text:
    544 A.2d 972
    Richard A. LOWRY, Appellant, v. Clarissa V. LOWRY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 4, 1988.
    Filed June 27, 1988.

      Lila F. Levy, Milford, for appellant.
    Alan Cooper, Hawley, for appellee.
    Before BECK, KELLY and JOHNSON, JJ.
   BECK, Judge:

This appeal presents numerous challenges by appellant husband, Richard Lowry, to the equitable distribution order of the trial court. Among these is a novel question concerning the valuation of husband’s pension, a portion of which was earned during the marriage and is marital property. Also challenged are the trial court’s exclusion of a portion of the value of the marital home from marital property, the court’s division of the appreciation in value of the marital property during marriage, the court’s inclusion of certain proceeds of the sale of securities and of a savings and a checking account in marital property and its division of real estate commissions jointly earned by the parties.

The factual background pertinent to all issues except the pension is as follows. Richard and Clarissa Lowry were married in 1971. This was husband’s third and wife’s second marriage. At the commencement of their marriage, the parties lived in wife’s home in Long Island, New York. They wished, however, to build their own home. To this end, in 1972, they purchased an undeveloped parcel of land in an area called Hemlock Farms in Pike County, Pennsylvania. At the time of the purchase, the property was held in joint names. The funds to purchase the property, about $7,300, as well as certain funds expended to have initial work done on the construction of the home, about $4,000, were obtained through refinancing wife’s Long Island home.

In late 1972, husband experienced difficulties with one of his former wives, who allegedly threatened to “take” husband’s Hemlock Farms property. In response to these difficulties, husband transferred his interest in the Hemlock Farms property to wife, stating that he would rather she have it than his former wife. From that time forward, title to the Hemlock Farms property was in wife’s name alone.

The balance of the construction work on the Hemlock Farms property was done by the parties themselves and funded through the sale in late 1974 of wife’s Long Island home. The proceeds of the sale of wife’s home, after payment of the mortgage, a commission and an unrelated loan, were about $27,000. Wife deposited this money into her savings account. When the balance in this account had decreased to about $13,000, wife transferred the remaining money into the parties’ joint savings account. Wife testified that she used the entire $27,000 to buy the supplies and materials necessary to construct the Hemlock Farms property.

Wife also testified that the home cost $56,000 to build. Husband testified that it cost only about $38,000. The master found that wife contributed from her funds at least $50,000 of the cost of building the home and that the parties shared in the labor expended on the construction. The parties stipulated that the value of the home as of the date of hearing was $86,000. The trial court recites in its Opinion that the parties also stipulated that of this $86,000, $36,000 represented the increase in value of the home due solely to the parties’ joint labor in constructing it.

Both parties were employed throughout the marriage. Initially, wife was a secretary earning $140-$240 per week. Husband was a union plumber. He testified that he earned $369 per week. Wife stated that he “brought home” only about $260 per week, of which $90 per week was expended on support payments for his children of a prior marriage. In 1976, both parties left their jobs. Husband operated his own construction firm, and both parties began to work together as real estate agents, pooling their earnings from the real estate business.

At the time of the hearing, wife was 55 years old and husband was 56. Both were in good health and employed. Wife is still a real estate agent working on straight commission. In 1985, she earned $13,133. Husband has returned to his union plumbing job, earning $750 per week, and earns an additional $4,000-$5,000 a year teaching plumbing. This totals approximately $43,000-$44,000 per annum.

The parties separated in 1982. Immediately thereafter, husband filed this action for divorce. A master’s hearing was conducted on March 31, 1986. The only issues before the master were certain equitable distribution issues. The parties had stipulated to the remaining distribution issues and to the entry of a divorce. Only the parties testified at the hearing.

On May 26, 1987, the master filed his report. Husband filed timely exceptions which were largely denied by the trial court. The court entered a final order dated August 6, 1987 adopting the master’s recommendations in all respects with two exceptions. The court found that the master had undervalued the appreciation in the marital property, as to which the parties stipulated as noted above, and had failed to apply a reduction to the value of husband’s pension to reflect the amount of the pension earned during marriage. Husband timely appealed.

Our scope of review in equitable distribution matters is limited. We must apply the Divorce Code to the record to determine whether the hearing court abused its discretion. Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986). We will find an abuse of discretion only if the hearing court misapplied the law or failed to follow proper legal procedure. Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987); Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987).

Husband’s first argument centers on the trial court’s exclusion of a portion of the value of the marital home from marital property. The trial court adopted the following two recommendations by the master regarding the home:

That a portion of the marital home purchased with funds of Defendant [wife], acquired prior to the marriage, is herewith excluded from Equitable Distribution under Section 401(3)(1) [401(e)(1)] of the Divorce Code, (citations omitted)
That the marital home is excluded from Equitable Distribution under Section 401(e)(3) of the Divorce Code because the land on which the dwelling was constructed was made a gift to Defendant by Plaintiff. The Plaintiff at the time of transfer stated to Defendant “I’d rather you (Defendant) have this property than Claire (Plaintiffs ex-wife)”.

Section 401(e)(1) of the Code provides that property acquired in exchange for property acquired prior to the marriage is excluded from marital property except for the increase in value thereof during the marriage. Section 401(e)(3) provides that property acquired by gift is excluded from marital property except for the increase in value thereof during the marriage.

Husband contends that he did not gift the property to wife when he transferred his interest in the property to her in 1972 because he lacked the requisite donative intent. He contends that his purpose was not to exclude the property from marital property, but rather to shield the property from his former spouse.

Husband also attacks the trial court’s alternative conclusion that the property is excluded from marital property by virtue of the fact that $50,000 of the value of the property was acquired in exchange for property the wife had acquired prior to the marriage. He argues that to the extent that wife contributed her separate funds to construction of the home, those funds had already become marital property through wife’s prior deposit thereof in the parties’ joint savings account.

Our review of this issue has been rendered much more difficult than it need be by the unclear state of the record, the inartful argument and questionable representations regarding the facts by the parties, and the lack of a complete trial court opinion. In any event, we have arrived at the following analysis.

We agree with the trial court in its finding of a gift of the Hemlock Farms property by husband to wife in December 1972. At that time, the property’s value would appear to be around $14,300, consisting of $7,300 in the price of the lot, $4,000 paid for initial construction work and $3,000 for the initial construction materials. All of this was paid for by wife with her pre-marital funds obtained from the refinance of her Long Island home. She gifted these amounts to the marital estate by investing them in the property, which was then held in joint names. Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223 (1986) (property acquired prior to marriage that is transferred into property in joint names during marriage becomes marital property unless contrary intent is shown by clear and convincing evidence). However, when husband conveyed his interest in the property to wife by deed dated December 30, 1972, he made a gift thereof back to wife, thus excluding the property at its then present value from marital property.

It matters not what husband’s motive was in deeding the property to wife. As Justice McDermott opined in his concurring opinion in Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985):

A gift may be given to anyone. The law is cold in its definition, it does not ask a reason for the giving, only an intention, delivery and acceptance of the thing are required---- The question ought not to be what is the subject or the purpose of the gift, but rather whether was it intended as a gift, delivered and accepted.

Id., 509 Pa. at 292, 502 A.2d at 113-14.

The fact that husband states that his only intent in deeding the property to wife was to prevent his former spouse from taking the property does not undermine our conclusion. As the Brown court concluded, the fact that there is some financial gain to be had by the gifting spouse as a result of the gift, like a reduction in taxes, does not negate donative intent, but rather positively suggests it. Id., 352 Pa.Superior Ct. at 272, n. 3, 507 A.2d at 1225 n. 3. This is because the financial goal will only be attained if the gift is effected. The desire to achieve the financial goal is the source of the donative intent that supports a finding of a gift. See also Sutliff v. Sutliff, 518 Pa. 378, 387-388 n. 1, 543 A.2d 534, 539 n. 1 (Pa.1988) (donative intent found where husband transferred one-half interest in marital residence to wife during marriage for tax purposes).

Having concluded that husband gifted the property to wife in 1972 does not, however, end our analysis. The result of the gift is to exclude the property from marital property except for the increase in value during marriage. The property was worth approximately $14,300 when gifted, and is now worth $86,000 by stipulation of the parties.

The trial court determined that $50,000 of the value of the property was not marital property subject to equitable distribution. The trial court arrived at this figure by taking the total value of the property, $86,000, and deducting therefrom $36,000, the increase in value of the property due to the parties’ joint construction efforts. The court reasoned that the $50,000 was actually property acquired in exchange for the wife’s pre-marital assets and, therefore, excludable from marital property under Section 401(e)(1). The master concluded that the wife had expended a total of “at least $50,000” of her pre-marital assets, i.e., monies she obtained by refinancing and then selling her pre-marital home, in constructing the Hemlock Farms home. This amount the master and the trial court found to be non-marital property under Section 401(e)(1).

We disagree with this conclusion. It was wife’s burden to prove that a portion of the value of the Hemlock Farms property was non-marital property because it was acquired in exchange for her pre-marital assets. Sutliff v. Sutliff, supra, at 384-388, 543 A.2d at 537-539 (party asserting that property acquired during marriage is not marital must prove by preponderance of the evidence that property falls within one of the exceptions to marital property enumerated in Section 401(e) of Code). We find that the evidence, even when taken in a light most favorable to wife, only reveals an investment in the Hemlock Farms property of a total of approximately $41,300 traceable to wife’s separate funds. The record reveals the following investments:

$ 7,300 cost of lot
$ 4,000 initial construction work
$ 3,000 initial building materials
$27,000 proceeds of sale of Long Island home used for additional building materials
TOTAL _
$41,300

Thus, on the present state of the record, we do not know how the master concluded that the amount she contributed to the property was “at least $50,000”, since the difference of $8,700 ($50,000 minus $41,300) is not directly accounted for. Moreover, as to the $27,000 that wife contributed to the construction of the home, we agree, at least in part, with husband’s argument that a portion of these funds became marital property when wife deposited it in a joint savings account with husband on December 24, 1975.

