not. Therefore, the deferred distribution method was used for awarding appellee her marital share of appellant’s pension.

Appellant argues that this scheme was an abuse of discretion because the court did not apply a coverture fraction, instead using a straight figure of one-third of the gross monthly pension payment after vesting. The thrust of appellant’s argument is that appellee’s court-ordered share of the pension encompasses amounts of post-separation income which are not marital property. We agree.

As this Court held in two recent decisions concerning the equitable distribution of pensions,

only that pension which is available on the date of separation is marital property ... enhanced benefits purchased by the employer or employee contributions following separation are not marital property.

Berrington v. Berrington, 409 Pa.Super. 355, 598 A.2d 31 (1991); Katzenberger v. Katzenberger, 409 Pa.Super. 10, 14, 597 A.2d 636, 637 (1991). Therefore, when as in the present case the deferred distribution method is utilized, only those amounts accrued in the pension fund prior to separation may be distributed. As we noted in Katzenberger, “pension benefits available for distribution according to the deferred distribution method must be the same as those available for distribution according to the immediate offset method.” Katzenberger, 409 Pa.Superior Ct. at 14, 597 A.2d at 637.

It is here that the divorce court was in error. We remand this case for a re-evaluation of the pension distribution, in accordance with the directives established in Berrington and Katzenberger.

Appellant’s second contention, that the court below did not consider the tax consequences in making its equitable distribution award, is flatly contradicted by the record. Section 3502 of the Divorce Code explicitly identifies tax consequences as a factor in equitable distribution; therefore, it is necessary to take into account the effect of the tax laws. Diamond v. Diamond, 360 Pa.Super. 101, 114, 519 A.2d 1012, 1018 (1987). The record reveals that the master in this case considered the tax law in his recommendation for equitable distribution:

Using the latest presented figures, the pre-marital and post 1984 separation periods of three years and five years have been factored out as well as consideration given to the fact that the pension will be taxable to husband, as well as the fact that some additional post-marital contributions are also contemplated.

Master’s report at 12, R.R. at 399a. Furthermore, in paragraph II.C. 2, the master directs that as to the pension, “all taxes shall be borne by husband.” The lower court agreed with the master. We note that during the master’s hearing, evidence was introduced showing that for years during the parties’ marriage, appellant filed false joint tax returns which claimed a non-existent child as an exemption — without appellee’s knowledge. (R.R. at 197a-198a.) Appellant invoked his fifth amendment rights during the hearing and refused to answer questions concerning the returns. (R.R. at 104a.) We find no abuse of discretion in the trial court’s adoption of the master’s recommendation and its decision on the tax consequences; appellant will obtain no relief on this ground.

The third allegation presented for our consideration is that the court of common pleas erred in its valuation of the pension because it did not separate appellant’s Social Security benefits from the equitably-distributed property. We agree that this was error. Appellant testified that through his employment as a State Police Officer, he will receive no Social Security benefits. (R.R. at 43a.) By federal statute, Social Security benefits are exempt from being part of the marital estate. 5 U.S.C.A. § 8345(j)(l). Accordingly, we recently held that to the extent part of the pension might figuratively be considered in place of a Social Security benefit, that portion should be excluded from the marital estate. Cornbleth v. Cornbleth, 397 Pa.Super. 421, 424, 580 A.2d 369, 371 (1990). The rationale for our decision lies with the goal of the Divorce Code in implementing equitable distribution, which is to “treat differing individuals with differing circumstances so as to equate them ... as nearly as possible.” Id. In Combleth, we held that the absence of Social Security from a pension would deal a double blow to the employee-spouse subject to equitable distribution: “[t]he pension will become part of the marital estate and, thus, divided, yet there will be no Social Security benefit waiting to cushion this financial pitfall.” Id. We find that though it concerned the Civil Service Retirement System, Combleth controls this case because appellant herein also is without a Social Security benefit. Thus, we remand to the trial court to evaluate the amount subject to the equitable distribution scheme in light of our decision on this issue.

