author: KELLY, Judge. JOHNSON, Judge,

text:
    668 A.2d 546
    Colonel Vincent BERNHARD, Appellant, v. Kathryn A. BERNHARD, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1995.
    Filed Dec. 5, 1995.

      George A. Gallenthin, Doylestown, for appellant.
    Before KELLY, JOHNSON and CERCONE, JJ.
   KELLY, Judge.

In this appeal we are asked to determine whether the trial court properly sustained the preliminary objections of appellee Kathryn Bernhard (“Wife”) and dismissed appellant Colonel Vincent Bernhard’s (“Husband”) complaint in divorce. Specifically, we must decide whether Husband, a serviceman, abandoned his Pennsylvania domicile for a new domicile in Maryland, and thus, whether the trial court had subject matter jurisdiction over the divorce action. For the reasons set forth below, we hold that the trial court erred in concluding that Husband had acquired a new domicile and that the court, therefore, lacked subject matter jurisdiction. Accordingly, we reverse and remand for proceedings consistent with this opinion.

The relevant facts and procedural history underlying this appeal are as follows. Husband is currently an active member of the military and has been since May of 1970. Upon entering the U.S. Army in 1970, Husband selected his parents’ address of Ivyland, Bucks County, Pennsylvania as his home of record. Husband and Wife were married in Philadelphia, Pennsylvania, on July 4, 1970. The parties resided in Pennsylvania until Husband was called to active duty in 1971. Since that time, they have resided in Virginia, Kentucky, Maryland, Pennsylvania, Germany, and Korea because of military assignment.

Husband and Wife have two adult children, both of whom were born in Germany while the family was stationed there. Both children attended Pennsylvania colleges and the son was entitled to an in-state tuition rate. In 1979, the parties purchased a home in Prince George’s County, Maryland, where they resided except for the time periods when Husband was stationed elsewhere. Husband is currently stationed at the Pentagon in Washington, D.C. and resides in Alexandria, Virginia. Wife currently resides in the Maryland residence.

Husband left the marital residence on June 10, 1994, and filed a complaint in divorce on June 16, 1994, in the Bucks County Court of Common Pleas. The complaint was sent to Wife by certified mail, and proper service of the complaint is disputed. Wife filed a complaint in divorce in Prince George’s County, Maryland, on July 1, 1994, which was personally served on Husband on July 14,1994. Husband filed a petition to determine jurisdiction of the Bucks County Court of Common Pleas on July 7, 1994, and a petition for injunction to restrain Wife from pursuing her Maryland divorce on July 12, 1994. A hearing was held before the Honorable Michael J. Kane on August 2, 1994, following which the court denied Husband’s request for an injunction.

On August 19, 1994, Wife filed preliminary objections to Husband’s divorce complaint asserting, inter alia, that Maryland was the proper forum for the parties’ divorce action. On September 8, 1994, a hearing was held in Maryland before Julia B. Wetherly, Master for Domestic Relations. After questioning both parties, the Master determined that Maryland did have jurisdiction over the family for purposes of divorce and support, and the Master entered a temporary support order. After reviewing the entire record, the Bucks County Common Pleas Court granted Wife’s preliminary objections and dismissed Husband’s complaint in divorce. This timely appeal followed.

Husband raises the following issue for our review:

WHETHER THE HONORABLE TRIAL COURT RESPECTFULLY ERRED IN ENTERING ITS THURSDAY, 19 JANUARY 1995, ORDER WHEREIN THE SAID COURT FOUND LACK OF SUBJECT MATTER JURISDICTION OVER THE CONSOLIDATED COMPLAINT IN DIVORCE? []

Husband’s Brief at 4.

When a party raises preliminary objections challenging subject matter jurisdiction, the trial court’s function is to determine whether the law will bar recovery because of the lack of such jurisdiction. Philadelphia Housing Authority v. Barbour, 405 Pa.Super. 140, 143, 592 A.2d 47, 48 (1991), affirmed, 532 Pa. 212, 615 A.2d 339 (1992) (citations omitted). “The action or inaction of the parties cannot bestow subject matter jurisdiction upon a court that otherwise lacks it.” Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 504, 536 A.2d 1375, 1379 (1988) (en banc), modified, 522 Pa. 86, 559 A.2d 917 (1989) (citations omitted). Therefore, our rules of civil procedure provide that either party, or the court sua sponte, can raise the lack of subject matter jurisdiction at any time. Id. (citing former Pa.R.Civ.P. 1032(2)); United Carolina Bank v. Martocci, 416 Pa.Super. 16, 20, 610 A.2d 484, 486 (1992); Barndt v. Barndt, 397 Pa.Super. 321, 325, 580 A.2d 320, 322 (1990).

Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the court through due process of law. It is the right to adjudicate concerning the subject-matter in a given case.... Without such jurisdiction, there is no authority to give judgment and one so entered is without force or effect.

Rieser v. Glukowsky, 435 Pa.Super. 530, 535, 646 A.2d 1221, 1223 (1994) (quoting Mintz v. Mintz, 83 Pa.Super. 85, 88 (1924)). The trial court has jurisdiction if it is competent to hear and determine controversies of the general nature of the matter involved sub judice. Id. at 536, 646 A.2d at 1224 (citations omitted). “Jurisdiction lies if the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case.” Id. (citations omitted). When determining whether the trial court has subject matter jurisdiction, we must look first to Pennsylvania law. United Carolina Bank v. Martocci, supra (citing Barndt v. Barndt, supra). In order to make our determination of subject matter jurisdiction, we must now turn to the relevant section of the Pennsylvania Divorce Code.

The Pennsylvania Divorce Code provides in pertinent part as follows:

§ 3104. Bases of jurisdiction
(a) Jurisdiction. — The court shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and shall determine, in conjunction with any decree granting a divorce or annulment, the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them, and the order of any spousal support, alimony, alimony pendente lite, counsel fees or costs authorized by law.
(2) The future care, custody and visitation rights as to children of the marriage or purported marriage.
(3) Any support or assistance which shall be paid for the benefit of any children of the marriage or purported marriage.
(4) Any property settlement involving any of the matters set forth in paragraphs (1), (2) and (3) as submitted by the parties.
(5) Any other matters pertaining to the marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action.
(b) Kesidenee and domicile of parties» — -No spouse is entitled to commence an action for divorce or annulment under this part unless at least one of the parties has been a bona fide resident in this Commonwealth for at least six months immediately previous to the commencement of the action. Both parties shall be competent witnesses to prove their respective residence, and proof of actual residence within this Commonwealth for six months shall create a presumption of domicile within this Commonwealth.