Husband argues that all of this money was deposited by wife in the parties’ joint savings account when wife first received it. There is no support in the record for this assertion. In fact, the record clearly shows that wife deposited the $27,000 in her personal savings account when she first received it and that husband could not remember where the money was put. Approximately one year later, when the balance in wife’s account had diminished to almost $13,000, she transferred that amount to a joint savings account in both parties’ names. The balance in that account was then used, according to wife, to continue to fund the construction of the Hemlock Farms property.

We find that when wife transferred the $13,000 to the joint account, she thereby contributed that amount to marital property. Where a spouse places separate property in joint names, a gift to the entireties is presumed absent clear and convincing evidence to the contrary. See Brown, 352 Pa.Super. at 273, 507 A.2d at 1225 (citing In re Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964); Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986); Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985).) Our conclusion that wife made a gift of this $13,000 to the marital estate when she deposited it in joint names is further buttressed by the fact that the money was thereafter used to make further improvements to the Hemlock Farms property which, although held in wife’s name, was the joint project and marital residence of the parties. In summary, we can conclude, even from the incomplete and unclear state of the record before us, that wife actually proved only that the Hemlock Farms property was gifted to her during the marriage when it was worth $14,300 and that she thereafter exchanged a total of $14,000 ($27,000 minus $13,000) in pre-marital assets for materials used in improving the property. This totals $28,300 of the value of the home that is non-marital property. The remaining $13,000 of wife’s premarital assets that were invested in the Hemlock Farms property were contributed to the marital estate when transferred to joint names.

Thus, we must reverse the trial court’s conclusion that only the $36,000 of the value of the home due to the parties’ joint efforts in constructing it is marital property. At least an additional $13,000 worth of value in the home is also marital property. Moreover, since the state of the record regarding the additional $8,700 in value in the home is unclear, we must remand to the trial court for reconsideration and clarification of its decision regarding this portion of the home’s value. In reconsidering this aspect of its decision, the trial court should consider that if this aspect of the value of the home is simply post-separation increase in value, and not attributable to a proven exchange by wife for pre-marital assets, it too may be considered marital property and equitably distributed between the parties.

Husband also challenges the trial court’s distribution to wife of eighty percent (80%) of the $36,000 increase in value of the Hemlock Farms property due to the parties’ efforts in constructing it. Husband argues that since the evidence clearly shows that both parties contributed equally in working on the home, the division should also have been equal.

Since we must remand for a reconsideration of the trial court’s determinations regarding the amount of the value of the marital home that is to be classified as marital property, we will also remand for a reconsideration of the division of the $36,000 increase in value. In this manner, we will insure that the trial court will give complete reconsideration to all issues pertinent to the home in light of this Opinion. We underscore that the trial court correctly determined that it was not required to divide the $36,000 equally between the parties. The record reveals that the master properly considered the factors listed in the Divorce Code in distributing the $36,000, and clearly based its decision in part on the fact that husband’s earning power now substantially exceeds wife’s and in part on the fact that the contributions of the parties to the construction of the home is only one of many factors the Code requires a court to consider in distributing the property. 23 P.S. § 401(d)(7).

Husband next challenges the trial court’s inclusion in marital property of the proceeds of a sale of jointly held stock in the amount of approximately $2,300 and of approximately $1,100 which had been in the parties’ joint checking account at the time of separation. The master found that the stock and the proceeds of husband’s sale thereof were marital property and distributed it equally between the parties. As to the amount that had been in the joint checking account, the master also correctly found it was marital property. The fact that husband had appropriated the money to his own use did not change the categorization of the property.

Husband’s only challenge is to the classification of this property as marital. Husband relies on Section 401(e)(5), which excludes from marital property all property which a spouse has “sold, ... or otherwise disposed of in good faith and for value” prior to commencement of divorce proceedings. Pa.Stat.Ann. tit. 23, § 401(e)(5) (Purdon Supp.1987). He contends that the master improperly classified the subject property as marital because husband allegedly disposed of this property in good faith by using it to satisfy joint obligations of the parties. Husband cites Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (1986), for the proposition that although joint property which is used by one party to satisfy personal obligations is not considered as having been disposed of in good faith and, therefore, is still divisible marital property, marital property is disposed of in good faith and is excluded from marital property if it is used to satisfy the parties’ joint obligation, even if it is so used after separation.

Although we agree with husband’s description of the applicable law, we also agree with the trial court finding that in this case, husband did not establish that any of these funds were in fact used to satisfy joint obligations. Since the burden of proof on this issue was clearly on the husband, we have no trouble in affirming the trial court’s conclusion on this issue.

Husband also challenges the trial court’s inclusion of approximately $4,500, which was in the parties’ joint savings account, in marital property. As to this account, even less evidence as to the ultimate disposition of the funds appears in the record. Husband did not show, by a preponderance of the evidence, that he expended these funds for joint obligations. Thus, we again affirm the trial court’s conclusion that this amount is properly included in distributable marital property.

Husband’s penultimate issue on appeal concerns the trial court’s distribution of certain commissions jointly earned by the parties in the conduct of their real estate business during their marriage, but not received until after they had separated. These commissions, totalling approximately $10,400, are concededly marital property, the right thereto having accrued to the parties jointly during the marriage. Diamond v. Diamond, 360 Pa.Super. 101, 109, 519 A.2d 1012, 1016 (1987). Husband’s challenge is to the trial court’s distribution of seventy percent (70%) of these commissions to wife. Husband’s argument is that because during the marriage the parties evenly divided the commissions they earned, the same division should be awarded in equitable distribution.

We reject husband’s argument regarding the distribution of the commissions on two grounds. First, the record does not establish that the parties had any actual agreement regarding division of commissions earned. The testimony of both parties was simply that all commissions were commingled- and used by the parties jointly for whatever purpose they desired. Thus, we do not find any evidence of an agreement between the parties as to how the commissions would be divided between them.

Furthermore, even if the parties had any such agreement applicable to the division of commissions during marriage, this would clearly not compel the court to apply the same division in equitable distribution. In equitable distribution, the factors to be considered are those listed in the Code and any others the trial court properly deems relevant. In this case, the trial court concluded that the evidence showed that wife had participated in earning the commissions in question and, in light of wife’s minimal present earning capacity, found it equitable to award her a larger share of the commissions. We find no abuse of discretion in this ruling.

Lastly, husband attacks the trial court’s division of husband’s pension. Once again, husband does not dispute that a portion of the value of the pension is marital property. In fact, husband does not even challenge the trial court’s distribution of almost fifty percent (50%) of the value of the marital property portion of the pension to wife. Husband alleges only that the trial court’s valuation of the pension was in error.

Since the record regarding the pension is incomplete, we can glean only the following pertinent facts. As a union plumber, husband appears to have begun accruing pension benefits in 1969. Husband continued to accrue these benefits during the marriage from 1971 through 1976, when he terminated his employment as a union plumber. Husband returned to his union plumbing work and continued to accrue benefits at some point after the parties separated. On questioning by counsel for wife, husband also read into the record a letter from his union directed to counsel for wife. The letter indicated that husband had “... vested pension credit of one-twelve [sic] quarters or 28 years at age 65.” The letter further stated that “[u]nder present conditions he would be entitled to a benefit of $280 per month. The benefit is completely employer contributed.” No further information was elicited.

In response to a request by the master at the hearing, counsel for husband agreed to and did employ an actuary to calculate the present value of husband’s pension and submit a report directly to the master. Wife did not object to this procedure, apparently waiving her right to cross-examine the actuary.

The actuary’s report provided two alternative valuations. The actuary, apparently on his own initiative, provided the master both with what was called a “Level Benefits” valuation of $2,963.00 as of April 1, 1987 and an “Inflation Adjusted Benefits” valuation of $4,981.00 as of April 1, 1987. The actuary explained his inflation adjusted valuation technique as follows:

The true return on money is estimated to be between 2% and 3% by most economists, the balance of the return on money being attributed to an “inflation premium”. Since Mr. Lowry’s retirement benefit will not be payable for approximately nine years, it may be anticipated that in that time the value of a dollar of benefits will have decreased substantially. That being the case, we have also calculated the present value of Mr. Lowry’s retirement benefit (Inflation Adjusted Benefit) assuming an interest rate of 2V2% per annum so that at retirement the value of the pension will have been approximately adjusted to reflect inflation over the intervening years.

Thus, the actuary’s inflation adjusted benefit calculation reflects less of a discount of the future value of the pension in reaching present value than would a present value calculation that discounted the future value by using a discount figure simply based on interest rates. The discount is less because interest rates are considered to be partially offset by the decrease in value of money received in the future resulting from inflation.

The master chose to accept the higher valuation figure, i.e., the inflation adjusted figure, and ordered that approximately fifty percent (50%) of that value be awarded to wife. The trial court accepted this recommendation, but found that the actuary had failed to reduce the total present value of the pension to reflect that only a portion of it was accrued during the marriage. Thus, the court reduced the actuary’s value and awarded approximately fifty percent (50%) to wife.