The fourth issue presented for our review is whether the award of alimony to appellee was proper. We find that it was. The Divorce Code directs that the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary. 23 Pa.C.S.A. § 3701(a). In this case, there is no abuse of discretion in awarding alimony to appellee. The Divorce Code at § 3701 enumerates seventeen factors as a guide for determining the propriety of alimony. Below we list several which support the alimony award in this case:

1) the parties were married twenty-six years;
2) appellant earns $40,000 per year where appellee earns
$17,000 per year;
3) appellee’s earning capacity is not likely to improve;
4) appellee has been unable to maintain the standard of living established during the marriage;
5) appellee was the major contributing homemaker and child rearer;
6) appellant was guilty of several long-term instances of marital misconduct;
7) the parties’ assets are insufficient to support appellee until appellant’s pension distribution.

From the above, it is clear that the divorce court did not abuse its discretion in awarding alimony to appellee. In a factually similar case, this Court has held that factors such as the above illustrate an entitlement to alimony. Nuttall v. Nuttall, 386 Pa.Super. 148, 562 A.2d 841 (1989) (holding that alimony was justified where wife was homemaker with lesser job skills than husband, wife had lesser earning capacity, and husband was guilty of marital misconduct); Zullo v. Zullo, 395 Pa.Super. 113, 576 A.2d 1070 (1990) (ultimate consideration of whether to grant alimony requires an assessment of the needs and abilities of recipient spouse, which might impede ability to attain future economic freedom). In light of the statutory and case law of this Commonwealth, we find that the award of alimony to appellee was proper.

Appellant’s fifth allegation challenges the award of counsel fees to appellee. Once again, we are guided by the Divorce Code, 23 Pa.C.S.A. § 3502(e), which permits the Court to award reasonable attorney’s fees, costs and expenses in a divorce action. We have held that it is permissible to award counsel fees if they arise as the direct result of the divorce action. Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535 (1989). To determine whether to award counsel fees, the court should consider the parties’ incomes, assets, expenses, and future earnings capacity. Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990); Verdile, 370 Pa.Super. 475, 536 A.2d 1364. In the instant action, testimony was presented át the parties’ hearing that appellant was responsible for prolonging litigation of this case. Appellee testified that agreements and court orders between the parties were not timely signed by appellant, forcing the parties into court to obtain appellant’s signature. (R.R. at 211a-213a.) The Divorce Code and our case law support the grant of counsel fees to appellee. We uphold the trial court’s award, finding no abuse of discretion. Appellant’s fifth challenge therefore fails.

Appellant’s final allegation of error is that the lower court erred by finding that 48.77 acres of property in Tioga County was marital property. We emphatically disagree. Though the deed to the property in question was delivered to appellant on January 4, 1985, after the parties separated, appellant concedes on the record that this parcel of land was purchased with marital funds. (R.R. at 123a, 314a.) In addition, the loan documents were eventually completed in both parties’ names, though the original documents contain appellee’s false signature, forged by appellant. (R.R. at 92a, 96a.) The resulting loan encumbered the marital home. Id. The loan documents were sent to appellant at the marital residence. (R.R. at 98a.) The Divorce Code directs that any property acquired during marriage is presumed to be marital, unless this presumption is successfully rebutted. 23 Pa.C.S.A. § 3501(b). From a review of the facts pertinent to the purchase of this property, it is clear that appellant cannot rebut this presumption. We hold that the Tioga County land is clearly marital property, and appellant’s allegation to the contrary cannot succeed.

Finding merit to appellant’s contentions of divorce court error on the pension distribution issues, we remand for proceedings consistent with this opinion. We further note that upon recalculation of the pension distribution consistent with this opinion, the divorce court should reconsider the entire property distribution scheme to ensure that the percentage distribution it intended is equitable and fair. Jurisdiction relinquished.