23 Pa.C.S.A. § 3104(a) and (b).

The term ‘domicile’ has been defined in this Commonwealth as:

... the place in which, both in fact and intent, the home of a person is established without any purpose to return to a former home; the place where he lives, in distinction from that where he transacts his business; the place where he chooses to abide, in distinction from that in which he may be for a temporary purpose....

Scoggins v. Scoggins, 382 Pa.Super. 507, 523-24, 555 A.2d 1314, 1323 (1989) (quoting Wallace v. Wallace, 371 Pa. 404, 410-11, 89 A.2d 769, 771 (1952)).

Because the issue of domicile is a mixed question of law and fact, it is reviewable by our appellate courts. Greenwood v. Hildebrand, 357 Pa.Super. 253, 258, 515 A.2d 963, 965 (1986), allocatur denied, 515 Pa. 594, 528 A.2d 602 (1987) (citing Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); McLarin v. McLarin, 350 Pa.Super. 153, 504 A.2d 291 (1986)). See also Boswell v. South Carolina Insurance Company, 353 Pa.Super. 108, 118, 509 A.2d 358, 363 (1986). In McLarin v. McLarin, supra, this Court stated,

[i]t is well established in this Commonwealth that domicile once shown to exist is presumed to continue until another domicile is affirmatively proven. The burden of proving this change of domicile rests with the party asserting the change. This burden entails proving[,] by clear and convincing evidence, residence in a new locality with intent to make that residence a permanent home coupled with the manifested intent of abandoning the former domicile.

McLarin v. McLarin, supra at 157, 504 A.2d at 293 (citations omitted). See also Greenwood v. Hildebrand, supra at 259, 515 A.2d at 965-66; Zinn v. Zinn, 327 Pa.Super. 128, 130, 475 A.2d 132, 133 (1984); McCauley v. McCauley, 184 Pa.Super. 361, 366, 134 A.2d 684, 687 (1957).

The terms domicile and residence are not interchangeable; whereas residence is a physical fact, domicile is a matter of intention. Greenwood v. Hildebrand, supra; Boswell v. South Carolina Insurance Company, supra at 116, 509 A.2d at 362. Except where permitted to live off-base, people in the military have no choice in where they reside, hence in domicile. Id. at 119, 509 A.2d at 363-64; Zinn v. Zinn, supra at 131, 475 A.2d at 133. Therefore, a service person’s domicile is presumed not to change from that person’s domicile at the time of enlistment. Boswell v. South Carolina Insurance Company, supra; Zinn v. Zinn, supra. Additionally, the fact that the service person is on active duty outside of Pennsylvania during the requisite six-month period is of no consequence. McCauley v. McCauley, supra. “Military service supplies the one exception to the rule requiring residence within the Commonwealth for at least [six months].” McCauley v. McCauley, supra (citing Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938)). Military personnel may acquire a new domicile, however, if the circumstances demonstrate an intent to abandon the original and adopt the new domicile. Wallace v. Wallace, supra at 410, 89 A.2d at 771; Boswell v. South Carolina Insurance Company, supra (citing Zinn v. Zinn, supra).

“Thus, ‘it seems that a person’s domicile is increasingly being determined by close scrutiny of his subjective intentions or state of mind as to whether or not he considers a particular place to be his home.’ ” Scoggins v. Scoggins, supra at 524, 555 A.2d at 1823 (quoting McKenna v. McKenna, 282 Pa.Super. 45, 50, 422 A.2d 668, 670 (1980)). “Therefore, ‘[ijntent, being purely subjective, must to a large extent be determined by the acts which are manifestations of the intent.’” Scoggins v. Scoggins, supra, (quoting Wallace v. Wallace, supra at 409, 89 A.2d at 771).

The record reveals that both parties were born in the Commonwealth of Pennsylvania. Husband attended grade school, high school, and college in Pennsylvania. Upon entering the military, Husband selected his parents’ address of Ivyland, Bucks County, Pennsylvania, as his legal home of record. The parties were married in Pennsylvania and resided in the Commonwealth until Husband was called to active duty. Both parties have retained Pennsylvania drivers’ licenses, and neither party has ever secured a license from any other state, and specifically not from Maryland. In 1992, both parties registered to vote and voted for the first time in Pennsylvania. Neither party has voted or registered to vote in any other state, and specifically not in Maryland. Finally, we note that the parties’ son received an in-state tuition rate at a Pennsylvania state college based solely on the documentation of Husband’s “permanent home-of-record” as Pennsylvania.

The trial court placed great reliance on the fact that the parties had purchased a house and had been residing in Maryland for fifteen years at the time of separation. Trial Court Opinion, April 20, 1995, at 3. The court noted that the parties’ motor vehicles were all registered in Maryland and insured under a Maryland policy. The parties also maintained bank accounts in Maryland and listed the Maryland address on their 1993 Federal Income Tax Return. Because there is no question that Husband resided in Maryland for the majority of time between 1979 and 1994, the sole issue is whether Wife has demonstrated by clear and convincing evidence that Husband had the requisite intent to relinquish his Pennsylvania domicile and establish a new domicile in Maryland. See Wallace v. Wallace, supra at 407, 89 A.2d at 770. We conclude that Wife has failed to meet that burden. See Nixon v. Nixon, 329 Pa. at 268-69, 198 A. at 160-61 (holding that serviceman’s wife did not prove husband had relinquished his Pennsylvania domicile to establish a new domicile in Washington, D.C., even though he had purchased a house in Washington, paid taxes to the District of Columbia, and obtained a District of Columbia driver’s license).

While marital residence is a factor, it is only one of many considerations taken into account when determining domiciliary intent. See Wallace v. Wallace, supra; Nixon v. Nixon, supra; McLarin v. McLarin, supra; Zinn v. Zinn, supra. This is especially true in cases involving military persons when coupled with the presumption that the person does not relinquish his home of record merely by purchasing a house off-base from his station. See Nixon v. Nixon, supra.