On appeal, husband contends that the trial court erred in accepting the inflation adjusted present value figure. Wife argues that the increase in pension value due to the use of an inflation factor is proper. Although there is admittedly no Pennsylvania case directly on point, wife argues that Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), supports her position by analogy.

In Kaczkowski, the Supreme Court decided that in calculating the future earning power element of damages in wrongful death and survival actions, it was appropriate to consider the projected effect inflation would have had on the deceased’s future earnings. Id., 491 Pa. at 584, 421 A.2d at 1089. The court regarded inflation as a constant reality in our economy. However, since the court found that historically inflation rates and interest rates have generally been parallel, the court held that the proper method of considering the effect of inflation on future earnings would be as a total offset to any discount to present value of those earnings based on interest rates. Thus, the court adopted what is called the “total offset” method of considering inflation. It is so-called because inflation is regarded as a “total offset” of any present value discount based on interest rates. Id.

We do not agree with wife’s argument that the use of an inflation factor in arriving at the present value of a pension is necessarily appropriate or is compelled under the rationale of Kaczkowski. Rather, we find that the appropriateness of using an inflation factor is completely dependent upon the terms of the individual pension at issue. Since we do not have on the record before us sufficient information concerning those terms of husband’s pension which are relevant to the use of an inflation factor, we will remand this matter to the trial court for reconsideration of the pension issue.

Our assessment of the appropriateness of the use of an inflation factor in calculating present value is based on a careful analysis of existing Pennsylvania case law concerning valuing and equitably distributing pension benefits. It is now well-established that under Pennsylvania law, pensions are to be considered marital property subject to equitable distribution upon divorce. Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Both vested and unvested, matured and unmatured retirement benefits may be marital property. Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985).

It is also well-established that there are two basic approaches to equitably dividing this form of marital property: the immediate offset method and the deferred distribution method. Deferred distribution has been held to be the preferred method of equitably dividing unvested retirement benefits which may never actually be received by the employee spouse because of possibilities like early termination or death. It is also preferred where the parties’ other assets are insufficient to offset an award of a share of the pension to the non-employee spouse. DeMasi v. DeMasi, 366 Pa.Super. 19, 50, 530 A.2d 871, 886 (1987). Deferred distribution accounts for the uncertainties surrounding an unvested pension by requiring that the non-employee spouse receive an equitable share of the benefits only when they are actually received. The court retains jurisdiction and may either determine what share of the benefits the non-employee spouse should receive and merely defer payment, or may defer both the determination of the share to be paid and payment. Flynn, 341 Pa.Super. at 91-92, 491 A.2d at 164-65 (Beck, J., dissenting). Since deferred distribution does not contemplate a present distribution of assets, no present value of the pension need be calculated. Id.

The other method \of equitably distributing pension benefits, the immediate offset method, is the one utilized by the trial court in the instant case, presumably because husband’s pension is vested and the parties’ other assets are sufficient to warrant a present award. The immediate offset method requires a calculation of the present value of the pension benefits because the non-employee spouse will receive an actual present distribution of marital assets to provide him/her with an equitable share of the pension even though the pension itself will not actually be received by the employee spouse until some time in the future. The present value is the estimate of the present worth to the employee spouse of these future benefits. Id., 341 Pa.Superior Ct. at 88-89, 491 A.2d at 163 (Beck, J., dissenting).

Although arriving at a present value of pension benefits involves an actuarial process that appears mystifying at first blush, this court has recently provided a clear explanation of the proper method of calculation. In DeMasi v. DeMasi, supra, we determined that the proper approach was to begin by calculating the amount of the monthly pension benefit if it were assumed that the employee was at retirement age with a fully vested pension based upon compensation and plan provisions as of the date of separation. We must then determine the value of the monthly benefit the employee spouse will receive at age 65. This is computed based on the employee’s life expectancy and the appropriate interest rate. Id., 366 Pa.Superior Ct. at 50, 530 A.2d at 886.

At this stage, the value of the pension to the employee at age 65 has been ascertained. However, next we must establish the present value of the pension benefits because the court must presently distribute to the non-employee spouse a portion of the projected benefits, although those benefits will not actually be received by the employee spouse until some time in the future. This valuation will be as of the date of the hearing. Braderman, 339 Pa. Super, at 195-196, 488 A.2d at 619; King, supra. Thus, the value of the benefits must be reduced accounting for interest rates and other contingencies like mortality. This calculation results in the actual present value of the employee spouse’s benefits payable at age 65 computed as of the date of hearing.

If the pension is not yet fully vested and immediate offset method of distribution is nevertheless used, a further discount to reflect the contingencies attendant on vesting is applied.

Lastly, the coverture fraction must be applied. The coverture fraction is applied to insure that only the portion of the pension that is marital property, i.e. that was acquired during marriage, is actually divided. The numerator of the fraction is the period of the employee-spouse’s participation in the pension plan during marriage. The denominator is the total period of time the employee spouse was accruing benefits.

In the instant case, the present value calculation is confusingly reported in the actuary’s report and we do not have the benefit of any testimonial explanation by the actuary of the methods he used. We also have totally insufficient information regarding the actual terms of husband’s pension plan on which the calculation is based. Because of these deficiencies in the record, our analysis of the appropriateness of the actuary’s use of an inflation factor has been rendered somewhat difficult.

Nevertheless, in broad terms, we understand the actuary to have reasoned that since the true value of money over time does not merely increase because of interest, but also actually decreases because of the effect of inflation, husband’s benefits should be discounted only at a rate reflecting this “real” growth, i.e. interest minus inflation. Thus, in the third step of the DeMasi present value calculation, the discount based on interest rates should be less and the final value figure would therefore be higher.

Although in economic theory this may be correct, the point in valuing a pension for equitable distribution purposes is to estimate as accurately as possible the real present value of a future and somewhat contingent marital asset and to equitably distribute it in the present. When viewed from this perspective, it is clear that the only circumstance when the use of an inflation factor is appropriate is where the specific pension plan at issue provides for an increase in benefits over time to protect the employee spouse from the effects of inflation. In such a case, it is equitable to provide a share of this aspect of the benefit plan to the non-employee spouse. This may be done by employing a lower discount rate in calculating present value. However, where the specific pension plan at issue does not provide for an increase in benefits based on inflation, it is clearly inappropriate to include an inflation factor and thus raise the present value of the pension for purposes of equitable distribution. To do so protects the non-employee spouse against inflation despite the fact that the employee spouse has no such protection under the terms of his/her pension plan. In other words, the protection against inflation is simply not part of the benefit package that is being valued and distributed.

Although the appropriateness of considering the effects of inflation in valuing pensions in equitable distribution has not previously been addressed by a Pennsylvania appellate court, the courts of New Jersey have confronted this issue and are in accord with the foregoing analysis. In DiPietro v. DiPietro, 193 N.J.Super. 533, 475 A.2d 82 (A.D.1984), the trial court had refused to discount the value of the husband’s pension based on interest rates because it found that interest rates were totally offset by inflation rates. The Appellate Division reversed, stating:

The trial judge mistakenly discounted the future value of this fixed pension by employing the method used in a wrongful death action. The object there, however, is to discount to present value the dependent’s share of the decedent’s projected earnings over what would have been his remaining work-life expectancy. Even if those earnings would not increase in real terms, they would tend to rise because of inflation. Future earnings being discounted to present value must therefore be inflated over earnings at death to take into account this inflationary factor____ By contrast, fixed pension payments are unaffected by inflation and should not be inflated to offset the interest discount.

Id. at 538, 475 A.2d at 85.

Thus, as the DiPietro court explained, the holding of Kaczkowski is simply inapplicable to present valuation of pensions which do not by their own terms account for inflation. In a wrongful death action, the court is forced to speculate as to what the decedent would have earned in the future. As the Kaczkowski court opined, sound economic theory requires a court to consider the effect inflation would have had on the decedent’s earnings. In pension valuation, the court need not speculate as to whether inflation would affect the benefits to be paid. The pension plan itself either provides for inflation adjustment or it does not.

In the instant case, we do not have sufficient information to determine whether husband’s pension plan includes a provision for benefit increases to account for inflation or, if it does, what rate of inflation is used by the plan. Without such information, we cannot review the actuary’s calculation. Therefore, we will remand for the development of a complete record regarding husband’s pension and for reconsideration of the present value calculation, based upon the DeMasi formula, including the appropriateness of the use of an inflation factor.

The order of the trial court is affirmed in part, reversed in part and the case is remanded for further proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . The facts relative to the pension, insofar as we can determine them from the sparse record on appeal, are set forth below in connection with our discussion of that issue.

      . We cannot locate any written or oral stipulation by the parties concerning the increase in value in the record. The master's report states that the increase in value due to the parties’ efforts was $20,000, but husband excepted to this finding. The trial court Opinion states that both parties agree that this finding was incorrect and that they stipulated that the correct figure is $36,000. We assume that at some time after husband’s exception on this point was filed, perhaps at oral argument on the exceptions (which was not transcribed), the parties reached this stipulation.

      . One of the master’s recommendations was that the parties be divorced. The trial court accepted this recommendation in the order now on appeal, but did not enter a separate divorce decree. During the pendency of this appeal, a divorce decree was entered. Although we recognize that an appeal will not lie from a pre-divorce order of equitable distribution, since such an order is interlocutory, we will not quash the instant appeal since the decree has now been entered and the equitable distribution issues are now ripe for appeal. In Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986), we reached the same conclusion. We held that where the divorce decree had not been entered until after the appeal was taken due to a "procedural misstep”, we would nevertheless entertain the appeal. Id., 357 Pa.Superior Ct. at 489, 516 A.2d at 366. In the instant case, we cannot ascertain with certainty why the decree was entered after appeal of the original trial court order. The original order can be construed to have ordered both the divorce of the parties and the equitable distribution of their property and, thus, to be final. The trial court’s later entry of a divorce decree was perhaps only intended to clarify this aspect of the prior order. In any event, the decree has now been entered and no purpose will be served by quashing this appeal.