      . A coverture fraction is calculated by determining the ratio of the length of marriage to the number of years of employment. The numerator of the fraction is the marital period of the employee-spouse’s participation in the pension plan; the fraction denominator is the total period of time during which the employee-spouse accrued benefits. Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988). In the present case, the denominator of the coverture fraction to be calculated on remand must take into account the fact that appellant is not yet retired.


author:
OLSZEWSKI, Judge:
      BROSKY, Judge,

text:
    603 A.2d 646
    Linda B. McNAUGHTON, Appellant, v. David K. McNAUGHTON, Appellee. Linda B. McNAUGHTON, Appellee, v. David K. McNAUGHTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1991.
    Filed Feb. 13, 1992.

      Elliot A. Strokoff, Harrisburg, for appellant (at 147) and appellee (at 187).
    Morton J. Earley, Indiana, for appellant (at 187) and appellee (at 147).
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   OLSZEWSKI, Judge:

This an appeal from the decree of the Court of Common Pleas of Cumberland County dated February 11, 1991, settling some of the economic issues of this divorce action. The decree below attempted to reach an equitable distribution of the parties’ marital assets. Since we find that the lower court abused its discretion, we affirm in part and reverse and remand in part.

A discussion of the case follows. The parties to this action were married in December of 1968 and separated in January of 1984. During the course of the marriage considerable marital assets were acquired. Included among the marital assets were numerous parcels of real estate and an interest in Mr. McNaughton’s family business, McNaughton Oil.

The master handed down his recommendations in 1987, at which time evidence was received as to the value of the property to be distributed. The lower court handed down its distribution February 11, 1991, and the parties filed the timely appeals which are now before the court.

Each party raises several issues on appeal. Since some issues overlap, we will discuss those issues together.

Linda McNaughton raises three issues on appeal. Ms. McNaughton first argues that the lower court abused its discretion by accepting stale valuations for the property subject to distribution. David McNaughton also raises an issue regarding the lower court’s valuation of the real property and the interest in the family business, McNaughton Oil. Mr. McNaughton argues that the lower court should have valued the business and the real property on the same dates. We will discuss the parties’ arguments surrounding property valuation together. Second, Ms. McNaughton argues that the lower court abused its discretion in establishing a 50/50 distribution of the marital assets. Third, Ms. McNaughton argues that the lower court erred in failing to grant her counsel fees and litigation costs. Mr. McNaughton raises a question of whether the lower court erred in failing to give him credit for $7,178.00 in litigation costs, which he paid to Ms. McNaughton to allow her to pursue the litigation in the court below. We will consider both parties’ arguments surrounding counsel fees and costs together. Finally, Mr. McNaughton argues that the lower court erred in assigning a debt of $124,315.20 as a debt of McNaughton Oil and not a personal debt of the parties. Since we find that the lower court abused its discretion, by not properly valuing the real property, we affirm in part and reverse and remand in part.

When reviewing the actions of a lower court in a divorce action, we are limited to a determination of whether there was an abuse of discretion. Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990). Although the master’s report is entitled to great weight, the final responsibility of making the distribution rests with the court. Our review is thus based on the court’s distribution of property. Morschauser v. Morschauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). See also Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144 (1987), rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988).

We do not evaluate the propriety of the distribution order upon our agreement with the court’s actions nor do we find a basis for reversal in the court’s application of a single factor. Rather, we look at the distribution as a whole, in light of the court’s overall application of the 401(d) factors. If we fail to find an abuse of discretion, the [o]rder must stand.

Sutliff, 361 Pa.Super. at 520, 522 A.2d at 1152 (citing Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); and Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984)).

The factors to be considered in making an equitable distribution are set forth in 23 Pa.C.S.A. § 3502(a)(l)-(ll). Our review of the lower court’s distribution is necessarily limited to a determination of whether in light of the entire distribution, considering all the factors set forth by the legislature, an abuse of discretion occurred. We take up the claims of both parties below.