After weighing all of the evidence on both sides of the equation, we conclude that Husband did not intend to abandon his Pennsylvania domicile when he purchased and lived in the Maryland residence. Nor has Wife proven by clear and convincing evidence that it was Husband’s intent to establish a new domicile in Maryland. Therefore, we hold that Husband’s domicile remains in Pennsylvania contrary to the trial court’s erroneous finding that Husband had acquired a new domicile in Maryland. Moreover, we hold that the Court of Common Pleas of Bucks County has subject matter jurisdiction over Husband’s complaint in divorce pursuant to 23 Pa.C.S.A. § 3104.

Because the trial court did not address the remaining issues in Wife’s preliminary objections, nor do we reach the merits of those issues here, we must reverse and remand this case to the trial court for proceedings consistent with this opinion.

Keversed and remanded. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting opinion.

Because I find no error in the trial court order sustaining Wife’s preliminary objections and dismissing Husband’s complaint, I must respectfully dissent.

When this Court is reviewing the factual determinations of the trial court, it is well-established that “it is not within our province to find facts or to substitute our judgment for that of the trial court.” Hodges v. Rodriguez, 435 Pa.Super. 360, 366, 645 A.2d 1340 (1994). In addition, the determination that a person intends to establish a new domicile can only be made by evaluating his actions which manifest that intent. Scoggins v. Scoggins, 382 Pa.Super. 507, 523, 555 A.2d 1314, 1323 (1989).

The Honorable Judge Michael J. Kane received testimony and reviewed the transcripts of testimony taken in the Maryland proceedings and made the following findings of fact: First, Husband has been in the military since 1970. Husband and Wife purchased their Maryland home in 1979, and they have owned that residence for fifteen years. While Husband was stationed in Maryland and Virginia, the parties lived in that home. Even when Husband was transferred out of the country, the parties retained ownership of the home, and they returned to it when Husband was reassigned to a nearby post. In addition, throughout that fifteen-year period, Husband and Wife have maintained Maryland bank accounts, and they have registered and insured their automobiles in Maryland. The parties also listed the Maryland home as their residence with the IRS, and consistently maintained the Maryland address as their residence on all other correspondence. Finally, the trial court noted that, during the marriage Husband voted once in Carlisle, Pennsylvania and he conveniently changed his voter’s registration to Bucks County on the day of the initial divorce hearing in Bucks County. Based upon these factual findings, Judge Kane concluded that Husband had changed his domicile from Pennsylvania to Maryland sometime after the parties purchased their home in 1979.

The Majority, however, quickly disregards these factual findings. Instead, the Majority reviews the same record and concludes that Husband has not abandoned his Pennsylvania domicile. In reaching this determination, the Majority focuses on the fact that Husband attended grade school, high school, and college in Pennsylvania, and the fact that the parties were married in Pennsylvania. Further, neither party has a Maryland driver’s license, nor has either party ever voted in Maryland. Finally, the Majority finds support in the fact that the parties’ son attends a Pennsylvania college with an in-state tuition rate. In my view, an evaluation of Husband’s actions as evidenced by these facts does not compel the conclusion that he intended to retain a Pennsylvania domicile. First, both Husband’s schooling and the parties’ marriage occurred before 1979, the date that they purchased the Maryland home. Also, the Pennsylvania driver’s license has been renewed by mail and lists the Maryland address, thus sparing the parties the inconvenience of taking another driving test. Also, I cannot conclude that one instance of voting in Pennsylvania, while Husband was stationed in this state, proves that Husband intended to re-affirm his Pennsylvania domicile. Finally, the son has obtained in-state tuition solely based upon Husband’s army records. The college did not independently investigate the son’s actual domicile. If it had, it likely would have concluded, as I have, that the entire family is domiciled in Maryland, their home of the last fifteen years.

Moreover, the Majority relies on dicta in a 1938 decision, Nixon v. Nixon, 329 Pa. 256, 198 A. 154, to support its conclusion that Wife did not meet her required burden of proof to establish that Husband intended to change his domicile. I find this reliance to be misplaced. The court in Nixon was not convinced that husband had changed his domicile based upon the fact that he had purchased a house outside the state. However, the parties in that case did not have the long history that Vincent and Kathryn Bernhard have established of returning to their Maryland home several times over a long period, coupled with the additional facts as found by the trial court and listed above. I am concerned that in reaching its conclusion the Majority has simply substituted its judgment for that of the trial court by placing greater emphasis on extraneous facts. This is not the proper function of this Court. Hodges, supra.

The Majority fails to explain how Judge Kane has committed error in his analysis or in reaching his conclusion that Husband has changed his domicile. Judge Kane found that the established facts clearly support the conclusion that Husband intended to establish a new domicile in Maryland and abandon his former one in Pennsylvania. After evaluating the trial court’s factual findings to determine whether Husband intended to establish a new domicile, and finding support for those findings in the record, I would agree with Judge Kane’s conclusion. Accordingly, I would hold that the trial court did not err in sustaining Wife’s preliminary objections and dismissing Husband’s complaint. Hence, this dissent.

      . We have reviewed this issue without the benefit of a brief on Wife's behalf.

      . Wife also alleges 1) that the trial court does not have in personam jurisdiction based on improper service; 2) improper venue; 3) forum non conveniens; 4) failure of the complaint to conform to the rules of court; and 5) failure to plead with the required specificity.


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    668 A.2d 552
    COMMONWEALTH of Pennsylvania, Appellee, v. Darnella GIBSON, a/k/a Tasha Davis, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1995.
    Filed Dec. 6, 1995.

      Timothy J. O’Connell, Harrisburg, for appellant.
    Richard E. Guida, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Dauphin County, following appellant’s conviction on one count of criminal conspiracy to commit retail theft. In this case of first impression, we are asked to determine whether appellant’s sentence for criminal conspiracy which was enhanced pursuant to 18 Pa.C.S.A. § 3929(b)(l)(iv), was legal where the Commonwealth failed to allege appellant’s prior retail theft convictions in the information. Appellant also claims that the evidence was insufficient to sustain her conviction. While we find that the evidence was sufficient, we agree with appellant that her sentence is illegal, and we remand for resentencing.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495, 478 A.2d 1286, 1288; Commonwealth v. Peduzzi, 338 Pa.Super. 551, 554-556, 488 A.2d 29, 31-32 (1985).