      . We do note that it would appear that this amount is approximately the amount by which the property increased in value between the parties’ separation in 1982 and the hearing in 1986, since wife testified that the property was worth about $78,000 in 1982. Therefore, it may be that the master attributed all of this post-separation appreciation solely to wife, perhaps because she resided in the home post-separation, made all mortgage payments and made certain minor improvements thereto, and thus arrived at a final figure of $50,000.

      . Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986), is not to the contrary. In Campbell, we simply held that when funds acquired by gift to one spouse are simply passed through a joint bank account for a very limited period of time, they are not thereby automatically converted to marital property. Id., 357 Pa.Superior Ct. at 490, 516 A.2d at 367.

      . This finding appears to be erroneous and should also be reconsidered on remand. In fact, it would appear that the actuary did reduce the value of the pension in consideration of the fact that only part of it was accrued during marriage by reducing the monthly benefit husband could expect to receive to a number representing that amount the husband would have received if he had accrued pension credits only for the five years he was a union employee during the marriage.

      . We note that there has been commentary in certain cases decided after Braderman which, on its face, may appear to inject confusion as to the date as of which the valuation should be made. In fact, these cases are perfectly consistent with the Braderman court’s clear statement that valuation is to be made as of date of hearing.
      First, we are aware that the DeMasi court began its discussion of the present value calculation method by stating that "[pjresent value of husband’s interest in the defined benefit plan as of September 1, 1982 [the date of separation ], is the amount available for equitable distribution.” DeMasi, 366 Pa.Super. at 50, 530 A.2d at 886. This statement does not address the time as of which the present value calculation is done. It merely reiterates the long accepted principle that only the interest of the employee in the pension plan that accrued during the marriage is marital property and therefore distributable. It is, in other words, another way of stating that the degree to which the employee accrues additional benefits after separation, these additional benefits are property acquired after separation and not marital.
      This principle was recently refined in Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). There, the court noted that although in general only the portion of the pension attributable to the period commencing with marriage and ending with separation was marital property, where a pension has vested and increases in value after separation for reasons aside from contributions of the parties, such increase is marital property. Id., 369 Pa.Superior Ct. at 266, 535 A.2d at 153-53.
      This exception to the rule regarding what portion of the pension is marital property in no way affects the date as of which the value of that portion is fixed, i.e. the date of hearing.

      . We have referred in passing to the possibility of considering inflation in arriving at the present value of a pension. In Flynn v. Flynn, supra, for example, this writer quoted with approval from Skoloff, How to Evaluate and Distribute Employee Benefits in a Divorce, Nat.’l L.J., February 13, 1984, at 25, where inflation was mentioned as a possible factor in the actuarial calculation of present value. Id., 341 Pa.Superior Ct. at 89, 491 A.2d at 163. In Teribery v. Teribery, 357 Pa.Super. 384, 516 A.2d 33 (1986), we referred with approval to this language from the Flynn dissent. Id., 357 Pa.Superior Ct. at 390, 516 A.2d at 36. Since the Teribery opinion does not specifically address the use of an inflation factor, the precise terms of the pension plan involved therein or the circumstances under which such a factor might be appropriate, the case provides us with no guidance as to the issue presented herein.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    544 A.2d 985
    Malcom L. PLASTERER, Appellant, v. Paul PAINE, Jr. and Liberty Fire Company Marching Club, Appellee. Malcolm L. PLASTERER, Appellee, v. Paul PAINE, Jr. and Liberty Fire Company Marching Band Appeal of: Liberty Fire Company Marching Band.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1988.
    Filed June 28, 1988.

      James T. Reilly, Lebanon, for appellant (at 409) and appellee (at 422).
    Bradford H. Charles, Lebanon, for appellee (at 409) and appellant (at 422).
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

These are cross appeals from an Order entered on June 19, 1987, in the Court of Common Pleas of Lebanon County, Civil Division. Plaintiff-appellant, Malcolm L. Plasterer, appeals from the order granting defendant-appellee’s Liberty Fire Company Marching Club’s, motion for judgment non obstante veredicto, (hereinafter referred to a “judgment n.o.v.”). In addition, in the event that this Court determines that the lower court erred in granting appellee’s motion for judgment n.o.v., appellee appeals from that portion of the order which rules adversely to it. We affirm.

Appellant sued appellee for personal injuries sustained when Paul Paine, Jr., assaulted him inside a barroom operated by appellee. As the result of Paine’s blow, appellant suffered total loss of vision in his left eye. Both appellant and Paine were members of appellee at the time of the assault. Appellant offered evidence at trial to establish that appellee was aware of Paine’s mental disabilities and propensity for violence from the time of his admission and that Paine should not have been permitted to frequent the Club.

A jury trial was held before the Honorable John Walter. In a trifurcated proceeding, Paine was found liable for his assault upon appellant, and appellee was found 60% negligent in causing appellant’s harm. The jury awarded appellant damages in the amount of $290,000.00. Post-trial motions and supplemental post-trial motions were filed. The lower court granted appellee’s motion for judgment n.o.v. and denied its motion for new trial. This appeal followed.

Appellant presents four issues for our review on appeal: (1) Where grounds for post-trial relief filed by appellee were not asserted in pre-trial proceedings, at trial or in a motion for post-trial relief, may such grounds be relied upon by the trial court in granting the relief; (2) Where an association undertakes to govern the conduct of its membership, is the negligence of the association and/or that of its officers and employees imputed to a passive member of the association who was injured while passively socializing at the association’s bar; (3) When a plaintiff who is a passive member of an association is injured as a result of the negligence of the association and/or that of its officers and employees, is plaintiff a member of the public under Restatement of Torts Second, Section 344, such that landowner liability can attach to the association; and, (4) If the court finds that appellant was not a “business invitee” because he was a Club member, could the jury have found appellee negligent on general negligence principles.

With regard to issue one, we disagree with appellant’s contention that the lower court erred in granting judgment n.o.v. on an issue which had never been raised before it. A careful study of the record shows that appellee consistently argued at trial and in post-trial motions that appellant could not recover since he was a member of appellee rather than a member of the public, as appellant contends. Following the conclusion of appellant’s case in chief, appellee requested that the case be dismissed based upon the “member of the club” argument. Appellee argued that appellee’s knowledge of Paul Paine’s propensity for violence must be imputed to appellant, as a member of the Club. Appellee again raised the “member of the club” issue in his post-trial motions. Thus, although appellee did not use the words “imputed negligence”, we find that the lower court was sufficiently alerted to the existence and importance of the issue. Accord Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977).

Next, appellant argues that the lower court erred in granting the judgment n.o.v. based on the “imputed negligence” of appellant as a member of appellee. Appellant contends that, where an association undertakes to govern the conduct of its membership, the negligence of the association and/or that of its officers and employees should not be imputed to a passive member of the association who was injured while passively socializing at the association’s bar. Under those circumstances, appellant contends that the member of the association should be considered a member of the public pursuant to Restatement Second of Torts, Section 344, such that landowner liability attaches to the association.

In the instant case, appellant was a member of Liberty Fire Company Marching Club (appellee), a non-profit unincorporated association located in Lebanon County, whose goal is to promote the welfare of the Liberty Fire Company and to provide a place for members to socialize. Only members of the Liberty Fire Company are eligible for membership in appellee.

Appellee maintains a barroom where alcohol is served to members only. On October 23, 1982, appellant was having a beer and socializing with other members in the barroom when Paul Paine, Jr., entered the barroom with a tray of meat for the kitchen from a local delicatessen. Paine set the tray down at the end of the bar and walked to the other end in order to use the phone. As the result of some sort of interaction which then took place between appellant and Paine, the exact nature of which is unknown, Paine struck appellant in the left eye with his fist. Due to Paine’s action, appellant suffered a total loss of vision in the eye.

After careful study, we find that Pennsylvania law still relies on the general rule that:

... the members of a unincorporated association are engaged in a joint enterprise, and the negligence of each member in the prosecution of that enterprise is imputable to each and every other member, so that the member who has suffered damages * * * through the tortious conduct of another member of the association may not recover from the association for such damage.” (Anno. 14 A.L. R.2d 473-474.)

In Roschmann v. Sanborn, 315 Pa. 188, 172 A. 657 (1934), members of an unincorporated fraternal association participated in a social outing in a bus owned by the association. During the trip, the bus was negligently operated, and a member was injured. The member brought suit against the organization through its trustees. A verdict was entered in favor of the plaintiff, but the lower court entered judgment n.o.v. based upon the fact that the plaintiff was a member of the association. On appeal, the Pennsylvania Supreme Court held that, since the trip was a joint enterprise, the plaintiff could not recover because the negligence of the bus driver was imputed to the member in question the same as to all the other members of the organization.