Both parties have contended that the lower court erred in accepting the values for the real estate set by the master. The master’s report in this case was handed down in 1987. The lower court, some three years later, handed down a distribution adopting the values set by the master. There is no set date for the valuation of property; rather the lower court has it within its discretion to adopt a date for valuation which best works economic justice between the parties. Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990). We will only reverse the decision of the lower court in regard to the setting of the date for the valuation of the marital assets on the basis of an abuse of discretion. Id. Although the lower court has considerable discretion in regard to setting a date for the valuation of the marital assets, we believe in this case the lower court abused its discretion. In cases where a long period of time has passed between the separation and the distribution, the court should set values as close to distribution as possible. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). We believe that considering the numerous parcels of real estate involved, the lower court abused its discretion by not ordering a re-valuation at the time of distribution. See Sutliff, 518 Pa. at 380-385, 543 A.2d at 535-537; Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986). The case is reversed and remanded for a re-valuation of the real estate at the time of distribution.

Mr. McNaughton argues that the lower court erred in valuing the business as of the date of separation and the real estate as of the date of the master’s hearing. The lower court should have valued the real estate as close to the time of distribution as possible. We, however, find no abuse of discretion in the court’s valuing the interest in McNaughton Oil as of the time of separation. The lower court’s objective in selecting a date for the valuation of marital assets is to select a date which works economic justice between the parties. There is no guarantee that the same date will work economic justice with all assets. Although we have held above that the lower court should have valued the real estate as close to the time of distribution as possible, the interest in McNaughton Oil will be difficult to value at a date after the parties’ separation. McNaughton Oil is a family business which is largely under the control of David McNaughton. It naturally follows that the value of such a business will vary greatly due to David McNaughton’s influence. Although the lower court should have valued the real estate as close to the date of distribution as possible, we find no abuse of discretion in the lower court’s valuing McNaughton Oil as of the date of separation. The lower court’s valuation of McNaughton Oil is affirmed.

Linda McNaughton’s second argument is that the lower court abused its discretion in establishing a 50/50 distribution of the assets. Ms. McNaughton argues that the court abused its discretion by overriding the 60/40 distribution established by the master. The lower court has the duty of establishing the distribution, and, therefore, the distribution set by the court is the subject of our review. Morschauser v. Morschauser, 357 Pa.Super 339, 516 A.2d 10 (1986). Although the master’s recommendation of a 60/40 distribution is given great weight, it is not the subject of our review. We have reviewed the lower court’s rationale and considering the distribution as a whole, we find no abuse of discretion in the court’s setting a 50/50 distribution. The lower court’s setting a 50/50 distribution is affirmed.

Linda McNaughton’s third argument is that the lower court erred in failing to grant her counsel fees and costs. We do not agree. “In reviewing awards or denials of alimony pendente lite, counsel fees and expenses, we are limited to a determination of whether the trial court abused its discretion.” McNulty v. McNulty, 347 Pa.Super. 363, 367, 500 A.2d 876, 877 (1985). The lower court has properly analyzed this issue in its opinion, and we adopt the lower court’s rationale here, with the following explanation. The parties here have both undoubtedly expended a great deal of money on counsel fees. Mr. McNaughton has paid alimony pendente lite since 1986. One of the reasons for an award of alimony pendente lite is to allow a party of limited means to afford the cost of pursuing the divorce litigation. Mr. McNaughton has also paid to Ms. McNaughton some $7,178.00 in costs to allow Ms. McNaughton to pursue this litigation. Further, when the property is distributed, Ms. McNaughton will receive a large distribution. We believe the lower court committed no abuse of discretion by finding the parties responsible for their own counsel fees and costs.

Mr. McNaughton argues that the lower court erred in not giving him credit for $7,178.00 in litigation costs he has paid on behalf of Ms. McNaughton. We find no abuse of discretion in the lower court’s not crediting Mr. McNaughton for those costs. The lower court found that the court ordered that Mr. McNaughton pay those costs based upon the economic circumstances of the parties at the time of the order. We find no abuse of discretion in the lower court’s finding that Mr. McNaughton should not now be credited for those costs. Neither party has contended that the payment was unfair at the time the costs were awarded. We find the lower court’s handling of the attorney’s fees and costs very fair, and, therefore, find no abuse of discretion. The lower court’s handling of attorney’s fees and costs is affirmed in all respects.