Applying the afore-mentioned standard, we find that the record reveals the following facts: During the early afternoon hours of March 14, 1994, appellant and Wendall Murray were in the GAP clothing store at the Harrisburg East Mall. When store manager Mia Farrell asked appellant and Murray if they needed any assistance, they declined and walked to the back of the store. Ms. Farrell later suspected the two might be shoplifting because appellant and Murray remained in the back of the store for an extended period of time.

Later, Ms. Farrell again approached appellant and Murray and asked if they needed assistance, and appellant declined again. Nevertheless, Ms. Farrell attempted to show appellant and Murray some clothing, and Murray then stated that he was looking for an orange sweatshirt. Ms. Farrell directed him to the front of the store where that product was located. As Ms. Farrell attempted to escort them to the front of the store, both appellant and Murray attempted to remain behind Ms. Farrell. While headed to the front of the store, Ms. Farrell overheard appellant tell Murray that Ms. Farrell was “on to them.” See, Trial Transcript, p. 11.

After appellant’s warning to Murray, Ms. Farrell noticed that Murray had a large bulge under the back of his jacket, and she asked appellant and Murray “if they would like to pay for those items?” Appellant and Murray responded that they did not have any merchandise and then immediately ran from the store and mall. Appellant and Murray were pursued by two off-duty police officers who were working as security guards for the Hess store at the mall. Appellant and Murray then fled from the mall parking lot in Murray’s car, and the two were subsequently arrested by the Susquehanna Township police. Appellant and Murray possessed two pairs of black jeans and three sweat shirts from the GAP store at the time of their arrest.

Herein, appellant contends that her mere presence with Murray during the theft is insufficient to sustain her conspiracy conviction. In the case of Commonwealth v. Tillery, 417 Pa.Super. 26, 29-31, 611 A.2d 1245, 1247-1248 (1992), appeal denied, 532 Pa. 663, 616 A.2d 984, we address the same issue as follows:

In the present case, appellant was convicted of conspiracy to commit retail theft. The crime of conspiracy is set forth in 18 Pa.C.S. § 903, which states:
(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the interest of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

We stated previously:

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, [265 Pa.Super. 494, 402 A.2d 546 (1979)]. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra, Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958).
Commonwealth v. Volk, 298 Pa.Super. 294, 300-01, 444 A.2d 1182, 1185 (1982); see also Commonwealth v. Lanager, 360 Pa.Super. 578, 521 A.2d 53 (1987); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983).
Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred....
Commonwealth v. Olds, 322 Pa.Super. 442, 447-48, 469 A.2d 1072, 1075 (1983), quoting Commonwealth v. Lamb, supra, see also Commonwealth v. Grekis, [411 Pa.Super. 494, 601 A.2d 1275 (1992)] supra.

In the present case, it was established that appellant and Murray entered the store together and remained together throughout the entire criminal episode. Appellant was overheard telling Murray that Ms. Farrell was “on to them.” When confronted about the theft, appellant and Murray fled the store together and drove away together in Murray’s car. When arrested by the police, appellant and Murray possessed five articles of clothing from the GAP store. We are convinced such evidence was more than sufficient to sustain appellant’s conviction for conspiracy to commit retail theft. Circumstantial evidence clearly established that appellant knew Murray had secreted the clothing under his coat, and she assisted Murray in his attempt to avoid apprehension. Cfi, Tillery, supra (evidence was sufficient to sustain conviction for conspiracy to commit retail theft; defendant and nephew acted in concert, defendant had knowledge of commission of crime since he viewed it, defendant was present at scene, and he participated in his nephew’s actions by driving the getaway car).

Next, appellant contends her sentence is illegal. Appellant argues that pursuant to Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979), the Commonwealth needed to set forth her prior convictions for retail theft in the criminal information in order to permit the court to impose an enhanced sentence under 18 Pa.C.S.A. § 3929(b)(l)(iv), which provides that “Retail theft constitutes a ... [fjelony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.” On the other hand, the lower court held that the Commonwealth did not need to allege appellant’s prior convictions for retail theft in the information to impose the enhanced sentence since appellant was actually convicted of criminal conspiracy, 18 Pa.C.S.A. § 903, not retail theft graded as a felony of the third degree, 18 Pa.C.S.A. § 3929(b)(l)(iv).

Central to resolution of this issue is 18 Pa.C.S.A. § 905(a) which, in pertinent part, provides that “conspiracy [is a crime] of the same grade and degree as the most serious offense which is ... an object of the conspiracy.” Thus, we are presented with the question of whether appellant’s conspiracy to commit retail theft conviction should have been graded as a felony of the third degree under 18 Pa.C.S.A. § 3929(b)(l)(iv).

Clearly, if appellant had been charged with retail theft rather than criminal conspiracy, her crime could not have been graded as a felony of the third degree since the Commonwealth failed to aver appellant’s prior retail theft convictions in the information or indictment. Commonwealth v. Herstine, 264 Pa.Super. 414, 416, 399 A.2d 1118, 1119 (1979); Longo, supra; see also, Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970). As we have previously noted, a “recidivist statute” (like that of retail theft) conditions the imposition of an enhanced sentence upon an indictment or information containing averments of prior convictions. Herstine, supra. The rationale being, “[s]inee a second [or third] offense [under the retail theft statute] carries a greater penalty than a first offense, it ‘is different in kind and character from a first offense.’ Hence, an indictment [or information] must plead the particular characteristics which distinguish it from the first offense.” Herstine, 399 A.2d at 1119 (Citations omitted).

While the evidence of prior offenses are not substantive elements of the crime of retail theft and need not be proven until the sentencing phase of the proceedings, Commonwealth v. Harvin, 346 Pa.Super. 575, 581, 500 A.2d 98, 101 (1985), citing Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981), the information must contain allegations of two or more prior conviction for retail theft to put the defendant on notice that she may be sentenced for a felony of the third degree. Harvin, 500 A.2d at 101; Longo, supra.