Moreover, De Villars v. Hessler, 363 Pa. 498, 70 A.2d 333 (1950), plaintiff had been a member of an unincorporated fraternal association which operated a food concession stand at the county fair. Plaintiff who was helping with the preparation and dispensing of the food was injured when a propane gas steam table exploded while she was attempting to light the burners. Plaintiff sued the association, its officers and several of its members, but the lower court entered judgment on the pleadings for the defendants. The Supreme Court once again held:

Being thus cooperatively engaged with those who were allegedly guilty of negligence she became subject to the legal principle that where persons join in the prosecution of a common enterprise there is thereby created a mutual relationship of agency among them, with the result that the negligence of any of them is imputed to each and all of them. Since, therefore, the negligence of which she complains is legally imputed to herself, she cannot recover from the association or from any of its members, other than, as already stated, the individuals who actually committed the tort which caused her injuries.

Id., 363 Pa. at 500-501, 70 A.2d at 335.

Finally, in Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986), this Court reached the same results as that reached by the Supreme Court in Roschmann v. Sanborn, supra, and De Villars v. Hessler, supra. In Bowser v. Hershey Baseball Association, supra, a member of an unincorporated, non-profit association brought suit against the association for injuries received during baseball tryouts for the organization’s baseball program. The plaintiff argued that the association had undertaken the task of running the tryouts for him and that he had been a client or customer, i.e., a business invitee at the time of the accident. The lower court entered a compulsory non-suit. On appeal, this Court ruled:

The record clearly discloses that Bowser was not a client, customer or invitee of the association. Instead, he was one of the members of the association and was actively engaged in organizing and conducting tryouts for teenagers who wished to be a part of the association’s baseball program. Thus, he was one of the joint entrepreneurs who were in possession of the ballfield and actively engaged in conducting the very activity which caused his injury. If the activity were conducted negligently by allowing the batter to hit from a spot in front of the backstop, as appellant contends, that negligence must also be imputed to him.

357 Pa.Super. at 440, 516 A.2d at 63.

Thus, we find that Pennsylvania law is clear on its following of the general rule that members of an unincorporated association may not recover from the association in tort because the negligence of a member, including the association and its officers, is imputed to all of the members. We agree with the lower court that even though the two leading Supreme Court cases “arise out of circumstances where the injured party was actively engaged in a particular association project,” it is apparent from the cases cited by the Supreme Court in its opinion that its decisions did not rest on such narrow ground. (Opinion, p. 13). In De Villars v. Hessler, supra, the Supreme Court cited the following cases:

In Koogler v. Koogler, 127 Ohio St. 57, 186 N.E. 725, plaintiff, a pedestrian on the street, was struck by a fire escape falling from a building. He was a member of the fraternal unincorporated association which owned the building and which had negligently failed to inspect the fastenings of the fire escape. He was denied the right of recovery, the court stating, 127 Ohio St. at pages 62, 63, 186 N.E. at page 727, that “If the lodge owns its real estate, one member owns just as much as another; * * * It is equally the duty of all members to work for the success of the association. They labor toward a common end. Their interests, their purposes, their privileges, in fact all their activities, are joint. Then must it not necessarily follow that the lodge is a joint enterprise, and that as between those engaged therein there is no liability for tort? Such is the holding of this court.”
In Hromek v. Gemeinde, 238 Wis. 204, 298 N.W. 587, the plaintiff, a member of an unincorporated labor union, was injured by falling over a platform which had been allowed to remain in an improper and unsafe position. He brought suit, naming the union as one of the defendants; the appellate court reversed a judgment against the union saying 238 Wis. at pages 209, 210, 298 N.W. at page 589, “It [the association] has no entity or existence apart from that of its members, although for convenience it is permitted that the group comprising the union be sued in the name adopted by the association. This is a procedural provision and does not in any way change the status of the group or its substantive liabilities. * * * It is the well-established law that while a principal may sue an agent for dereliction of duty, he may not sue his co-principals for the dereliction of their common agent. * * * ‘It is true that both these bodies [the executive committee and a sub-committee of the union] were appointed by the general body of members, and as such they are the agents of the members; but they are just as much the agents of the plaintiff as the agents of his fellow members whom he seeks to make liable under their collective name.’ ”

363 Pa. at 501-02, 70 A.2d 335-36. In Roschmann v. Sanborn, supra, the Supreme Court held:

If two or more persons unite in the joint prosecution of a common purpose under such circumstances that each has authority, express or implied, to act for all in respect to the control of the means or agencies employed to execute such common purpose, the negligence of one in the management thereof will be imputed to all the others.

315 Pa. at 192, 172 A. at 658 (Quoting; Koplitz v. St. Paul, 86 Minn. 373, 90 N.W. 794, 58 L.R.A. 74, 75).

In addition, in Marshall v. International Longshoremen’s and Warehousemen’s Union, 57 Cal.2d 781, 22 Cal.Rpter. 211, 371 P.2d 987, 988 (1962), the California Supreme Court listed Roschmann, supra, and De Villars, supra, in its list of typical cases following the imputed negligence rule:

This precise question has not been previously litigated in the courts of this state but has been the subject of decision in the courts of several other jurisdictions, and they appear to have followed the general rule of nonliability of the unincorporated association in an action for negligence by one of its members. Typically the cases have involved fraternal organizations or beneficial associations: Carr v. Northern Pac. Beneficial Ass’n, (Wash. 1924) 128 Wash. 40, 221 P. 979 (negligent selection of physicians and negligent hospital care furnished); Koogler v. Koogler (Ohio 1933) 127 Ohio St. 57, 186 N.E. 725 (negligent maintenance of fire escape); Roschmann v. Sanborn (Pa.1934) 315 Pa. 188, 172 A. 657 (negligent operation of a bus); De Villars v. Hessler (Pa.1950) 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470 (negligent operation of a steam table); Mastrini v. Nuova Loggia Monte Grappa (Pa.1954) 1 Pa.Dist. & Co.2d 245 (negligent maintenance of lodge’s floor); Duplis v. Rutland Aerie, No. 1001, etc. Eagles (Vt. 1955) 118 Vt. 438, 111 A.2d 727 (negligent maintenance of stairway).

Appellant contends that there has been a trend in the nation’s courts away from the rule of non-liability of unincorporated associations in actions for the negligence of their members. He presents a series of cases which show the gradual movements of the courts away from the theory. Citing the De Villars case in 1950 as “the last pronouncement of the Supreme Court which specifically addresses the issue,” appellant believes that the law should be changed in order to keep in step with the states which have altered the rule. However, we find the rule concerning the imputed negligence of unincorporated associations as stated by the Pennsylvania Supreme Court in Roschmann, supra, (1934) and in De Villars, supra, (1950) to still be good law in Pennsylvania today. In Mohn v. Hahnemann Medical College and Hospital of Philadelphia, 357 Pa.Super. 173, 176-77, 515 A.2d 920, 922 (1986), this Court held:

At the outset, be it known that, regardless of the vintage of a case or its attack by legal scholars in their erudite treatises on the state of the law, in the final analysis it is for the highest court in this jurisdiction to decide when and to what extent, if any, a case has lost its vibrancy so as to signal its demise. No trial court is to usurp this function under the guise of changes presaged by the winds of judicial time, marked by the shifting tides of legal thinking. See Concurring Opinion of Chief Justice Nix in Commonwealth v. Brady, 510 Pa. 123, 134-36, 507 A.2d 66, 72 (1986) (“Regardless of how laudable the trial court’s intentions may ... be[ ], ... it unauthorized refusal to apply existing law cannot be tolerated. To permit such a practice will throw the administration of justice and the expectations of litigants into utter confusion.”)

Thus, like a trial court, this Court is also not permitted to usurp the function of the Pennsylvania Supreme Court. Therefore, the law on the imputed negligence of unincorporated associations will remain the same until the Pennsylvania Supreme Court addresses the issue.

In Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 356 (1963), the Pennsylvania Supreme Court held:

In considering a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner.

In the instant case, the record shows that appellant is a member of appellee, an unincorporated association. In viewing the evidence in a light most favorable to the appellant, although the record shows that appellant presented sufficient evidence that appellee knew or should have known that Paine was likely to commit an assault due to his mental disabilities and propensity, appellant’s case must fail since the negligence of the Club and its officers is imputed to its members. See also Selected Risks Ins. Co. v. Thompson, 363 Pa.Super. 34, 39, 525 A.2d 411, 413 (1987) (unincorporated associations have no existence separate and apart from its individual members).

In the case at bar, Appellant argues that, although a member of appellee, he was not actively engaged in an association project at the time of his injury. He further contends that he exerted no control over appellee and its affairs but rather stopped in occasionally for a drink. Thus, appellant argues that, since there is no common enterprise underway at the time of his injury and he did not exert any control over appellee, he should be viewed as a client, customer or business invitee, i.e., a member of the public under Restatement Second of Torts, Section 344, such that landowner liability attaches to the association. Section 344 provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect against it. (emphasis added)

However, the record clearly shows that the appellant was not a client, customer or invitee of appellee at the time of his injury. We agree with the lower court that appellant was “... one of the members of the Club partaking of a Club benefit and enterprise; the running of a canteen or barroom where members can socialize and from which the organization can potentially realize drink sale profits to fund future Club projects or donations.” (Opinion, p. 17). The lower court explained:

As a member of the Club, Plaintiff has a proprietary interest in the Club and the premises in which it is located. Profits generated by alcohol sales in the bar contribute toward Club goals. The bar area was provided so members would have a place to socialize; a place where members could stop in after work and have a drink with other members. Each member of the Club has an equal voice in the control of the Club and barroom. As a practical matter for the convenience of all however, the right of each member to direct or control the club is delegated to the elected officials, as provided in the bylaws. The fact that Plaintiff did not attend meetings or exercise his right of control is irrelevant.