The final issue raised in this appeal is whether the lower court abused its discretion by assigning a debt of $124,315.20 as a debt of McNaughton Oil. Mr. McNaughton argues there were two mortgages each with a principal balance of approximately $124,000.00 around the time of separation, and that the lower court improperly assigned the debt of $124,315.20 as a debt of McNaughton Oil and not a personal debt of the parties. The lower court found that only a single debt existed and that this debt was a debt of McNaughton Oil.

Our review of the record indicates that two mortgages existed: One with a face value of $160,000.00 entered into in June of 1978, and a second with a face value of $350,-000.00 entered into in May of 1982. Mr. McNaughton’s testimony indicates that the first mortgage was entered into to finance a property purchase and to refinance certain other properties, and that the second mortgage represents a collateralization of McNaughton Oil’s line of credit. McNaughton Oil’s consolidated balance sheet shows a demand note in the amount of $124,995.00 in November 1982 and again in November 1983. It appears that this is McNaughton Oil’s line of credit. This Court, however, does not sit as a fact finder and we do not make this determination. A mortgage statement is of record for a mortgage with a principal balance of $124,135.20 as of December 30, 1983.

The lower court found that there was only one mortgage, because taking into consideration the December 1983 payment on the demand note of $124,995.00, the principal balance equaled $124,315.20. We do not agree with the lower court’s calculation. Examining the mortgage statement, the mortgage with a balance of $124,315.20 had principal of $685.40 paid on it in December 1983. Adding the December principal payment back into the principal balance we get a principal balance of $125,000.60 for November 1983. Possibly this is merely a slight deviation in the amounts due on a single loan, but this is not certain. Nevertheless, we see no reason for a remand on this point. Mr. McNaughton admits that one of the mortgages secured a debt of approximately $124,000.00 at the time of separation and that this debt represented McNaughton Oil’s line of credit. Clearly a debt of $124,000.00 should have been assigned to McNaughton Oil. The parties’ other debts which exist on the marital real estate should be satisfied in the distribution. We find no reason to remand to the lower court in regard to the debts involved.

For the above reasons, we remand to the lower court for a re-valuation of the real estate subject to distribution as close to distribution as possible. In all other respects, the case is affirmed.

Reversed and remanded in part, affirmed in part.

BROSKY, J., concurs and dissents.

BROSKY, Judge,

concurring and dissenting.

I am in agreement with all aspects of the majority’s well-reasoned opinion except its determination that the trial court did not err in valuing McNaughton Oil as of the date of separation of the parties. I see no reason why McNaughton Oil should be accorded treatment different than that given to the real estate involved in the instant case. I agree with the majority that the trial court is free to select a valuation date which best serves to provide for economic justice between the parties. Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990). However, in Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), in which some of the marital assets to be valued were businesses, our Supreme Court stated,

[While t]he Divorce Code contains no express provision governing the selection of a date to be used for valuation of marital property, where equitable distribution is concerned, ... [i]t is implicit ... in the statutory provisions governing equitable distribution that a valuation date reasonably proximate to the date of distribution must, in the usual case, be utilized.
If ... marital property values were to be fixed as of the date of the parties’ separation ... severe injustices would at times be inflicted upon the parties concerned. Volatile market conditions and changing economic circumstances can render assets that had been valuable months or years earlier virtually worthless in the present, and vice versa____ Privately owned business interests may be valued as a gold mine, or as a scrimption, depending on the times.

Id., 518 Pa. at 381, 383, 543 A.2d at 536, 537.

Since the parties were separated in January, 1984 and McNaughton Oil was valued as of that date, I feel that the trial court abused its discretion in not re-valuing the business at the 1990 distribution. Hence, I would also remand this issue to the trial court for a re-valuation of McNaughton Oil “as close to distribution as possible.”

      . Former 23 P.S. § 401(d) has been codified at 23 Pa.C.S.A. § 3502(a).


author: MONTEMURO, Judge:

text:
    603 A.2d 651
    COMMONWEALTH of Pennsylvania v. Dwayne Lee FINKEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed Feb. 26, 1992.