Since the penalty for a conspiracy conviction was based upon the grade of the underlying offense of retail theft, we hold that the Commonwealth was required to aver appellant’s prior retail theft convictions in the information in order to empower the lower court with the authority to enhance her sentence. Since the Commonwealth did not plead appellant’s prior convictions she was not put on legal notice that, if convicted, she could be sentenced for a felony of the third degree. Cf., Harvin, supra (Commonwealth must aver prior convictions for retail theft in information in order to enhance sentence).

While we recognize that appellant was actually charged with criminal conspiracy and not retail theft, we do not agree with the lower court’s conclusion that Longo, supra, and its progeny are inapposite. Rather, this is a distinction without a difference because the penalty for conspiracy is based entirely upon the grade of the underlying offense. 18 Pa.C.S.A. § 905. We see no reason why the Commonwealth should be permitted to avoid providing appellant with proper notice of the grading of the crime charged when she is charged with conspiracy rather than its underlying crime. In this case, the criminal conspiracy statute was applied as a “recidivist statute” without the Commonwealth providing the appropriate notice of the correct, enhanced grading of the offense. Thus, appellant’s sentence is illegal. Accordingly, we vacate appellant’s sentence and remand for imposition of sentence pursuant to 18 Pa.C.S.A. § 3929(b)(l)(i).

Judgment of sentence reversed, and case remanded for resentencing. Jurisdiction relinquished.

      . The Commonwealth did not allege the value of the stolen goods in the information or criminal complaint. Thus, we must assume the value of those good were less than $150.00, and the correct grade of the crime is a summary offense under 18 Pa.C.S.A. § 3929(b)(l)(i). See, Commonwealth v. Dodge, 410 Pa.Super. 189, 599 A.2d 668, 672 (1991); Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980).


author: BECK, Judge.

text:
    668 A.2d 557
    WINTHROP & CO., INC., Appellant, v. Martin MILGROM, Ye Olde Cleanery, Inc., M & E Corp.
    Superior Court of Pennsylvania.
    Argued April 19, 1995.
    Filed Dec. 6, 1995.

      Jeffrey H. Brahin, Doylestown, for appellant.
    Jerome Brown, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge.

We address whether a claim for a commission for the sale of a business and related real estate is defeated by the Real Estate Licensing and Registration Act, 68 P.S. §§ 455.101— 455.902 (the “RELRA”), because the claimant is not a licensed real estate broker. We conclude that the trial court could not properly determine at the demurrer stage of the proceedings . that appellant’s claim was precluded by the RELRA, and we therefore reverse and remand for further proceedings.

Because this appeal is from an order sustaining a demurrer, we must accept as true all well-pleaded facts contained in the complaint together with every reasonable inference which may 'be drawn therefrom. Preiser v. Rosenzweig, 418 Pa.Super. 341, 346, 614 A.2d 303, 305 (1992), aff'd, 538 Pa. 139, 646 A.2d 1166 (1994); Wojciechowski v. Murray, 345 Pa.Super. 138, 140, 497 A.2d 1342, 1343 (1985).

The facts alleged in the complaint establish that in November, 1989, appellant, Winthrop & Co., Inc., a Pennsylvania corporation, entered into an agreement (the “Agreement”) with appellees: Ye Old Clean’ry, a corporation operating a cleaning business; M & B Corp., a corporation which owned the real estate upon which Ye Old Clean’ry operated; and Martin Milgrom, an officer and shareholder of both corporations. Under the terms of the Agreement, appellant was to act as

exclusive broker in the possible sale, merger, consolidation or other business combination in me or a senes of transactions involving all or a portion of the business, stock or assets (“Transaction”) of Ye Old Cleaner [sic], Inc. and the related real estate ... owned by M & B Corp. (jointly known as the “Company”).

Complaint, Exhibit A at 1 (emphasis added). The Agreement further provided that “[a]s compensation for the sendees to be provided by Winthrop under the terms of this agreement, upon consummation or closing of a Transaction, the Company agrees to pay to Winthrop a transaction fee equal to $100,000.” Id. Under the terms of the Agreement, either party could terminate the Agreement upon 90 days’ written notice to the other. The Agreement was reduced to writing in an engagement and indemnification letter sent by appellant’s chairman to Martin Milgrom, who countersigned the letter denoting agreement to and acceptance of its terms.

Beginning in November 1989 and continuing through 1993, appellant, with the knowledge and consent of the appellees, sought out and presented to appellees prospective purchasers of the business. During this period, appellant introduced Mr. Sang Park to the appellees as a potential buyer, and in June 1993, Park and/or a related entity acquired Ye Old Clean’ry and/or M & B. Neither party had terminated the Agreement prior to this acquisition. Appellees did not pay appellant the $100,000 compensation provided for in the agreement.

Upon appellees’ failure to pay the $100,000, appellant brought this action sounding in breach of contract and unjust enrichment. Appellees filed preliminary objections contending, inter alia, that appellant’s complaint failed to state a cause of action since the plaintiff was not a licensed real estate broker as required pursuant to the RELRA. The trial court found that appellant acted as a real estate broker in the context of the transaction at issue and that appellant had therefore violated the RELRA, which requires all entities acting as real estate brokers to be licensed. The trial court therefore concluded that pursuant to the RELRA, appellant could not be compensated for its services.

In our review of this matter, we are mindful that

preliminary objections should be sustained “only where it appears, with certainty, that the law permits no recovery under the allegations pleaded.” Gallagher v. City of Philadelphia, 142 Pa.Commw. 487, 491, 597 A.2d 747, 748 (1991).

Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, 495, 644 A.2d 188, 190 (1994). Our task is thus to determine whether the facts pleaded in the complaint, together with all reasonable inferences arising therefrom, can possibly state a cause of action permitting recovery. Id. (citing Van Mastrigt v. Delta Tau Delta, 393 Pa.Super. 142, 147-48, 573 A.2d 1128, 1130 (1990)).

The RELRA provides that

It shall' be unlawful for any person, directly or indirectly, to engage in or conduct, or to advertise or hold himself out as engaging in or conducting the business, or acting in the capacity of a broker ... within this Commonwealth without first being licensed or registered as provided in this act____

63 P.S. § 455.301. The Act also precludes recovery of compensation by any person who acts in violation of its provisions:

No action or suit shall be instituted, nor recovery be had, in any court of this Commonwealth, by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act by a person other than a licensed broker ... unless such person was duly licensed and registered hereunder as broker ... at the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service.