(Opinion, pp. 16-17).

On the other hand, a member of the public has no proprietary interest in the business he enters. In addition, a member of the public has no control over how a business is operated or who enters the business establishment.

Moreover, we agree with the lower court that, viewing the facts in the light most favorable to the plaintiff, they do not establish that appellee’s barroom is open to the public. Appellee has established strict rules to keep the public out unless in the company of a member, or specifically invited to a Club fund raising function. The lower court stated:

In the case at bar, the Club house rules and bylaws clearly state that women and minors are not allowed in the Club building. Members are allowed one guest but the guest cannot make a purchase and must leave when the member leaves. The front door of the Club is locked and only members have keys. If members forget their keys, they may ring the side door for admittance, but only the steward or officers are permitted to open the side door. Members are issued membership cards which the steward can demand to see before service.

(Opinion, pp. 18-19).

Thus, we find that the evidence shows that appellant was a member of appellee at the time of his injury and not a member of the public. As such appellee has no right of recovery under the Restatement Second of Torts, Section 344.

Rather, we find that, under current Pennsylvania law, appellant, as a member of an unincorporated association may not recover from the association in tort because the negligence of a member, including the association and.its officers, is imputed to all of the members. Roschmann v. Sanborn, supra; De Villars v. Hessler, supra; Bowser v. Hershey Baseball Association, supra.

Order affirmed.

      . Counsel used the term "demurrer” instead of “compulsory non-suit”, in requesting the dismissal of the suit for lack of evidence. In Vernon

        D. Cox & Co., Inc. v. Giles, 267 Pa.Super. 411, 413 n. 2, 406 A.2d 1107, 1109 n. 2 (1979) this Court held:
      The demurrer to the evidence in civil actions is rarely resorted to in modern practice, having been all but superseded by the motion for compulsory non-suit. Nevertheless, it has been held that the two procedures are in practical effect identical. See Stinson v. Smith, 329 Pa. 177, 196 A. 843 (1938); 6 Standard Pennsylvania Practice 357-58 (1960).

      . In light of our determination, there is no need for this Court to decide appellee’s cross appeal.


author: BECK, Judge: KELLY, Judge,

text:
    544 A.2d 991
    COMMONWEALTH of Pennsylvania v. Glenn SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed July 5, 1988.

      Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.
    Hugh J. Burns, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, WIEAND, MCEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   BECK, Judge:

This is an appeal by Glenn Smith from a judgment of sentence imposed on February 3, 1987 by the Court of Common Pleas of Philadelphia County. This case involves an alleged conflict between the sentencing provisions of the Youth Offenders Act (which was repealed by the Pennsylvania legislature effective February 9, 1987) and the 1982 Sentencing Guidelines (which were invalidated by the Pennsylvania Supreme Court in a decision filed on October 7, 1987). We find that the trial judge did not err when he first calculated the sentence that appellant would receive under the 1982 Sentencing Guidelines and then departed from the guidelines and sentenced appellant in accordance with the Youthful Offenders Act. We therefore affirm the judgment of sentence.

On June 1, 1986, appellant Smith approached a woman who was walking on Wyoming Avenue in Philadelphia and forced her to hand over her money. He was apprehended by the police, and on October 3, 1986, he pleaded guilty to robbery as a felony of the second degree. A sentencing hearing was then scheduled for February 3, 1987 before the Honorable Bernard J. Avellino.

At the sentencing hearing, the trial judge heard argument on the correct application of the 1982 Sentencing Guidelines to appellant’s case. Both defense counsel and the Commonwealth agreed that under the guidelines the offense gravity score for Smith’s crime was “5”. However, the parties disagreed on the value which should be assigned for Smith’s prior record score. The Commonwealth maintained that Smith had a prior record score of “4” since he had been adjudicated delinquent for committing two robberies as a juvenile. Defense counsel insisted that juvenile adjudications could not be counted in determining the prior record score, and that therefore Smith had a prior record score of “0”.

The trial judge accepted the Commonwealth’s view that Smith should be assigned an offense gravity score of “5” and a prior record score of “4”. He then addressed the defendant on the record:

[T]here are a number of factors I have to consider before I sentence anyone.
I have to consider the sentencing guidelines.
The sentencing guidelines alone for you say that the minimum range, the minimum range of confinement, that is not the aggravated nor mitigated, the minimum range I ought to put you in jail for [is] at least eighteen to twenty seven months.

N.T. at 16.

Upon further reflection, however, the trial judge decided that the minimum sentencing range suggested by the guidelines was not appropriate. The judge reviewed the presentencing report which stressed that Smith would benefit from “... a firm consistent program of reward and punishment in a very structured and controlled setting.” N.T. at 17. In light of this recommendation, the judge concluded that the rehabilitative needs of the defendant could best be met if he were confined in the state facility for youthful offenders at Camp Hill. At the time of sentencing, the Youth Offenders Act provided that in order to be eligible to be sent to Camp Hill, a defendant must receive a prison sentence which does not specify a minimum term of confinement. Accordingly, the trial court deviated from the guidelines and imposed a sentence to be served at Camp Hill with no minimum limit and with a maximum limit of six years imprisonment.

Appellant filed a timely motion to modify sentence in which he argued that the trial court had miscalculated his prior record score by adding points for his juvenile adjudications. This motion was denied on February 9, 1987 — the same day on which the repeal of the Youth Offenders Act went into effect.

Appellant then filed a timely notice of appeal with this court. In his appellate brief, appellant again argued that the trial court had erred by taking his juvenile adjudications into account. After initial consideration by a three judge panel of the court, this case was certified for en banc review. Following reargument before the court en banc, appellant and the Commonwealth were granted leave to file supplemental briefs addressing the legality of a prison sentence without a minimum term of incarceration.

In its present posture, this case presents two questions for review. First, did the trial judge have authority to impose a prison sentence with no minimum term after initially considering the minimum sentence recommended by the guidelines? Second, did the trial judge properly consider appellant’s juvenile adjudications when computing the minimum sentence recommended by the guidelines? We conclude that appellant is not entitled to a new sentencing hearing.

I.

Appellant asserts that the trial judge erred by failing to provide for a minimum sentence. His principal argument may be summarized as follows.

Appellant was sentenced under the Youth Offenders Act which prohibits the imposition of a minimum sentence. See 61 Pa.Stat.Ann. §§ 484, 485 (cited at n. 4, supra). However, appellant’s case is controlled by the 1982 Sentencing Guidelines. Appellant pleaded guilty to committing a crime on June 1, 1986; the 1982 Sentencing Guidelines took effect on July 22, 1982 and applied to all crimes committed on or after that date. 204 Pa. Code § 303.1(d). Therefore, the judge was obliged to follow the 1982 Sentencing Guidelines when determining appellant’s punishment.

The guidelines established ranges of minimum sentences for criminal offenses. See 204 Pa. Code § 303.9(a) (“All guideline sentence ranges are months of minimum confinement ...”). The Youth Offenders Act, which prohibits a minimum sentence, and the 1982 Sentencing Guidelines, which authorize a minimum sentence, are in conflict. In order to resolve this conflict, the trial court should simply have followed the guidelines — the more recently adopted of the two competing sentencing schemes. Thus, the 1982 Sentencing Guidelines displaced the Youth Offenders Act, and the special indeterminate sentence provided by the Youth Offenders Act was not a valid sentencing alternative.

A.

We find that the argument outlined above is not meritorious. However, before reaching the merits of appellant’s claim, a few words about appealability and waiver are in order.

As in all sentencing cases, we must determine at the outset whether the appellant’s issue concerns a discretionary aspect of sentence or the legality of his sentence. There are two significant distinctions between appellate treatment of legality claims and discretionary claims. First, a challenge to the legality of a sentence may be appealed as of right. 42 Pa.Cons.Stat.Ann. § 9781(a) (Purdon 1982). A challenge to a discretionary aspect of a sentence is not allowed unless there is the appearance of a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.Cons.Stat.Ann. § 9781(b); see Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Second, a challenge to the legality of a sentence can never be waived. Commonwealth v. Wallace, 368 Pa.Super. 255, 533 A.2d 1051 (1987). A challenge to a discretionary aspect of sentence may be waived if it is not properly raised in the trial court and in the appellant’s brief to this court. See Tuladziecki, supra; Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

We find that appellant’s first issue implicates the legality of his sentence. A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence which it handed down. Commonwealth v. Hartz, 367 Pa.Super. 267, 279, 532 A.2d 1139, 1145 (1987) (en banc) (Cirillo, P.J., concurring); Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982); see Commonwealth v. Wallace, supra. Where a trial court does not have jurisdiction, its sentencing decision is automatically subject to appellate review because the court by imposing sentence exceeded the limits of its authority.

A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s crime. Appellant concedes that the General Assembly authorized indeterminate sentences for individuals in the appellant’s position when it approved the Youth Offenders Act. However, appellant maintains that the General Assembly later revoked this authorization and implicitly prohibited indeterminate sentences by passing legislation which created a sentencing commission and charged that commission with the task of developing sentencing guidelines. See 42 Pa. Cons.Stat.Ann. §§ 2151-2155 (Purdon 1981 & Supp. 1987). Assuming that appellant were correct, and the later action by the legislature authorizing the guidelines implicitly repealed the indeterminate sentencing provision of the Youth Offenders Act, then the trial judge would not have had the power to impose an indeterminate sentence under the Youth Offenders Act. Appellant’s argument calls into question the jurisdiction of the trial court.