      Allen C. Welch, Lemoyne, for appellant.
    Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Patrick J. Connors, Media, for Pa. Assoc. of Crim. Defense Atty., amicus curiae.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered following appellant’s jury conviction of aggravated assault, obstructing the administration of law or other governmental function, and resisting arrest. The appellant raises two issues for appeal: (1) whether the trial court erred in instructing the jury on the justification defense, and (2) whether the trial court erred in suppressing evidence of the arresting officer’s prior acts of police misconduct and brutality.

On October 7,1989, at approximately 2:45 a.m., appellant, Dwayne Lee Finkey, and his brother Jeffery Finkey, were stopped by officer Bergman of the Carlisle Police Department on suspicion of driving under the influence (DUI). Officer Pfahl, of the Carlisle Police Department, also responded to the traffic stop. Jeffery Finkey, after failing one field sobriety test and refusing to take another, was arrested for DUI.

The events from this point forward were disputed by the parties. According to the Commonwealth, Jeffery Finkey became belligerent and put up a great struggle in resisting arrest. Furthermore, appellant came to assist his brother and began to choke and punch Officer Bergman. At one point, Jeffery approached Officer Bergman with a splitting maul, which in response, the officer shot Jeffery Finkey to death.

Appellant’s version places Officer Bergman as the aggressor. Appellant claims that both Officers Bergman and Pfahl attacked Jeffery, at times beating him with a heavy, police-issued flashlight. In response to the injuries being inflicted upon his brother, Dwayne simply attempted to pull Officer Bergman away from Jeffery.

The first issue presented for appeal is whether the trial court erred in instructing the jury on the justification defense. The trial court instructed the jury that if they found that the officers were indeed using unlawful deadly force, then they should find the appellant not guilty on all of the counts that ensued from his intervention. Appellant asserts that the proper jury instruction would permit a justification defense if appellant reasonably believed that his intervention was necessary to protect his brother from the unlawful use of deadly force. Appellant further argues that this Court’s decision in Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990) (alloc. granted 81 E.D. 1991 6/3/91) has already decided this issue, and has held that the proper jury instruction includes the reasonable belief standard.

The trial court and the Commonwealth contend that the reasonable belief language set forth in French is dicta and that it does not control the present case. (T.C.O. at 5). Based on this interpretation, the trial court declined to follow the French decision, and denied appellant’s post-trial motion and petition to reconsider its charge to the jury. A review of the French decision reveals that the reasonable belief language was not dicta, and that the trial court was in error.

In French, the police were summoned to the scene of a fight where they found the defendant and three of her companions beating a man. After breaking up the fight, the officers requested that all of the participants leave the scene. The subject of the beating, after declining to press charges, left the scene. The four other individuals involved in the altercation not only refused to leave the scene, but one of them punched an officer in the face. In an attempt to assist her companion’s efforts to resist arrest, French punched the arresting officer. French was charged and convicted of aggravated assault, resisting arrest, and conspiracy. French asserted that she assaulted the officer in defense against the officer’s use of excessive force in effectuating the arrest of her companion, and that the trial court erred in charging the jury that the defense of justification does not apply unless the officers were using deadly force. The trial court charged the jury on the defense of justification as follows:

Now in this case justification is a defense, if the defendant French reasonably believed that her intervention was necessary to protect [her companion] from death or serious bodily injury and that the force used was immediately necessary to protect [her companion] against the force used by [the arresting officer] on the same occasion as Miss French used force.

Commonwealth v. French, 396 Pa.Super. at 443, 578 A.2d at 1295.

The issue presented in French was whether any excessive force by the police, short of deadly force, triggers the right to defend oneself or to defend others. The Court began its inquiry into this issue by first examining the applicable statutory sections. Section 505 of the Crimes Code provides:

(a) Use of force justifiable for the protection of the person. — The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of force by such person on the present occasion.
(b) Limitations on justifying necessity for use of force.—
(1) The use of force is not justifiable under this section:
(i) to resist an arrest which the actor knows is being made by a peace officer although the arrest is unlawful.