63 P.S. § 455.302. A “broker” is defined in the Act as

Any person who for another and for a fee, commission or other valuable consideration:
(1) negotiates or aids any person in locating or obtaining for purchase, lease or acquisition of interest in any real estate;
(2) negotiates the listing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for any real estate;
(3) manages or appraises any real estate;
(4) represents himself as a real estate consultant, counsellor, house finder;
(5) undertakes to promote the sale, exchange, purchase or rental of real estate: Provided, however, That this provision shall not include any person whose main business is that of advertising, promotion or public relations; or
(6) attempts to perform any of the above acts.

63 P.S. § 455.201.

These provisions, which are substantially similar to those of the RELRA’s predecessor act, the Real Estate Brokers License Act, have been construed by our appellate courts “as precluding any recovery of a commission, fee, or other consideration by anyone who without a license acts as a broker in a transaction involving real estate.” Burke v. Israel, 264 Pa.Super. 286, 290, 399 A.2d 779, 781 (1979) (discussing provisions of Real Estate Brokers License Act) (citing Verona v. Schenley Farms Co., 312 Pa. 57, 167 A. 317 (1933); Harrison v. Soffer, 221 Pa.Super. 275, 289 A.2d 752 (1972); Alford v. Raschiatore, 163 Pa.Super. 635, 63 A.2d 366 (1949)). Moreover, because section 455.302 of the RELRA prohibits institution of a suit for compensation by an unlicensed person for a transaction prohibited by the Act, a demurrer may be granted' if, as a matter of law, the facts alleged in the complaint clearly bring the matter within the scope of the RELRA and the plaintiff has not pleaded the fact of licensure in accordance with the Act. See Burke v. Israel, supra 264 Pa.Super. at 293, 399 A.2d at 783 (discussing similar provision of Real Estate Brokers License Act).

In this case, it is clear that appellant has not pleaded that he possessed a license pursuant to the RELRA at the time the transaction in question took place. However, it is not clear based on the facts asserted that the transaction or a portion of the.transaction for which compensation is sought fell within the scope of the RELRA as a matter of law. The Agreement provided that the sale could take place in “one or a series of transactions” involving “all or a portion of the business, stock or assets ... and the related real estate.” Accordingly, we must conclude that the trial court committed an error of law in granting appellees’ demurrer.

It is true, as the trial court noted, that this court has held that the RELRA applies to bar an action for compensation for the transfer of an interest in real estate even if the real estate transfer occurred in the context of a transaction which also involved the sale of a business or other assets. Burke v. Israel, supra (sale of coal interests and lease of related real estate); Alford v. Raschiatore, supra (sale of restaurant business and real estate on which it was located); Burns v. Gartzman, 139 Pa.Super. 453, 11 A.2d 708 (1939)(sale of bakery business and lease of related real estate). However, we have also held that a commission in connection with the sale of a business is not precluded, even if the same purchaser also purchased related real estate, where the sale of the assets occurred in a separate transaction from the sale of the real estate and where plaintiff sought compensation only for the transfer of the business, not for the sale of the real estate. Schoenfeld v. Meckes, 166 Pa.Super. 101, 70 A.2d 377 (1950)(plaintiff could recover compensation based solely on sale of business where sale of business was separate from sale of real estate to same buyer). Further, neither this court nor our supreme court has spoken directly to the issue of whether, in a single transaction involving the transfer of both real estate and other business assets, a plaintiff may recover compensation based solely upon the sale of the business assets.

It remains unsettled as a matter of law whether a claim for compensation based on a sale of business assets is severable from a claim for compensation based on a transfer of related realty occurring in the same transaction. However, we need not decide this unsettled question of law in the context of this appeal. At this stage of the proceedings it has not been established whether a transfer of an interest in real estate actually occurred or whether appellant’s claim for compensation is based in whole or in part upon such a transfer.

If appellant is asserting the severability of the transaction, or if appellant is asserting separate transactions involving the business and the real estate, modern business practices would support recovery by appellant of compensation in whole or part. First, the rationale underlying statutes such as the RELRA was the protection of the public and the prevention of fraud. See Verona v. Schenley Farms Co., supra, 312 Pa. at 64-65, 167 A. at 320. The statute was enacted for the benefit of the average consumer who entered into an isolated transaction involving residential real estate or the transfer of a small business and was not designed to apply to the interactions of business persons who regularly deal with complicated stock and asset transfers. See note 4, infra. Business transactions today frequently include the transfer of the stock and assets of a business which may include real estate. In many cases the transactions are arm’s length ones between sophisticated parties who are not in the class the statute was enacted to safeguard. Knowledgeable professionals who make a living in the complicated and risky world of buying and selling businesses are not the intended beneficiaries of the RELRA and should not be able to avoid obligations they knowingly assumed based on the fact that a particular asset transfer happened to include real estate.

We find persuasive the comments of the U.S. Court of Appeals for the Third Circuit in discussing the purposes behind the RELRA and their application to sophisticated business transactions:

The Pennsylvania legislature’s intent in passing the [REL-RA] was simple and abundantly clear. The goal of the Act was emphasized in its legislative history. The legislators indisputably expressed the design and goal of the act to be the exclusion of unscrupulous, incompetent, untrained, and insolvent tradesmen from the real estate trade. The regulatory scheme in general, including the denial of commissions to unlicensed brokers in particular, can be viewed as the legislators’ commitment to preventing brokers and their employees from gouging, exploiting, and abusing ordinary consumers: the buyers and sellers of homes, condominia, and the like.
In our perception, the evils that the Act were [sic] designed to thwart can have little application to commercial transactions that involve the sale of stock of an entire enterprise, even though the company’s assets may include some real estate.

Gruber v. Owens-Illinois Inc., 899 F.2d 1366, 1373-74 (3d Cir.1990). The Gruber court’s holding was specifically applicable to whether a commission could be recovered for a sale of all of the stock of a corporation whose assets included real estate. However, the Gruber court’s statement regarding the purposes underlying the RELRA is equally applicable to other transactions involving the sale of assets including real estate in a sophisticated transaction.