At the heart of the present case is a dispute over whether the sentence which appellant Smith received was in fact legislatively permitted. Thus, appellant’s argument must be viewed as an attack on the legality of his sentence which is appealable as of right and which cannot be waived. Cf. Commonwealth v. Craig, 311 Pa.Super. 533, 534 n. 6, 457 A.2d 1310, 1311 n. 6 (1983) (claim that Sentencing Code prohibits indeterminate sentence not subject to waiver); Commonwealth v. Shoemaker, 303 Pa.Super. 242 n. 4, 449 A.2d 669 n. 4 (1982), rev’d on other grounds, 502 Pa. 573, 467 A.2d 819 (1983) (same). We therefore conclude that appellant’s first issue is suitable for appellate review.

B.

Appellant insists that the Youth Offenders Act and the 1982 Sentencing Guidelines are in conflict, and that a trial court must sentence under the guidelines. We cannot accept this argument because we find that the Act and the guidelines may be easily reconciled.

The scope and effect of sentencing guidelines are controlled by sections 2154 and 9721 of title 42 of the Pennsylvania Consolidated Statutes. Section 2154 provides in part: 42 Pa.Cons.Stat.Ann. § 2154 (Purdon 1981 & Supp. 1987). Pursuant to its authority under 2154, the Commission adopted section 303.1(d) of the guidelines which states: “This chapter shall take effect on July 22, 1982, and apply to all offenses committed after that date.”

The [Pennsylvania Commission on Sentencing] shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant.

As for the practical effect of the guidelines, section 9721(b) provides in part:

The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing). In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

42 Pa.Cons.Stat.Ann. § 9721(b) (Purdon 1982).

Sections 2154 and 9721(b) are broad general provisions; they were designed to establish proper procedures for sentencing all defendants who committed a felony or misdemeanor after July 22, 1982. On the other hand, the scope of the Youth Offenders Act was considerably narrower. Section 483 of the Act provides:

Any court in this Commonwealth exercising criminal jurisdiction, in lieu of sentence now provided by law, may sentence to the [State Correctional Institution] at Camp Hill any male criminal, between the ages of fifteen and twenty-one years and not known to have been previously sentenced to a State penitentiary in this or any other state or country. The board of trustees of said institution shall receive and take into [Camp Hill] all male prisoners, of the class aforesaid, who shall be legally sentenced on conviction as aforesaid: Provided, however, That such court shall not sentence to said school any person convicted of first or second degree murder or any other crime where the penalty is fixed at life imprisonment.

Pa.Stat.Ann. tit. 61, § 483 (footnote omitted) (emphasis added). It is thus clear that the Act was a specialized statute which related exclusively to a subcategory of defendants whose rehabilitative needs, it was believed, could best be met by incarceration at the Camp Hill facility.

We deal in this case with an apparent clash between general statutory provisions, sections 2154 and 9721(b) of title 42, and a special statutory provision, section 483 of title 61. Under these circumstances, we must consult section 1933 of the Statutory Construction Act in order to ascertain the intent of the legislature. Section 1933 provides in part:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both.

1 Pa.Cons.Stat.Ann. § 1933 (Purdon Supp. 1987) (emphasis added). See also Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975) (in absence of manifestly contrary intention of legislature, two apparently conflicting statutes must be construed so that both are allowed to operate); Pekular v. Eich, 355 Pa.Super. 276, 288, 513 A.2d 427, 433 (1986). In accordance with this principle, we shall construe the statutes at issue so that effect may be given to each. This may be accomplished by viewing this legislation in the following manner.

Sections 2154 and 9721(b) require the trial judge to consider sentencing the defendant within the minimum range specified by the sentencing guidelines. Yet, the judge was not bound to announce a judgment of sentence within the guideline range. As long as the judge had weighed the merits of imposing the guidelines sentence, he was free to choose the option provided by section 483 of the Youth Offenders Act prior to its repeal; he could send an eligible defendant to Camp Hill without specifying a minimum period of confinement. The judge’s only remaining obligation was to supply a statement, pursuant to section 9721(b), of the reason why he had deviated from the guidelines and sentenced under the Youth Offenders Act.

This interpretation is consistent with the Pennsylvania Supreme Court’s commentary on the guidelines in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Sessoms invalidated the 1982 Sentencing Guidelines. See n. 2, supra. The Sessoms Court also emphasized that even before the invalidation of the guidelines, trial courts retained broad discretionary sentencing powers. The majority opinion states:

[T]he court has no “duty” to impose a sentence considered appropriate by the [Pennsylvania Commission on Sentencing]. The guidelines must only be “considered” and, to ensure that such consideration is more than mere fluff, the court must explain its reasons for departure from them____ We may say that in directing courts to consider these guidelines, just as they must consider a number of listed though non-exclusive factors in imposing probation, the legislature has done no more than direct that the courts take notice of the Commission’s work.

516 Pa. at 377, 532 A.2d at 781.

In light of this language in Sessoms, we cannot view the 1982 Sentencing Guidelines as having divested the trial court of its sentencing authority under the Youth Offenders Act. Between the time that the guidelines were promulgated and the Act was repealed, the Act remained a valid sentencing alternative. A judge could fulfill his responsibilities under both the guidelines and the Act by: 1) considering the minimum sentence range suggested by the guidelines; 2) stating on the record his reasons for deviating from the guidelines and applying the Act; and 3) imposing a sentence without a minimum term of confinement. Indeed, that is precisely what the trial court did in the case sub judice.

We find that the trial court did not exceed the limits of its power by failing to give the appellant a minimum sentence. Accordingly, we conclude that appellant’s judgment of sentence is not illegal.

C.

This case is not the first in which an appellant has asserted that a sentence without a minimum term of confinement is invalid. In Commonwealth v. Shoemaker, 502 Pa. 573, 467 A.2d 819 (1983), the Pennsylvania Supreme Court previously upheld the legality of an indeterminate sentence imposed under the Youth Offenders Act. In this subsection, we will discuss similarities and differences between Shoemaker and the case sub judice.

In Shoemaker, the defendant based his challenge to the Youth Offenders Act on section 9756(b) of the Sentencing Code rather than on the guidelines. Section 9756(b) states that the court “shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed”. This section is not satisfied unless the trial court actually specifies a definite minimum length for the defendant’s prison sentence. Commonwealth v. Baughman, 333 Pa.Super. 458, 482 A.2d 658 (1984); Commonwealth v. Craig, 311 Pa.Super. at 534, 457 A.2d at 1811; Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 419 A.2d 596 (1980). A panel of the Superior Court vacated Shoemaker’s sentence on the ground that the trial court had violated section 9756(b). In a brief per curiam opinion, the Supreme court reversed. The Court simply noted that:

The record establishes that appellee, who was seventeen years old at the time of sentencing, was sentenced pursuant to the “Youth Offenders Act,” ... which specifically prohibits the imposition of a minimum period of incarceration. As 42 Pa.C.S. § 9756(b) thus did not apply to the sentencing proceeding in this case, the order of the Superior Court must be vacated.

502 Pa. at 574, 467 A.2d at 820 (citation omitted).

Although the Court did not elaborate on the reason why the Youth Offenders Act took precedence over section 9756(b) of the Code, the result in Shoemaker is consistent with the analysis employed in this opinion. As in the instant case, Shoemaker involved a clash between a general provision of a sentencing statute, section 9756(b), and a special sentencing statute, the Youth Offenders Act. Therefore, Shoemaker implicated section 1933 of the Statutory Construction Act. The full text of section 1933 is as follows:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict, between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

Shoemaker differs from the case sub judice in that, in Shoemaker, it was not possible to give effect to both the Youth Offenders Act and another sentencing law. As we have noted, a judge may give effect to both the guidelines and the Youth Offenders Act by considering the guidelines’ minimum range and then sentencing under the Act. Therefore, the instant case does not present an irreconcilable conflict. On the other hand, the Youth Offenders Act is in direct conflict with section 9756(b) of the Code: the Youth Offenders Act allows the court to impose no minimum sentence; section 9756(b) directs the court actually to impose a minimum sentence. Thus, an irreconcilable conflict was present in Shoemaker, and it was necessary to choose between applying the Youth Offenders Act and applying section 9756(b), the general sentencing provision.

Under section 1933 of the Statutory Construction Act, where an irreconcilable conflict exists, a special provision of a statute will prevail over a general provision of a statute unless: 1) the general provision was subsequently enacted, and 2) the legislature had clearly indicated that the general provision should be given priority. Although section 9756(b) was enacted long after the Youth Offenders Act, the legislature did not clearly indicate that the former should be given priority. Thus, as the Court ruled, the trial judge in Shoemaker did not err by sentencing under the Youth Offenders Act.

Finally, we note that both the instant case and Shoemaker are consistent with this court’s decision in Commonwealth v. Williams, 353 Pa.Super. 312, 509 A.2d 1292 (1986). In Williams, the defendant was convicted of armed robbery and sentenced to an indeterminate term under the Youth Offenders Act. The Commonwealth appealed, and this court reversed, on the ground that the trial court should have applied section 9712 of the Sentencing Code.

Section 9712 provides in part:

Any person who is convicted in any court of this Commonwealth of ... robbery ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum term of at least five years total confinement notwithstanding any other provision of this title or other statute to the contrary.

42 Pa.Cons.Stat.Ann. § 9712 (Purdon 1982). Unlike the statutory provisions at issue in Shoemaker and in the instant case, the plain text of section 9712 clearly indicates that the legislature intended to limit the application of prior sentencing statutes, such as the Youth Offenders Act. Thus, the Williams court was correct in vacating the judgment of sentence under the Act and remanding for imposition of a minimum sentence.