18 Pa.C.S.A. § 505. Although a plain reading of the statute may suggest that the justification defense is never applicable to peace officers, the Official Comment to § 505(b)(1) states that force against a peace officer is justified “if the arresting officer unlawfully uses or threatens deadly force.” Id. This recognizes that § 505(b)(l)(i) only discusses the use of force to resist arrest, and that the statute does not address the right to defend against force used by police to effectuate the arrest.

In deciding what degree of force used by a peace officer triggers the right to defend oneself or another this Court concluded:

the violent potential of the arrest context dictates that a more limited and stringent application of self-defense principles is demanded. To sanction a lesser standard would encourage unnecessary violence and invite the kind of escalatory conduct that this case dramatically demonstrates. To allow an arrestee or a bystander to intensify an overly aggressive arrest when any bodily injury is feared would not serve the interests of peace in society.

Id., 396 Pa.Super. at 448, 578 A.2d at 1298. The Court also noted that the reference to deadly force in the Official Comment to § 505(b)(1) “was intended to illustrate the gravity of the situations wherein the defense could legitimately be asserted.” Id., 396 Pa.Superior at 449, 578 A.2d at 1298. Thus, “until the excessive force approaches a level which threatens death or serious bodily injury, the citizen must suffer a police beating without resistance.” French, supra, 396 Pa.Super. at 457, 578 A.2d at 1302 (Wieand, J., dissenting).

The French court further defined the circumstances when the use of force against a peace officer is appropriate by distinguishing the harsh results reached by other jurisdictions.

The Washington courts would countenance resistance by an arrest only when he was actually about to be seriously injured or killed. We conclude that where a person reasonably believes himself to be in genuine danger of death or serious bodily injury, he may defend himself against injury by the use of reasonable force. We think that this formulation protects the competing interests implicated here.

Id., 396 Pa.Superior Ct. at 449, 578 A.2d at 1298. (emphasis in original).

The issue of whether the appellant is justified in intervening based on a reasonable belief, therefore, served as an important limitation on the court’s holding. The trial court’s ruling that the French court’s discussion of the reasonable belief standard was dicta, was nothing more than a means to avoid this Courts’ holding.

The Commonwealth asserts that, in any event, the appellant was not even entitled to a justification charge, since the appellant denied ever striking the Officer Bergman. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970). In Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991) (en banc), this Court made clear

[t]hat where a defendant denies the act of using deadly force in defense of himself, he has negated one of the elements of self-defense; therefore, he may not avail himself of an instruction on justification even though evidence from other sources would be sufficient to put the claim in issue.

Id., 401 Pa.Superior Ct. at 573, 585 A.2d at 1075. If, as the Commonwealth suggests, appellant denied striking or using force against the officer, no justification charge was warranted and judgment of sentence must be affirmed. Commonwealth v. Mayfield, supra.

However, review of the record reveals that although on cross-examination appellant denied “hitting” the officer, see N.T. 4/24/90 at 295, on direct he had explicitly stated, “So I went over to him (the officer) with my right arm and put it around his neck to pull him off.” Id. at 263. This testimony establishes that appellant did not deny using force against the officer, and as such there was sufficient evidence to charge the jury on the justification issue. See Commonwealth v. Mayfield, 401 Pa.Superior Ct. at 577, 585 A.2d at 1077 (testimony that appellant pulled the knife in defense of himself sufficient to put the question of self-defense to the jury) (collecting cases). Since the jury should have been charged on the reasonable belief standard, a new trial must be granted.

Based on our disposition reversing the judgment of sentence, we need not address appellant’s remaining issues. Judgment of sentence reversed.

WIEAND, J., concurs in result.

      . The Pennsylvania Association of Criminal Defense Attorneys filed an amicus curiae brief in support of appellant’s first issue.

      . The French decision was filed subsequent to the completion of the trial, but prior to appellant’s petition to reconsider the denial of appellant’s post-trial motions.

      . A person is justified in using force in defense of another to the same extent that he is entitled to protect himself. 18 Pa.C.S.A. § 506.

      . The trial court does make a strong argument that the reasonable belief standard is improper, however, this does not make the French decision any less binding.