Here, the Agreement between the parties contemplated the possible sale of both the business assets and the real estate owned by appellees. However, the Agreement provided that such sale could take place in “one or a series of transactions” involving “all or a portion of the business, stock or assets ... and the related real estate.” The Agreement also provided that appellant would be due compensation “upon consummation or closing of a Transaction.” The parties’ Agreement clearly contemplated that disposal of appellees’ property might take place in more than one transaction involving one or a number of buyers, and also permitted compensation for a transaction involving less than all of the property owned by appellees. Further, appellant’s complaint sought compensation based only upon the fact that a transaction covered by the Agreement had taken place and did not base the claim for such compensation upon a transfer of realty. Since the Agreement’s terms could entitle appellant to compensation for a transaction not prohibited by the RELRA and since appellant’s complaint did not establish that a prohibited transaction was the basis of its claim, the court erred in granting the demurrer. See Al Hamilton Contracting Co. v. Cowder, supra; Schoenfeld v. Meckes, supra.

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The trial court also found that in contracting to perform the services outlined in the agreement, appellant "represented itself as real estate broker.” Trial Court Opinion at 2. This finding is clearly erroneous based on the record developed to this point. Nothing in either the Agreement or appellant’s complaint supports a finding that appellant at any time represented to appellees either orally or in writing that it was qualified as a real estate broker. Rather, appellant’s letterhead indicates that its business is mergers and acquisitions. Moreover, the Agreement, to the extent that it dealt with a transaction involving real estate, clearly dealt with such real estate only as part of the assets which might be included in a potential sale of the subject businesses. Nothing in the agreement suggests that appellant offered its services in connection with the sale of any real estate other than that subsumed within the scope of the businesses covered by the Agreement.

      . Although the trial court cited to the Real Estate Brokers License Act, 63 P.S. §§ 431-448, which was repealed in 1980 and thus was inapplicable to this case, the pertinent provisions of the RELRA, 63 P.S. §§ 455.101-455.902, are in all material respects substantially the same as those of the repealed act.

      . In Burns v. Gartzman, supra, this court overturned a judgment in favor of plaintiff for an amount representing a 5% commission on the sale of business assets plus the commission established by the Philadelphia Real Estate Board for the lease of the related real estate. However, it does not appear that plaintiff in that case argued that he was entitled to recover the 5% commission on the non-real assets even if the commission on the transfer of the real estate was unrecoverable under the Real Estate Brokers License Act, and the superior court opinion did not address that issue. In both Burke v. Israel, supra, and Alford v. Raschiatore, supra, plaintiffs demanded commissions which were based upon the transfer of the interest in real estate.

      . To support its rationale, the Gruber court made reference to the legislative debate in connection with RELRA. See, 163 Leg-is.Jrnl.Comm. of Pa. 2642-44, 2649-55 (1979) (comments by Rep. Wilson on preventing “fraud, misrepresentation, deceit” — at 2643; Rep. Murphy on preventing "rip off artists” and fraud in “Florida [type] land sales ... where people have purchased property and . . . might arrive at the site ... and find there are no roads, no sewerage, no water” — at 2649; Rep. Dorr on ensuring that all employees of real estate agencies representing themselves as agents or brokers be licensed — at 2652; Rep. Earley urging that the legislation ban realtor discrimination against minorities and the handicapped — at 2655) cited in Gruber, supra at 1373 n. 9. The Gruber court also noted that these same purposes animated the predecessor act, 63 P.S. § 431 et seq., enacted in 1929. See, Comment, Pennsylvania Real Estate Licensing Act of 1980, 54 Temple L.Q. 806, 810-12 (1981) cited in Gruber, supra at 1373 n. 9.


author: CIRILLO, Judge.

text:
    668 A.2d 561
    Richard P. MUSKO, Appellant v. Naomi B. MUSKO.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1995.
    Filed Dec. 18, 1995.

      Leo M. Stepanian, Butler, for appellant.
    Michelle D. Blackwell, Butler, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge.

Richard P. Musko (Husband) appeals from a judgment entered in the Court of Common Pleas of Butler County directing Husband to pay all monies in arrears based on a prior alimony pendente lite (APL) order. We affirm.

Husband and Wife executed a prenuptial agreement on January 4, 1991, the day before their marriage on January 5th. The agreement provided, in part, that “[Wife] shall not be entitled to receive any money or property or alimony or support because of the divorce or separation of the parties hereto[.]” The parties separated in May of 1991 and Husband filed for a divorce in March of 1992. Wife filed a petition for APL. Following a hearing, the trial court entered an order dated July 2, 1992 determining that the prenuptial agreement did not prohibit Wife from claiming APL, and scheduling a hearing to determine the appropriate amount. Husband appealed the July 2nd order. Upon Wife’s motion, the appeal was quashed as interlocutory.

On February 12, 1993, the trial court entered an order directing Husband to pay $1,800.00 per month in APL. Husband appealed from this order. Again, Wife filed a motion to quash, which was granted. The parties were divorced on May 12,1994.

On September 16, 1994, the trial court issued a memorandum opinion and order stating that the prenuptial agreement prevented Wife from pursuing further claims against Husband, and further directing Husband to pay to Wife the arrears arising from the previous order awarding APL. Husband appealed from this order. Wife filed a third motion to quash. This court denied the motion without prejudice, but permitted the motion to be renewed at the time of argument or the filing of an appeal. The motion has been renewed and, accordingly, we will dispose of such motion.

Wife claims that Husband was required to file a post-trial motion following the trial court’s February 12, 1998 order awarding APL and, without the required motion, the APL award has not been adequately preserved for appeal. The present appeal follows an order dated September 16, 1994, which was entered after the entry of the final divorce decree in May of 1994, and provides, in part:

The Court orders that [Husband] pay all monies presently in arrears, if any, based upon the prior alimony pendente lite order. All other claims pursuant to the divorce or support actions are dismissed.

Due to recent revisions in the rules of civil procedure (effective July 1, 1994), no post-trial motions were required of Husband following this order. See Pa.R.C.P. 1920.52(b). Amended Rule 1920.52(b) specifically precludes the filing of post-trial motions with claims involving APL. A notice of appeal was filed on October 6, 1994. In light of the amended rule, we decline Wife’s invitation to find that Husband has failed to preserve the APL issue. Because the trial court’s final disposition of this case occurred after the new rule went into effect, Husband cannot be faulted for not filing post-trial motions. We deny Wife’s motion to quash, and will address the merits of Husband’s appeal.