In summary, Shoemaker and Williams are consistent with the conclusion that the trial court in the case sub judice had authority to sentence appellant under the Youthful Offenders Act. Therefore, appellant’s first allegation of error is without merit.

II.

As his second allegation of error, appellant maintains that the trial judge erroneously considered juvenile adjudications and thus applied the wrong prior record score when calculating a sentence under the 1982 Sentencing Guidelines. This claim is not moot even though the trial judge actually sentenced appellant under the Youth Offenders Act. As we have noted, section 9721(b) of the Code requires the court to consider the sentencing guidelines. This provision has been interpreted as directing the trial judge to ascertain the correct sentencing range under the guidelines and state that range on the record before departing from the guidelines. Commonwealth v. Sanchez, 372 Pa.Super. 369, 373, 539 A.2d 840, 842; Commonwealth v. Johnakin, 348 Pa.Super. 432, 438, 502 A.2d 620, 623 (1985); Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). Nevertheless, we cannot reverse the trial court on this basis.

A claim that the trial, court miscalculated a defendant’s prior record score implicates a discretionary aspect of sentencing. Commonwealth v. Billett, 370 Pa.Super. 125, 535 A.2d 1182 (1988); Commonwealth v. Woodward, 368 Pa.Super. 363, 534 A.2d 478 (1987); Commonwealth v. Tilghman, 366 Pa.Super. 328, 331, 531 A.2d 441, 443 (1987) (en banc). As we noted in section (I)(A) of this opinion, the right to appeal from a discretionary aspect of sentence is not absolute. Moreover, any claim challenging a discretionary aspect of sentence is subject to waiver.

In order to reach the merits of a discretionary sentencing issue, this court must conduct a three part inquiry. First,, we must find that appellant’s issue was properly preserved in the trial court. See Pa.R.Crim.P. 1410. Second, we must find that the appellant has filed a brief with this court which does not contain a fatal defect. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Pa.R.App.P. 2119(f). Third, we must find that appellant’s issue presents the “appearance of a substantial question” that the sentence appealed from is not appropriate under the Sentencing Code. 42 Pa.Cons.Stat.Ann. § 9781(b); see Tuladziecki, supra.

Although appellant properly preserved the discretionary sentencing issue in the trial court, his brief to this court is defective. Pennsylvania Rule of Appellate Procedure 2119(f) directs the appellant to “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence.” Appellant’s brief does not contain a Rule 2119(f) statement. This court will overlook a Rule 2119(f) violation where the appellee has failed to object to the defect, Commonwealth v. Krum, supra. In this case, however, the Commonwealth specifically objected to the defect. Appellee’s Brief at 6 n. 3; Supplemental Brief for Appellee at 10 n. 4. Therefore, we will not review any discretionary aspect of appellant’s sentence.

The judgment of sentence is affirmed.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

I agree with the majority that the Youth Offenders Act was not impliedly repealed by adoption of the Sentencing Guidelines. I also agree that a sentence under the Youth Offenders Act is a sentence “outside” the guidelines, is subject to the written statement requirement of 42 Pa.C. S.A. § 9721(b) and 204 Pa.Code § 303.1(h), and is reviewable under 42 Pa.C.S.A. § 9781(b) and 9781(c)(3). See Commonwealth v. Felix, 372 Pa.Super. 145, 154 n. 4, 539 A.2d 371, 375 n. 4 (1988).

I do not agree that: 1) if the Commonwealth fails to raise a challenge to an appellant’s failure to comply with Pa.R. A.P. 2119(f), that procedural defect is waived and will be ignored; and, 2) if the Commonwealth properly raises a challenge to an appellant’s failure to comply with Pa.R.A.P. 2119(f), appellant's challenge to the discretionary aspects of sentence must be deemed to have been waived. Those pronouncements improperly and unduly restrict this Court’s inherent discretionary authority to enforce the rules of procedure sua sponte, and to decide in our sound discretion what the proper response to a procedural defect is in a particular case. See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 81-86, 530 A.2d 900, 902-04 (1987) (Kelly, J., joining and concurring); see also Commonwealth v. Graham, 372 Pa.Super. 365, 367, 539 A.2d 838, 839 (1988); Commonwealth v. Felix, supra, 372 Pa.Super. at 153, 539 A.2d at 376; Commonwealth v. Douglass, 370 Pa.Super. 104, 107, 535 A.2d 1172, 1174 (1988); Commonwealth v. Pickford, 370 Pa.Super. 444, 453, 536 A.2d 1348, 1356-57 (1987) (Kelly, J., concurring and dissenting).

In the instant case, I would deny allowance of appeal without remanding for compliance with Pa.R.A.P. 2119(f), as appellant’s contention, that the trial court erred in considering guideline ranges determined by applying guideline provisions giving prior record score points for prior juvenile adjudications, has previously been rejected by this Court in Commonwealth v. Woodward, 368 Pa.Super. 363, 534 A.2d 478 (1987). Cf. Commonwealth v. Pickford, supra, 370 Pa.Super. at 453, 536 A.2d at 1356; accord Commonwealth v. Graham, supra, 372 Pa.Super. at 367, 539 A.2d at 839.

However, as I agree that the appeal from the discretionary aspects of sentence is frivolous, I concur in the affirmance of judgment of sentence.

      . Youth Offenders Act, Act of April 28, 1887, P.L. 63, § 6, as amended, Pa.Stat.Ann. tit. 61 §§ 483-495 (Purdon 1964), repealed by Act of Dec. 11, 1986, P.L. 1521, No. 165, § 10, effective in 60 days.

      . The 1982 Sentencing Guidelines, 204 Pa.Code ch. 303, were invalidated by the Pennsylvania Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). In Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988), an en banc panel of this court recently held that the Sessoms Court's invalidation of the guidelines applies retroactively only to cases in which a constitutional challenge to the guidelines has been properly preserved at all stages of adjudication up to and including any direct appeal. Id., 372 Pa.Super. at 373 n. 7, 539 A.2d at 842 n. 7. No constitutional challenge of any kind was preserved in the instant case.
      We note that a new set of sentencing guidelines was recently promulgated by the Pennsylvania Commission on Sentencing. See 17 Pennsylvania Bulletin 5012 (Dec. 5, 1987). These new guidelines apply only to sentencing for offenses committed after April 25, 1988.

      . For an offense gravity score of "5” and a prior offense score of "4”, the guidelines specify a minimum range of 18-27 months confinement, an aggravated minimum range of 27-34 months confinement, and a mitigated minimum range of 14-18 months confinement. See 204 Pa.Code § 303.9. The assistant district attorney stated the length of all three ranges on the record at the beginning of the sentencing hearing. N.T. at 4.

      . The Youth Offenders Act provides in part:
      Any person, who shall be convicted of an offense punishable by imprisonment at the [State Correctional Institution] at Camp Hill and who, upon such conviction shall be sentenced to imprisonment therein, shall be imprisoned according to this act and not otherwise.
      The courts, in sentencing to [Camp Hill], shall not fix or limit the duration of sentence, but the time which any such person shall serve in [Camp Hill] or on parole shall not in any case exceed six years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced if such maximum be less than six years. The term of imprisonment may be terminated by the Pennsylvania Board of Parole in accordance with its rules and regulations formally adopted.
      Pa.Stat.Ann. tit. 61, §§ 484, 485 (Purdon 1964) (footnotes omitted). See also Commonwealth v. Ohlinger, 337 Pa.Super. 437, 487 A.2d 25 (1985) (interpreting statute).

      . The Youth Offenders Act was passed in 1887, and was amended in part in 1951 and 1953. The 1982 Sentencing Guidelines were promulgated in 1982 by a commission established by the legislature in 1980.

      . We use the words “indeterminate sentence” to describe a sentence without a definite minimum term of confinement.

      . Appellant also claims that his sentence under the Youth Offenders Act was illegal because the trial court denied his motion to modify sentence on February 9, 1987 — the very day on which the legislature's repeal of the Act took effect. See n. 1, supra. However, at the time of appellant's February 3rd sentencing hearing, the Act was still good law. Since the trial judge’s initial decision to sentence under the Act was entirely proper, the judge was not obliged to grant the motion to modify sentence.

      . The text of section 9756(b) was enacted in 1974 and was transferred from title 18 of the Pennsylvania Consolidated Statutes to title 42 of the Pennsylvania Consolidated Statutes in 1980. See Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1; Act of Oct. 5, 1980, P.L. 693, § 401(a). The Youth Offenders Act was enacted during the nineteenth century. See, n. 1, supra.

      . This three part inquiry is in addition to the initial determination we must make every case that the appellant has filed a timely notice of appeal. See Pa.R.App.P. 902.

      . An appellate court is not obliged to address the three steps of this inquiry in any particular order. Section 9781 of the Sentencing Code provides that “[allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code]." 42 Pa.Cons.Stat.Ann. § 9781 (emphasis added). Thus, the appellate court could determine at the outset whether consideration of a sentencing claim is barred on the grounds that there is no appearance of a substantial question. Alternatively, the appellate court could first inquire whether appellant has properly preserved the issues and filed an adequate appellate brief; if appellant has not complied with these requirements, the appellate court could then refrain from considering the merits of the appeal as a sound exercise of the discretion afforded by section 9781(b).

      . We note, however, that the precise claim which appellant seeks to raise was recently discussed at length and rejected in Commonwealth v. Woodward, supra. See also Commonwealth v. Billett, supra.