Husband raises the following issues for our consideration:

' (1) Did the trial court commit an error of law in failing to recognize that the Divorce Code defines both “alimony” and “alimony pendente lite” as an order for “support,” which said support was waived by Wife in the prenuptial agreement?
(2) Did the trial court commit an error of law in holding that Wife’s waiver of support and alimony does not constitute a waiver of alimony pendente lite contrary to the provisions of a prenuptial agreement which specifically stated that Wife “shall not be entitled to receive any money or property or alimony or support because of the divorce or separation of the parties hereto?”

The trial court specifically found that the terms of the prenuptial agreement excluded support and alimony, but that the agreement did not preclude Wife from obtaining APL. We agree. The disputed language in the agreement, as stated above, provides: “[Wife] shall not be entitled to receive any money or property or alimony or support because of the divorce or separation of the parties hereto[.]” (emphasis added).

Husband argues that the trial court failed to recognize that an order for support, whether alimony or APL, is precluded by the agreement and, further, that a mere difference between the purposes of alimony and APL is not dispositive of the issue at hand.

A prenuptial agreement is a contract, Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), and, where the language of a contract is clear and unambiguous, the express language of the contract controls. Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624 A.2d 638 (1993); Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11 (1990). To determine the intent of the parties, it is necessary to look to the four corners of the document — the express language of the contract. See Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Gianni v. Russel & Co., Inc., 281 Pa. 320, 126 A. 791 (1924). “Moreover, specific provisions ordinarily will be regarded as qualifying the meaning of broad general terms in relation to a particular subject.” In re Alloy Manufacturing Company Employees Trust, 411 Pa. 492, 495, 192 A.2d 394, 396 (1963); Cf. PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa.Super. 372, 378, 632 A.2d 903, 906 (1993) (where specific or exact terms appear to conflict with broader or more general terms, the specific terms are more likely to reflect the meaning of the parties, rather than the general language).

The prenuptial agreement at issue clearly precludes Wife from seeking “support” and “alimony;” “APL,” however, is not included in that exclusion. Husband’s argument that alimony and APL are both orders for “support,” and, therefore, that APL is precluded by the terms of the agreement, is not valid in light of the rules of contract law. In re Alloy, supra. The term “alimony,” which Husband concedes is a specific term by arguing that it is encompassed by the term “support,” serves to qualify the general terms of “support” and “money.” The specific provision “APL” does not, however, exist to qualify the general terms. Without an express mention of APL, the instant agreement cannot be read to bar Wife from receiving APL. We decline to assume that Wife was aware of, or agreed to, a waiver of APL. See Simeone, supra (where express language of agreement stated that APL was being relinquished, appellant was barred from receiving APL); Karkaria v. Karkaria, 405 Pa.Super. 176, 592 A.2d 64 (1991) (same); see also Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986) (noting that a provision in the Divorce Code which employed the term “alimony,” does not encompass APL).

Our conclusion that Wife is not precluded from claiming APL is additionally bolstered by the fact that support, alimony, and APL each serve distinct, unique purposes; the meaning of one does not subsume the definition of another. The law of this Commonwealth clearly distinguishes among alimony, support, and APL. “The purpose of an order of support is to assure a reasonable living allowance to the party requiring support.” Levine v. Levine, 360 Pa.Super. 297, 301, 520 A.2d 466, 468 (1987). “The duty to pay spousal support stems from the marital relationship itself and terminates upon the dissolution of the marriage.” McKeown v. McKeown, 417 Pa.Super. 520, 523, 612 A.2d 1060, 1061 (1992); see Levine, supra.

On the other hand, alimony pendente lite is awarded for the period between the entry of the divorce decree and the distribution of the marital property. The purpose of alimony pendente lite is to preserve economic equality between the parties pending the resolution of equitable division, thereby allowing the dependent spouse to maintain or defend the divorce action.

McKeown, 417 Pa.Super. at 523, 612 A.2d at 1061-62; see McNaughton v. McNaughton, 412 Pa.Super. 409, 603 A.2d 646 (1992); Levine, supra. APL is based on one spouse’s need to have equal financial resources to pursue or defend a divorce action when, in theory, the other spouse has major assets “which are the financial sinews of domestic warfare.” Spink v. Spink, 422 Pa.Super. 126, 130, 619 A.2d 277, 279 (1992). APL is not dependent upon the status of the parties, but upon the status of the litigation. Id.

Alimony, which is not available until after a divorce decree has been entered, ensures that the reasonable needs of the spouse who is not able to support himself or herself through appropriate employment, are met. Nemoto v. Nemoto, 423 Pa.Super. 269, 275, 620 A.2d 1216, 1219 (1993). Alimony is obtainable only where economic justice cannot be attained by way of an equitable distribution award and development of an appropriate employable skill. Id.

The trial court was correct in its interpretation that the terms of the agreement which prevent Wife from seeking alimony and support do not include APL. We conclude, therefore, that the trial court did not commit an error of law. Simeone, supra; Rusiski, supra.

Affirmed.

      . The order also vacated a temporary order enjoining Husband from evicting Wife. The trial court found that, by virtue of the prenuptial agreement, Wife had waived any claim to Husband’s real estate.

      . Prior to July 1, 1994, Pa.R.C.P. 1920.52 dictated that the practice and procedure of claims involving APL would be in accordance with Pa. R.C.P. 227.1 to 227.4, which in turn required that a party wishing to preserve his or her right to appeal must file post-trial motions within 10 days of the trial court's decision. Additionally, case law confirmed that Rules 227.1 through 227.4 applied to the granting of APL. See Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1985); Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983).

      . Pursuant to 23 Pa.C.S.A. § 3103, "alimony” and "alimony pendente lite” are defined as follows:
      “Alimony.” An order for support granted by this Commonwealth or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.
      “Alimony pendente lite.” An order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.

      . We note that Husband offers contradictory arguments to support his position. In the first part of his brief, Husband states that alimony and APL both constitute orders of "support." In a later portion, however, Husband argues that money, property, support and alimony are all general terms, and contends that “the term 'money' does not qualify ‘support or alimony' any more than 'property' qualifies those terms.”